Whole-life jail sentences: what are the government's options?

Details: Parent Category: Africa and The World; Category: Law & Justice; Created on Tuesday, 09 July 2013 00:00; Hits: 3213

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Whole-life jail sentences: what are the government's options?

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Despite the government's 'profound disagreement' — foreseen by the Strasbourg judges — compliance with the ruling requires little action

Joshua Rozenberg

If the home secretary could base her argument for denouncing the human rights convention on the strength of the Abu Qatada case — which Theresa May won — you'd expect Chris Grayling to argue even more strongly for pulling out of Strasbourg over the issue of life imprisonment for brutal murderers, an iconic issue on which the justice secretary has decisively lost.

But Grayling did not go as far as May. He said that the ruling by the human rights court — which requires ministers to create a review system for murderers serving whole life orders in England and Wales — had reinforced his "determination to curtail the role of the court of human rights in the UK".

May, by contrast, did not confine her remarks to reforming UK legislation. She told MPs on Monday: "We must … consider our relationship with the European court very carefully, and I believe that all options — including withdrawing from the convention altogether—should remain on the table."

Although Grayling would apparently prefer reform to withdrawal, he did say he profoundly disagreed with the lifers ruling. That was just what the prime minister said too. And if ministers are still nowhere near lifting the blanket ban on voting by prisoners nearly eight years after the court's grand chamber found it was unlawful, they are hardly going to rush into setting up the review process that the latest ruling requires.

So what can they do about it? Reforming the Human Rights Act 1998 will not affect the government's obligation under article 46 of the convention to "abide by the final decision of the court in any case to which they are parties". Even denouncing the convention under article 58, which can be done on six months' notice, would not release the government from its obligations before the date at which the denunciation became effective. So the government's choice is between implementing the ruling and breaking its treaty obligations.

As is so often the case, giving effect to the ruling would not require the government to do very much. It would not even have to legislate. Section 30 of the Crime (Sentences) Act 1997 already allows a secretary of state to free a life prisoner on licence if there are exceptional circumstances justifying the prisoner's release on compassionate grounds. The government argued in Strasbourg that this section not only justifies but even requires the release of a prisoner whose continued detention cannot be justified on legitimate grounds of punishment, reform or retribution.

But a prison service order provides that release under this power can be ordered only if the prisoner is terminally ill or physically incapacitated and other conditions are met. This order would need to be amended or repealed before the government could rely on section 30.

There would also need to be some sort of review mechanism. While not spelling out how it had to operate, the court suggested that every life sentence should be reviewed no later than 25 years after it was passed, "with further periodic reviews thereafter".

As it happens, life sentences in England and Wales used to be reviewed after 25 years. But that review used to be conducted on behalf the home secretary. After earlier defeats in the courts, ministers lost their final say a decade ago in how long lifers should serve in prison. So if the 25-year review was to be retained, it need to be conducted by an independent decision-maker — such as the parole board or a judge. That was the last thing ministers wanted, which is why they scrapped the review. But it makes it harder for them to oppose its revival now.

It is not just that compliance with the ruling would require very little action on the government's part. It would also have very little effect on the handful of lifers — fewer than 50 — who have currently been given whole life orders. The Strasbourg court took the unusual step of sending broadcasters an explanatory note saying that the judgment would not prevent people who commit "terrible offences" from spending the rest of their lives in prison.

"It does not mean that the applicants in the present case must be released in the near future and it offers no guarantee that they will ever be released," the note added. But prisoners in their position must:

have the possibility of arguing that at some point, after a lengthy period in prison, their detention is no longer necessary in the interests of punishment, deterrence and protection of the public and that their release would be justified on grounds of rehabilitation.

That the court chose to spell this out is an indication that it expected its ruling to be attacked by ministers and the wider public. It is to the judges' credit that they were not deterred by the reaction they foresaw.

As the court said, there is "clear support in European and international law for the principle that all prisoners, including those serving life sentences, be offered the possibility of rehabilitation and the prospect of release if that rehabilitation is achieved". Strasbourg could hardly justify leaving the UK out on a limb.

Murderers serving life tariffs are in prison because the prospect of serving an extremely long prison sentence has failed to deter them from multiple killings. A rational person is hardly going to be persuaded that the faint hope of eventual release makes several decades in prison a price worth paying.

Source: The Guardian UK