Tuesday, 22 October 2013

May a 'whole life' sentence be imposed for murder?

According to The Telegraph 21st October, Mr Justice Sweeney has ruled that a whole life tariff may not be imposed at the time of sentencing an individual for murder.  The newspaper reported:

'Ian McLoughlin, 55, was told he must serve a minimum of 40 years in prison, after he admitted murdering 66-year-old Graham Buck in Little Gaddesden, Hertfordshire, in July.  Mr Buck, 66, suffered fatal stab wounds to the neck when he responded to cries from the home of his neighbour, 86-year-old Francis Cory-Wright in the village near Berkhamsted.

But Mr Justice Sweeney said
his hands were tied in terms of what sort of a sentence he could impose, because a recent ruling in the European Court of Human Rights, barred the passing of whole life tariffs.'

Actual sentencing remarks do not appear to be available on the internet.  Hopefully, they will be in the near future.

The European Court of Human Rights case referred to is Vinter v UK which was discussed in posts on this blog on 4th July 2013, 9th July and 10th July.  The court's judgment

The 9th July post noted - 'The Grand Chamber of the European Court of Human Rights has held that the United Kingdom is in breach of Article 3 of the Convention by imposing whole life orders without possibility of review for murder.  The key words there are without possibility of review.  The court's judgment does not mean that such prisoners will necessarily be released but it does mean that the UK must put in place a review process so that any whole life order can be reconsidered in the light of circumstances.  Given that the imposition of whole life orders is already exceptional, it is perhaps unlikely that many such prisoners will be ultimately successful in securing their release and, even if they did, release would be on licence.  The power of the Secretary of State to act on compassionate grounds remains in place: section 30 of the Crime Sentences Act 1997.'

The 10th July post noted -  '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 4700 Chapter 12  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.'

The Telegraph article states that the Attorney General, Dominic Grieve, 'was understood to be considering referring the McLoughlin case to the Court of Appeal as an example of an unduly lenient sentence.'

and, further ...

'Justice Secretary Chris Grayling also hit out at the impact that the European ruling was having.
He said: It is the Government's clear view that whole life tariffs should be available for the most serious offenders. That is the position clearly stated in our law, and what the public expects. The domestic law on this has not changed. We are considering the Government's response to the ECtHR's recent ruling, but this in no way alters that fact and courts should continue to impose whole life tariffs where they wish to do so.'

If the British government has not yet complied with the Vinter judgment by somehow putting in place a review mechanism then it would appear that Mr Justice Sweeney may well be right because Strasbourg has said that a whole life tariff is not lawful UNLESS there is a review mechanism.  The problem here seems then to be not with the European Court of Human Rights (as the government might wish us to believe) but with the British government which has not yet implemented the Vinter judgment by putting in place appropriate machinery for reviews.  As Winston Churchill may well  have said in a memo to Mr Grayling - 'Action this Day.'

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