The European Court of Human Rights has said that ‘whole life orders’ do not breach human rights. This is likely to be the final resolution of one of the most controversial and emotionally charged issues which has been before the Strasbourg court.
In September 1984, Arthur Hutchinson was convicted of murder, rape and aggravated burglary. In 1994, the Secretary of State decided to give Hutchinson a whole life sentence. In 2008, the High Court found no reason to go against this decision, given the seriousness of Hutchinson’s crimes.
Hutchinson went to the European Court of Human Rights, arguing that his whole life sentence violates the right to freedom from inhuman and degrading punishment because it is a sentence of imprisonment from which he has no real hope of release.
What are ‘whole life’ sentences?
Life sentences are given a ‘tariff’ – a minimum amount of time that prisoners must serve behind bars before they can be considered for release by the parole board. Reserved for only the most serious crimes, whole life sentences set the minimum term (tariff) as the length of the person’s life.
In UK law, when prisoners are given a whole life sentence, they may be released at the discretion of the Secretary of State. Under s30(1) Crime (Sentences) Act 1997, the Secretary of State can choose to release whole life prisoners if there are ‘exceptional circumstances’ which justify release on ‘compassionate grounds’, for example, where a prisoner is terminally ill or physically incapacitated.
Do whole life sentences really violate human rights?
The European Court of Human Rights says that it is up to States to decide how to punish people for committing crimes, provided States do not do so in a way which violates human rights. This means States can impose whole life sentences.
But the European Court has also said that sentences have to be ‘reducible’ in order to be compatible with human rights. All this requires, the European Court says, is that people who are given whole life sentences have to be given a meaningful chance of a review of their detention, to make sure that there continues to be a justification for that detention.
The possibility of a review is designed to ensure that States don’t just lock people up and ‘throw away the key’. Reviews make sure that whole life sentences do not constitute a form of ‘inhuman or degrading punishment’. Freedom from inhuman or degrading punishment is a human right under Article 3 of the European Convention on Human Rights (ECHR), which takes effect in UK law through the Human Rights Act.
In an important case called Vinter v UK (2013), the Grand Chamber of the European Court said that UK law on whole life sentences violated Article 3 ECHR, because it was not clear, under the 1997 Act, that there was any meaningful prospect of review.
What’s happened since then?
In a case called R v McLoughlin (2014), the UK Court of Appeal disagreed with the European Court’s view of UK law. Despite the restrictive written policy in the 1997 Act, the Court of Appeal said that whole life prisoners were adequately protected, because the Secretary of State has to make decisions compatibly with Article 3.
As a result, the Court of Appeal said that, under the 1997 Act, the Secretary of State would in practice have to consider all relevant ‘exceptional circumstances’, and that meant that there was a meaningful prospect of review in UK law. So the Court of Appeal concluded that UK law did not violate Article 3 ECHR.
What about Hutchinson’s case?
In 2015, the Chamber of the European Court of Human Rights decided, by 6 votes to 1, that there was no violation of Article 3 in Hutchinson’s case. The majority said that the Court of Appeal’s decision in McLoughlin addressed the doubts the European Court previously had in Vinter v UK. The Chamber concluded that whole life sentences were therefore open to review and compatible with Article 3 ECHR.
Hutchinson requested that the case be referred up to the Grand Chamber of the European Court. Today the Grand Chamber agreed with the Chamber’s view that UK courts had sufficiently clarified the domestic law on the review of life sentences, in particular by explaining that the Secretary of State for Justice has a duty to exercise the power of release in a way that is compatible with the European Convention on Human Rights. The Grand Chamber of the Court concluded that whole life sentences in the United Kingdom could now be regarded as compatible with Article 3 ECHR.
For more information:
- Read our explainer on prisoners’ rights.
- Take a look at our justice resources.
- Take a look at our resources on how human rights help victims of crime.