Vinter v United Kingdom  ECHR, Applications nos. 66069/09, 130/10 and 3896/10 (9 July 2013)
The Grand Chamber of the European Court of Human Rights has held that the imposition of an irreducible sentence of life imprisonment breaches article 3 of the European Convention on Human Rights.
The issue before the court was whether the imposition in the United Kingdom of life sentences without the possibility of parole breached article 3 of the Convention. Article 3 provides that “[n]o one shall be subjected to torture or to inhuman or degrading treatment of punishment”.
In England and Wales, the mandatory sentence for murder is life imprisonment. The trial judge must set a minimum term of imprisonment, after which the prisoner may apply to the Parole Board for release on licence. However, if the crime is exceptionally serious, the trial judge may make a “whole life order” pursuant to which the prisoner will never be released on parole. In such cases, the Secretary of State has a statutory discretion to release the prisoner if satisfied that “exceptional circumstances” exist which justify the prisoner's release on compassionate grounds. The Secretary of State's written policy is to exercise the discretion to release a prisoner only where the prisoner is terminally ill or seriously incapacitated.
The applicants in Vinter were three British nationals who had been given whole life sentences (either under the current law set out above or pursuant to certain transitional provisions) for committing murders which were considered to be especially heinous. The applicants submitted that their whole life orders, which afforded them no possibility of release except at the discretion of the Secretary of State in narrowly defined circumstances, breached article 3.
At first instance, the Fourth Section of the Court in a 4:3 decision found in favour of the United Kingdom on the basis that an irreducible life sentence (whether mandatory or discretionary) will only breach article 3 if the applicant's continued imprisonment can no longer be justified on any legitimate penological grounds. According to the majority at first instance, because imprisonment will almost always be justified at the time of the sentence of imprisonment being imposed, any breach of article 3 will not occur until some time after sentencing and, indeed, may never occur (if the prisoner's imprisonment continues to be justified for the whole of the prisoner's life). By contrast, the minority found that an irreducible life sentence will always breach article 3 and that, accordingly, a breach will occur when the sentence is imposed.
On appeal the Grand Chamber, by a majority of 16:1, agreed with the minority at first instance. The Grand Chamber found that article 3 of the Convention prohibits all irreducible life sentences and that, accordingly, a prisoner must have at least some possibility of being released. The Grand Chamber held that a prisoner's circumstances may change such that continued imprisonment is no longer justified, that a prisoner who is subject to an irreducible life sentence may not be able to atone for his or her crimes, and that it is incompatible with human dignity to deprive a person of their liberty “without at least providing him with the chance to someday regain that freedom”. In a separate concurring judgment, Judge Power-Forde found that article 3 encompasses “the right to hope”, finding that “[t]hose who commit the most abhorrent and egregious of acts and who inflict untold suffering upon others, nevertheless retain their fundamental humanity and carry within themselves the capacity to change”.
Having found that article 3 prohibits irreducible life sentences, the Grand Chamber found that the sentences imposed upon the applicants were in fact irreducible. The Grand Chamber noted that the relevant question is whether the prisoner has “any prospect of release” and that the imprisonment will be considered irreducible if, either at law or in fact, the sentence cannot be reduced. On the basis that different nations may legitimately seek to comply with their obligations under the Convention in different ways (the so-called “margin of appreciation”), the court found that article 3 does not require any particular form of review of life sentences (for example, review by a parole board). Nevertheless, the Court found that the discretionary review by the Secretary of State on “highly restrictive conditions” did not create a sufficient prospect of release to avoid a breach of article 3. In this regard, it is useful to compare the case with Kafkaris v Cyprus [GC], no. 21906/04 in which the Grand Chamber found that, although there was no provision for granting parole for any prisoners in Cypriot prisons (including those serving life sentences), the applicant's life sentence was not irreducible because the President of the Republic of Cyprus had a discretion (which had previously been exercised in other cases) to remit, suspend or commute any sentence or to order a prisoner's conditional release.
The question of whether the applicants should actually have been released was not at issue before the Grand Chamber, and so the finding that there was a violation of article 3 did not mean there was a prospect of their imminent release. That would turn on a separate question as to whether there were any grounds for their continued incarceration (e.g. dangerousness) in their individual cases.
It remains to be seen how the United Kingdom will respond to the Grand Chamber's decision in Vinter. In the meantime, the decision's potential relevance in Australia is a subject worthy of consideration.
Legislation in every state and territory in Australia permits (or, in certain circumstances, requires) courts to impose a sentence of life imprisonment without parole. The Grand Chamber's decision will be of particular relevance in Victoria and the Australian Capital Territory given that Victoria’s Charter of Human Rights and the Human Rights Act 2004 (ACT) each contain a provision in relevantly identical terms to article 3 of the Convention.
With respect to sentences of life imprisonment without parole in Victoria, the Victorian Court of Appeal noted in R v Coulston  2 VR 446 at 462 that “dreadful crimes … may require dreadful punishments” and that, accordingly, sentences of life imprisonment without parole should not be regarded as only appropriate in very rare cases. As at 2012, twelve prisoners in Victoria were serving sentences of life imprisonment without parole.
Regardless of the possible jurisprudential effect in Australia of the Grand Chamber's decision in Vinter, the decision is a reminder of the important balance in sentencing between, on one hand, ensuring the safety of the public and effectively deterring crime and, on the other hand, ensuring that prisoners are treated with a degree of dignity, are afforded an opportunity to rehabilitate and are not entirely bereft of hope.
This decision is available online at: http://hudoc.echr.coe.int/sites/eng/pages/search.aspx?i=001-122664
Edmund Robinson is a Lawyer at Allens.