MOSCOW, February 19 (RAPSI, Ingrid Burke) – The UK Court of Appeal held Tuesday that whole-life sentences should be imposed when appropriate, despite a finding by the European Court of Human Rights (ECHR) that the UK’s whole-life sentences had violated Article 3 of the European Convention on Human Rights (Convention), which prohibits torture and inhuman and degrading treatment.

Under the law of England and Wales, if an adult is convicted of murder the trial judge is legally required to impose a life sentence, according to the judgment. This can take the form of either a life sentence with a fixed minimum term, or a whole-life sentence.

Where a fixed minimum term is imposed, a parole board is authorized to call for the release of an offender after the requisite period has passed so long as that person is no longer deemed a threat to society.

Where a whole-life sentence is imposed, the parole board has no power to call for the offender’s release.

A separate provision, however, vests in the Secretary of State the power of release in certain exceptional circumstances if necessary on compassionate grounds. The provision states in relevant part: “The Secretary of State may at any time release a life prisoner on [license] if he is satisfied that exceptional circumstances exist which justify the prisoner's release on compassionate grounds,” and requires consultation with the parole board before such release is granted.

The Secretary of State established certain guidelines for the determination of exceptional circumstances, according to which compassionate grounds may constitute, terminal illness or incapacitation. The guidelines suggest that a variety of other factors should be subject to consideration as well, such as the risk of recidivism, the likelihood that further imprisonment would shorten the offender’s life expectancy, whether the offender would be adequately cared for outside of prison, and whether early release would significantly benefit the offender and his or her family.

The present life-sentence scheme was challenged before the court on the basis of Article 3 of the Convention and decisions by the ECHR in Strasbourg.

In 2008, the ECHR Grand Chamber held in the case of Kafkaris v. Cyprus that while life imprisonment in and of itself did not constitute an Article 3 violation, life imprisonment without the possibility of release would constitute such a violation.

Based on that judgment, the UK Court of Appeal had previously held that owing to the Secretary of State’s power of release, a whole-life sentence order was not actually irreducible.

In 2012, the UK Court of Appeals held similarly that whole-life sentences were not incompatible with Article 3, in a case brought by four individuals that had received whole-life sentences, and one that had received a life sentenced with a 30 year minimum fixed term.

In 2013, the ECHR Grand Chamber held in Vinter v. United Kingdom that the UK had violated Article 3 in connection with whole-life sentences. In the words of the ECHR: “the Court is not persuaded that, at the present time, the applicants’ life sentences can be regarded as reducible for the purposes of Article 3 of the Convention.”

In its decision Tuesday, the UK Court of Appeals was tasked with considering an appeal by an offender who had received a whole-life order, as well as a reference by the Attorney General with regard to whether a trial judge had mistakenly interpreted Vinter to preclude whole-life sentences.

The Attorney General argued that the Vinter decision dealt with sentence reducibility, not the sentence itself. As explained by the judgment: “The Grand Chamber had drawn a clear distinction between the regime which governed the imposition of the sentence and the regime for the reducibility of that sentence through review and release. The imposition of a whole life order was just punishment and was compatible with the Convention.”

The UK Court reasoned, “We do not read the judgment of the Grand Chamber in Vinter as in any way casting doubt on the fact that there are crimes that are so heinous that just punishment may require imprisonment for life… We do not read the judgment of the Grand Chamber in Vinter as in any way casting doubt on the fact that there are crimes that are so heinous that just punishment may require imprisonment for life… We therefore conclude that no specific passage in the judgment nor the judgment read as a whole in any way seek to impugn the provisions of the [relevant life-sentence law] which entitle a judge to make at the time of sentence a whole life order as a sentence reflecting just punishment.”

The UK Court thus interpreted the Vinter judgment to mean that while a judge can appropriately impose a whole-life sentence, a legal regime for sentencing review must be in place when such sentence is handed down.

The judgment then turned to the issue of whether the Secretary of State’s power of release was actually compliant with Article 3.

The Grand Chamber had expressed concern in Vinter that the provision lacked sufficient certainty, and questioned whether “compassionate release for the terminally ill or physically incapacitated could really be considered release at all.” Based on such concerns, the Grand Chamber had concluded that the provision did not provide adequate redress for an offender seeking to prove that his release would be justified.

The UK Court disagreed, opining that the law is clear with regard to the possibility of exceptional release for whole-life prisoners. The Secretary of State’s power of review is invoked where “exceptional circumstances” are found. The Court notes that such “exceptional circumstances” are not reliant on specific criteria.

The Secretary must then determine whether such “exceptional circumstances” would justify the offender’s early release. The Court further asserts that “compassionate grounds” in the provision must be read as compatible with Article 3’s prohibition of torture or inhuman and degrading treatment.

Furthermore, the Secretary’s decision must be properly reasoned and is subject to judicial review.

Thus, the Court found, “In our judgment the law of England and Wales therefore does provide to an offender ‘hope’ or the ‘possibility’ of release in exceptional circumstances which render the just punishment originally imposed no longer justifiable… Judges should therefore continue to apply the statutory scheme in the [relevant life-sentence law] and in exceptional cases, likely to be rare, impose whole life orders.”