Analysis: Whole-life tariffs ruling could spark another huge row

 
Jeremy Bamber (PA), Douglas Vinter and Peter Moore (PA) The appeal was brought by killers Jeremy Bamber, Douglas Vinter and Peter Moore

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The decision by the European Court of Human Rights' (ECtHR) Grand Chamber on the whole-life tariffs given to murderer Jeremy Bamber and two other killers is really important - both legally and politically.

Let's start with the legals.

Judges in England and Wales have the power to impose a whole-life tariff (WLT) on the most serious and dangerous of criminals. There are 49 such prisoners in the UK. They include the Moors Murderer Ian Brady, Rosemary West and the three men who took their cases to Europe - Bamber, Douglas Vinter and Peter Moore.

The Strasbourg court has long accepted that if a state wants to lock someone up for life, then that is none of its business.

So this judgement was not about the state's right to lock up dangerous killers. The question was whether an WLT inmate should have the chance, during their long years inside, to try to show they are reformed and capable of making good with what little of their life they have left.

Back in January 2012, seven judges in the ECtHR's lower chamber ruled by four to three against the men, saying that their life sentence without the possibility of parole did not amount to inhumane treatment.

The case went up to the final Grand Chamber of 17 judges, including one from the UK, for a final say. Those judges reversed the lower court's decision by a majority of 16 to one.

The Grand Chamber said that a state can keep someone locked up for punishment, deterrence, public protection and rehabilitation.

But it said it was wrong that someone locked up in England and Wales does not have the opportunity to argue that they are rehabilitated.

England and Wales are in a minority when it comes to this lack of review - even within the UK. There is no provision for a WLT in Scotland. And in Northern Ireland prisoners given a whole-life sentence can already ask for a review.

32 countries have a review mechanism for life sentences, including:

  • Ireland: After 7 years
  • Denmark: 12 years
  • Belgium: Flexible but up to 23 years for worst criminals
  • Albania and many others: 25 years.
  • Estonia: 30 years

Going abroad, the court says that a large majority of European states either do not impose whole-life sentences or, where they do, they usually have a review after 25 years.

So why did the court rule against the system in England and Wales?

Well it all comes down to what the judges say is a lack of clarity in the law - and the fact that a review once existed.

Until 2003, home secretaries had the power to review a prisoner's WLT after 25 years.

But the then government abolished that power as part of an attempt to take sensitive decisions about prisoners out of the hands of politicians.

The problem, says the ECtHR, is that if Westminster wanted to take politicians out of WLT reviews, why did it not give the power to a judicial body?

During the case, the government argued that ministers have a discretionary power to release WLT inmates on compassionate grounds, such as when someone was terminally ill, and that was sufficient.

States that refuse parole hearings to the very worst whole-life prisoners

  • England and Wales
  • France
  • Bulgaria
  • Hungary
  • Slovakia
  • Switzerland
  • Turkey

But the judges said the discretionary power did not offer a prisoner the chance to prove they were reformed because release could only come in an inmate's final days.

So where does that leave the system?

The court has basically argued that the government should resurrect the old system, so that whole-lifers are told when they are jailed that they can hope - no more than that - to have a review hearing many years down the line.

It said that states should offer the review - and no more than that - because the grounds for keeping someone inside can change, and the circumstances may need looking at again.

The court added: "If such a prisoner is incarcerated without any prospect of release and without the possibility of having his life sentence reviewed, there is the risk that he can never atone for his offence.

"Whatever the prisoner does in prison, however exceptional his progress towards rehabilitation, his punishment remains fixed and unreviewable.

"If anything, the punishment becomes greater with time: the longer the prisoner lives, the longer his sentence."

European Court of Human Rights and the UK

  • 2,082 applications from the UK in 2012
  • 2,047 thrown out at early stage
  • 12 cases found to be a breach of human rights (1.1%)
  • Source: ECtHR

The underlying point, the court argued, is that the thrust of modern penal policy has been to focus on trying to rehabilitate people - and that's why the lack of a WLT review is so odd in England and Wales.

The effect of the judgement is very similar to a recent judgement from our own Supreme Court.

In 2010 the justices ruled that people on the sex offenders register should have the opportunity to prove they are safe to be removed.

So what happens now?

Well, in legal terms, Parliament could solve the problem relatively easily by creating a power for either ministers, or the Parole Board, to review WLTs. Whichever way, the government has six months to respond to the court.

But the politics of this are massive.

Prime Minister David Cameron said he "profoundly disagrees with the court's ruling", adding he is a "strong supporter of whole-life tariffs".

As the court makes clear, it has no problem with the use of the sentence - but it knows that its relationship with the UK is at an extremely sensitive stage.

Whether it likes it or not, the judgement puts the court on yet another head-to-head collision course with ministers - and this time the row is arguably even more serious than Abu Qatada or Votes for Prisoners.

 
Dominic Casciani, Home affairs correspondent Article written by Dominic Casciani Dominic Casciani Home affairs correspondent

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  • rate this
    +1

    Comment number 201.

    The complex and ever-evolving legal system and civilized society that we have here today, was not founded by the likes of some of the basic-minded, mob-mentality people posting on here.
    If they had a hand in it, we'd still be ducking witches.

  • rate this
    +1

    Comment number 200.

    @198, you clearly don't realise that the UK was one of the founding states of the ECHR, and that the UK lectures several countries (and quite rightly so) on their poor human rights record... What would the dictator-lead countries say if the UK were to withdraw from the Convention or completely ignore it?..

  • rate this
    0

    Comment number 199.

    @197, I suppose you support the execution of British drug traffickers (be it mothers, etc) in places like Thailand- they broke the local laws and should suffer the consequences?..

  • rate this
    -2

    Comment number 198.

    A life sentence should be just that, life.
    The victims and their families are 'serving life sentences with no parole' for their loss, so the criminals should face the same. It is also weakness on the part of the Government and our own Judicial system to even consider accepting what the un-ellected, unqualified [in UK law], overpaid ECHR members decide

  • rate this
    -2

    Comment number 197.

    @171 qwerty
    That is exactly the point - if a British court has decided that a WLT is appropriate at sentence then that should be that - regardless of whether they have been a model prisoner during their sentance they have commited a serious crime - end of. No reviews, no potential for early release. It is British law, not European- if you don't like it, don't commit crime.

  • rate this
    -1

    Comment number 196.

    '@95 - too true, and let's see if the French, faced with this ruling, parole Carlos the Jackel!

  • rate this
    0

    Comment number 195.

    Even without a whole life order, the minimum term for serious murders has a *starting* point of 30 years, and minimum terms as long as 40 years have been imposed after considering aggravating factors, e.g. for Ian Huntley and Stephen Seddon. So it makes no sense that prisoners currently under a whole life order, intended to be a *harsher* sentence, should now get a review after 25 years.

  • rate this
    -2

    Comment number 194.

    I have read through a lot of the comments, & there are several sides to the coin, my beef is having an outside court dictating to an independent country. The actual decision makes a wee bit of sense, but the fact of the matter is that the ECHR has been dictating to the UK for some time now. Isn't it about time the voters took back their right to make decisions?

  • rate this
    0

    Comment number 193.

    I left the UK many years ago, for several reasons, but with outside courts now having the ability to dictate to the UK what it's laws should be, I am glad I did leave. I wish we had Whole Life in Canada, there are several prisoners I can think of that deserve it. Regardless of the situation, I think the UK voters through their MP's should be the only ones deciding on what is law in the UK.

  • rate this
    -1

    Comment number 192.

    Bring back hanging for murderers, then they can enjoy a shorter suspended sentence.

  • rate this
    +2

    Comment number 191.

    Yet again, all this nonsense from the European court of Human rights. The families of the victims are living a life sentence, so why not the guilty?

    and another prefect reason to end the meal tickets to the lawyers who get rich out of defending such scum

  • rate this
    0

    Comment number 190.

    Life should mean life for premeditated murder or murder for greed,serial killers etc , why should they get any human rights ? they gave their victims none, some murders are accidental ie no intent to kill , but some who lure their victims in deserve never to be released .this goes for the likes who murdered the soldier in cold blood .

  • rate this
    -2

    Comment number 189.

    Simple, really. For multiple proven murders, the criminal gets 20 years for each crime, to run sequentially. So, after 15 years, the parole board can review the first sentence, and if it's curtailed, good, the second 20 year sentence starts, and so on. Thus, no problems with reviewing each sentence, and the malefactor remains locked up effectively permanently.

  • rate this
    0

    Comment number 188.

    @179. A Whole Life Tariff is exactly that whether or not it includes a review. Simply inserting a review with an option of release isn't an automatic process leading to less than life served. In fact the WLT can be changed under current circumstances at the whim of the Home Secretary. I'd rather the system had a proper process that didn't rely on populist pr!cks in any party.

  • rate this
    +1

    Comment number 187.

    First: some definitions
    "rights" are inalienable and cannot lawfully be taken away

    States uphold rights and enforce laws
    Taking away the right to life breaks the law- so murderers are punished

    The ECHR sets out expectations on states

    But why do we need harsher laws than most of the rest of Europe, with WLTs?

    What is it about us that we produce such peculiarly dangerous offenders?
    ??

  • rate this
    +1

    Comment number 186.

    I have to say in principle i am against the release of people who murder in cold blood (unless there are some strong extenuating circumstances or a miscarriage of justice), whether they are reformed or not, in my opinion if they were after sympathy, they should not committed the murder in the first place. I support rehabilitation but not for those who take away what they had no right to take

  • rate this
    0

    Comment number 185.

    @184, "WLT" or "WLO" contain fewer characters than "life", so what's the point you're trying to make?

  • rate this
    -3

    Comment number 184.

    183.qwerty
    3 Minutes ago
    @179, can't know what you say unless you actually say it, so "life" and "WLT" (or "WLO") actually have different meanings and if you want to discuss legalese then you have to be precise I'm afraid.

    Can't be precise with so few characters available on here, but I'm bored trying to get through to a smart a**e who thinks he's some sort of wordsmith. g'night.

  • rate this
    0

    Comment number 183.

    @179, can't know what you say unless you actually say it, so "life" and "WLT" (or "WLO") actually have different meanings and if you want to discuss legalese then you have to be precise I'm afraid.

  • rate this
    -1

    Comment number 182.

    The upside of this judgement is that, post Abu Qutada at al, it further points up the tragic absurdity of the whole Human Rights industry and might even pave the way for a return to genuinely deterrent sentencing - and yes, I mean capital punishment.

 

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