Tuesday 3 February 2015

Strasbourg has spoken - in FAVOUR of the UK - Whole Life sentences for murder

: A Strasbourg finding in favour of the UK :

The Fourth Section of the European Court of Human Rights has found by a majority of 6 to 1 that there was no violation of Article 3 - (Prohibition on torture and inhuman or degrading treatment or punishment) - of the European Convention on Human Rights in the case of Hutchinson v United Kingdom - Court's judgment.

In October 1983, the applicant broke into a family home, stabbed to death a man, his wife and their adult son and repeatedly raped their 18 year‑old daughter, having first dragged her past her father’s body. He was arrested several weeks later and charged with the offences. At trial he pleaded not guilty, denying the killings and claiming that the sex had been consensual. On 14 September 1984, at Sheffield Crown Court, he was convicted of aggravated burglary, rape and three counts of murder.



The trial judge sentenced the applicant to a term of life imprisonment and recommended a minimum tariff of 18 years to the Secretary of State for the Home Office. When asked to give his opinion again on 12 January 1988, the judge wrote that “for the requirements of retribution and general deterrence this is genuinely a life case”.

On 15 January 1988 the Lord Chief Justice recommended that the period should be set at a whole life term stating that “I do not think that this man should ever be released, quite apart from the risk which would be involved”.

On 16 December 1994, the Secretary of State informed the applicant that he had decided to impose a whole life term.

Following the entry into force of the Criminal Justice Act 2003, the applicant applied to the High Court for a review of his minimum term of imprisonment. On 16 May 2008, Tugendhat J handed down judgment in the applicant’s case ([2008] EWHC 860 (QB)), finding that there was no reason for deviating from the Secretary of State’s decision. The seriousness of the offences alone was such that the starting point was a whole life order. In addition, there were a number of very serious aggravating factors. Tugendhat J made express reference to an impact statement from the surviving victim, which described “sadistic as well as sexual conduct”. There were no mitigating factors. On 6 October 2008, the Court of Appeal dismissed the applicant’s appeal.

In finding that there was no breach of Article 3, the court took fully into account the decision of a five judge constitution of the Court of Appeal (Criminal Division) in R v McLoughlin and Newell [2014] EWCA Crim 188 - please see previous post and the Judgment

This Strasbourg judgment will no doubt be welcomed by the British government and gives lie to the myth that Strasbourg generally finds against the United Kingdom.

On the Defence Brief blog - That Bloody Europe - solicitor Nicholas Diable comments:

"This morning the ECtHR handed down a judgment in Hutchinson v United Kingdom holding that whole of life sentences are lawful because section 30 Crime (Sentences) Act 1997 allows release on compassionate grounds and is a sufficient review process.  So, once again, we see that the criticism of human rights law and “Europe” is overblown and, generally speaking, incorrect.  Having said that, I disagree with the decision in Hutchinson.  Compassionate release is a process mainly aimed at situations where the offender is ill or elderly.  That may be sufficient in most cases, but I do think there should be a review possible to confirm that the original whole of life tariff remains correct even after 25-years have passed and public outcry has faded."

With that, I respectfully agree.

5 comments:

  1. "In October 1983, the applicant broke into a family home, stabbed to death a man, his wife and their adult son and repeatedly raped their 18 year‑old daughter, having first dragged her past her father’s body. He was arrested several weeks later and charged with the offences. At trial he pleaded not guilty, denying the killings and claiming that the sex had been consensual. On 14 September 1984, at Sheffield Crown Court, he was convicted of aggravated burglary, rape and three counts of murder."

    Before 1965 it is highly likely that this man would have been hanged. The assurances given at that time were that inter alia heinous crimes as his would be punished by whole of life terms. If this beast cannot stay in prison until death do us part from him just what crime would constitute the justification for whole of life? For such situations the populist view is the just and correct one.

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    1. I suspect that he will be inside for life (subject to any release under section 30 on truly compassionate grounds). I have no doubt that when the death penalty existed he would have been executed but that is a long time ago and, as I'm sure you know, a Protocol to the European Convention on Human Rights prevents its return.

      An interesting feature to me was the 18 year recommendation made by the trial judge (McNeill J) back in 1984 which the judge revised to whole life in 1988 when asked for an opinion by the Home Secretary of the day.

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  2. I've tried in the past to find the assurances that the most serious crimes would be punished by whole life orders in place of hanging. I've never been able to find them in Hansard; indeed, whenever Parliament has debated the reintroduction of capital punishment, a common concern has been the likelihood of irreversible psychological damage caused by long-term imprisonment. Since those debates, minimum terms have increased far beyond the length of time Parliament was concerned about then.

    Do you have a reference for the claimed assurances?

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    1. Justice of the Peace expressed the view that such "assurances" had been given at the time. I recall some abolitionist politicians making similar statements in interviews on the media. A search of Hansard might reveal something? Nothing to that effect ever bound the judiciary. The trial judge was required to set a minimum term. It still interests me that McNeill J changed in just 4 years from a 20 year recommendation to whole life. I have no explanation for that.

      I have no doubt that long term imprisonment has profound effects on the prisoner. However, irreversible psychological damage is also done by the murderer to the surviving family of the deceased. For my part, I do not have much sympathy with the impact on prisoner viewpoint when the murder was as horrific as this one.

      All that Strasbourg ever called for was a process to review after 25 years. It never said that whole life terms could not be imposed. They could be provided there was the possibility of it being reduced. The English Court of Appeal found a way in the Crime (Sentences) Act 1997. Although such an Act has to be read "as far as possible" taking account convention rights, it seems to me and many others to be a strained interpretation but it has been accepted at Strasbourg. That will suit British politicians.

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  3. I would only comment that irreversible damage to the defendant, whether by execution or in some other form, can never benefit the society into which they are released, should that time come. And, to my mind, in the hopefully rare cases where innocence comes to light many years later, psychological damage should be no more acceptable to us than death.

    I have great sympathy for those that are left behind after a murder; I can't imagine how awful it must be. But that doesn't prevent the possibility of being concerned for the prisoner too, should they suffer treatment that is beyond what is normally acceptable as part of imprisonment.

    As an aside, if we find it acceptable to lessen our sympathy for a prisoner because the impact or their crime was particularly horrific, should we not also consider it as mitigation if the victim's family said they were glad to see the back of them?

    I too found the Court of Appeal's reasoning strained; perhaps if it's stretched out to the Grand Chamber it will snap?

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