Tuesday, 17 January 2012

A trio of European Court of Human Rights decisions

Today, 17th January, the European Court of Human Rights (ECtHR) was scheduled to deliver some 35 judgments.  The reader will perhaps be particularly interested in the following three judgments which are all judgments of Section IV of the Court sitting as a Chamber.  (Sections explained).

Vinter and Others v. the United Kingdom - (Judgment of 4th Section)

The applicants, Douglas Gary Vinter, Jeremy Neville Bamber and Peter Howard Moore, are currently serving mandatory sentences of life imprisonment for murder.  When convicted the applicants were given whole life orders, meaning they cannot be released other than at the discretion of the Secretary of State on compassionate grounds.  They argued that their whole life orders amounted to a breach by the UK of the prohibition of inhuman or degrading treatment (Art 3).  They also relied on Article 5(4) (right to have lawfulness of detention decided speedily by a court), Article 6 (right to a fair hearing), and Article 7 (no punishment without law).

The E Ct HR held unanimously that Art 3 was not violated.

Vinter was convicted
of stabbing his wife in February 2008. While still on parole for a first murder offence (he killed a work colleague), he followed his wife – from whom he was estranged – to a public house, forced her into his car and drove off.  When the police telephoned her, Vinter forced her to tell them that she was fine. He also later called the police to tell them that she was alive and well. However, some hours later he gave himself up and confessed that he had killed her. The post-mortem revealed that his wife had a broken nose, strangulation marks around her neck and four stab wounds.

Bamber was convicted of shooting and killing his adoptive sister and her two young children in August 1985. It was alleged that he had committed the murders for financial gain and had tried to make it look as if his adoptive sister had carried out the crime, then killed herself.

Moore was convicted of stabbing four men with a large combat knife between September and December 1995. The four victims were all homosexuals and Moore allegedly killed them for his own sexual gratification.

When convicted the applicants were given whole life orders, meaning they cannot be released other than at the discretion of the Secretary of State on compassionate grounds (for example, if they are terminally ill or seriously incapacitated). The power of the Secretary of State to release a prisoner is provided for in section 30(1) of the Crime (Sentences) Act 1997.

Under this Act it was practice for the mandatory life sentence to be passed by the trial judge, who – along with the Lord Chief Justice – then gave recommendations to the Secretary of State to decide the minimum term of imprisonment (the “tariff” part of the sentence) which the prisoner would have to serve to satisfy the requirements of retribution and deterrence and be eligible for early release on licence. In general, the Secretary of State reviewed a whole life tariff after 25 years’ imprisonment.

With the entry into force of the Criminal Justice Act 2003, all prisoners whose tariffs were set by the Secretary of State are now able to apply to the High Court for review of that tariff.  Vinter’s whole life order was made by the trial judge under the current practice. His appeal against his conviction was dismissed in June 2009. The Court of Appeal found that there was no reason to depart from the normal principle under schedule 21 to the 2003 Act that, where a murder was committed by someone who was already a convicted murderer, a whole life order was appropriate for punishment and deterrence.

Bamber and Moore, convicted and sentenced prior to the entry into force of the 2003 Act, both applied to the High Court for review of their whole life tariffs. In the case of Bamber, the High Court concluded that, given the number of murders involved, the presence of premeditation, the submissions by the victims’ next-of-kin as well as reports on the behaviour and progress he had made in prison, there was no reason to depart from the view held in 1988 by the Lord Chief of Justice and the Secretary of State that he should never be released.

In the case of Moore, the High Court found that the case involved the murder of two or more people, sexual or sadistic conduct and a substantial degree of premeditation and that there were no mitigating circumstances.
The High Court therefore considered that whole life orders were justified in respect of murders.

The Court held that in each case the High Court had decided that an all-life tariff was required, relatively recently and following a fair and detailed consideration. All three applicants had committed particularly brutal and callous murders. To date, Vinter had only served three years of imprisonment, Bamber 26 years and Moore 16 years.  The Court did not consider that these sentences were grossly disproportionate or amounted to inhuman or degrading treatment.  There had therefore been no violation of Article 3 in the case of any of the applicants.

Harkins and Edwards v. the United Kingdom - (Judgment of 4th Section)

The applicants were Phillip Harkins (a British national) and Joshua Daniel Edwards (a United States national).
Both men were indicted in the United States, respectively in 2000 and 2006, for murder and other offences.   They were both arrested in the United Kingdom, in 2003 and 2007 respectively, and the United States Government requested their extradition providing assurances that the death penalty would not be sought in their respect.  Relying in particular on Article 3 (prohibition of inhuman or degrading treatment), both applicants complained that, if they were extradited to the United States, there would be a real risk of the US authorities seeking the death penalty, as well as about the possibility of them being given sentences of life imprisonment without parole.  The E Ct HR ruled that there would be no breach of the Convention if these men are extradited to the USA.

Othman (abu Qatada) v United Kingdom - (Judgment of 4th Section)

The Jordanian cleric - (Omar Othman - aka. abu Qatada) - may not be deported from the UK since it would violate his right to a fair trial because any proceedings in Jordan would likely involve the use of testimony from people who had been tortured.   So ruled the European Court of Human Rights.  Having taken this principled stand against the use of torture, the Court accepted as valid the UK government's argument that in some cases 'diplomatic assurances' can mitigate the risk of torture. The UK wants to deport Abu Qatada to Jordan on grounds of national security. 

Abu Qatada, a Jordanian national with a refugee status in the UK since 1994, was convicted in absentia in two separate Jordanian trials in 1999 and 2000 for terrorism-related offences, and sentenced to life imprisonment and 15 years’ imprisonment respectively.  He petitioned the European Court of Human Rights in February 2009 after the House of Lords gave the go-ahead for his deportation to Jordan based on diplomatic assurances that he will not be subject to serious human rights violations.

The real value of these "diplomatic assurances" is very questionable and it is regrettable that the European Court has succumbed to the argument that they may sometimes be acceptable.  If you think about it, a State would only ask for such an assurance from another State where that other State had a record of failing to prevent torture.

It is clear that the British government wishes to see the back of this particular individual.  Hence, this ruling may not be the end of the matter - see BBC 17th January 2012.

See the UK's "Profile" on the European Court of Human Rights website.  The profile is as at October 2011.

In total, by the end of 2010, the Court delivered 443 judgments concerning the United Kingdom, of which 271 found at least one violation of the European Convention on Human Rights, primarily of Article 5 (right to liberty and security), Article 6 (right to a fair trial), and Article 8 (right to respect for private and family life), and 86 found no violation. In the same period, 97 % of all applications brought against the UK were declared inadmissible or struck out. 

See - Legal Week 18th January 2012 - "L'enfant terrible -  headlines, controversy and outrage at the European Court of Human Rights"

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