'Vinter v UK - The Right to Hope and the Whole Life Tariff': Nicola Padfield

I’m here today to talk about the decision of the European Court of Human Rights in Vinter which was handed down on 9 July 2013. It has had quite a lot of press coverage: we were told that the Prime Minister "profoundly disagrees" with the decision. The Minister of Justice Chris Grayling also criticised the ruling. He said that “the authors of the human rights convention would be turning in their graves". As I shall try to explain I strongly disagree with that analysis.
The case is about whether it is lawful to tell a murderer at the time that they are sentenced that they will never be considered for release, what we call a ‘whole life tariff’. Some people (Mr Cameron, Mr Grayling it would appear) argue that some people commit crimes so heinous that they forfeit the right ever to be considered for release. They say that these people themselves are ‘so evil’ (whatever that actually means in legal terms), that they forfeit the right to be considered for release.
The starting point for the European Court of Human Rights is of course the Convention itself. Normally in prison release cases we are concerned with Article 5(4) which provides that everyone who is deprived of his liberty by arrest or detention shall be entitled to take proceedings by which the lawfulness of his detention shall be decided speedily by a court, and his release ordered if the detention is not lawful. But here the focus of the challenge to the lawfulness of the sentence is Article 3. Now Article 3 provides “No one shall be subjected to torture or to inhuman or degrading treatment or punishment.”

So, what is it about a whole life term that makes it inhuman? Perhaps what is most crucial in the decision of the European Court of Human Rights in Vinter is the point they make at paragraph 122, where they focus on the concept of “legal certainty” and I’ll read a few sentences from what the Court says at paragraph 122.

Where the sentence, on imposition, is irreducible under domestic law, it would be capricious to expect the prisoner to work towards his own rehabilitation without knowing whether, at an unspecified, future date, a mechanism might be introduced which would allow him, on the basis of that rehabilitation, to be considered for release. A whole life prisoner is entitled to know, at the outset of his sentence, what he must do to be considered for release and under what conditions, including when a review of his sentence will take place or may be sought. Consequently, where domestic law does not provide any mechanism or possibility for review of a whole life sentence, the incompatibility with Article 3 on this ground already arises at the moment of the imposition of the whole life sentence and not at a later stage of incarceration.

Now it seems to me quite appropriate to say that even a ‘whole life’ prisoner is entitled to know, at the outset of his sentence, what he must do to be considered for release and under what conditions, including when and where a review of his sentence will take place or might be sought. There is one partially dissenting judge, Judge Villiger (the judge from Liechtenstein) who disagrees with this point. In his opinion, it was too early to say that Article 3 comes into play as regards these particular applicants – one had served just over 5 years, another nearly 17 years, and the other, perhaps the most famous, Mr Bamber had served 27 years. Judge Villiger said that he thought he was approaching a borderline situation. To quote again, what Judge Villiger says is “bearing in mind the reasons for his conviction and sentence, i.e., multiple murders, I would consider that the justifications for detention have not (yet) shifted and that the primary justification for his detention, namely punishment, remains decisive”. But even this one dissenting judge agreed that a time would come when their sentences should be reviewable. I agree with the majority – 16 majority judges, that the law, legality, certainty requires that the system is known at the beginning.
Saying that these prisoners have a right to have their sentence reviewed is a million miles from saying that they should or would ever be released. I would encourage people who are worried that lifers come out too easily to study the Parole Board’s annual reports. Only a very small number of even those who have served the whole of the minimum term which the sentencing court has fixed are released every year. The Parole Board is very cautious when they take decisions to release. If a lifer hasn’t been tested in an open prison, if he or she isn’t supported by what might be called a robust release plan supported by his or her probation officer (or offender mangers as they are often described today), he won’t get out. Those who are released remain on license forever, and those who seriously worry their supervisors are swiftly recalled to prison, whether or not they are thought to be involved in re-offending.
In fact to my mind, more interesting in many ways than the decision in Vinter last week was the decision of the Supreme Court in Sturnham, also last week. That case is reported at [2013] UKSC 47 decision handed down on the 3rd July. This I think was a more difficult case: I think the Supreme Court was right to hold that the law allows a different test to be applied to the release of a prisoner than that which justified their life sentence in the first place. This case – the Sturnham Case - concerned a prisoner who got life or an indeterminate sentence, not because he was convicted of murder, but because he was deemed to be dangerous under the notorious Imprisonment for Public Protection IPP laws. No lifer is to be released until the Parole Board is satisfied that it is “no longer necessary for the protection of the public that the prisoner should be confined.”

This meant that in Mr Sturnham’s case, even long after he had completed his minimum term, and the Parole Board had concluded that he had made significant progress, but still presented a low risk of re-offending and a medium risk of serious harm, the Parole Board was right not to direct his release. This is I think correct on the law as it is today. But I would take issue with Lord Mance’s statement in the Supreme Court that “I see no inconsistency or incongruity in a scheme involving a higher initial threshold of risk for the imposition of a life sentence or a sentence of IPP, but requiring a somewhat lower risk to be established in order for the convicted offender to be eligible for release.”

I would say that I see plenty of inconsistency and incongruity in the way the system actually works today. I would argue that the Prison and probation system should be able to do a very great deal more to help prisoners reduce their risk of reconviction. I’d argue that there should be a clear burden of proof imposed on the state to establish that it is still necessary for the protection of the public that the post-tariff prisoner should be detained.

We are actually about to have a further decision of the Supreme Court in the cases of Osborn and Booth which will decide whether the Parole Board reaches the high standard necessary to constitute an independent court for the purposes of Article 5(4) of the European Convention. Again, I think the prisoners should win in that case: surely a prisoner should be entitled to an oral hearing before an independent court once they have served the punishment part of their sentence and are being detained simply because of the risk that they present to the public? My view is that it would also be cheaper in the long run to provide an effective review system.

But let’s go back to the Vinter decision, where the prisoners have been told that their crimes are so heinous that they will never complete the punishment part of their sentence. The politicians seem to think that the public are dismayed by the decision. Doubtless some are, some aren’t – especially not, if I may say so, the well-informed public. I would urge the politicians to listen and to lead a more informed debate. Why are they not interested in practice in other democratic civilized socieities, so well described by the European Court of Human Rights? One might add that the Government would have saved a lot of money if they had been prepared to allow for some form of review. Let’s go back to what Chris Grayling said about the European Convention on Human Rights authors turning in their graves. The founding fathers drew up some basic rules: The European Convention on Human Rights provides only the very basic, lowest common denominator, of human rights. The founding fathers in the aftermath of the second world war well understood the vital importance of respect for the rights of everyone, even the most unattractive or those at the margins of society. The European Court of Human Rights is most definitely not saying that people who have committed the most horrible crimes should be released after a certain amount of time. They are simply saying that the system should allow some form of review. I would say that should apply not only to those with whole life tariffs but those facing any very long tariff. Take the case of Nicola Edgington, who earlier this year was given a minimum term of 37 years for murder and attempted murder. Of course she is dangerous: she had in 2005 killed her mother, but she’d been released from hospital in 2009. At the time of the murder, she had begged the police and medical services to detain her as she felt that she was dangerous, was having a breakdown; and that she was being ignored. I am not saying when and if she should be released but I find it astonishing that a woman in her early thirties with a hugely complex background can be told that no-one will even review her case until she is 70 years old. What is wrong with regular reviews by a court to check that she is being progressed appropriately through the system with a view to possible reintegration into free society? The same goes to my mind with the three men in the Vinter case – surely a humane system allows for some form of possible review of their cases?