Earlier this month, in R v McLoughlin and Newell [2014] 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 [7]). 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 [2009] 1 WLR 223 Lord Phillips CJ noted (at [48], cited in McLoughlin and Newell at [26]) 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 [29]) 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.
Crim Up North 
Hi Ben, interesting post. Crim law is not my area of practice, but I wanted to pick up on one part of your reasoning here (and because crim law is not my usual area, I acknowledge I might be missing the point).
You identified terminal illness and incapacity as examples that would attract release of compassionate grounds. I am wondering when these examples are considered in the abstract, that they represent substantial change in the attributes, status or qualities of the individual. The examples provided suggest some diminution or deterioration in those items, but why shouldn’t the same apply to substantial improvements in attributes, status or qualities? Is it different because the reduced qualities are extra-individually determined (fickle finger of fate), and the improvements are individually produced (self construction, self improvement, thereby “earning” release)?
I am not sure that compassion need be reserved for those upon which misfortune falls. I wonder if compassion can be synonymous with not only pity, but also mercy, empathy, consideration and humanity? In that context, if an individual made exceptional progress, could release be “considered” and humane? The notion of “raising up” one who shines appears in tales of compassion, empathy and humanity.
A problem I guess, is that these decisions are discretionary and lack certainty. Even if an individual makes exceptional progress, producing “goods” that “earn” (or can be traded for) release under the penalogical provision, is discretion excercised in valorising those goods?
Hi Kris – thanks very much for your interesting and thought-provoking comment. You have prompted me to do some more thinking about the meaning of compassion. My instinctive response is to say that what you are saying about ‘compassion’ is right: that it can be an appropriate concept in the relation to our dealings both with those who are suffering misfortune and with those whose ‘self-advancement’ we admire. I’m no etymologist, but insofar as the ‘com-‘ in compassion speaks to an idea of ‘with-ness’, that does not of itself mean that compassion need be confined to a sense of pity for an unfortunate other.
The hypothetical which was exercising me in the context of this post was prisoner P who makes exceptional progress to such an extent as to merit release, is released, but feels a sense of righteous indignation because the label attached to their release suggests that it was as an act of beneficence or goodwill on the part of the State. For me, in those circumstances, P should be able to claim that their release did not depend on beneficence, but was required, because the State can no longer justify their detention.
You are also right about the key role of discretion here, and this discretion is exercised in a context in which the various (and on one view incommensurable) aims of sentencing are in play – so exceptional progress may or may not trump the retributive component of a sentence. Indeed, in the context of whole life terms, notwithstanding that those prisoners have, in theory, the longest opportunity to make such progress, the demands of retribution are such that release is likely to be rare.
It is widely accepted that all sentences (including capital punishment) should be framed on the basis of three components: retribution, deterrence and rehabilitation. Your point looks solely at the last one of these. The other two are more concerned with society’s view of the offence(s) which have been committed, but they still form part of the penological justification for continuing to detain a prisoner. Therefore, if the court has reason to hand down a whole life sentence, one has to assume that it is because society expects the first two components to have additional weight. However worthy rehabilitation may be, progress in this area should not necessarily trump the other two factors. Indeed there have been many cases one could cite where early release (by which I mean release once the tariff has been met) in non whole life sentences have been found to be mistaken and the individual has murdered or committed some other very serious offence following release on licence. While this would automatically revoke the licence, in the mean time society’s notion of deterrence has suffered (along with the victim).
Article 3, on its face, really does not address these nuances, and assuming that member states of the Council of Europe do have a margin of appreciation in this area, then the national courts are the appropriate place to reflect their society’s expectations with regard to punishment and deterrence.
In other words, sentence = Daily Mail + Daily Mail + Guardian.
Thanks very much for your comment Andy. I agree with your analysis on the interrelationship of retribution, deterrence and rehabilitation. You are right about the strict demands of retribution which attend whole life term cases. ‘Exceptional progress’ of itself does not and should not necessarily trump the other legitimate aims of sentencing. Hypothetical prisoner P may be imprisoned on the basis of a heinous crime – and let’s say the victim is the only person against whom P has ever borne any kind of ill will. P may be a model prisoner who has no history of criminal or anti-social behaviour, and may be no risk to anybody else. However, society may rightly feel aggrieved if P’s early release undermines the proper demands of retribution. Of course, there is another layer of arguments about what the proper demands of retribution etc actually are, but I’m more interested in the structure of the argument here.
The national courts are a legitimate forum for working through the sometimes competing demands of sentencing, but dialogue with Strasbourg can be healthy. Whatever the proper relationship between domestic courts and the European Court of Human Rights, I think that the continued involvement of the executive in decisions about continuing imprisonment is potentially problematic.