Earlier this month, in R v McLoughlin and Newell  EWCA Crim 188 the Court of Appeal ruled that ‘whole life’ terms for murder did not violate Article 3 of the European Convention on Human Rights, because (i) such a term was not ‘irreducible’ and (ii) the conditions for ‘reducibility’ were sufficiently certain. The Grand Chamber of the European Court of Human Rights had suggested recently in Vinter v UK (2013, Applications nos. 66069/09, 130/10 and 3896/10) that the power of the Secretary of State under section 30 of the Crime (Sentences) Act 1997 to release a life prisoner on ‘compassionate grounds’ justified by ‘exceptional circumstances’ was not a sufficiently certain mechanism for reducibility, and therefore gave rise to a violation of Article 3. There has been some typically good blogging on McLoughlin and Newell from Carl Gardner on his Head of Legal blog, and from Lyndon Harris on Halsbury’s Law Exchange.
McLoughlin and Newell turns on the willingness of the Court of Appeal to interpret the requirements of Article 3 in a different manner from that exhibited in the European Court of Human Rights, and to that extent is the latest contribution to the dialogue between the domestic courts and Strasbourg.
For the purposes of this post, I’m interested in a narrower issue, namely the extent to which there may be circumstances (i) which affect the justification for the continued detention of a prisoner serving a whole life term, and (ii) which may raise an issue under Article 3, but (iii) which may not properly be characterised as giving rise to ‘compassionate’ grounds for release.
In essence, my argument goes as follows:
- Section 30 of the 1997 Act offers some prospects for the release of prisoners sentenced to whole life terms
- Release under s. 30 may be on ‘compassionate grounds’ arising from ‘exceptional circumstances’
- Sentences of imprisonment require justification on ‘legitimate penological grounds’ (a phrase used in Vinter v UK (see eg, para 87) and the absence of such grounds can raise an Article 3 issue
- To seek release on the basis of an absence of legitimate penological grounds for continued imprisonment is not the same as to seek release on compassionate grounds
- Therefore, there may be Article 3-relevant reasons for releasing a whole life term prisoner which do not properly involve ‘compassionate grounds’ for release
I’ll flesh this out a little and try to consider some implications. Consider the person sentenced to a whole life term who makes ‘exceptional progress’ in prison – for the sake of argument, let’s assume that any rehabilitative work has been successful and that they pose no risk. The stated position of the Home Secretary from 1997 – when the Home Secretary was also responsible for setting the initial tariff in murder cases – was to be open to taking into account that exceptional progress when considering whether a reduction in the tariff was merited (see McLoughlin and Newell at ). The minimum term (ie, what used to be known as the tariff) in murder cases, including the determination that a whole life term is appropriate, is now of course a judicial matter following the Criminal Justice Act 2003. There is no judicial process for review of the minimum term itself.
So what are the prospects for ‘reducibility’ of the sentence of the whole lifer making exceptional progress? This is where s. 30 of the 1997 Act comes in. As noted above, this allows for release if the Secretary of State is satisfied that there are “exceptional circumstances exist which justify … release on compassionate grounds”. What is envisaged here is the release of a prisoner in, for example, terminally declining health. The relevant criteria in the Secretary of State for Justice’s guidance in the Indeterminate Sentence Manual (the Lifer Manual) illustrate that this is a power to be exercised sparingly and in extremis. In R v Bieber  1 WLR 223 Lord Phillips CJ noted (at , cited in McLoughlin and Newell at ) that while the s. 30 power to release was usually deployed only in relation, for example, to terminally ill or incapacitated prisoners, it could also be used “where the continued imprisonment of a prisoner is held to amount to inhuman or degrading treatment”. Lord Thomas CJ in McLoughlin and Newell (at ) suggests that following Bieber “the Secretary of State is bound to exercise his power under s.30 of the 1997 Act in a manner compatible with principles of domestic administrative law and with Article 3”, and that this formulation is sufficiently certain to meet the requirements of Article 3.
If a whole life prisoner who has made exceptional progress were to claim that they should be released, what would be the basis in principle for their claim? Section 30 of the 1997 Act provides for release on ‘compassionate grounds’: as I understand it, a prisoner who appeals to ‘compassion’ would accept that their imprisonment is prima facie justified, but would claim that there is something peculiar to their circumstances which should elicit institutional sympathy and lead to their release. On the other hand, a prisoner seeking release on the basis of ‘exceptional progress’ is claiming that the State no longer has sufficient justification to detain them, because the ‘legitimate penological grounds’ for their detention have fallen away. It is a mischaracterisation – and a morally significant mischaracterisation at that – to describe the release of such a prisoner as being on compassionate grounds. If I have made exceptional progress, such that the State can no longer justify my imprisonment, I will rightly feel morally short-changed if my release is described as ‘compassionate’.
Perhaps there are further arguments to be had about the meaning of s. 30; and the extent to which it can properly be construed as requiring compliance with Article 3 for reasons other than those involving the possibility of compassionate grounds for release. Assume that P, a whole life term prisoner, can demonstrate exceptional progress to the extent that the penological grounds which originally supported their detention are no longer sound. Bieber and McLoughlin and Newell suggest that P’s exceptional progress will be a relevant factor for the exercise of the s. 30 power, but I have suggested that that is conceptually and morally unsatisfactory. If s. 30 cannot properly accommodate all possible Article 3-relevant reasons for the review of a whole life term, then there is still an argument to be had about its compatibility.
Moreover, as a matter of constitutional norms, we might consider the exercise of compassion to be within the proper remit of the executive (consider the prerogative of mercy for example). However, the assessment of ‘legitimate penological grounds’ for detention sounds distinctly like sentencing – and hence much more like a judicial function. Notwithstanding the latitude recognised by the European Court of Human Rights in Vinter v UK in relation to the particular mechanisms which a State might put in place for review of whole life terms (see para. 120), the involvement of the executive in a non-compassionate ‘exceptional progress’ case – which is, in substance, a sentencing decision – would certainly be at odds with modern expectations of how constitutional labour should be divided.