Coming soon in the Court of Appeal - legality of whole life terms for murder

Update 18th February:

The Court of Appeal has upheld the legality of "whole life" orders - Judgment.

Original Post:

The death penalty for murder was abolished in the United Kingdom and, in its place, a mandatory sentence of life imprisonment has to be imposed - Murder (Abolition of the Death Penalty) Act 1965.  (The last executions in England were in 1964). This remains the law despite the wishes of some to have a discretionary, as opposed to mandatory, life sentence - Give Judges discretion in murder sentencing - The Guardian 7th December 2011. Whatever the merits of such proposals, there seems to be little doubt that the settled will of the majority of the British people is that the mandatory life sentence should remain.  Even if eventually released, such individuals remain on licence.

The UK Parliament has spoken more recently about sentencing for murder.
Under Schedule 21 of the Criminal Justice Act 2003, the trial judge is empowered to fix the minimum term to be served before a prisoner is eligible to be considered by the Parole Board for release. Schedule 21 para. 4 states:

If -

(a) the court considers that the seriousness of the offence (or the combination of the offence and one or more offences associated with it) is exceptionally high, and

(b) the offender was aged 21 or over when he committed the offence,

the appropriate starting point is a whole life order.

A relatively small number of convicted persons have fallen into this category.   Schedule 21 gives some examples of cases where the seriousness would be considered to be exceptionally high - e.g. the murder of a child if involving the abduction of the child or sexual or sadistic motivation.  The Schedule goes on to guide trial judges in fixing the minimum term in other cases not in the exceptionally high seriousness bracket.  In all cases, the judge will consider all factors including any aggravating and mitigating features.

Enter Strasbourg - the European Court of Human Rights (E Ct HR).  In the case of Vinter and others v United Kingdom, the E Ct HR ruled that, even in cases where whole life orders are made, there should be a review after 25 years ( and at reasonable intervals thereafter) to determine whether there were on-going penological reasons to continue to detain the individual.  For whole life orders, the UK does not have such a review procedure.  In terms of law, it would be relatively easy to put a review in place but.so far and for essentially political reasons, the government has not acted to do so.

Since the decision in Vinter, a number of particularly serious cases have come up for sentencing:  R v Reynolds (December 2013) - whole life term imposed by Wilkie J; R v McLoughlin (October 2013) - 40 year term imposed because Sweeney J had doubts, in the light of Vinter, as to the legality of a whole life term.  Yet to have their minimum terms fixed are Adebolajo and Adebowale - convicted of the murder, in May 2013, of soldier Lee Rigby - The Guardian 20th December 2013.  The latest is R v Anwar Rosser, sentenced to a whole life term by Coulson J at the Crown Court sitting in Bradford, Yorkshire. 

In January 2014, a number of cases came before a five judge Court of Appeal (Criminal Division).  The Attorney-General referred the McLoughlin case to the court on the basis that the 40 years minimum term was unduly lenient.  Two other cases are also being considered - those of Lee Newell and Matthew Thomas. (A fourth appeal - Mark Bridger - was abandoned). 

So, the key issue is whether the Vinter decision has prevented the imposition of a whole life term given the absence of a review procedure.  The sentencing judge is faced with statute law enacted by Parliament which clearly permits a whole life order.  He is also faced with a decision of the E Ct HR to the effect that there would be a breach of the European Convention if a whole life term were to be imposed when there is no review procedure for such cases.  The E Ct HR decision binds the UK in international law and judges are required by the Human Rights Act to "take into account" decisions of the E Ct HR.  Furthermore, a court - as a public authority - must not act incompatibly with convention rights.

In October 2013, the government merely informed Parliament that it was carefully considering the Vinter decision - see page 33 of Responding to human rights judgments   The simplest way forward would be for the government to comply with Vinter and bring into force a review process which, after all, is there for other types of prisoner.  In the absence of this, the courts are wrestling with the problem. 

There is also a provision for release on "compassionate grounds" under section 30 of the Crime (Sentences) Act 1997.  Joshua Rozenberg writing in The Guardian suggested that this section might provide the government with a "lifeline."  It may be that the Court of Appeal will be persuaded by such an argument.  In my view, section 30 is not a suitable vehicle.  It is clearly designed for compassion on medical grounds and the sole decision-maker is the Secretary of State who has to consult the Parole Board (unless the circumstances are such as to render such consultation impracticable).  Decisions on whether there are penological grounds for release were removed from the political arena and entrusted to the Parole Board.  They should not return to the political arena.

The decision of their Lordships in the Court of Appeal is eagerly awaited and then, perhaps, the scene will be set for the next visit to the Supreme Court whilst the Ministry of Justice continues to sit on its hands "carefully considering the implications of the judgment" in Vinter. 

Halsbury's Law Exchange has a detailed anaylsis of the cases in the Court of Appeal. 

Further discussion at The Justice Gap - Grayling's default position is to distrust Europe

Other case law:

Jones [2005] EWCA Crim 3115, Mullen [2008] EWCA Crim 592, Bieber [2008] EWCA Crim 1601 - endorsed by the House of Lords in Wellington [2008] UKHL 72 and also to Oakes [2012] EWCA Crim 2435.  Note, in particular, Oakes where the Court of Appeal (also a 5 judge constitution) held that whole life terms were not incompatible with Article 3 but this, of course, preceded Vinter.