R v. McLoughlin, R v. Newell
Court of Appeal, Criminal Division
 EWCA Crim 188
18 February 2014
European Convention on Human Rights, Article 3 (prohibition on torture and inhuman or degrading treatment or punishment)
Murder (Abolition of the Death Penalty) Act 1965, Section 1(1) (mandatory life sentence for murder)
Crime (Sentences) Act 1997, Section 30(1) (power of the Secretary of State to release a life prisoner)
Criminal Justice Act 2003 (procedure for setting minimum terms of imprisonment in relation to mandatory life sentences)
Human Rights Act 1998
In England and Wales, once an adult is found guilty of murder, the trial judge must impose a life sentence depending on the brutality of the murder and the criminal history of the guilty individual. The trial judge may decide whether to impose a sentence of a minimum term of a fixed number of years or a whole life order. If a fixed minimum term order is made, the Parole Board will review the individual’s sentence prior to the end of the minimum term and, if it concludes that the individual is no longer a risk to the public, he/she would be released. The Parole Board has no such power where a whole life order is made. Where a sentence of a whole life order has been made, the only power of release is by the Secretary of State, if there are exceptional circumstances which justify release on compassionate grounds. The Secretary of State set out in a policy manual that such a compassionate ground would exist if the prisoner is suffering from terminal illness and death was imminent.
On 9 July 2013, the European Court of Human Rights (ECtHR) held, in the case of Vinter and others v. UK, that “whole life orders” violate Article 3 of the European Convention on Human Rights (ECHR) as they were not reducible. The ECtHR decided that for a whole life order to be compatible with Article 3 of the ECHR, there had to be both “a prospect of release and a possibility of review”. It also held that a mechanism for review has to be in place at the time that a sentence is imposed. The ECtHR felt that the English whole life orders did not satisfy these requirements.
The Court of Appeal in this case was specifically constituted following this decision of the ECtHR to consider the whole life order.
Issue and resolution:
Life imprisonment; whole life orders. The Court of Appeal resolved that whole life orders are consistent with Article 3 of the ECHR as the law of England and Wales does offer to an offender the “possibility” of release in exceptional circumstances that would render the punishment originally imposed no longer justifiable.
The Court disagreed with the conclusion of the ECtHR and concluded that the law of England and Wales is clear that it is possible that whole life prisoners can be released in exceptional circumstances.
The Court clarified that the power of the Secretary of State to review whole life orders is set out in Section 30 of the Crime (Sentences) Act 1997. This power of review arises if there are exceptional circumstances. The offender subject to the whole life order is required to demonstrate to the Secretary of State that, although the whole life order was just punishment at the time the order was made, exceptional circumstances have since arisen. The Court did not specify what would constitute exceptional circumstances.
The Secretary of State would then have to consider if the exceptional circumstances justify the release on compassionate grounds. The Court of Appeal did state that the Secretary of State must take into consideration all exceptional circumstances that may be relevant to an offender’s release on compassionate grounds. The term compassionate grounds has a wide meaning and must be read in a manner compatible with Article 3 of the ECHR. The Court also stated that the decision of the Secretary of State must be reasoned by reference to the circumstances of each case and is subject to scrutiny by way of judicial review. Accordingly, it was held that a mechanism for the review of whole life orders does, in fact, exist and offenders serving such sentences do enjoy the prospect of release.
The Court of Appeal clarified the scope of Section 30 of the 1997 Act, which allows a Secretary of State to release a life prisoner on licence if the Secretary of State is satisfied that there are exceptional circumstances which would justify the release on compassionate grounds.
The issue of whole life orders came before the ECtHR again in 2015 in the case of Hutchinson v. UK where an offender sentenced to life imprisonment for a whole life term appealed to the ECtHR contending that the whole life order was contrary to Article 3 of the ECHR. The ECtHR held in light of the judgment in McLoughlin that whole life orders were open to review under English law and therefore compatible with Article 3 of the ECHR.
The Grand Chamber of the ECtHR has emphasised that States “remain free to impose life sentences on adult offenders” (emphasis added), and has started using this phrase as standard language in its judgments on life imprisonment (see also Hutchinson v. UK). In CRIN’s view, this strongly implies that the ECtHR does not consider the issue settled with regard to children.
This case summary is provided by the Child Rights International Network for educational and informational purposes only and should not be construed as legal advice.