Vinter and others v. United Kingdom
European Court of Human Rights (Grand Chamber)
Application nos. 66069/09, 130/10 and 3896/10
9 July 2013
European Convention on Human Rights, Articles 3 (prohibition on torture and inhuman or degrading treatment or punishment) and 5(4) (right to challenge lawfulness of detention before a court)
Criminal Justice Act 2003: Part 21, Chapter 7; Schedule 21, Schedule 22 (procedure for setting minimum terms of imprisonment in relation to mandatory life sentences)
Crime (Sentences) Act 1997, Section 30(1) (power of the Secretary of State to release a life prisoner)
Murder (Abolition of the Death Penalty) Act 1965, Section 1(1) (mandatory life sentence for murder)
Three separate cases were decided in this judgment by the European Court of Human Rights (ECtHR). All three applicants were sentenced to mandatory life imprisonment following convictions for murder, and given “whole life orders”. In the first applicant’s case this order was made by the trial judge under the current sentencing provisions; in the case of the second and third applicants, who were convicted and sentenced prior to the entry into force of the Criminal Justice Act 2003 (“Act”), the orders were made by the High Court. The applicants argued that these whole life orders are incompatible with Articles 3 and 5(4) of the European Convention on Human Rights (ECHR).
Since the abolition of the death penalty in England and Wales, the sentence for murder has been a mandatory sentence of life imprisonment. Prior to the entry into force of the Act, it was the practice for the mandatory life sentence to be passed by the trial judge and for the Secretary of State, after receiving recommendations from the trial judge and the Lord Chief Justice, to decide the minimum term of imprisonment the prisoner must serve for the purposes of punishment and retribution (“tariff”) before they became eligible for release on licence. Since the entry into force of the Act, that power of the Secretary of State has been exercised by the trial judge, and all prisoners whose tariffs were set by the Secretary of State have been able to apply to the High Court for review of that tariff. Exceptionally, a “whole life order” may be imposed instead of a minimum term if the judge/court considers that the seriousness of the offence is exceptionally high. The effect of a whole life order is that the prisoner cannot be released other than at the discretion of the Secretary of State, which will be exercised only on compassionate grounds.
Issue and resolution:
Life imprisonment; whole life orders. The ECtHR ruled that whole life orders – sentences of life imprisonment that give the prisoner no prospect of release or possibility of review – are incompatible with Article 3 of the ECHR. The complaint of an alleged violation of Article 5(4) of the ECHR was declared inadmissible.
While States remain free to impose life sentences on adult offenders for especially serious crimes, the imposition of irreducible life sentences could raise an issue under Article 3 of the ECHR. For life sentences, there must be both a prospect of release and a possibility of review, as it would be incompatible with human dignity for the State forcefully to deprive a person of his/her freedom without at least providing him/her with the chance to some day regain that freedom. Accordingly, Article 3 had to be interpreted as requiring reducibility of life sentences in the sense of a review allowing the domestic authorities to consider whether any changes in the life prisoner are so significant, and progress towards rehabilitation has been made in the course of the sentence, meaning that continued detention can no longer be justified on penological grounds.
A whole life sentence would not measure up to the standards of Article 3 where the domestic law did not provide for the possibility of such a review. Whole life prisoners were entitled to know, at the outset of their sentence, what they must do to be considered for release and under what conditions, including when a review of their sentence will take place or may be sought. Therefore, the incompatibility with Article 3 on this ground already arose when the whole life sentence was imposed and not at a later stage of incarceration. The Court found that in this respect the current law concerning the prospect of release of whole life prisoners in England and Wales was unclear.
Accordingly, the Court was not persuaded that, at the time of the judgment, the applicants’ life sentences could be regarded as reducible for the purposes of Article 3. Therefore, the requirements of Article 3 had not been met in relation to any of the three applicants.
This case does not prohibit actual whole life imprisonment for adult offenders convicted for murder in light of Article 3 of the ECHR. Rather, it prohibits life imprisonment for adults only if there is no clarity under which conditions and when there is the possibility of reducibility of the sentence.
Since the Grand Chamber made this judgment, the issue of whole life orders returned to the Court of Appeal of England and Wales in the case of McLoughlin. The Court found that the Secretary of State’s discretion was limited to “exceptional grounds”, which must be read in a way that is compatible with Article 3 of the ECHR. The Court was, therefore, of the opinion that English law did present the possibility of release even where a whole life order had been imposed and so did not violate the ECHR (see CRIN’s case summary of R v. McLoughlin, R v. Newell).
In 2015, the ECtHR in the case of Hutchinson v. UK confirmed that imposing whole life sentences on prisoners does not breach Article 3, where the national court in McLoughlin determined that the law in England and Wales “is clear as to “possible exceptional release of whole-life prisoners'” by the Secretary of State. Note, however, that life without parole still violates Article 3, and “whole life sentences” have to allow the possibility of release.
For children, the “irreducible” standard has not been applied. All of the relevant cases that directly address life sentences for children pre-date the Grand Chamber decisions which developed the concept of “irreducible” life sentences, so the ECtHR has not clarified how the standards for children and adults relate to each other.
However, the Grand Chamber in this judgment 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.
Link to Full Judgment:
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.