The European Court of Human Rights (“ECtHR“) has rejected a claim by a convicted murderer that the imposition of a “whole life tariff” violated his rights under article 3 of the European Convention on Human Rights and Fundamental Freedoms 1950 (the “Convention“): Hutchinson v United Kingdom (A/N: 57592/08). In so doing, it elucidated a number of important principles on its interaction with domestic courts that come at a time of increasing political controversy on the future of human rights in the UK.
Where a convicted prisoner is subject to a “whole life order”, the Secretary of State for Justice has the power to release that person “if he is satisfied that exceptional circumstances exist which justify the prisoner’s release on compassionate grounds“: Crime (Sentences) Act 1997, s.30(1) (the “1997 Act“). The criteria for exercising that discretion are set out in the “Lifer Manual”. On its face, the regime appears to restrict circumstances of release to those set out in the Lifer Manual, namely where the prisoner is terminally ill.
In 2013, the Grand Chamber of the ECtHR ruled in Vinter v United Kingdom 34 BHRC 605 that the imposition of whole life orders on the applicants violated their rights under article 3 of the Convention, which prohibits inhuman or degrading treatment or punishment. This was because there was insufficient certainty in domestic law as to the operation of the mechanism by which whole life tariffs were reviewed. As such, it appeared that those sentences were irreducible.
Following Vinter, a five-judge panel of the Court of Appeal ruled that domestic law was clear on this issue: whole life orders were reducible and the regime was thus compliant with article 3: Attorney General’s Reference (No 69 of 2013). The reasoning behind that decision is not the focus of this post; in essence, however, the reason was that the words “compassionate grounds” under s.30 of the 1997 Act must themselves be read in a manner compatible with article 3. As such, they were not restricted to the circumstances set out in the Lifer Manual (i.e. cases of terminal illness). Furthermore, any decision by the Secretary of State was subject to scrutiny by the courts via judicial review.
The ruling in Hutchinson
The ECtHR acknowledged that the Court of Appeal had “expressly responded to the concerns detailed [by the Grand Chamber] in Vinter” and explained that domestic law did provide for release in exceptional circumstances, including those falling outside the ambit of the Lifer Manual.
It further noted that “it is primarily for the national authorities, notably the courts, to resolve problems of interpretation of domestic legislation” and that, in the UK, “the progressive development of the law through judicial interpretation is a well-entrenched and necessary part of legal tradition“. Accordingly, the ECtHR held that it “must accept the national court’s interpretation of domestic law“. It followed that there had been no violation of the Convention.
The whole life tariff cases provide an excellent example of judicial dialogue between national courts and Strasbourg on the application of the Convention. The judgment in Hutchinson also serves as a timely reminder of the margin of appreciation that the ECtHR will afford to member states. That principle is soon to be explicitly referenced in the Convention when protocol 15 – adopted following talks led by David Cameron in 2012, culminating in the Brighton Declaration – enters into force.
Against that background, the Hutchinson judgment is worthy of analysis in the context of the Conservative Party’s proposals for reform of human rights laws: Protecting human rights in the UK. One of the stated complaints in that paper was the “mission creep” of the ECtHR, including in the Vinter case, which, according to the paper, held that “murderers cannot be sentenced to prison for life, as to do so was contrary to Article 3 of the Convention“, which entailed “banning whole life sentences even for the gravest crimes” (see page 3).
Leaving aside the inaccuracy of the assertion that the effect of Vinter was to “ban” whole life sentences (that assertion was criticised by, among others, the former Attorney General, Dominic Grieve, in his recent lecture at UCL), it will be interesting to see whether the Hutchinson judgment does anything to assuage Conservative Party concerns regarding human rights and, in particular, whether this will be reflected in the party’s draft Bill of Rights (promised in December, but still awaited).