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 Article written by Dominic Casciani Dominic Casciani Home affairs correspondent

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  • rate this

    Comment number 41.

    This contemptible court has no power to order us to comply. We should simply ignore them

  • rate this

    Comment number 40.

    If you were born to the same parents, in the same place and subjected to the same life experiences what possible reasoning would you have that you would have done any different?

    Imprisonment should be 100% about reform, not punishment. Look at Norway - by far the lowest re-offending rate in Europe - they treat their prisoners as caused individuals and with human dignity.

  • rate this

    Comment number 39.

    A crime is a crime. A sin is a sin. No matter whether you have repented your sin, you still have to pay for the crime. Societies where crimes and sins are regarded as one and the same are known as theocracies, and you really wouldn't want to live in one because the priests are in charge.

  • rate this

    Comment number 38.

    a 20 foot length of rope is a damned sight cheaper than the millions spent giving this scum a podium to air their views. The money could be spent on the NHS and peoples improving or maintaining health....something these lot ignored completely when they ended other peoples lives.

  • rate this

    Comment number 37.

    @26 - Totally, and wholeheartedly agree.

    Perhaps they should consider the fact that we don't have the death penalty, and then maybe reassess how they have been treated...

  • rate this

    Comment number 36.

    "Hang em!"
    "Lock em up and throw away the key!"
    Old cliches. Don't need much thinking. Although the people that say them think they're pretty clever, rational and civilized people themselves. What if the killer has served 30 years and is no longer a danger? What if the system go it wrong in the first place and that person is innocent?

  • rate this

    Comment number 35.

    Judging that my previous comment has been negatively rated, I can only assume that there is a groundswell of opinion that agrees with the ECHRs ruling, and that we should waste time and money reviewing life-termers sentences to see if they have changed with potential release back into society a possibility? If so - you sicken me.

  • rate this

    Comment number 34.

    #21: "If there has to be some kind of review it should be: 1) very tough to pass, 2) set for a long period (e.g. 30 years)

    There's no reason why these reviews can't be extremely tough, and set for a long time. In fact, as the article says, we had a review system up until recently, set at 25 years, and reinstating that would be sufficient.

    The politics of this is significant, the content is not.

  • rate this

    Comment number 33.

    When we leave the EU we must also leave behind the ECHR.

    It's very simple.

  • rate this

    Comment number 32.

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

    --OK --the EU for life !

    --what a stupid statement by Cameron.

    --Doesn´t the UK have enough problems to discuss --

    it´s getting more like the USA every day.

  • rate this

    Comment number 31.

    Where the Whole-Life-Tariff was the decreed punishment for the crime, as decided by the Court, then even if the criminal turns goody two-shoes a day after entering prison, the crime was still the crime and the punishment must still be the punishment, i.e. Whole-Life-Tariff !

  • rate this

    Comment number 30.

    What happened to the Rights of the person they killed because they gave no regard to that, and therefore they forfeited their right to freedom forever more.

    Life in prison should mean life - period!

  • rate this

    Comment number 29.

    19 So on your thinking a whole life tariff is somehow illegal because it breaches a law? Funny how nobody has pointed out which law it breaches or perhaps you are plain wrong! The ECHR is renowned for making judgement calls, not calls based on any law. The fact the the first court ruling in ECHR said it was OK and the second "supreme" body said it was not is just that, a judgement call!

  • rate this

    Comment number 28.

    Who exactly signed us up to this club anyway! I mean the name on the cheque.Can we not just say,can we please have our ball back, because we don't want to play your silly game any longer

  • rate this

    Comment number 27.

    A storm in a tea cup. England and Wales are still free to lock people up for life if they see reason to do so. Not a single murderer will be back on the streets because of this.

    But a welcome opportunity for the Tories to shift the focus away from their failure in almost every area that does matter.

  • rate this

    Comment number 26.

    Murderers have no human rights, they gave them up when they committed murder. Nor can they 'atone' for their crimes, the victims are dead. I wonder if the victim's families agree with this decision, their loved ones have had their lives taken away and so should the murderers, a life sentence should mean just that.

  • rate this

    Comment number 25.

    The Parole Board time and time again release prisoners who are still a threat, John Venables was released then went on to commit child porn crimes and now has been released again. Why? Why? Why?
    He could meet anyone and they would not know who he is or what he has done.
    The Parole Board cannot be trusted with our safety.

  • rate this

    Comment number 24.

    If we come out of the EU will we still be under the European court of Human rights?

  • rate this

    Comment number 23.

    Lets get out of Europe and bring back the death penalty for offenders carrying out WLT-type crimes. At least the only jail time they will get is death row time and then they can think about what they have done.

  • rate this

    Comment number 22.

    Judges are very reluctant to hand out whole life terms - and with good reason. They condemn people to die in prison. Some prisoners should never get out - any review of such a serious crime would surely show that?

    What's worrying is the the right to a review could quickly become a right to parole - unthinkable in cases such as Bridger, Sutcliffe and West.


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