Life in crime | The life penalty

As Christmas approaches I wanted to write an article full of hope. Instead, ?I invite readers to reflect on those rare cases in which all hope has been extinguished. Perhaps those cases better illustrate the true meaning of hope. In David Oakes and Others [2012] EWCA Crim 2435, a special constitution of the Court of Appeal considered whether a discretionary whole life tariff without possibility of parole violated the prohibition against inhuman or degrading treatment under article 3 of the ECHR.

The argument in favour of hope was beautifully expressed by Laws LJ in R (Wellington) v SSHD [2007] EWHC 1109 (Admin): “...a prisoner’s Incarceration without hope of release is in many respects in like case to a sentence of death

The contrary argument is best expressed by Lord Bingham CJ in Hindley [1998] QB 751, “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.” In Bieber [2009] 1 WLR 223, Lord Phillips CJ concurred with that reasoning but also relied on the possibility of release on the compassionate grounds when the prisoner was terminally ill or close to death.

The Court of Appeal in David Oakes and others adopted the procedural approach of the Fourth Section of the ECtHR in Vinter and Others [2012] ECHR 61, emphasising that the tariff was discretionary and highlighting the question of when the article 3 issue could arise. “Provided the court has reflected on matters of mitigation properly available to the defendant, a whole life order imposed as a matter of judicial discretion as to the appropriate level of punishment and deterrence following conviction for a crime of utmost seriousness would not constitute inhuman or degrading punishment.” Accordingly, no article 3 issue arose at the time of imposition and could only arise in future where it could be demonstrated that continued incarceration was no longer justified on any legitimate penological grounds.

Yet the question remains by what mechanism a whole life prisoner could mount such an argument? Normally the mechanism would be a parole hearing, but he has been sentenced to life without possibility of parole – so he never sees the Parole Board. Moreover, the sentencing judge will have determined that a whole life term was necessary for pure punishment and deterrence of others, so how could that be challenged in future, even if the prisoner himself has been totally rehabilitated? As for the possibility of compassionate release when the prisoner is terminally ill or close to death, this offers no real hope at all.

For this reason, three of the seven Strasbourg judges in Vinter and others dissented: “There should already be in place a suitable mechanism in the domestic system, so as to lend credence to the existence of such possibility, and thus afford a measure of hope to the convicted person.” The Grand Chamber heard the final appeal of Vinter and others on 28 November 2012. Perhaps their judgment in the new year will give some real meaning to the concept of hope.