The Court of Appeal’s decision in the case of McLoughlin last week, is the latest manoeuvre in the UK government’s long stand-off with the European Court of Human Rights (ECtHR) regarding the legality of ‘whole life’ terms. In McLoughlin, the Court of Appeal held that UK law was compliant with the European Convention on Human Rights (ECHR) but how did the Court come to that conclusion?

Vinter and Others v. UK (2013)
The ECtHR declared whole life terms without the possibility of review to be unlawful and in breach of Article 3 ECHR in the case of Vinter last year (see commentary here). The Court’s reasoning was to the effect that to sentence a person to their entire life in prison, without providing for any review procedure regardless how exceptional their efforts towards rehabilitation, amounted to inhumane treatment. This put the onus on the UK to modify the law relating to whole life terms to make them compliant with the ECHR.

McLoughlin
After Mr Justice Sweeney declined to impose a whole-life sentence on Ian McLoughlin post-Vinter, stating that he was bound to act in accordance with the Human Rights Act 1998 (HRA), the Attorney General appealed to the Court of Appeal. The Court held that the domestic law was compliant because it did provide for a ‘review’ of whole life terms, in the form of s30 of the Crime (Sentences) Act. This provides the Secretary of State with a discretion to release a prisoner serving a life sentence if he is satisfied that ‘exceptional circumstances’ exist which justify the prisoner’s release on compassionate grounds.

In practice, the s30 power has been exercised in accordance with criteria set out in Chapter 12 of Prison Service Order 4700 (the “Lifer Manual”), which provides that the prisoner can only be released in very restrictive circumstances, relating to that prisoner suffering from terminal illness, paralysis or a severe stroke.

The Court in McLoughlin held that, as the Secretary of State is bound to exercise her powers in accordance with the HRA, the s30 power can be read down so as to satisfy Article 3. The Court stated that the fact the Lifer Manual has not been revised is ‘of no consequence’ as ‘the Manual cannot restrict the duty of the Secretary of State to consider all circumstances relevant to release on compassionate grounds’. The Home Secretary cannot fetter her own discretion and therefore the law of England and Wales does provide for a review of whole-life sentences.

S30 Crime (Sentences) Act 1997
The European Court in Vinter expressly considered s30, but held that the criteria were too restrictive for it to constitute an ECHR-compliant review. Furthermore, the court made clear that a 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. The review must be fixed at a set point in time -– or become available after a fixed point – in order to satisfy Article 3. The Court of Appeal’s interpretation of s30 does not appear to provide for this. Unless, therefore, new criteria are published which includes a time frame, it is arguable that s30 does not constitute a Vinter-compliant review.

The role of the Secretary of State in sentencing
The Court stated in Vinter that, ‘having regard to the margin of appreciation which must be accorded to Contracting States…. it is not its task to prescribe the form (executive or judicial) which that review should take’. This is somewhat surprising – as the same Court’s case law has followed a clear trend of objecting to the Secretary of State’s role in the sentencing of ‘lifers’.

It is helpful to put this issue into context by looking briefly at past cases. In T and Others v. UK, the Home Secretary took account of the views of the public in setting the tariff for two juveniles convicted of murder (including taking account of coupons from The Sun newspaper supporting a whole life tariff). In Stafford v. UK, the then Home Secretary rejected the Parole Board’s finding that the applicant should be released on licence, pursuant to his power under s39(1) of the Criminal Justice Act 1991. The European Court found against the UK in both of these cases. The UK law lords also found in the case of Ex parte Anderson that the Home Secretary’s power to increase the tariff handed down to life prisoners was ‘incompatible’ with human rights law. As a result of these cases, Secretary of State’s power to set the tariff for life prisoners was removed and transferred to the judiciary by the Criminal Justice Act 2003.

The Court stated in Stafford that “with the wider recognition of the need to develop and apply, in relation to mandatory life prisoners, judicial procedures reflecting standards of independence, fairness and openness, the continuing role of the Secretary of State in fixing the tariff and in deciding on a prisoner’s release following its expiry has become increasingly difficult to reconcile with the notion of separation of powers between the executive and judiciary”. Bearing in mind these decisions, it is difficult to see why this separation of powers should not be respected in the review procedure as well as in the original sentencing decision.

The Home Secretary is naturally susceptible to political pressure and will feel bound to act in accordance with public opinion if she has a role in sentencing decisions. The problem here is that what the public wants is not always what justice demands: it is for this reason that courts are bound not to take account of public opinion, or of the future potential political ramifications of their decisions when exercising their sentencing powers. It is difficult to imagine any Home Secretary authorising the release of a ‘whole life’ prisoner and going against the swell of public opinion. Yet the UK is one of only a few developed countries which adhere to the view that a whole life term is just punishment for some crimes. Many countries do not even have whole life terms – for an example look at the recent case of Anders Breivik in Norway, who was sentenced to 21 years imprisonment for the premeditated murder of 77 people – including children – with provision for him to be detained after that if he still poses a threat to the public.

‘Push-back’ by the UK courts
Considering the problems identified above with the McLoughlin judgment – the lack of a clear time frame and the fact it allows for a political element in sentencing – the conclusion reached by the Court of Appeal may seem somewhat surprising. However the McLoughlin judgment cannot be examined in a vacuum: it must be seen in the context of the recent ‘push back’ from the UK government and courts against the ECtHR.

In recent months, senior members of the judiciary have spoken out against the Strasbourg court. The former Lord Chief Justice, Lord Judge, said that parliamentary sovereignty should not be exported to ‘a foreign court’, and Lord Sumption warned that the ECHR ‘undermines the democratic process’ and exceeds its legitimate powers. Lord Justice Laws reminded the judiciary that the UK is bound by the ECHR itself, not by Strasbourg case law, tactfully stating “if we develop it according to the methods and principles of the [English] common law, it will enrich us”.

Conclusion
This is the prism through which McLoughlin must be viewed. The issue of whole-life terms – along with the fight over prisoner votes – has become a stand-off between the UK and Strasbourg. This perhaps makes it less surprising that the Court of Appeal in McLoughlin is effectively recommending a sentencing exercise being undertaken by a politician, despite this flying in the face of the past trend of the erosion of the Secretary of State’s power in this area and the clear separation of powers. Only time will tell if this interpretation is enough to satisfy Strasbourg and allow both sides to ‘save face’. If not, there will be further calls for the UK to amend the Human Rights Act 1998, or withdraw from the Convention altogether – a move which the Former President of the ECtHR, Sir Nicolas Bratza, has said would cause ‘incalculable’ damage to the Convention system as a whole. Sir Nicolas Bratza is a former UK High Court judge, and has spoken of his disappointment that calls for withdrawal from the ECHR ‘should come from a country with a proud history of upholding human rights’.