In the event,
the Court of Appeal determined an appeal by Newell on whom a whole life order had been imposed, and a reference by the Attorney General in the case of McLoughlin where the trial judge (Sweeney J), after concluding the decision in Vinter precluded the imposition of a whole life order, had imposed a minimum term of 40 years. The reference was made on the grounds that the judge had made an error of law as to his powers and that the consequent failure to make a whole life order had resulted in an unduly lenient sentence.
Paragraphs 5 to 8 of the judgment are an interesting history of the legislative scheme now in force. Para. 9 describes the law under the Criminal Justice Act 2003 Schedule 21 which sets out how a trial judge is to go about fixing the penal element of a the mandatory life imprisonment sentence.
Para. 10 sets out the compassionate release provisions in section 30 of the 1997 Act. Para. 11 details how the 1997 is applied by the Secretary of State. The highly restrictive conditions for compassionate release are set down in chapter 12 of the Indeterminate Sentence Manual (the Lifer Manual), issued as Prison Service Order 4700. The criteria begin with the condition that the prisoner is suffering from a terminal illness and death is likely to occur very shortly. Indeed, Chapter 12 is entitled "Compassionate release on medical grounds."
In paras 12 and 13, the Lord Chief Justice set out the submissions to the court. The government argued that when considering review and release, the Secretary of State had to exercise his powers under s.30 of the 1997 Act compatibly with Convention Rights. The policy set out in the Lifer Manual did not represent the whole of the circumstances in which the power of release might be exercised. Also, it was submitted that s.269(4) of the Criminal Justice Act 2003 Act, could not be read down under section 3 of the Human Rights Act 1998, in order to make "must" mean "must not". Furthermore, whilst the court is a public body enjoined by s.6(1) to act compatibly with the Convention, s.6(2) has the effect of disapplying that provision where a public body acts in accordance with primary legislation which cannot be read down.
On behalf of the appellant Newell, Mr Stone QC submitted that the Grand Chamber had made it clear that there must be a regime for review of the sentence at the time the sentence was passed; that regime must provide for the realistic possibility of reducibility to be compatible with Article 3; the current regime did not. The whole life order was therefore incompatible with Article 3. [My emphasis].
Compatibility with Article 3
At para 17 - the court did not read the judgment of the Grand Chamber in Vinter as in any way casting doubt on the fact that there are crimes that are so heinous that just punishment may require imprisonment for life. In Vinter the Grand Chamber accepted that, because what constitutes a just and proportionate punishment is the subject of debate and disagreement, States have a margin of appreciation. Under our constitution it is for Parliament to decide whether there are such crimes and to set the framework under which the judge decides in an individual case whether a whole life order is the just punishment.
However, did the regime which provides for reducibility have to be in place at the time the whole life order is imposed? At para 22, the Lord Chief Justice said -
"Thus whilst it is clear that the Grand Chamber accepted that a judge can impose a whole life order as just punishment, it concluded that a legal regime for a review during the sentence must be in place at the time the sentence is passed"
In Vinter, the Grand Chamber considered release under section 30 and concluded that it did not, because of the lack of certainty, provide an appropriate and adequate avenue of redress in the event an offender sought to show that his continued imprisonment was not justified. The Grand Chamber said:
"At the present time, it is unclear whether, in considering such an application for release under s.30 by a whole life prisoner, the Secretary of State would apply his existing, restrictive policy, as set out in the Prison Service Order, or would go beyond the apparently exhaustive terms of that Order by applying the Article 3 test set out in Bieber. Of course, any ministerial refusal to release would be amenable to judicial review and it could well be that, in the course of such proceedings, the legal position would come to be clarified, for example by the withdrawal and replacement of the Prison Service Order by the Secretary of State or its quashing by the courts. However, such possibilities are not sufficient to remedy the lack of clarity that exists at present as to the state of the applicable domestic law governing possible exceptional release of whole life prisoners."
The Court of Appeal disagreed with the Grand Chamber on this. "In our view, the domestic law of England and Wales is clear as to "possible exceptional release of whole life prisoners". As is set out in R v 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. As we understand the Grand Chamber's view, it might have been thought that the fact that policy set out in the Lifer Manual has not been revised is of real consequence. However, as a matter of law, it is, in our view, of no consequence. It is important, therefore, that we make clear what the law of England and Wales is."
Paras. 31 to 36 ...
31. First, the power of review under the section arises if there are exceptional circumstances. The offender subject to the whole life order is therefore required to demonstrate to the Secretary of State that although the whole life order was just punishment at the time the order was made, exceptional circumstances have since arisen. It is not necessary to specify what such circumstances are or specify criteria; the term "exceptional circumstances" is of itself sufficiently certain.
32. Second, the Secretary of State must then consider whether such exceptional circumstances justify the release on compassionate grounds. The policy set out in the Lifer Manual is highly restrictive and purports to circumscribe the matters which will be considered by the Secretary of State. The Manual cannot restrict the duty of the Secretary of State to consider all circumstances relevant to release on compassionate grounds. He cannot fetter his discretion by taking into account only the matters set out in the Lifer Manual. In the passages in Hindley to which we have referred at paragraph 7 the duty of the Secretary of State was made clear; similarly the provisions of s.30 of the 1997 Act, require the Secretary of State to take in to account all exceptional circumstances relevant to the release of the prisoner on compassionate grounds.
33. Third, the term "compassionate grounds" must be read, as the court made clear in R v Bieber, in a manner compatible with Article 3. They are not restricted to what is set out in the Lifer Manual. It is a term with a wide meaning that can be elucidated, as is the way the common law develops, on a case by case basis.
34. Fourth, the decision of the Secretary of State must be reasoned by reference to the circumstances of each case and is subject to scrutiny by way of judicial review.
35. In our judgment the law of England and Wales therefore does provide to an offender "hope" or the "possibility" of release in exceptional circumstances which render the just punishment originally imposed no longer justifiable.
36. It is entirely consistent with the rule of law that such requests are considered on an individual basis against the criteria that circumstances have exceptionally changed so as to render the original punishment which was justifiable no longer justifiable. We find it difficult to specify in advance what such circumstances might be, given that the heinous nature of the original crime justly required punishment by imprisonment for life. But circumstances can and do change in exceptional cases. The interpretation of s.30 we have set out provides for that possibility and hence gives to each such prisoner the possibility of exceptional release.
Section 30 of the 1997 Act has been interpreted in a way which gives the government an escape route! The court's view that "compassionate grounds" must be read so as to be compatible with Article 3 means that if a whole life prisoner is able to argue that detention is no longer justifiable on penological grounds then he can apply for release on licence. In considering whether to release such a prisoner, the Secretary of State has to consult the Parole Board as required by section 30.
The court said at para - "Judges will continue to apply the statutory scheme in the CJA 2003 and in exceptional cases, likely to be rare, impose whole life orders in accordance with Schedule 21." Just how rare such cases will be remains to be seen and it is worth noting that a considerable number of whole life orders have been made to date.
McLoughlin's 40 year term imposed by Sweeney J was quashed and a whole life term substituted. Newell's appeal was dismissed - the court upholding his whole life term. Finally, at para 59, the court noted:
"These two cases are exceptional and rare cases of second murders committed by persons serving the custodial part of a life sentence. The making of a whole life order requires detailed consideration of the individual circumstances of each case. It is likely to be rare that the circumstances will be such that a whole life order is required. Our decision on each case turns on its specific facts and cannot be seen as a guide to any similar case."
The disagreement with Strasbourg over section 30 is stark and this may not be the last we have heard of the matter. How much simpler could things have been had the government implemented a review process for "whole lifers" after 25 years. That, ironically, used to be Home Office practice (see para 7 of the judgment)! "Compassionate" release could then have remained precisely that - without any need for distortion of the meaning of the word. Regrettably, politics are involved with Ministers not wishing to be seen to accept the Strasbourg judgment.
A serious concern:
The court's approval to using section 30 in this way brings a Minister back into determining the key question of whether there are on-going grounds to justify further detention. True that the Secretary of State is required by section 30 to consult the Parole Board (unless the circumstances are such as to render such consultation impracticable). However, section 30 is not geared to giving the prisoner a right to a Parole Board hearing which other forms of prisoner have. The determination of these matters was wrested from politicians (see para 9 of the judgment) only for the Court of Appeal to hand it back to them. A politician decision-maker with the possibility of expensive and difficult judicial review is a poor substitute for the proper Parole Board review process which Strasbourg clearly envisaged in the Vinter decision.
Coming soon in the Court of Appeal - legality of whole life terms for murder
Head of Legal blog 18th February - where Carl Gardner argues that Prison Order 4700 should now be redrafted to bring it into line with the Court of Appeal's view.
UK Human Rights blog - Rosalind English - Strasbourg law does not prevent the imposition of whole life orders for heinous crimes
Halsbury's Law Exchange - Lydon Harris - Whole life appeal, not quite a victory over Strasbourg