At Strasbourg, the British government argued that English law already permits the release of a prisoner serving a whole life order. The government's case was based on section 30 of the Crime Sentences Act 1997 as interpreted by the Court of Appeal in R v Bieber. Despite that argument, the court noted that Prison Order 4700 Chapter 12 contained an 'explicitly stated and restrictive policy' on which the section 30 power would be exercised. The Prison Service Order provides that release will only be ordered in certain exhaustively listed, and not merely illustrative, circumstances - e.g. terminal illness. The Order was highly restrictive. This looked very much like the government saying one thing but doing another.
The court found that the applicable domestic law lacked clarity. The Prison Order
needed amendment to tell the whole story. It did not include matters such as the effect of the Human Rights Act and of Article 3 of the Convention on the exercise of the Secretary of State’s power to release under section 30 of the 1997 Act. The Order did not reflect the possibility of release of a prisoner on legitimate penological grounds arising some time into the sentence.
Therefore, the Court was unable to accept the Government’s submission that section 30 of the 1997 Act could be taken as providing the applicants with an appropriate and adequate avenue of redress if they ever sought to demonstrate that their continued imprisonment was no longer justified on legitimate penological grounds and thus contrary to Article 3 of the Convention.
Apart from the entirely predictable expressions by Ministers of 'disappointment' it is not yet clear what, if anything, the government intends to do about the Vinter judgment. Strictly speaking, the government is bound by the European Convention to bring its law and practices into line with this binding and final judgment.
Writing in The Guardian 9th July, Joshua Rozenberg suggested that the Prison Order be amended and that a review mechanism be put in place. The Grand Chamber did not spell out how this should operate but suggested that every life sentence should be reviewed no later than 25 years after it was passed with further periodic reviews thereafter. The decision-maker in such cases would have to be independent - e.g. the Parole Board or a Judge. Of course, as Rozenberg says, that is the last thing Ministers want.
It might also be an idea to actually amend section 30 so that its wording clearly goes beyond compassion and reflects the situation established by the Bieber and Vinter cases.
In finding a violation in this case, however, the Court did not intend to give the applicants any prospect of imminent release. Whether or not they should be released would depend, for example, on whether there were still legitimate penological grounds for their continued detention and whether they should continue to be detained on grounds of dangerousness. These questions were not in issue in this case and were not the subject of argument before the Court. Fewer than 50 prisoners are serving 'whole life' orders.