#13581 - Life Liberty - European Human Rights Law

Life, Liberty and Security: Conceptions of Liberty Deprivation

This is concerned with the human rights of the individual that has already been convicted by a competent court.

• Thus, since it is post-conviction, not concerned with the legitimacy of the actual conviction.

Residual Liberty:

Must first consider what punishment, in terms of human rights, takes away?

• Important to note that the legitimacy of punishment, at a philosophical level, is contested.

  • For example, retributive, restorative, deterrence elements.

• Due to these differing emphases, there is a lack of certainty as to what can be taken away.

• Liberty is inevitably taken away, but what else?

What human rights cannot be taken away in this context?

• Lazarus advocates the ‘key distinction’ between personal and residual liberty. This is premised on the concept of divisible liberty.

  • Personal liberty is what is restricted by the imposition of the criminal sanction as a whole;

  • Residual liberty is what is restricted as a consequence of the administration of prisons, as opposed to the imposition of the prison sentence.

    • Paterson: ‘men go to prison as punishment, not for punishment.

  • This is a vital change of emphasis between whether a test of punishment, or a test of imprisonment, is being enforced.

    • Proportionality will then be weighed against vitally different factors.

Explaining the key distinction:

• Elias LJ in Hirst noted the difference in approach.

  • In Mellor, a clearly personal liberty view was taken, arguing that the court should not just look at the condition of the imprisonment, but the general aggregate understanding of what should be done when punishing.

  • In contrast, in Daly, he noted that the court had adopted a narrower view – ‘where the prisoner retains the right ‘notwithstanding the sentence’ the proportionality doctrine applied in a very ‘different way’’.

First real acknowledgement:

• Traditionally, prisoners were seen as forfeiting their rights upon imprisonment, being ‘right-less’.

  • This was the first time the UK lost in the ECtHR.

  • In response to a number of prison riots, the UK responded with a number of particularly strict punishments, without the ability to contest the penalties.

• Golder v UK:

  • Prisoners were in a position where they wanted to test their rights. This concerned the sanctity of correspondence.

  • Held that the ECHR applies to prisoners as it would to people with liberty.

  • Thus, rights must be assessed ‘having regard to the ordinary and reasonable requirements of imprisonment’.

    • These restrictions also had to be: (i) stipulated by law, and (ii) in accordance with the proportionality test.

• Continued in Dickson v UK:

  • It was made clear that a prisoner did not lose his Convention rights merely because of his detention following conviction; this would not occur to satisfy public opinion.

  • In this case, the court had failed to engage in a proper proportionality test concerning whether artificial insemination could be justified in prison.

  • It was made clear that the margin of appreciation afforded to Member States was reduced when they engaged in the core rights of the individual.

Whole Life Tariffs:

What is the difference between mandatory and discretionary life sentences?

• Discretionary life sentences are composed of a tariff initially set by the court and a preventative period.

  • This latter preventative period engaged review of the continued sentence by the parole board.

• However, mandatory life sentences never enter into the second stage, meaning release is not considered.

Due to the role of the Secretary of State in being able to impose further sentences regarding mandatory life sentences, it was held in Stafford v UK that there was no longer a difference between the different life sentences.

• ‘The continuing role of the Secretary of State in fixing the tariff and in deciding on a prisoner’s release following its expiry, has becomes increasingly difficult to reconcile with the notion of separation of powers between the executive and the judiciary.’

• ‘The mandatory life sentence does not impose imprisonment for life as a punishment. The tariff, which reflects the individual circumstances of the offence and the offender, represents the element of punishment.’

The issue of whole life tariffs giving rise to Article 3 claims was discussed in Kafkaris v Cyprus:

• ‘While the imposition of a sentence of life imprisonment on an adult offenders was not per se incompatible with art.3 or any other provision of the Convention, the imposition of an irreducible life sentence on an adult could raise an issue under art.3.’

• The key issue was whether there was any real (both in de jure and de facto terms) possibility of release.

  • Clear dignitarian issues – a life without a goal or prospects does not appear to hold dignity.

  • However, it was of importance here that the government could end the tariff and had done so in some cases.

The lack of any real prospect of review was again raised in Vinter v UK:

• ‘A grossly disproportionate sentence could amount to ill-treatment contrary to Article 3 at the moment of its imposition but it would only be on rare occasions that this would be established.’

• The Court rejected the idea of a whole life tariff without a possibility of release.

  • It is important to distinguish between de jure and de facto prospects of release – the Court did not object to these tariffs being imposed, agreeing that some crimes are so heinous to justify it, but an independent body must assess this continuation (probably after 25 years).

  • ‘An Art.3 issues only arose when it was shown that the applicant’s continued imprisonment was no longer justified on any legitimate penological grounds such as punishment, deterrence, public prosecution or rehabilitation; and the sentence was irreducible de factor and je jure.’

• Section 30 of the Crime (Sentences) Act 1997: ‘the Secretary of State may at any time release a life prisoner on license if he is satisfied that exceptional circumstances exist which justify the prisoner’s release on compassionate grounds’.

  • The ‘Lifer Manual’ issued by the Secretary of State for Justice refers to the use of this power on whether the prisoner is in the last stages of a terminal illness or is bedridden or incapacitated and the risk of re-offending is minimal’.

  • The Court considered this to be insufficient.

• [In relation to the particular applicants, the Grand Chamber held the sentences were not disproportionate].

The decision in Vinter did not question the validity of whole life order in appropriate cases, but insisted that such sentences without the prospect of review and release would be contrary to Article 3, subjecting the prisoner to inhuman and degrading treatment.

• Three main reasons:

  • After a period of time, the causal link between detention and sound penal reasons for imprisonment eroded;

  • Whole life terms offered no possibility of atonement;

  • Such a sentence was contrary to the human dignity of the individual.

Despite this decision, Re Attorney General’s Reference (No 69 of 2013) merely declared that the ECtHR had misunderstood the Secretary of State’s power under the above Act:

• While the Grand Chamber considered section 30 unable to extend outside terminal illness, the CofA held that the Secretary of State was bound to use his release powers in a manner compatible with Art.3, interpreting ‘compassionate grounds’ in such a manner.

• Considered that whether English law is compatible with Art.3 depends on the answer to three questions:

1. May the whole life order be imposed as just punishment?

• No challenge by the ECtHR, only that it must be reducible.

2. Does the regime which provides for reducibility have to be in the place at the time the whole life order is imposed?

• For rule of law reasons, this is clearly essential – claimed that section 30 is already in place (though its meaning is far from established).

3. Is the regime under section 30 a regime for reducibility that is in fact compliant with Article 3?

• Considered that the Grand Chamber had been mistaken in considering the ‘Lifer Manual’ as binding – ‘compassionate grounds could be read in a HR compliant manner.

  • Any such decisions would be subject to judicial review.

• Is this satisfactory?

  • Though the Grand Chamber expressly rejected the Government’s argument in this regard, could indirectly satisfy their demands if applied in the correct way.

  • However, it is clear that Parliament did not intend section 30 to extend beyond the exceptional medical cases mentioned.

  • Real question is whether the law provides for ‘a review which allows the domestic authorities to consider whether any changes in the life prisoner are so significant, and such progress towards rehabilitation has been in the course of the sentence, as to mean that continued detention can no longer be justified on legitimate penological grounds.’

    • ‘On compassionate grounds’ simply does not extend sufficiently.

  • The Vinter judgment also requires the law to be clear, so that whole life prisoners can know their sentence, and possibility of release, from the outset.

    • ‘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.’

A more logical step would have been a declaration of incompatibility, allowing Parliament to create a new procedure.

R v Hutchinson (2015 held that the UK position was compatible with Article 3, since the secretary of state has the power to release a prisoner on license if they were...