We Need to Talk about Whole Life Sentences…

By James Reynolds, Writer 9 Jul 2017

Do human rights laws stop us from locking people up for life? Spoiler alert: no, they don’t. But locking someone up with no prospect of release under any circumstances might raise issues of inhuman and degrading punishment. So, how can we impose whole life sentences without breaching human rights?

First things first, what’s a ‘whole life sentence’?

Since the abolition of the death penalty in England and Wales, judges have been required to give a life sentence to all persons found guilty of murder. Where a judge imposes a life sentence, they specify a minimum term or ‘tariff’ that the convicted person must serve in prison. At the end of the tariff, most people can apply for ‘parole’. This means they may be released from prison ‘on licence’ if their detention is no longer necessary for the protection of the public, but can be recalled to prison if they breach the conditions of their parole.

In a relatively small number of exceptionally serious murder cases, persons (aged over 21) may be given a whole life tariff. Such a sentence means that normally, subject to some limited exceptions, a convicted person will spend the rest of their days in prison. At the end of 2016, there were around 70 prisoners serving whole life sentences in Britain.

Do human rights laws mean States can’t impose whole life sentences?

No – human rights do not prevent those who are convicted of the most serious crimes from receiving very long prison sentences, including whole life tariffs. The Human Rights Court made this very clear in a case called Vinter v the UK:

“States must… remain free to impose life sentences on adult offenders for especially serious crimes such as murder: the imposition of such a sentence on an adult offender is not in itself prohibited by or incompatible with Article 3 [freedom from inhuman and degrading treatment and punishment] or any other Article of the [Human Rights] Convention…”

The Court explained that it is basically up to States to choose how to run their criminal justice system, including sentence review and release arrangements, so long as these arrangements do not violate the rights set out in the Human Rights Convention.

How do we make sure whole life sentences don’t violate the Human Rights Convention?

Although whole life sentences are, in principle, compatible with Article 3 of the Human Rights Convention, imposing an irreducible sentence may raise an issue under Article 3. The Court is especially concerned to avoid situations where a whole life prisoner is deprived of any hope of release.

Imprisoning people serves a number of legitimate purposes, such as punishment, deterrence, public protection and rehabilitation. The emphasis in European penal policy is now on rehabilitation. That might require authorities, for example, to provide essential psychiatric treatment. Rehabilitation of those serving whole life tariffs may take a very long time, and may never happen. But human rights mean that the criminal justice system must not assume that from day one. Instead, continuing detention must be reviewed (normally no later than 25 years into a whole life term).

Reviews must assess whether progress towards rehabilitation has been so significant that detention can no longer be justified. In England and Wales, this review process is carried out by the Secretary of State for Justice and can take place at any time during a sentence.

Controversy over ‘reducibility’ of whole life sentences in England and Wales

The Secretary of State has a discretionary power to release whole life prisoners under section 30(1) of the Crime (Sentences) Act 1997 and the ‘Lifer Manual’. These specify that the Secretary of State may exercise their discretion to release a whole life prisoner in exceptional circumstances on compassionate grounds, such as when a prisoner is terminally ill or seriously incapacitated.

In 2013, the Human Rights Court found in Vinter that these review processes violated Article 3 of the Human Rights Convention. This was in part about a lack of clarity in the law at the time; it was not clear to the Court that the rules, as interpreted by the courts of England and Wales, meant that whole life sentences were reducible.

Subsequently, a decision of the Court of Appeal clarified the law on reviews, emphasising that, under the Human Rights Act, the Secretary of State has to make review decisions compatibly with human rights. Following that clarification, in a case called Hutchinson v UK from January 2017, the Human Rights Court found that the processes for review of whole life tariffs in England and Wales now do provide sufficient protection for human rights.

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About The Author

James Reynolds Writer

James manages programmes for a charity called ISLP-UK, a network of lawyers working on key international development issues. Before joining ISLP, James was a corporate tax lawyer at Allen & Overy. He is part of the RightsInfo volunteer team.

James manages programmes for a charity called ISLP-UK, a network of lawyers working on key international development issues. Before joining ISLP, James was a corporate tax lawyer at Allen & Overy. He is part of the RightsInfo volunteer team.