ON APPEAL FROM THE CROWN COURT AT LEAMINGTON SPA
AND IN THE MATTER OF A REFERENCE UNDER S.36 OF THE CJA 1988
Strand, London, WC2A 2LL
B e f o r e :
THE PRESIDENT OF THE QUEEN'S BENCH DIVISION
THE VICE PRESIDENT OF THE COURT OF APPEAL CRIMINAL DIVISION
LORD JUSTICE TREACY
MR JUSTICE BURNETT
ATTORNEY GENERAL'S REFERENCE No. 69 of 2013
UNDER SECTION 36 OF
THE CRIMINAL JUSTICE ACT 1988
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AND IN AN APPEAL FROM THE CROWN COURT
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|Lee William Newell
James Eadie QC and Louis Mably for the Respondent
K McCartney in attendance on the reference at the invitation of the court
Joe Stone QC and Miss C Hawley for Thomas
Hearing date: 24 January 2014
Crown Copyright ©
Lord Thomas of Cwmgiedd, CJ:
i) A trial judge must, under s.1 of the 1965 Act, impose a life sentence for murder. Under s.269 of the 2003 Act, the judge must decide whether to make a minimum term of a fixed number of years or a whole life order.
ii) If a fixed minimum term order is made, the Parole Board has the power under the provisions of s.28 of the 1997 Act, commonly called the early release provisions, to direct release of the offender after the expiry of any minimum term for a fixed number of years set by the trial judge; it considers in essence the risk to the public if release is ordered. However, the Parole Board has no such power where a whole life order is made.
iii) A power of release is given under s.30 of the 1997 Act to the Secretary of State, if there are exceptional circumstances which justify release on compassionate grounds.
i) On 12 February 2008, the Grand Chamber of the Strasbourg Court decided in Kafkaris v Cyprus ...Application no. 21906/04, BAILII:  ECHR 143 ) that whilst a sentence of life imprisonment did not violate Article 3, there would be a violation if such a sentence was irreducible – that is to say a sentence for the duration of the life of the offender with no "possibility" or "hope" or "prospect" of release from the sentence.
ii) In R v Bieber  1 WLR 223, this court held, in the light of the decision in Kafkaris that, as the Secretary of State had a power of release under s.30 of the 1997 Act, a sentence with a whole life order was not irreducible and thus not in violation of Article 3.
iii) On 17 January 2012 the Fourth Chamber of the Strasbourg Court in Vinter v UK  55 EHRR 34 held that there was no violation of Article 3. On 9 July 2012, the Grand Chamber decided to hear the case.
iv) Prior to the hearing by the Grand Chamber, a special constitution of this court considered appeals where four of the appellants had received whole life orders and one a minimum term of 30 years. In its decision given in November 2012, R v David Oakes and others  EWCA Crim 2435,  2 Cr App R (S) 22, this court concluded that whole life orders were not incompatible with Article 3 of the Convention.
v) 0n 9 July 2013, the Grand Chamber of the Strasbourg Court gave its decision in Vinter v United Kingdom. It held, for reasons we shall analyse, that there had been a violation of Article 3 in relation to the whole life orders imposed on the basis that they were not reducible.
The development of the legislative scheme
(a) The fixing of the tariff and its reconsideration in exceptional circumstances
i) On 7 December 1994 the then Home Secretary announced a policy in relation to prisoners serving a whole life tariff (Hansard HC Deb 7 December 1994, vol 251, cols. 234-235: written answer).
"In addition, I have decided that for those life sentence prisoners for whom it is decided that the requirements of retribution and deterrence can be satisfied only by their remaining in prison for the whole of their life, there will in future be an additional ministerial review when the prisoner has been in custody for 25 years. The purpose of this review will be solely to consider whether the whole life tariff should be converted to a tariff of a determinate period. The review will be confined to the considerations of retribution and deterrence. Where appropriate, further ministerial reviews will normally take place at five-yearly intervals thereafter. Existing prisoners who fall into this category and who have already served 25 years or more in custody will not be disadvantaged. Their cases will be reviewed by ministers as soon as is practicable and after any representations they may wish to make."
ii) That policy was modified by a different Home Secretary on 10 November 1997 (Hansard HC Deb 10 November 1997, vol 300, cols. 419-420: written answer):
"So far as the potential for a reduction in tariff is concerned, I shall be open to the possibility that, in exceptional circumstances, including for example exceptional progress by the prisoner whilst in custody, a review and reduction of the tariff may be appropriate. I shall have this possibility in mind when reviewing at the 25-year point the cases of prisoners given a whole life tariff and in that respect will consider issues beyond the sole criteria of retribution and deterrence described in the answer given on 7 December 1994."
iii) In a challenge by Myra Hindley to the whole life tariff imposed on her, Lord Bingham CJ held in the Divisional Court in R v Home Secretary ex p Hindley  QB 751 at page 770 that whereas the narrow policy set out in 1994 was unlawful, this had been corrected by the 1997 policy which permitted the taking into account of exceptional progress whilst in prison. In the appeal to the House of Lords counsel for the Home Secretary made clear that the Home Secretary was prepared to review any whole life tariff, even in the absence of exceptional circumstances (see page 417C of  1 AC 410). Lord Steyn, when approving the legality of the Home Secretary's 1997 policy, recorded the way in which the policy had been clarified (at 417D):
"…. counsel for the Secretary of State submitted that the policy of imposing a whole life tariff merely involves the expression of the current view of the Secretary of State that the requirements of retribution and deterrence make it inappropriate ever to release such a prisoner. It does not rule out reconsideration. The Secretary of State envisages the possibility of release in the event of exceptional progress in prison; and, even in absence of such progress, the Secretary of State is prepared to reconsider any whole life tariff decision from time to time."
iv) The Secretary of State's policy of being willing to review existing tariffs in exceptional circumstances was noted in R(Cole & others) v Secretary of State for the Home Department  EWHC 1789 (Admin) at paragraph 11. The then Vice President of the Court of Appeal Criminal Division (Rose LJ) observed (in relation to then planned review by judges in the High Court of existing tariffs as subsequently enacted in the CJA 2003) that it seemed:
"inconceivable, in human terms, that … in relation to prisoners serving a notified tariff, exceptional progress in prison will not be taken into account." (See paragraph 88)
(b) The duty of the judge under the CJA 2003
"(a) the murder of two or more persons, where each murder involves any of the following—
(i) a substantial degree of premeditation or planning,
(ii) the abduction of the victim, or
(iii) sexual or sadistic conduct,
(b) the murder of a child if involving the abduction of the child or sexual or sadistic motivation,
(c) a murder done for the purpose of advancing a political, religious, racial or ideological cause, or
(d) a murder by an offender previously convicted of murder."
(c) The power of release under s.30 of the 1997 Act
"(1) The Secretary of State may at any time release a life prisoner on licence if he is satisfied that exceptional circumstances exist which justify the prisoner's release on compassionate grounds.
(2) Before releasing a life prisoner under subsection (1) above, the Secretary of State shall consult the Parole Board, unless the circumstances are such as to render such consultation impracticable."
"the prisoner is suffering from a terminal illness and death is likely to occur very shortly (although there are no set time limits, 3 months may be considered to be an appropriate period for an application to be made to Public Protection Casework Section [PPCS]), or the ISP is bedridden or similarly incapacitated, for example, those paralysed or suffering from a severe stoke;
the risk of re-offending (particularly of a sexual or violent nature) is minimal;
further imprisonment would reduce the prisoner's life expectancy;
there are adequate arrangements for the prisoner's care and treatment outside prison;
early release will bring some significant benefit to the prisoner or his/her family".
These are highly restrictive criteria.
The contentions of the parties
i) The Grand Chamber's decision did not hold that the statutory regime relating to the imposition of a whole life order under s.269 of the CJA 2003 was incompatible with Article 3. 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.
ii) The Grand Chamber were mistaken in concluding that the statutory regime for the reducibility of the sentence by review and release was insufficiently certain; and that uncertainty gave rise to a breach of Article 3. As a matter of analysis of the law of England and Wales, the Human Rights Act required the Secretary of State to act compatibly with Convention Rights. When the Secretary of State considered review and release, the Secretary of State had to exercise his powers under s.30 of the 1997 Act compatibly with Convention Rights. The policy set out in the Lifer Manual (to which we referred at paragraph 11) did not represent the whole of the circumstances in which the power of release might be exercised.
iii) Even if the statutory scheme for imposing the sentence and the legal regime for review and release had to considered as a single regime, and there had to be a regime which provided for reducibility compatible with Article 3 at the time the whole life order was imposed, and the current regime was not compatible, then the court could not read the terms of s.269 down in accordance with s.3 of the Human Rights Act. That is because s.269(4) says that the court 'must' impose a whole life order and the effect of any attempt to read down the section would require it to be read as 'must not'. Furthermore, whilst the court is a public body enjoined by s.6(1) to act compatibly with the Convention, s.6(2) has the effect of disapplying that provision where a public body acts in accordance with primary legislation which cannot be read down. S.6 is one of the mechanisms in the Human Rights Act which carefully preserves the supremacy of Parliament in the domestic legal order.
Is the statutory regime established by Parliament compatible with Article 3?
(a) The power to impose a whole life order as just punishment
"I can see no reason, in principle, why a crime or crimes, if sufficiently heinous, should not be regarded as deserving life-long incarceration for purposes of pure punishment….. Successive Lord Chief Justices have regarded such a tariff as lawful, and I share their view." (769).
Lord Steyn, giving the leading judgment in the House of Lords had specifically agreed with this observation (at page 416) and went onto say at page 417:
"There is nothing logically inconsistent with the concept of a tariff by saying that there are cases where the crimes are so wicked that even if the prisoner is detained until he or she dies it will not exhaust the requirements of retribution and deterrence."
Lord Judge CJ concluded in R v Oakes:
"At the time when this case [Hindley] was making its way through the courts, the whole-life tariff was not based on an express statutory provision. Nevertheless Lord Bingham and Lord Steyn were expressing views which affirmed support for the principle that there had been and no doubt would continue to be cases in which a whole life order represented just punishment."
(b) Does the regime which provides for reducibility have to be in place at the time the whole life order is imposed?
"A whole life prisoner is entitled to know, at the outset of his sentence, what he must do to be considered for release and under what conditions, including when a review of his sentence will take place or may be sought. Consequently, where domestic law does not provide any mechanism or possibility for review of a whole life sentence, the incompatibility with Article 3 on this ground already arises at the moment of the imposition of the whole life sentence and not at a later stage of incarceration."
"However, the need for independent judges to determine whether a whole life order may be imposed is quite separate from the need for such whole life orders to be reviewed at a later stage so as to ensure that they remain justified on legitimate penological grounds. Furthermore, given that the stated intention of the legislative amendment was to remove the executive entirely from the decision-making process concerning life sentences, it would have been more consistent to provide that, henceforth, the twenty-five year review, instead of being eliminated completely, would be conducted within a wholly judicial framework rather than, as before, by the executive subject to judicial control."
(c) Is the regime under s.30 a regime for reducibility which is in fact compliant with Article 3?
"At present it is the practice of the Secretary of State to use this power sparingly, in circumstances where, for instance, a prisoner is suffering from a terminal illness or is bedridden or similarly incapacitated. If, however, the position is reached where the continued imprisonment of a prisoner is held to amount to inhuman or degrading treatment, we can see no reason why, having particular regard to the requirement to comply with the Convention, the Secretary of State should not use his statutory power to release the prisoner."
In R v Oakes, this was reaffirmed in the judgment of this court – see paragraph 15.
"The fact remains that, despite the Court of Appeal's judgment in Bieber, the Secretary of State has not altered the terms of his explicitly stated and restrictive policy on when he will exercise his s.30 power. Notwithstanding the reading given to s.30 by the Court of Appeal, the Prison Service Order remains in force and provides that release will only be ordered in certain exhaustively listed, and not merely illustrative, circumstances, …
These are highly restrictive conditions. Even assuming that they could be met by a prisoner serving a whole life order, the Court considers that the Chamber was correct to doubt whether compassionate release for the terminally ill or physically incapacitated could really be considered release at all, if all it meant was that a prisoner died at home or in a hospice rather than behind prison walls. Indeed, in the Court's view, compassionate release of this kind was not what was meant by a "prospect of release" in Kafkaris, cited above. As such, the terms of the Order in themselves would be inconsistent with Kafkaris and would not therefore be sufficient for the purposes of Article 3."
"At the present time, it is unclear whether, in considering such an application for release under s.30 by a whole life prisoner, the Secretary of State would apply his existing, restrictive policy, as set out in the Prison Service Order, or would go beyond the apparently exhaustive terms of that Order by applying the Article 3 test set out in Bieber. Of course, any ministerial refusal to release would be amenable to judicial review and it could well be that, in the course of such proceedings, the legal position would come to be clarified, for example by the withdrawal and replacement of the Prison Service Order by the Secretary of State or its quashing by the courts. However, such possibilities are not sufficient to remedy the lack of clarity that exists at present as to the state of the applicable domestic law governing possible exceptional release of whole life prisoners."
The reference by the Attorney General in the case of McLoughlin
(a) The facts
i) Between May 1970 and October 1983 he was sentenced on 14 occasions for various offences including burglary and theft.
ii) On 19 September 1984 he was convicted of manslaughter and sentenced to eight years imprisonment. He confronted a man, lost his temper, picked up a hammer and hit him several times over the head. He tied a towel round the victim's neck in the hope it would reduce the flow of blood. It also reduced the noise of the hammer blows. He hid the body in a cupboard.
iii) On 2 July 1992 he was convicted of murder and sentenced to imprisonment for a minimum term of 14 years. He had been offered accommodation by his victim and formed the view that the victim had a sexual interest in young boys. This made him angry. He took a knife and marched the victim into his bedroom where he stabbed him several times, causing his death.
(b) The decision of the judge
"Given that there is a duty upon the court imposed by the Human Rights Act to act in compliance with the Convention and to take into account at the least of it the decisions of the Court. And given that the 2003 Act does not require me to pass a whole life order, even though that is necessarily my starting point, I have reached the conclusion against the background that is incumbent upon me to pass a sentence which is compliant with the Convention if I can. But it is not appropriate to impose a whole life term. However, even for a man of 55 years of age the minimum term of years must be a very long one indeed."
(c) Our conclusion
"It is just that I believe I deserve the whole life tariff which the AG is seeking and that the family of Graham Buck deserves to know officially that I will never be released."
The appeal by Newell
(a) The facts
(b) Our conclusion