Should murderers get whole-life imprisonment?

Friday 31 January will see a case that is key to the future of to sentencing rules being heard before the Court of Appeal.

Judges will decide whether murderers can continue to be given life sentences without any possibility of being released early. The very core of this case falls upon whether English law or European Union law will prevail as the Court of Justice of the European Union has suggested that whole-life imprisonment sentences may breach prisoners’ human rights. The issue being that some prisoners have the right to have their sentences reviewed at a later stage.

Over the years many cases like these have appeared before the courts, where courts have tried to balance the basic human rights of the convicted with the consequences of taking a human life.

In a recent case involving Ian McLoughlin, a convicted double-killer who was sentenced to life imprisonment last October, Lord Justice Sweeney took the view that the law did not allow him to make what is known as a whole-life order. This would mean McLoughlin would never be released. Sweeney LJ therefore ordered that McLoughlin should serve a minimum of 40 years before being considered for parole.

The Attorney General Dominic Grieve believes that this 40-year tariff was far too lenient. On the face of it, this argument may seem hard to grasp because a minimum of 40 years imprisonment of a 55 year old man would render McLoughlin 95 years of age if he is ever to taste freedom. But Grieve's point is that a whole-life order was the appropriate sentence under schedule 21 of the Criminal Justice Act 2003, in the case of a murderer who had previously been convicted of murder. Why then, did Sweeney LJ not make a whole-life order in McLoughlin's case? And why did he defer sentence on Michael Adebolajo and Michael Adebowale in December 2013 after they had been convicted of murdering Lee Rigby?

The answer to these questions lies in a ruling of the European Court of Human Rights (ECtHR) in a case called Vinter. The ECtHR ruled that "there must be both a prospect of release and a possibility of review" for a life sentence to be compatible with Article 3 of the European Convention on Human Rights (ECHR). This article bans "inhuman or degrading treatment or punishment".

Because the English whole-life sentence does not provide any review mechanism, the Court found this breached the human rights of those punished in this way. However, the judges stressed that their ruling gave the three prisoners no prospect of imminent release. 

But last month another judge, Mr Justice Wilkie, gave a whole-life sentence in the case of Jamie Reynolds, 22, convicted of a sexually-motivated abduction and murder. The judge was well aware of the Vinter ruling but decided that he was bound by earlier rulings of the English courts that had upheld the whole-life tariff. He added that ‘compliance with the Vinter ruling should be a matter for the Court of Appeal’. Under the Human Rights Act, courts in the UK need only "take into account" the ECtHR’s rulings unless it is possible to interpret them in a way that is compatible with human rights.

Going forward, a number of different solutions that have been suggested so as to keep the ECtHR happy. The UK government could comply with the ruling by reviewing whole-life orders after prisoners have served a minimum of 25 years and regularly thereafter.

Another option might be to release a prisoner under a whole-life sentence on licence, if the authorities are satisfied that exceptional circumstances exist that would justify the prisoner's release on compassionate grounds.

Although nobody can say for sure, there are a number of outcomes the Court’s ruling this Friday may bring about. But given that ministers have criticised any changes to the sentencing system, fearing it would make the justice system seem soft, any ruling that welcomes the ECtHR’s decision may not go unchallenged.