Too Soon for the Right to Hope? Whole Life Sentences and the Strasbourg Court’s Decision in Hutchinson v UK

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Monday’s judgment by the European Court of Human Rights in Hutchinson v UK may have slowed progress towards the goal of ending whole-life sentences in the Council of Europe. That goal appeared to be edging closer after the Grand Chamber’s 2013 ruling in Vinter & Ors v UK, but Monday’s judgment suggests that it is still too soon to speak of a ‘right to hope’ (to use the language favoured by Judge Power-Forde in his separate opinion in Vinter). The court’s Fourth Section held in Hutchinson that the prospect of executive review of the applicant’s sentence (in the form of a discretion exercisable by the Secretary of State to release prisoners in exceptional circumstances) satisfied the requirements of Article 3.

The applicant in Hutchinson was sentenced to life imprisonment upon conviction of burglary, rape and triple murder. He argued that, following Vinter, whole life sentences with no possibility of parole are inhuman and degrading. However, the Grand Chamber’s judgment in Vinter left a loophole, and the court in Hutchinson marched through it. The loophole was the discretion of the Secretary of State for Justice under s30(1) of the Crime (Sentences) Act 1997 to release life prisoners on licence in certain circumstances. In the language of the statute, the circumstances must be ‘exceptional’ and they must warrant release ‘on compassionate grounds’. The Ministry of Justice ‘Lifer Manual’ elaborates further. It provides a list (purporting to be exhaustive) of the grounds on which the discretion will be exercised. They are: where the prisoner is terminally ill; death is likely to occur shortly (a period of three months is mentioned as a guide); appropriate care can be provided outside prison; there is a ‘minimal’ risk of reoffending; and ‘further imprisonment would reduce the prisoner’s life expectancy’. The Grand Chamber in Vinter concluded that ‘compassionate release of this kind’ did not provide a realistic ‘prospect of release’ as required by Article 3 (p45, §127).

That seems straightforward enough, but here comes the twist. The UK had submitted in Vinter that it was possible to read s30 as imposing a duty on the Secretary of State to release a prisoner if detention had ‘become incompatible with Article 3, for example, when it can no longer be justified on legitimate penological grounds’ (p44, §125). The Grand Chamber accepted that this reading of s30 ‘would, in principle’ comply with Article 3 (p44, §125), and that executive review of a whole life sentence can suffice (p43, §120). However, ‘the present lack of clarity’ for life prisoners as to whether their sentences were reducible (p45, §129) contravened Article 3. 

Next came the 2014 case of R v Newell; R v McLoughlin in the Court of Appeal of England and Wales. There, the Court of Appeal effectively accepted the UK’s submission to the Grand Chamber in Vinter as an accurate statement of the law. The Court of Appeal held that the Lifer Manual ‘cannot restrict the duty of the Secretary of State to consider all circumstances relevant to release on compassionate grounds’, and specifically, that the Secretary of State has a duty to read s30 in a manner compatible with Article 3 (§32-33). This would require release of a prisoner where his continued detention served no legitimate penological purpose. Citing Newell with approval, the Fourth Section of the Strasbourg Court in Hutchinson held (by six votes to one, with Judge Kalaydjieva dissenting), that:

‘… where, following the Grand Chamber’s judgment in which it expressed doubts about the clarity of domestic law, the national court has specifically addressed those doubts and set out an unequivocal statement of the legal position, the Court must accept the national court’s interpretation of domestic law.’ (p11, §25)

The implications for the principle of subsidiarity seem clear: the Strasbourg Court will accept as authoritative a clearly reasoned and unequivocal statement of national law by national courts. On its face that proposition seems logical enough, though the jurisprudence on the ‘autonomous meaning’ of terms such as ‘penalty’ and ‘liberty deprivation’ shows that the Strasbourg Court is not always so deferential. Judge Kalaydjieva was skeptical as to whether the majority was expressing ‘an ex tunc trust or an ex nunc hope that, even though to date the Secretary of State for Justice has not amended the content of the Lifers Manual after Vinter, he was, is and always will be “bound to exercise his power … in a manner compatible with Article 3”…’

The judgment in Hutchinson sits uneasily beside the recent judgment of the former Fifth Section of the Strasbourg Court in Trabelsi v Belgium. That decision, handed down in September 2014, applied the Vinter principles in the expulsion context. The Fifth Section found a violation of Article 3 where the applicant, if extradited to the US, would likely face a whole life sentence upon conviction. The Trabelsi Court held that Article 3 of the Convention required ‘a review mechanism … with objective, pre-established criteria of which the prisoner had precise cognisance at the time of imposition of the life sentence’ (p32-33, §137). This recalled the statement in Vinter that:

‘it would be capricious to expect the prisoner to work towards his own rehabilitation without knowing whether, at an unspecified, future date, a mechanism might be introduced which would allow him, on the basis of that rehabilitation, to be considered for release. A whole life prisoner is entitled to know, at the outset of his sentence, what he must do to be considered for release and under what conditions, including when a review of his sentence will take place or may be sought’ (p43, §122).

 The review mechanism at stake in Trabelsi was similar to that in Hutchinson, though the grounds for release were slightly broader. They included substantial cooperation in prosecuting third parties as well as compelling humanitarian reasons, and in any event, US prisoners can apply for commutation of their sentences and/or for a Presidential pardon. Arguably, too, these discretionary powers would need to be exercised in a manner compatible with the Eighth Amendment prohibition on ‘cruel and unusual punishment’, though whether that would compel release of life prisoners where continued detention serves no legitimate penological purpose is open to serious question.

An application for referral to the Grand Chamber is pending in Trabelsi. Monday’s judgment in Hutchinson surely makes its acceptance more likely. In any event, it seems too soon to hope for a Convention right to hope.

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