“I sentence you to 100 years in prison”: The Politics of Life Sentences

The Daily Telegraph revealed last week that the Government is considering the introduction of sentences of extreme length, to get around a European Court of Human Rights (ECtHR) decision which declared ‘whole life term’ sentences to be incompatible with a prisoner’s rights under Article 3 of the Convention. This would mean that a murderer could theoretically be sentenced to decades or even centuries in prison, such as occurs in the USA (where only last year a man – Ariel Castro – received a 1000 year sentence and committed suicide shortly thereafter). Why is the Government considering such a move, and what is wrong with our current sentencing practice for murder?

Since the abolition of the death penalty in 1965, the crime of murder has carried a mandatory life sentence in England and Wales. This means that, where a defendant is found guilty of murder, the judge has no option but to sentence him or her to life imprisonment. There is an important distinction between a life sentence with a ‘minimum term’ (previously the ‘tariff’) and a ‘whole life’ sentence. In the former, the prisoner is eligible for parole after a fixed period set by the judge for the purposes of retribution. A ‘whole life’ order, however, means that the sentence should last until the death of the prisoner: life really does mean life.  It is the court’s way of declaring: “the crime you have committed is of such gravity that retribution requires you to serve your entire life in prison”. Whole life orders are rare and in practice reserved only for the most abhorrent crimes – only 50 people are currently serving whole life terms in England. It is solely the ‘whole life’ sentence which has fallen foul of Strasbourg in Vinter and Others v. UK.

In Vinter, three men who had been sentenced to whole life orders appealed to the ECtHR, alleging that the whole life term breached their human rights – in that life imprisonment without the possibility of parole constituted inhumane and degrading treatment, which is prohibited by Article 3 of the Convention. The ECtHR held in July 2013 that, in order for whole-life terms to be Convention compatible, there must be a prospect of review of the sentence and the potential for release. The judgement stated “If [a] prisoner is incarcerated without any prospect of release and without the possibility of having his life sentence reviewed, there is the risk that he can never atone for his offence: whatever the prisoner does in prison, however exceptional his progress towards rehabilitation, his punishment remains fixed and unreviewable”.

The government had 6 months from the date of the decision in Vinter to inform the ECtHR how they propose to make the law in this area Convention-compliant. The logical way to respond would be to retain ‘whole life’ orders, and introduce a simple review mechanism after 25 years, by way of a hearing in front of the Parole Board, or in front of a judge. The ECtHR made clear that all that is required is a prospect of review at some point in the future, which could potentially lead to release should all of the appropriate conditions be met. And indeed this potential for review was previously part of our law: until 2003 whole-life terms were amenable to review by the Home Secretary after 25 years.

Instead of taking this logical option, however, the introduction of 100 year sentences is being mooted. Bearing in mind these lengthy sentences would include a review procedure; there is no practical difference between the proposed new 100 year sentence with a review after 25 years, and a whole life sentence with a review procedure after 25 years. Furthermore, sentences of extreme length are an alien concept to our legal system and judiciary – it is illogical to introduce them, when the current, long-established sentencing practice could be retained with only a minor amendment: the review procedure after 25 years.

Why then is the Government resisting introducing a review procedure into ‘whole life’ orders? After all, the UK is unusual in this respect. Several of the contracting states do not even have life sentences, and of those that do, the vast majority have a review mechanism. Even the Rome Statute of the International Criminal Court – where arguably the most heinous of all crimes are tried – provides for a review mechanism for life sentences imposed by that court.

It seems somewhat odd that in a country which has extolled the virtues of rehabilitation, the idea of introducing a review procedure at which a prisoner could theoretically demonstrate they have been rehabilitated, is met with such resistance. It cannot be certain that all ‘lifers’ will always remain a danger to society. Modern penal policy in this country has focused on rehabilitation – so why in this instance is the government not prepared to accept that this policy has the potential to work?

The answer, one suspects, is that Vinter and the ‘whole life’ term debacle has become merely another facet of the government’s long battle with Strasbourg. Vinter is only one of a string of decisions in which the ECtHR has decided against the government, and in which the government has resisted complying with the European decision (another being, for example, the issue of whether prisoners should be able to vote). The government has gone so far as to hint at withdrawing from the ECHR, or to suggest they intend to repeal the Human Rights Act and legislate so that the UK Supreme Court remains, well, supreme. It is therefore arguable that the proposed introduction of 100 year sentences is mere political posturing. One suspects the government has a hidden agenda: an agenda better served by the headlines created by the introduction of 100 year sentences than by quietly making ‘whole life’ orders Convention-compliant.

This is far from the first time the UK government and Strasbourg have clashed over sentencing in murder cases. The Home Secretary used to have the power to set the ‘tariff’ for prisoners sentenced to life imprisonment. This power was removed in relation to defendants under the age of 18 after the killers of Jamie Bulger appealed to the ECHR. The power was then subsequently removed in relation to adult offenders in 2002 after a similar appeal to the ECHR.  These cases highlighted the dangers of allowing a political element to sentencing.

When the Criminal Justice Act 2003 overhauled this area of sentencing, and removed the Home Secretary’s power to review ‘whole life’ orders after 25 years, the government stated its intention was to remove the role of the executive from sentencing. Therefore it is even more striking that currently the only possibility of review of a whole life term is a power of the Home Secretary (on compassionate grounds), and that the Government is resisting introducing a formal review procedure which would be operated by those with the appropriate expertise. Changing the law so that there a formal review procedure – with no role for the executive – would fulfil the aim of the 2003 Act, ensure the UK was Convention-compliant in this area, and would in no way lead to a wave of murderers being released from prison – contrary to what the papers would have you believe.