England and Wales Court of Appeal (Criminal Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL CRIMINAL DIVISION
On appeal from the Crown Court at Newcastle Upon Tyne
The Honourable Mr Justice Moses

		Royal Courts of Justice Strand, London, WC2A 2LL
		23/07/2008

Lord Phillips CJ:

Introduction

1. On 2 December 2004 at the Crown Court at Newcastle upon Tyne before Moses J and a jury the appellant was convicted of one count of murder, two counts of attempted murder and two counts of possession of a firearm and ammunition with intent to endanger life. He pleaded guilty to possession of ammunition without a certificate. On the count of murder he was sentenced to life imprisonment with an order that the early release provisions should not apply. On 2 December 2006 this court gave permission to appeal against that sentence, while refusing permission to appeal against conviction.

The facts

2. On 26 December 2003, two uniformed police constables, Ian Broadhurst and Neil Roper, were on routine patrol in a marked police car on Dib Lane, Oakwood, Leeds. They came across a black BMW which was parked partially on a pavement outside a parade of shops. There was one occupant in the driver's seat, reading the Racing Post. This man was the appellant. The officers approached the car having noticed that it appeared the tax disc was not genuine. The appellant was escorted to the patrol car and placed in the nearside seat. PC Broadhurst sat in the front passenger seat while PC Roper carried out checks on the BMW. These checks revealed that the car had been stolen and the appellant was told that he was under arrest.
3. A recovery vehicle was called to collect the BMW and a third officer, PC Banks, arrived in order to assist in taking the arrested man to the police station. All three officers went to the nearside rear door in order to handcuff him. At this point the appellant produced a handgun and within eight seconds had fired five rounds of ammunition. The first shot hit PC Broadhurst in the chest. The second hit PC Roper, who had turned to run, in the lower back. The third hit PC Roper and PC Banks, both of whom were running from the scene. PC Broadhurst was now lying on the ground and the appellant stood over him and shot him through the head. The appellant then ran off still holding the gun. He approached a Renault car parked some yards down the road and pointed the gun at the passenger. However, the car drove off and he approached a second vehicle, a green Rover, owned by Stephen Wright who had just finished shopping nearby whilst his wife waited in the passenger seat. The appellant approached him still holding the firearm and Mr and Mrs Wright ran off leaving him to take the car.
4. The three injured officers were taken to hospital where PC Broadhurst was pronounced dead.

The reasons for the sentence

5. Murder carries a mandatory life sentence but under the Criminal Justice Act 2003 the judge is required, either to specify a minimum period to be served before the offender is considered for early release by the Parole Board, or to order that the early release provisions are not to apply. Section 269 of that Act provides:

"269 Determination of minimum term in relation to mandatory life sentence.

(1) This section applies where after the commencement of this section a court passes a life sentence in circumstances where the sentence is fixed by law.

(2) The court must, unless it makes an order under subsection (4), order that the provisions of section 28(5) to (8) of the Crime (Sentences) Act 1997 (referred to in this Chapter as 'the early release provisions') are to apply to the offender as soon as he has served the part of his sentence which is specified in the order.

(3) The part of his sentence is to be such as the court considers appropriate taking into account –

(a) the seriousness of the offence, or the combination of the offence and any one or more offences associated with it, and

(b) the effect of any direction which it would have given under section 240 (crediting periods of remand in custody) if it had sentenced him to a term of imprisonment.

(4) If the offender was 21 or over when he committed the offence and the court is of the opinion that, because of the seriousness of the offence, or of the combination of the offence and one or more offences associated with it, no order should be made under subsection (2), the court must order that the early release provisions are not to apply to the offender.

(5) In considering under subsection (3) or (4) the seriousness of an offence (or of the combination of an offence and one or more offences associated with it), the court must have regard to-

(a) the general principles set out in schedule 21, and

(b) any guidelines relating to offences in general which are relevant to the case and are not incompatible with the provisions of Schedule 21."

An order made under subsection 4 has the result that the offender is sentenced to serve the remainder of his life in prison. Such an order is described as a 'whole life order.'

6. Schedule 21 of the Act, in so far as material, provides:

"Starting points

4(1) If -

(a) the court considers that the seriousness of the offence (or the combination of the offence and one or more offences associated with it) is exceptionally high, and

(b) the offender was aged 21 or over when he committed the offence, the appropriate starting point is a whole life order.

(2) Cases that would normally fall within sub-paragraph (1)(a) include-

(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 or ideological cause, or

(d) a murder by an offender previously convicted of murder.

5

(1) If-

(a) the case does not fall within paragraph 4(1) but the court considers that the seriousness of the offence (or the combination of the offence and one or more offences associated with it) is particularly high, and

(b) the offender was aged 18 or over when he committed the offence, the appropriate starting point, in determining the minimum term, is 30 years.

(2) Cases that (if not falling within paragraph 4(1)) would normally fall within sub-paragraph (1)(a) include –

(a) the murder of a police officer or prison officer in the course of his duty,

(b) the murder involving the use of a firearm or explosive,

…

(f) a murder of two or more persons."

7. After summarising the facts, the judge gave the following reasons for the sentence that he imposed:

"Parliament has recognised that the killing of a Police Officer in the course of his duty normally leads to the conclusion that the seriousness of the offence is particularly high, and in determining the minimum term the appropriate starting point is 30 years. But that is only a starting point. There is one particular aggravating feature which is not allowed for in the fact that you killed a Police Officer in the course of his duty, and that aggravating feature is that you did not need to shoot him through the head. You had already disabled him and he was defenceless, you could have escaped then, but you chose to wait and fire a second shot at point blank range. It must be acknowledged that he might have died as a result of your first shot, but you made certain of his death.

I regard this aggravating feature of such significance as to lead to the conclusion that the murder of PC Broadhurst was so grave that I must order that the early release provisions shall not apply and you must spend the rest of your life in prison."

Grounds of appeal

8. Two grounds of appeal are advanced. The first contends that the facts of this case did not justify the imposition of a whole life order. The second contends that a whole life order infringes Article 3 of the European Convention on Human Rights and, for this reason, should not have been imposed. The latter ground was advanced before the decision of the Grand Chamber of the European Court of Human Rights in Kafkaris v Cyprus (Application no. 21906/04), which was delivered on 12 February 2008. Mr Trollope QC for the appellant submits that this decision strongly supports that ground of appeal. The issue raised is one of general importance and we propose to consider it first.

Article 3 of the Convention

9. Article 3 provides:

"No one shall be subjected to torture or to inhuman or degrading treatment or punishment"

Mr Trollope's submission is that an irreducible life sentence, that is to say a life sentence 'without any prospect of release or any reconsideration of the facts of the case and regardless of any changes which might occur in the mind or behaviour of the inmate or progress made by him towards rehabilitation', amounts to inhuman treatment. In support of this submission Mr Trollope referred us not merely to European jurisprudence, both within and outside the Strasbourg Court, but to international instruments that he submitted implicitly endorsed his case.

10. For the Crown, Mr Robert Smith QC first referred us to domestic jurisprudence in order to demonstrate that a whole life order has been held to be lawful by the House of Lords. He then submitted that the Strasbourg court had not held that an irreducible whole life order necessarily violated Article 3. Finally he submitted that a whole life order was not irreducible because there was always the possibility that a prisoner subject to such an order might none the less be released under section 30 of the Crime (Sentences) Act 1997.

Domestic jurisprudence

11. The legality of a sentence that required an offender to remain in prison for the rest of his life was challenged before the Divisional Court in R v Secretary of State ex parte Hindley [1998] QB 751. Under the regime then prevailing it was for the Secretary of State to determine the minimum period to be served ('the tariff') by a prisoner who received a mandatory life sentence for murder. In the case of Myra Hindley, the applicant, the Secretary of State had determined that she should remain in prison the whole of her life ('a whole life tariff'). He had, however, a policy of periodically reviewing such a tariff and, when doing so, of considering whether there were exceptional circumstances, including exceptional progress in prison, that might justify release on licence.
12. It was argued on behalf of the applicant, for reasons that did not include the requirements of Article 3 of the Convention, that to impose a whole life tariff was unlawful. The Divisional Court did not agree. Lord Bingham of Cornhill CJ observed at page 769:

"I can see no reason, in principle, why a crime or crimes, if sufficiently heinous, should not be regarded as deserving lifelong incarceration for purposes of pure punishment. One can readily accept that in requiring a sentence of imprisonment for life on those convicted of murder Parliament did not intend the sentence to mean what it said in all, or even a majority, of cases, but there is nothing to suggest that Parliament intended that it should never (even leaving risk considerations aside) mean what it said. When, in section 29 of the Crime (Sentences) Act 1997, Parliament again conferred a wide discretion on the Home Secretary to release mandatory life sentence prisoners, it did so in the knowledge (from Mr. Howard's statement of 7 December 1994) that some such prisoners were subject to whole life tariffs. Successive Lord Chief Justices have regarded such a tariff as lawful, and I share their view."

13. Hindley appealed unsuccessfully to the Court of Appeal [2000] QB 152 where the majority held that the Secretary of State was entitled to conclude that the requirements of retribution and deterrence could not be met save by lifelong detention. On a further appeal to the House of Lords [2001] 1 AC 410. Lord Steyn, who gave the leading speech, said at page 416 that he agreed with the statement of Lord Bingham to which we have referred above.
14. In Hindley, emphasis was placed on the fact that it was the Home Secretary's policy periodically to review sentences, even where a whole life tariff had been pronounced. This point was made, however, in the context of an argument that by pronouncing a whole life tariff the Home Secretary was fettering his subsequent discretion. It was not suggested that, in the absence of any such discretion, it would have been unlawful to impose a whole life tariff.
15. The 2003 Act makes, as we have seen, express provision for a whole life order where the seriousness of the offence is 'exceptionally high'. There has, to date, been no judicial suggestion that such an order might infringe Article 3 of the Convention. On 31 May 2002 Lord Woolf CJ handed down a Practice Statement [2002] 1 WLR 1789. This included the statement at 49.19:

"In cases of exceptional gravity, the judge, rather than setting a whole life minimum term, can state that there is no minimum period which could properly be set in that particular case"

16. In R v Jones and others [2005] EWCA Crim 3115 this Court set out to give some general assistance in relation to the application of the statutory guidance. We said at paragraph 10:

"A whole life order should be imposed where the seriousness of the offending is so exceptionally high that just punishment requires the offender to be kept in prison for the rest of his or her life. Often, perhaps usually, where such an order is called for the case will not be on the borderline. The facts of the case, considered as a whole, will leave the judge in no doubt that the offender must be kept in prison for the rest of his or her life. Indeed if the judge is in doubt this may well be an indication that a finite minimum term which leaves open the possibility that the offender may be released for the final years of his or her life is the appropriate disposal. To be imprisoned for a finite period of thirty years or more is a very severe penalty. If the case includes one or more of the factors set out in paragraph 4(2) it is likely to be the cause that calls for a whole life order, but the judge must consider all the material facts before concluding that a very lengthy finite term will not be sufficiently severe penalty."

European jurisprudence and other material, excluding Strasbourg decisions.

17. Mr Trollope referred us to an English translation in (1992) Public Law 263 of a much earlier decision of the Federal Constitutional Court of Germany – (1977) 45 BVerfGE 187 at para III 4.a. At issue was whether the Verden District Court had been right to rule that Sections 211 and 212 of the Criminal Code were incompatible with Article 1.1 of the Basic Law. The Sections in question provide for the imposition of life imprisonment in respect of particular serious offences of murder and manslaughter. Article 1.1 requires the State to 'respect and protect human dignity'. The Verden Court made a finding of incompatibility, observing that long term prison turns people into spiritual and physical wrecks. The Constitutional Court ruled that there was no incompatibility, but only because there was a possibility that the life prisoner would be released on parole. The Court stated that:

"a humane execution of lifetime imprisonment can only be assured if the sentenced criminal has a concrete and principally attainable possibility to regain freedom at a later point in time; for the core of human dignity is struck if the convicted criminal has to give up any hope of regaining his freedom no matter how his personality develops."

18. This decision was one of a considerable number of authorities referred to by Mahomed CJ, giving the judgment of the Supreme Court of Namibia in State v Tcoeib [1997] 1 LRC 90. The relevant issue was whether a sentence of life imprisonment was contrary to the Constitution of Namibia. More particularly, whether it was incompatible with Article 8, which provided:

"(1) The dignity of all persons shall be inviolable.

(2)(a) In any judicial proceedings or in other proceedings before any organ of State, and during the enforcement of a penalty, respect for human dignity shall be guaranteed. (b) No person shall be subject to torture or to cruel, inhuman or degrading treatment or punishment."

19. As to this question, the Chief Justice remarked at p. 100:

"…there is no escape from the conclusion that an order deliberately incarcerating a citizen for the rest of his or her natural life severely impacts upon much of what is central to the enjoyment of life itself in any civilised community and can therefore only be upheld if it is demonstrably justified. In my view, it cannot be justified if it effectively amounts to a sentence which locks the gates of the prison irreversibly for the offender without any prospect whatever of any lawful escape from that condition for the rest of his or her natural life and regardless of any circumstances which might subsequently arise. Such circumstances might include sociological and psychological re-evaluation of the character of the offender which might destroy the previous fear that his or her release after a few years might endanger the safety of others or evidence which might otherwise show that the offender has reached such an advanced age or become so infirm and sick or so repentant about his or her past, that continuous incarceration of the offender at state expense constitutes a cruelty which can no longer be defended in the public interest."

He went on, however, to hold that a sentence of life imprisonment was not unconstitutional because the legislation made provision for a life prisoner to be released on parole in appropriate circumstances.

20. Mr Trollope referred us to Recommendation (2003) 22 of the Committee of Ministers of the Council of Europe on conditional release on parole. This recommended:

"4.a. In order to reduce the harmful effects of imprisonment and to promote the resettlement of prisoners under conditions that seek to guarantee safety of the outside community, the law should make conditional release available to all sentenced prisoners, including life-sentence prisoners.

4.b. If prison sentences are so short that conditional release is not possible, other ways of achieving these aims should be looked for.

5. When starting to serve their sentence, prisoners should know either when they become eligible for release by virtue of having served a minimum period (defined in absolute terms and/or by reference to a proportion of the sentence) and the criteria that will be applied to determine whether they will be granted release ("discretionary release system") or when they become entitled to release as of right by virtue of having served a fixed period defined in absolute terms and/or by reference to a proportion of the sentence ('mandatory release system').

6. The minimum or fixed period should not be so long that the purpose of conditional release cannot be achieved."

…

"20. The criteria for granting conditional release should be applied so as to grant conditional release to all prisoners who are considered as meeting the minimum level of safeguards for becoming law-abiding citizens. It should be incumbent on the authorities to show that a prisoner has not fulfilled the criteria.

21. If the decision-making authority decides not to grant conditional release it should set a date for reconsidering the question. In any case, prisoners should be able to reapply to the decision-making authority as soon as their situation has changed to their advantage in a substantial manner."

These provisions are similar in effect to the earlier Resolution (76) 2 of the Committee.

21. Mr Trollope also drew our attention to the Council Framework Document of 13 June 2002 on the European Arrest Warrant and the surrender procedures between Member States. The preamble to this recites:

"Whereas…

(13) No person should be removed, expelled or extradited to a State where there is a serious risk that he or she would be subjected to the death penalty, torture or other inhuman or degrading treatment or punishment."

22. Article 5 of the first chapter, which deals with general principles, provides:

"Article 5

Guarantees to be given by the issuing Member State in particular cases.

The execution of the European arrest warrant by the executing judicial authority may, by the law of the executing Member State, be subject to the following conditions:

…

2. If the offence on the basis of which the European arrest warrant has been issued is punishable by custodial life sentence or life-time detention order, the execution of the said arrest warrant may be subject to the condition that the issuing Member State has provisions in its legal system for a review of the penalty or measure imposed, on request or at the latest after 20 years, or for the application of measures of clemency to which the person is entitled to apply for under the law or practice of the issuing Member State, aiming at a non-execution of such a penalty or measure."

23. We make the following comments on these various provisions. The recommendations of the Committee of Ministers appear to proceed on the basis that, however heinous the crime, an offender should not be denied the prospect of conditional release. The inference from the provisions that we have quoted from Article 5 of the Framework Document on the European Arrest Warrant is, however, that sentences of imprisonment for life or for very lengthy periods do not, of themselves, amount to inhuman or degrading treatment or punishment. Were this not so, an embargo on such punishment would surely be a mandatory, rather than optional, condition of extradition. Equally, however, the provisions suggest that some Member States do not find it acceptable to imprison an offender for more than twenty years without the possibility of release.

Strasbourg jurisprudence

24. In Nivette v France (Application no. 44190/98; Decision of 3 July 2001) the applicant claimed that his proposed extradition to California would infringe Article 3 because he faced imprisonment for life without any possibility of early release. The Court ruled the application 'manifestly ill-founded', but only on the basis that the Sacramento County District Attorney had given an undertaking that the applicant would not face a charge that carried a sentence of life imprisonment without any possibility of early release. The implication was that, but for that undertaking, the application would have been admissible.
25. Einhorn v France (Application no. 71555/01; Decision of 16 October 2001) involved a similar application. The applicant claimed that proposed extradition to Pennsylvania on a charge of murder would infringe Article 3 in that, inter alia, he would be likely to have to serve a life sentence without any real possibility of remission or parole. Once again this application was ruled inadmissible on the ground that it was possible under the law of Pennsylvania for the Governor to commute a life sentence with the consequence that the offender could be released on parole. The Court made this comment on the implications of an irreducible life sentence:

"27. With regard to the applicant's second complaint, the Court does not rule out the possibility that the imposition of an irreducible life sentence may raise an issue under Article 3 of the Convention. In this connection, the Council of Europe documents to which the applicant referred are not without relevance. Consequently, it is likewise not to be excluded that the extradition of an individual to a State in which he runs the risk of being sentenced to life imprisonment without any possibility of early release may raise an issue under Article 3 of the Convention."

26. These two decisions were precursors to Kafkaris, where the First Section, having ruled the application admissible, referred it to the Grand Chamber for determination. The Applicant had, in 1989, been found guilty by the Limassol Assize Court of a contract killing. He had blown up a car, killing not merely the man he had contracted to kill, but his two young children. He was sentenced to life imprisonment which, under regulations in force at the time, meant that he would serve twenty years and then be eligible for conditional release. Those regulations were subsequently held to be unconstitutional and repealed. The applicant contended that the effect of this was that his sentence was irreducible and that, in consequence, he was subject to inhuman treatment in violation of Article 3. The Court summarised the manner in which this contention was advanced as follows:

"…he complained that the whole or a significant part of his detention for life was a period of punitive detention that exceeded the reasonable and acceptable standards for the length of a period of punitive detention as required by the Convention"

27. The Government of Cyprus contended that the applicant's life sentence was not irreducible because the law made provision for the President, with the agreement of the Attorney-General, to order the release of a prisoner, including a life prisoner. Some life prisoners had been released pursuant to this provision, so that it could not be said that the applicant had no prospect of release.
28. The Court accepted the argument of the Government of Cyprus and found that there had been no violation of Article 3. Judge Bratza delivered a concurring opinion and 7 of the 17 members of the court were party to dissenting opinions, of which that of five is particularly relevant. We propose to cite the most relevant passages, omitting references, before considering the principles to be derived from them. The Court first set out the following general principles:

"96. The Court has consistently stressed that the suffering and humiliation involved must in any event go beyond that inevitable element of suffering or humiliation connected with a given form of legitimate treatment or punishment. Measures depriving a person of his liberty may often involve such an element. In accordance with Article 3 of the Convention the State must ensure that a person is detained under conditions which are compatible with respect for his human dignity and that the manner and method of the execution of the measure do not subject him to distress or hardship exceeding the unavoidable level of suffering inherent in detention.

97. The impositions of a sentence of life imprisonment on an adult offender is not in itself prohibited by or incompatible with Article 3 or any other Article of the Convention. At the same time, however, the Court has also held that the imposition of an irreducible life sentence on an adult may raise an issue under Article 3.

98. In determining whether a life sentence in a given case can be regarded as irreducible the Court has sought to ascertain whether a life prisoner can be said to have any prospect of release. An analysis of the Court's case-law on the subject discloses that where national law affords the possibility of review of a life sentence with a view to its commutation, remission, termination or the conditional release of the prisoner, this will be sufficient to satisfy Article 3. The Court has held, for instance, in a number of cases that where detention was subject to review for the purposes of parole after the expiry of the minimum term for serving the life sentence, that it could not be said that the life prisoners in question had been deprived of any hope of release. The Court has found that this is the case even in the absence of a minimum term of unconditional imprisonment and even when the possibility of parole for prisoners serving a life sentence is limited. It follows that a life sentence does not become 'irreducible' by the mere fact that in practice it may be served in full. It is enough for the purposes of Article 3 that a life sentence is de jure and de facto reducible.

99. Consequently, although the Convention does not confer, in general, a right to release on licence or a right to have a sentence reconsidered by a national authority, judicial or administrative, with a view to its remission or termination, it is clear from the relevant case-law that the existence of a system providing for consideration of the possibility of release is a factor to be taken into account when assessing the compatibility of a particular life sentence with Article 3. In this context, however, it should be observed that a State's choice of a specific criminal justice system, including sentence review and release arrangements, is in principle outside the scope of the supervision the Court carries out at European level, provided that the system chosen does not contravene the principles set forth in the Convention."

29. The Court then went on to apply those principles to the facts of the case. It started by stating:

"100. In the instant case, the Court must determine whether the sentence of life imprisonment imposed on the applicant in the particular circumstances has removed any prospect of his release.

101. In reaching its decision the Court has had regard to the standards prevailing amongst the member States of the Council of Europe in the field of penal policy, in particular concerning sentence review and release arrangements. It has also taken into account the increasing concern regarding the treatment of persons serving long-term prison sentences, particularly life sentences, reflected in a number of Council of Europe texts."

30. The Court then examined the provisions made by Cypriot law for the conditional release of prisoners serving life sentences, and concluded:

"104. In his submissions, the applicant has placed great emphasis on the lack of a parole board system in Cyprus. However, the Court reiterates that matters relating to early release policies including the manner of their implementation fall within the power member States have in the sphere of criminal justice and penal policy. In this connection, the Court observes that at the present time there is not yet a clear and commonly accepted standard amongst the member States of the Council of Europe concerning life sentences and, in particular, their review and method of adjustment. Moreover, no clear tendency can be ascertained with regard to the system and procedures implemented in respect of early release.

105. In the view of the above, the Court considers that the applicant cannot claim that he has been deprived of any prospect of release and that his continued detention as such, even though long, constitutes inhuman or degrading treatment."

31. The Court then considered whether the fact of being subject to a life sentence, with the anxieties that this had carried with it on the facts of the particular case, itself constituted inhuman treatment. It concluded:

"107. It is true that a life sentence such as the one imposed on and served by the applicant without a minimum term necessarily entails anxiety and uncertainty related to prison life but these are inherent in the nature of the sentence imposed and, considering the prospects for release under the current system, do not warrant a conclusion of inhuman and degrading treatment under Article 3."

32. The clear implication of these passages is that, had the applicant's life sentence been irreducible, so that he had no prospect at all of being released before he died, his punishment would have been held to be inhuman and thus in violation of Article 3.
33. The concurring opinion of Judge Bratza left no room for doubt that this was his view. He said:

"I consider that the time has come when the Court should clearly affirm that the imposition of an irreducible life sentence, even on an adult offender, is in principle inconsistent with Article 3 of the Convention. What amounts to an 'irreducible' sentence for this purpose has been variously explained by the Court as being a sentence for the duration of the life of the offender with no 'possibility' or 'hope' or 'prospect' of release. As is observed in the Court's judgment, a life sentence is not 'irreducible' merely because the possibility of early release is limited nor because, in practice, the sentence may be served in full."

34. An opinion, to which 5 of the dissenting judges were party, concluded that Article 3 had been violated because they could not accept that under the procedure in place in Cyprus the applicant had a 'real and tangible prospect of release'. These dissentients joined issue with the statement at paragraph 104 of the Court's judgment as to the lack of 'a clear and commonly accepted standard' in respect of life sentences. They identified a common European approach, reflected by Articles 77 paragraph 1(b) and Article 110 of the Rome Statute of the International Criminal Court, which provide that a life sentence may be imposed for genocide, crimes against humanity, war crimes or the crime of aggression "only when justified by the extreme gravity of the crime and the individual circumstances of the convicted person" and, even then, require the Court to review the sentence after 25 years have been served to determine whether it should be reduced.
35. These dissentients further commented:

"5. it is commonly accepted nowadays, not only at the international level but also at domestic level, for example in numerous constitutional instruments, that besides the punitive purpose of sentences, they must also encourage the social reintegration of prisoners. Although life imprisonment is provided for by law in most countries, it does not necessarily imply imprisonment for the remainder of the convicted person's life. Most legal systems provide for the possibility of reviewing life sentences and of granting release after a certain number of years imprisonment.

…

Once it is accepted that the 'legitimate requirement of the sentence' entail reintegration, questions may be asked as to whether a term of imprisonment that jeopardises that aim is not in itself capable of constituting inhuman and degrading treatment."

Discussion

36. What are the implications of this decision, having regard to the requirement 'to keep pace with the Strasbourg jurisprudence as it evolves over time; no more, but certainly no less'? (per Lord Bingham of Cornhill in R (Ullah) v Special Adjudicator [2004] UKHL 26; [2004] 2 AC 323.
37. We are able to advance with confidence the following propositions based upon Kafkaris:

a) The imposition of a sentence of life imprisonment will not involve a violation of Article 3 if the sentence is reducible.

b) The fact that the offender may be detained for the whole of his life does not involve a violation of Article 3.

c) The imposition of a life sentence that is irreducible may raise an issue under Article 3.

38. The third proposition raises the following questions:

i) In what circumstances will an irreducible life sentence raise an issue under Article 3?

ii) What is the nature of the issue raised?

iii) What is the test for deciding whether a life sentence is reducible?

In what circumstances will an irreducible life sentence raise an issue under Article 3?

39. It seems to us that the Court considered that an irreducible life sentence raises an issue under Article 3 in circumstances where it may result in an offender being detained beyond the term that is justified by the legitimate objects of imprisonment. This is implicit in the fact that no issue under Article 3 appears to arise provided that there is, in law and in practice, a possibility of the offender being released, even though it remains possible, or even likely, that no release will be granted in his lifetime. The essential requirement appears to be the possibility of a review that will determine whether imprisonment remains justified.
40. The legitimate objects of imprisonment are punishment, deterrence, rehabilitation and protection of the public. Where a mandatory life sentence is imposed in respect of a crime, the possibility exists that all the objects of imprisonment may be achieved during the lifetime of the prisoner. He may have served a sufficient term to meet the requirements of punishment and deterrence and rehabilitation may have transformed him into a person who no longer poses any threat to a public. If, despite this, he will remain imprisoned for the rest of his life it is at least arguable that this is inhuman treatment. Thus we have concluded that, where a crime attracts a mandatory and irreducible life sentence regardless of the particular circumstances of the crime, an issue will arise in relation to Article 3.
41. The decision in Kafkaris raises a more difficult issue. Is there some maximum term of imprisonment that can be justified by the objects of punishment and deterrence, after which a prisoner ought to be released if rehabilitation has transformed him into a man who no longer poses a threat of criminal behaviour? If this question falls to be answered in the affirmative, then an irreducible life sentence that may result in detention beyond that term is arguably inhuman and raises an issue under Article 3. The concurring opinion of Judge Bratza and the opinion of the five dissentients suggest that they were of the view that this was indeed the position. The European material to which we have referred suggests that some Member States consider that there is a maximum sentence of imprisonment that can be justified by way of punishment, after which humanity requires that the offender be given the opportunity to demonstrate that he is fit to be permitted back into society.
42. The United Kingdom does not rank among such Member States. Schedule 21 of the 2003 Act proceeds on the premise that some crimes are so heinous that they justify imprisoning the offender for the rest of his life, however long that may be. The differences in approach between different Member States was recognised by the comment made by in the majority decision in Kafkaris at paragraph 104. The Court was in that case dealing with a mandatory life sentence and the approach of the court must be considered in that context. We do not consider that it follows from the decision of the majority of the Grand Chamber that an irreducible life sentence, imposed by a judge to reflect the appropriate punishment and deterrence for a very serious offence is in potential conflict with Article 3.

What is the nature of the issue raised?

43. Can the imposition of an irreducible life sentence itself constitute a violation of Article 3, or will the potential violation only occur once the offender has been detained beyond the period that can be justified on the ground of punishment and deterrence? In other words, is it the sentence or the consequent detention that is capable of violating Article 3? We believe it is the latter. We think that this is implicit from the passage of the judgment that we have cited at paragraph 31 above. As we have recorded it was the detention itself that the applicant in Kafkaris contended amounted to a violation of Article 3.

What is the test for deciding whether a life sentence is reducible?

44. The answer to this question does not emerge with any degree of clarity from Kafkaris, as is illustrated by the division of opinion of the Court on the question of whether the applicant's sentence fell to be treated as irreducible. The majority accepted that the power of the President, subject to the agreement of the Attorney-General, to order the release of a life prisoner, which the evidence showed had been exercised in respect of a number of mandatory life sentences, sufficed to meet the requirements of Article 3. As to the criteria taken into account by the President, the Government's evidence was that he took into account:

"the nature of the offence, the amount of time a prisoner had already served and any exceptional or compassionate grounds for early release. In this connection, the Government noted that an expression of genuine remorse on the part of a lifer would be an important consideration though not decisive. The President further determined whether the continued detention of the prisoner was necessary for the purposes of retribution and deterrence or for protecting the public from risk of serious harm."

Conclusions

45. While under English law the offence of murder attracts a mandatory life sentence, this is not normally an irreducible sentence. The judge specifies the minimum term to be served by way of punishment and deterrence before the offender's release on licence can be considered. Where a whole life term is specified this is because the judge considers that the offence is so serious that, for purposes of punishment and deterrence, the offender must remain in prison for the rest of his days. For the reasons that we have given, we do not consider that the Strasbourg Court has ruled that an irreducible life sentence, deliberately imposed by a judge in such circumstances, will result in detention that violates Article 3. Nor do we consider that it will do so.
46. It may be that the approach of the Strasbourg Court will change. There seems to be a tide in Europe that is setting against the imposition of very lengthy terms of imprisonment that are irreducible. Thus it may become necessary to consider whether whole life terms imposed in this jurisdiction are, in fact irreducible. This brings us to the second argument advanced by Mr Smith for the Crown.
47. Under the regime that pre-dated the 2003 Act it was the practice of the Secretary of State to review the position of prisoners serving a whole life tariff after they had served 25 years with a view to reducing the tariff in exceptional circumstances, such as where the prisoner had made exceptional progress whilst in custody. No suggestion was then made that the imposition of a whole life tariff infringed Article 3.
48. Under the current regime the Secretary of State has a limited power to release a life prisoner under section 30 of the Crimes (Sentences) Act 1997. This provides:

"(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 sub-section (1) above, the Secretary of State shall consult the Parole Board, unless the circumstances are such as to render such consultation impracticable."

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.

49. For these reasons, applying the approach of the Strasbourg Court in Kafkaris, we do not consider that a whole life term should be considered as a sentence that is irreducible. Any Article 3 challenge where a whole life term has been imposed should therefore be made, not at the time of the imposition of the sentence, but at the stage when the prisoner contends that, having regard to all the material circumstances, including the time that he has served and the progress made in prison, any further detention will constitute degrading or inhuman treatment.
50. For these reasons we reject the challenge made to the appellant's sentence that is founded on Article 3.
51. We would add, for the avoidance of doubt, that we have not been asked to consider, nor have we, whether the decision under section 30 of the 1977 Act is one that should properly be taken by a judge rather than by a Minister.

Did the facts of the case justify the imposition of a whole life order?

52. There is a degree of illogicality in having concluded that the appellant's offences made it appropriate to take 30 years as the starting point for the minimum term then to conclude that, after weighing in the balance the aggravating features, a whole life order should be imposed. One might have thought that, if such a sentence was appropriate, the judge would have concluded that the seriousness of the offence and of the other offences associated with it was 'exceptionally high' so that a whole life order was the correct starting point.
53. The judge seems to have been influenced in his starting point by the fact that none of the criteria suggested in Schedule 21 for 'exceptionally high' seriousness applied, whereas the facts of the case fell within the criteria for 'particularly high' seriousness, which carries a 30 year starting point.
54. This court has often deprecated the mechanistic use of Schedule 21. If one takes, however, as the judge did, the 30 year starting point, it is important to bear in mind the features that have justified that starting point so that they are not then taken into consideration as aggravation, thereby committing the error of double counting.
55. This case fell within the 30 year starting point for two reasons. The murder was of a police officer in the course of his duty and it involved the use of a firearm. The fact that two criteria were present is, of itself, a possible reason for raising the term above the 30 year starting point. Added to this is the effect of the associated offences of attempting to murder two other police officers by shooting.
56. These factors justified a substantial increment above the 30 year starting point. The factor that led the judge to impose a whole life sentence, was, however, that the appellant had executed PC Broadhurst in cold blood by a shot to the head when he already lay wounded on the ground. This was, indeed, a horrifying feature of this crime, but it must be remembered that the 30 year starting point already assumes that the offender had an intention to kill. The question is how much is added to the crime of deliberately killing a police officer by the feature that the killing was the entirely gratuitous execution of a victim who had been rendered vulnerable as a result of being mown down by an earlier shot. One has to bear in mind that the criminal conduct for which the appellant was sentenced was committed within the space of some 8 seconds.
57. We have concluded that the facts of this case, horrifying though they were, did not justify the imposition of a whole life tariff. The seriousness of the offence was to a significant extent reflected by the starting point of 30 years. To this we would add, to reflect the aggravating features, a further 7 years, making a total minimum term to be served of 37 years.
58. Accordingly this appeal is allowed to the extent that we quash the judge's order that the early release provisions should not apply and specify a period of 37 years to be served, before consideration is given to the release of the appellant on licence. Credit must be given for the time spent remanded in custody.