England and Wales High Court (Administrative Court) Decisions

IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT

		Royal Courts of Justice Strand London WC2A 2LL
		19 May 2016

1. MR JUSTICE SUPPERSTONE: These two cases have been linked. Both claimants renew their applications for permission to apply for judicial review, following refusal on the papers by Mr Justice Blake. They applied to stay proceedings pending the decision of the Grand Chamber of the European Court of Human Rights in Hutchinson v United Kingdom ECLI:CE:ECHR:2015:0203JUD005759208, but both applications were refused by Mrs Justice Thirlwall. There was no appeal from those decisions. However during the course of his oral submissions Mr Edward Fitzgerald QC, who appears for the claimants, invited me in my inherent jurisdiction to grant a stay.
2. Mr Vinter seeks a declaration that Section 269 (4) of the Criminal Justice Act 2003 is incompatible with Article 3 of the European Convention on Human Rights because it obliges a judge to impose a whole life sentence for which there exists no Article 3 ECHR-compliant review mechanism. The claimant is serving a whole life sentence for murder. He was sentenced on 21 April 2008 after pleading guilty to the murder of his estranged wife. This was the claimant's second murder. He was convicted of murdering a work colleague in 1996 and released on licence in 2005. On 25 June 2009 the whole life order was upheld by the Court of Appeal.
3. The whole life order imposed on the claimant means that he will never be eligible for parole and will die in prison unless the defendant exercises his discretion to release him on compassionate grounds. Section 30 of the Crime (Sentences) Act 1997 expressly empowers the defendant to release a life prisoner on licence if he is satisfied that exceptional circumstances justify release on compassionate grounds.
4. The claimant was the applicant with two others in the European Court of Human Rights in Vinter v United Kingdom [2012] 55 EHRR 34. In that case he challenged the absence of a review mechanism for whole life-sentence prisoners, arguing that it was contrary to Article 3. The claimant submits that despite succeeding in his challenge he remains the victim of an ongoing Article 3 breach because the defendant has failed to put in place any review mechanism, and this ongoing breach is having a seriously adverse impact on his mental health.
5. The claimant advances four contentions. The first relates to the decision of the Court of Appeal in R v McLaughlin [2014] 1 WLR 3964. An appeal against a whole life order was heard by a specially constituted panel of the Court of Appeal following the Grand Chamber's judgment in Vinter. The Court of Appeal ruled the domestic regime is Article 3 compatible. The claimant contends that the Court of Appeal in McLaughlin erred in its interpretation of the Grand Chamber decision in Vinter. The way Mr Fitzgerald put it in his oral submissions was to suggest that McLaughlin is a case about sentencing, not about the critical issue before this court. However it seems to me to be clear that the court in McLaughlin was convened to respond to the decision of the Grand Chamber in Vinter.
6. Second, the claimant contends that five European Court of Human Rights decisions, including in particular Öcalan v Turkey ECLI:CE:ECHR:2014:0318JUD002406903 and Magyar v Hungary, ECLI:CE:ECHR:2014:0520JUD007359310 post-dating McLaughlin, confirm that for a whole-life order to be compliant with Article 3 it must be reviewed after a fixed term, subject to precise published criteria governed by the standards of procedural fairness and communicated to the prisoner at the outset of the sentence.
7. Third, those subsequent European Court of Human Rights decisions make it clear that the power of discretionary release on compassionate grounds does not fulfil the procedural requirements of Article 3.
8. Fourth, regardless of how Section 30 of the 1997 Act is operated in practice it is incapable of discharging the procedural obligations of Article 3.
9. Mr Fitzgerald submits that the current mechanisms for the review of Mr Vinter's whole life sentence fail to meet the standards laid down by the Grand Chamber in his own case in three respects. First, there is no review mechanism that has been in place from the outset of the sentence. Second, he has not been told when a review will take place. Third, he has not been told what he must do to have a prospect of release and what pre-established, clear criteria the review will apply when considering release.
10. McLaughlin does not, Mr Fitzgerald submits, purport to - and cannot - lay down the exact scope of the Ministry of Justice's duty of review; nor does it address the question of what information the Minister should provide prisoners with about the criteria the Minister will adopt and the stage at which the review would first take place. Mr Fitzgerald referred to recent correspondence between the claimant's lawyers and the Ministry of Justice in relation to this submission. He submits that the response from the defendant is so vague as not to give any yardstick by which to guide his conduct. This point Mr Fitzgerald makes, he says, irrespective of the outcome of the hearing before the Grand Chamber in Hutchinson.
11. In October 2015 the Grand Chamber of the European Court of Human Rights reconsidered the Fourth Section decision in Hutchinson. Mr Fitzgerald is of the view that there is good reason to suppose that the Grand Chamber may reverse the decision of the Fourth Section. At the very least, he says, the fact that the Grand Chamber has taken the case indicates that it has substantial doubts about the earlier decision. In support of this submission, Mr Fitzgerald referred to the judgment delivered by the European Court of Human Rights on 26 April 2016 in Murray v The Netherlands ECLI:CE:ECHR:2016:0426JUD001051110 as to minimum criteria to meet the requirements of Article 3.
12. Mr Fitzgerald submits that the current criteria for the exercise of discretion to grant compassionate release contained in the current unamended Prison Service Order are manifestly inadequate to meet the requirements of the European Court of Human Rights judgment in Vinter. He submits that what the Order says has nothing to do with what the European Court said is necessary, and that the current criteria are manifestly inadequate.
13. Mr Fitzgerald submits that Leech is good precedent for the grant of leave even where there is a binding decision of the Court of Appeal that conflicts with the basis of the application, that the Grand Chamber in Hutchinson may well reach a decision contrary to the decision in McLaughlin, and that it is highly desirable that the Supreme Court should be given an opportunity to look at this matter for itself and consider whether McLaughlin was correctly decided in circumstances where the law is not finally settled.
14. In response, Mr Ivan Hare, for the defendant, points to the reasoning of the Court of Appeal in McLaughlin leading to the conclusion the domestic regime is compatible with Article 3, which is set out at paragraphs 29 to 36 of the judgment to which Mr Hare referred.
15. The defendant contends that the claimant has incorrectly analysed the European Court of Human Rights decisions following Vinter. In particular, Mr Hare referred to the wording of paragraphs 119 to 122 of Vinter. The key feature of the domestic regime identified in McLaughlin is that the Secretary of State has a duty under Section 6 of the Human Rights Act to exercise his power of release under Section 30 of the 1997 Act compatibly with Article 3. The decision of the Court of Appeal in McLaughlin establishes (at paras 29-36) that on a correct understanding of domestic law, the regime is compatible with the requirements of Article 3. Mr Hare submits that this court is bound by that decision. In any event, as Mr Hare emphasises, the decision of the Court of Appeal in McLaughlin was accepted by the European Court of Human Rights in Hutchinson v United Kingdom in the judgment of the Fourth Section of the Court.
16. In reply, Mr Fitzgerald emphasised that the prisoner is given no target period at which to work on by which his progress can secure his release.
17. In my judgment, the present position is clear. I do not accept that this court should proceed on the basis that the Grand Chamber may reach a different decision in Hutchinson or that this is an appropriate case for this court to refer to the Supreme Court. The circumstances in Leech were very different, that plainly warranted the approach that was there adopted. In my judgment this claim is not arguable on the present state of the law and on the current regime, despite the very attractively presented submissions made by Mr Fitzgerald.
18. The claimant Du is 55 years of age. He was convicted of four counts of murder on 27 November 2013. A minimum term of 40 years' imprisonment was imposed. The claimant appealed against the sentence on the grounds that due to his age he had no prospect of being released. The application for leave to appeal was rejected by the Court of Appeal on 4 June 2014. The claimant will not be eligible for release until he is 95 years old. The claimant contends that his case is indistinguishable from that of a whole life-sentence prisoner because it is extremely unlikely that he will reach his tariff expiry date during his natural life expectancy, and so he has no realistic prospect of being released. This is therefore tantamount to being a whole life case. The procedural requirements of Article 3 of the European Convention of Human Rights apply to his case, he submits, with equal force.
19. The defendant contends that the requirement that the term be "reducible" under Article 3 applies only to whole life sentences and not fixed minimum-term sentences (see Minh Quang Pham v United States of America [2014] EWHC 4167 Admin, paragraph 62). That was an extradition case but one where the irreducibility issue was live and addressed. The Grand Chamber of the European Court of Human Rights reached the same conclusion in Harkins and Edwards v United Kingdom [2012] 55 EHRR 19. That is a case which Mr Fitzgerald informs me is about to return to the European Court of Human Rights for further consideration.
20. The claimant will be automatically considered for release by the Parole Board at the expiry of the minimum term and, if not released, at least every two years thereafter. Accordingly, as Mr Justice Blake, refusing permission on the papers, observed, there is good reason to distinguish between whole life and 40-year tariff cases. Further, if Article 3 does apply, Mr Hare submits that the authorities under the domestic law and the decisions of the European Court of Human Rights, as in Vinter, are clear, that the review under Section 30 of the 1997 Act fulfils the requirements under Article 3. I agree. I do not consider this claim to be arguable. For the reasons I have given, both applications for permission and for a stay are refused.
21. MR HARE: There is an order given by Mr Justice Blake for the costs of the acknowledgement of service.
22. MR JUSTICE SUPPERSTONE: Yes. I saw that.
23. MR HARE: We would invite your Lordship to confirm that that is an appropriate order in the circumstances.
24. MR JUSTICE SUPPERSTONE: That was Vinter.
25. MR HARE: In both; he does in both. Different sums but in both.
26. MR JUSTICE SUPPERSTONE: Is there anything you wish to say about that now?
27. MR FITZGERALD: I do not think I can.
28. MR JUSTICE SUPPERSTONE: I confirm the order.