Edward Fitzgerald Q.C. – “Life Without Parole” – PAS Annual Lecture 3 November 2016

1. Introduction

I want to talk about those prisoners who are sentenced to life without parole. In blunt terms those prisoners whose crimes are regarded as so serious that they have been told that they must die in prison no matter how much progress they make in custody and no matter how young they were at the time of sentence provided they were over 21.

At present there are about 60 such prisoners in the UK prison system. They include Ian Brady, Rosemary West, Jeremy Bamber, David Bieber, Donald Neilson (the Black Panther); Ian McLoughlin (who killed on the day of his release from a life sentence) and the murderer of Private Rigby (Michael Adebolajo).

Their names bear witness to their notoriety. So the category includes Peter Sutcliffe, known as the ‘Yorkshire Ripper’, Trevor Hardy the ‘Beast of Manchester’; Robert Maudsley ‘Hannibal the Cannibal’; Mark Martin ‘the Sneinton Strangler’; Archibald Hall ‘the Camden Ripper’; and Stephen Griffiths ‘the Crossbow Killer’.

All other offenders sentenced to life imprisonment for murder have their cases reviewed after a fixed punitive period and have the possibility of release on license. Some after 15 years, some after 20, 25 or 30 years. But there is this small category of prisoners who are told from the outset that they will never win release.

Their cases raise profound issues, both moral and legal. There are two views, both of which deserve respect.

1. Justification for whole life orders
The justification for whole life orders is said to be this. There are some crimes that are so wicked and premeditated that, now that we have abolished the death penalty, the only adequate alternative punishment is a punishment of life meaning life. The justification is both retribution and deterrence.

This view has led to the imposition of whole life tariffs since 1988 and the retrospective imposition of such whole life tariffs on people already within the system such as Myra Hindley and Ian Brady. And the 2003 Criminal Justice Act formalised the principle that whole life tariffs could and should be imposed in certain cases of ‘exceptionally high seriousness’. It made such sentences the norm in cases involving double killings with certain aggravating features; the abduction and killing of a child; and the second killing by a person who has already been convicted of murder. More controversially a whole life order is laid down as the starting point for ‘murder done for the purpose of advancing a political, religious or ideological cause’. And in 2015 ‘the murder of a police officer or prison officer in the course of duty’ was added to the list of crimes where there was a presumption of a whole life order. In all these cases it is said that retribution and deterrence require a sentence that ensures the offender will die in prison.

Alternative view
But as against that there is a growing consensus in Western Europe that no one should be sentenced to a life meaning life and that it is always wrong to exclude the possibility of release in the light of progress in prison. This has been exemplified in recent decisions in the European Court of Human Rights in cases such as Vinter v UK (2013), Trabelsi v Belgium (2013) and Murray v The Netherlands (2016). Those decisions are founded on the principle that there must be room for rehabilitation and eventual release even in the gravest cases of murder. That approach accords with provisions of the statute of the International Criminal Court which insists there be a review of all life sentence cases after 25 years. And that accords with the approach of Constitutional Courts throughout the world, from Germany to Zimbabwe.

This view is founded on the capacity for change of every human being and the need for every prison sentence to have a rehabilitative purpose and not just provide for retribution and deterrence. The underlying rationale of the Vinter case was put in this way by Judge Power-Forde in her concurring judgment in Vinter:-
“The judgment recognises, implicitly, that hope is an important and constitutive aspect of the human person. Those who commit the most abhorrent and egregious of acts and who inflict untold suffering upon others, nevertheless retain their fundamental humanity and carry within themselves the capacity to change. Long and deserved though their prison sentences may be, they retain the right to hope that, someday, they may have atoned for the wrongs which they have committed. They ought not to be deprived entirely of such hope. To deny them the experience of hope would be to deny a fundamental aspect of their humanity and, to do that, would be degrading.”

Vinter had been convicted of a second murder after release from a life sentence for an earlier murder. Yet even in his case the European Court were saying that there had to be a possibility of change on his part and a possibility for release by the criminal justice system at some point before death.

Out of this global controversy there arises the question of whether it is ever right to sentence someone to life meaning life and exclude all possibility of review and release. This in turn raises the question of what our prison system is there for. If retribution and deterrence are not the sole purpose of every sentence and rehabilitation is a crucial objective then it’s necessary to recognise the potential for change and the possibility for release. Moreover on a political level those countries that adopt a policy of imposing life without parole create a penal system that prioritises retribution and deterrence. And this tends to become a disease. The habit of imposing life without parole becomes infectious.

Global perspective
I think I can make this point if I invite you to step back for a moment and take a global perspective on the issue of life without parole. Because there is a wide difference in the approaches of different countries and different continents.

Many jurisdictions follow the progressive view that either there should be no sentence of life imprisonment at all, which is the practice in many South American countries and some European countries. Many countries that do allow for life imprisonment still specifically require that there should be a review with a view to release at some term of years:- in Germany 15 years, under the ICC 25 years etc. In all cases the reason is that there must be some allowance for the rehabilitative effects of imprisonment and the capacity of every human being to change.

Contrasting position in America
By contrast America not only allows for life without parole but in many states makes it a mandatory sentence for numerous offences including drug offences; felony murder which would often amount to mere manslaughter here and first degree murder where it does not result in the death penalty. In 2012 there were estimated to be at least 49,000 prisoners subject to sentences of life without parole in the United States who have absolutely no prospect of release before death. In Florida alone there are 8,000 such prisoners. The United States have an expression for this sentencing phenomenon. It’s called ‘being sentenced to die in prison.

The UK is obviously somewhere between the two extremes. But the introduction of sentences of life without parole is a new departure that was first introduced by Parliament in the 2003 Criminal Justice Act. The exclusion of any realistic review is also a new and disturbing development. It has resulted in adverse rulings from the European Court in the case of Vinter in 2003. And the Vinter decision itself led to a confusing, controversial and somewhat misleading decision by the English Court of Appeal in the case of McLoughlin, where they sought to deny that we do in fact have a system that excludes any realistic possibility of review.

So I hope it will be worthwhile to take you through the history of the sentence of life without parole in the UK here and to review the situation that we are now in.
 

1.1. Life Imprisonment
Life imprisonment was always the fixed alternative sentence to murder throughout the 20th Century. After 1965 it became the only sentence and the mandatory sentence for all those convicted of murder.

1.2. Life did not mean life
The sentence pronounced by the judge was one of imprisonment for life but everybody knew that life did not mean life. So the Royal Commission on Capital Punishment recognised that ‘a sentence of imprisonment for life is never carried out literally’ and that ‘the actual periods are determined by the circumstances of the individual case’. They contemplated that maximum terms of 15 or even 20 years would be served in the most extreme cases (para 656); and that lifelong detention would only be necessary for preventative reasons. This was on the basis of an evolving recognition in England and Europe that detention for very long periods was inhuman and destructive. The idea was that actual lifelong detention should not be imposed as punishment and only those lifers should be detained until death who remained a real risk to the public because they remain dangerous even after many years.
 
1.3. The 1965 Act: Parliamentary debates
In 1965 Parliament abolished the death penalty and substituted the sentence of life imprisonment in all cases of murder. During the Parlimanetary debates speakers regularly recognised that ‘life does not mean life in any strict or literal sense’. For example Viscount Dillon observed:-

‘I know perfectly well that the sentence passed is a sentence of life imprisonment. There has been controversy about what that means. It does not mean life.’

There was provision in the 1965 Act for the judge to recommend a minimum term that should be served before release on license. But it was only a recommendation. That was because Parliament recognised that the actual release decision would have to be taken as the years went by on the basis of the prisoner’s actual progress in custody. That power was seldom used. But, when it was used the periods recommended by the judges were finite fixed terms such as 20 or 30 years and not whole life.

1.4. Subsequent developments
During the 60’s and 70’s life sentence cases were regularly reviewed. The views of the judiciary were sought as to the punitive or tariff period that must be served before consideration for parole. But no judge appears to have recommended a whole life term should be served on punitive grounds. So, even in Myra Hindley’s case the recommendation made by the trial judge in 1966 was for 30 years and not whole life.

2. The emergence of whole life tariffs and the Hindley case

2.1. The idea that someone must serve their whole life in prison as punishment for the offence of murder first emerged in 1988. It was not until 1994 that Michael Howard acknowledged the existence of a category of life sentence prisoners who had whole life tariffs.

2.2. The Hindley challenge
Myra Hindley was the victim of the new policy of fixing whole life tariffs. The trial judge in her case had originally recommended a tariff period of 30 years. But as that period neared its end it was increased by the Home Secretary to whole life in 1990. Her case was that it was unfair to increase the 30 year tariff recommended to a whole life tariff simply because attitudes had hardened in the intervening years.

2.3. The case went all the way up to the House of Lords. Eventually the increased whole life tariff was justified on the basis that her crimes were uniquely evil; and that the recommendation of 30 years in 1966 was only a recommendation. Moreover they found that the original 30 year period could legitimately be increased because she had confessed to more murders in 1987.

2.4. Myra Hindley also challenged the very notion of fixing a whole life tariff as inhuman and contrary to the scheme of the act. But Lord Bingham found in the Divisional Court that it was not unreasonable or illogical to say that some of those sentenced to life imprisonment should be detained for the whole of their lives for the purposes of punishment. He said that ‘while Parliament did not intend life to mean life in every case, it did not exclude the possibility that it would mean life in some cases’.

2.5. Allowance for release
But Lord Bingham’s judgment gave some hope to Myra Hindley. He held that even if a whole life tariff could be fixed as a starting point, there must be allowance for release at some point in the future in the light of exceptional progress. As a result he effectively struck down Michael Howard’s policy as unlawful because it ruled out any possibility of release in the light of progress in prison. So the position in 1998, after Myra Hindley’s case was decided, was that no life sentenced prisoner could be excluded from the possibility of parole even where a whole life tariff was ‘pencilled in’ administratively. From the prisoner’s point of view they knew there was at least a possibility that they could earn release before their death by what was described as ‘exceptional progress.’ All that was to change with the 2003 Act.

3. The 2003 Act

3.1. Then there came the 2003 Criminal Justice Act. This was a political reaction to the European Court’s decision in Stafford that tariffs should be fixed by judges and not the Home Secretary. Parliament struck back against the judges. It introduced a new and harsher approach to the sentencing of convicted murderers and the minimum terms that they must serve for punishment before being considered for release. It effectively dictated to the judges that they must now sentence in accordance with 3 starting points:-
(i) First there were the standard cases of murder where the starting point would be orders for 15 years of actual custody before consideration for parole.
(ii) Next there were the ‘particularly serious cases’ with the 30 year starting point. These included cases involving the murder of a police officer; murder involving the use of a firearm or explosive; murders for gain; murders involving sexual and sadistic conduct or murders of two or more persons.
(iii) Finally there was the worst category described as cases of ‘exceptionally high seriousness’. In those cases the appropriate starting point is a whole life order i.e. a sentence to life without parole.

3.2. The preconditions for whole life orders
Parliament laid down that whole life orders should generally be imposed on offenders over 21 convicted of offences of exceptionally high seriousness. They further identified the categories of offences for which the starting point would be a whole life order. They were as follows:-

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

3.3. What this has meant in practice
In practice whole life orders have been imposed on double killers; child murderers; murderers who kill again; and terrorists serving ideological causes.

There are 59 in all at present. The 2003 Act provided for the effective resentencing of offenders already in the system to whole life tariffs. This happened in the cases of Dennis Nilsen; Jeremy Bamber; Rosemary West; Peter Sutcliffe; Antony Sawoniuk; and Harold Shipman. Since the 2003 Act came in force judges have imposed whole life orders on a number of offenders convicted after 2003. These include David Oakes; Michael Adebolajo; and Lee Newell (who killed another prisoner while serving a life sentence). Others who were originally sentenced to whole life tariffs by their trial judges have had the minimum periods reduced on appeal to periods ranging from 35 to 40 years. These included Whiting (40 years); David Bieber (37 years) and Danilo Restivo (40 years). In most of those cases it will mean that they are very likely to die in prison.

Under the 2003 Act there is no provision for any review of the cases of those serving whole life orders.

3.4. Challenges to the 2003 Act
There have been unsuccessful challenges in the English courts to the very idea of sentencing prisoners to whole life orders.

One of the principal grounds of challenge is that the whole life tariff makes no allowance at all of release in light of a prisoner’s progress in custody. That is because the only allowance for release is on compassionate grounds under s.30 Crime (Sentences) Act 1997 and the allowance for release on compassionate grounds has been very restrictively interpreted by the Home Office in their guidance on this power. Essentially they have said it will only be exercised where a prisoner is near death and is released for a short time in order to go home and die.

The English courts have rejected the argument that a sentence to a whole life order is inhuman and contrary to Article 3 of the European Convention in the case of Bieber (23/07/2008, US Marine who shot 1 police officer and seriously wounded 2 others). (They repeated this rejection in the subsequent case of Oakes.) In Bieber the Court of Appeal stated that an irreducible life sentence deliberately imposed by a judge for an offence of murder of great gravity did not violate Article 3 (para 45).

But the new statutory regime does do two disturbing things. Firstly it enshrines in statutory form the presumption that crimes meeting the test laid down in Schedule 21 should attract a whole life tariff. Secondly it formalises the principle that there will be no consideration of release on grounds of progress in prison however long the prisoner has been in and however great their progress is.

For that very reason the new regime has been successfully challenged in the European Court. I now turn to the successful decision.

4. The Vinter decision

4.1. In the case of Vinter on 9th July 2013 the Grand Chamber of the European Court held that the British regime for life without parole was inhuman and violated Article 3. That was because it only allowed for compassionate release in the case of a prisoner who was on the point of death. Compassionate release is governed by s.30(1) of the Crime (Sentences) Act 1997 which provides:-

‘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’.

4.2. But the Secretary of State for Justice operates a highly restrictive policy in exercising his power of compassionate release. This policy is set out in the Lifer Manual. It only allows for compassionate release in the case of prisoners ‘suffering from a terminal illness where the death is likely to occur very shortly’ where ‘the risk of reoffending is minimal’, ‘further imprisonment could reduce the prisoner’s life expectancy’ and ‘early release could produce some significant benefit to the prisoner or his family’.

4.3. The European Court held that the English system violated Article 3 because it made no allowance for a review of the prisoner’s progress and possible release at any time before death. The court held that if a whole life order was imposed there had to be provision for a proper and principled review. They laid down 3 necessary preconditions for a proper review:-

(i) Firstly, there had to be a review mechanism in place from the time that the sentence was imposed. The European Court referred to the growing consensus that such a review should take place after some 25 years. This accords with the practice of the International Criminal Court and the provision for review after some 25 years or so in custody in numerous countries throughout the world- including Canada, South Africa, Argentina and most Australian states.
(ii) Secondly, the review of a life prisoner’s continued detention had to be governed by clear and accessible criteria. The prisoner had to know where he stood.
(iii) Thirdly, there had to be provision for the whole life prisoner to win release on grounds of the progress he had made in custody. In the word of the European Court in Trabelsi there had to be provision for release where ‘the prisoner has changed and progressed to such an extent that continued detention can no longer be justified on legitimate penological grounds’.

4.4. Since the Vinter case the criteria have been further refined in cases such as Trabelsi and Murray. In Trabelsi the European Court held that a prisoner could not be extradited to face a sentence of life without parole in the United States because of the absence of any clear and accessible criteria to govern the review of prisoners sentenced to life without parole there. In Murray the court further refined the test.

5. The McLoughlin decision of the English Court of Appeal

5.1. Eventually in the case of McLoughlin the English Court of Appeal were confronted with the decision of the European Court in Vinter that the English regime did not comply with the requirements of Article 3. Their answer was to say that the European Court had misunderstood the English system. Although s.30 is confined to cases of compassionate release and although the Lifer Manual interprets this very restrictively, the Court of Appeal found that the English system did not mean what it said. They held that s.30 could be interpreted so as to conform with the requirements of the Vinter by reading into s.30 a duty to review life sentenced prisoners at some point to ensure that detention continued to be justified on legitimate penological grounds.

5.2. The Court of Appeal’s decision in McLoughlin was clever but opportunistic and misleading. The statute is clear, so too is the policy. They do not provide for release in the light of progress in custody but for compassionate release for special medical reasons. Moreover there has been no amendment of the policy even after the decision in McLoughlin. So prisoners are still not being told that they can win release on the basis of progress in custody at some identifiable point. They are not being told how the Secretary for Justice will approach such cases. They are not being given a date at which their cases will be given serious consideration and a proper review will take place in the light of progress in custody. So the decision in McLoughlin dodged the issue that we needed to amend our law to comply with the requirements of the European Convention.

5.3. In the first hearing of the later case of Hutchinson, the European Court felt bound to accept the English Court of Appeal’s rather strained and unreal solution. But this whole issue has now been reconsidered by the Grand Chamber of the European Court in the case of Hutchinson. The judgment is awaited.

5.4. Conclusion on the English system
So at the moment those sentenced to life without parole are in a sort of limbo. In legal theory they have the right to a review after say 25 or 30 years in the light of their progress. But in actual practice there is no recognition of this fact in any policy statement by the Secretary for Justice and no real means of knowing what it is they must do to win release even after decades in custody.

6. Final word: Case of Harkins

6.1. I want to turn lastly to a further issue that frequently confronts the English courts on the question of life without parole. And that is whether we can lawfully extradite to countries which impose sentences of life without parole without any realistic prospect of review.

6.2. In the past in cases such as Wellington the English courts have held that it is lawful to extradite to the US even where a prisoner there faces a mandatory sentence of life without parole and no real prospect of release by the exercise of executive clemency.

6.3. In the case of Harkins the English courts have twice rejected the argument that the extradition of Philip Harkins to face a mandatory sentence of life without parole in America would constitute inhuman treatment and violate Article 3. That was on the basis partly that we should not pass judgment on the American system and partly on the basis that the US system does make some allowance for the possibility of release on parole.

6.4. But the Grand Chamber of the European Court is shortly to look at this whole issue again and reopen the case of Harkins. There are very strong grounds for saying that the mandatory sentence of life without parole that he faces would constitute inhuman punishment and that it is contrary to Article 3 to extradite him to face such a punishment.

6.5. The facts of Harkins’ case are pretty striking. At the age of 20 he was engaged in a robbery which went wrong. In the course of that robbery on the Prosecution’s own case he hit his victim with a loaded gun and the gun went off unintentionally killing the victim. The key prosecution witness described Harkins’ reaction as follows, ‘he just started crying’. But despite the lack of intention, if he is convicted he would be guilty of felony murder on the basis of the Prosecution’s own allegations. Felony murder does not require any intent to kill. And on conviction of felony murder the judge would have no choice but to sentence him to life without parole. And in Florida life without parole means that he will die in prison. There is no prospect at all of him having his sentence commuted by the Governor of Florida.

6.6. So Philip Harkins faces a mandatory sentence of life without parole; and no matter what he does in the succeeding years and decades, he has no prospect of release. That does appear inhuman on any rational and humane view of what a fair justice system should provide for. You have only to contrast his case with that of the cases that attract life without parole in Europe to see the massive disparity. Moreover here in England there is at least a judicial discretion whether to impose a sentence of life without parole at a sentencing hearing at which the issue can be debated. And the sentence is reserved for the truly worst cases of murder- the cases of ‘exceptionally high seriousness’ that are laid down in the 2003 Act. In Florida there will no such sentencing hearing. The sentence is dictated by law and the judge has no discretion to disapply it. And the consequences will be lifelong detention.

6.7. I cannot of course predict what the Grand Chamber will decide when it hears the case in January. But if they reopen the case then there are good grounds for hope. Their earlier decision in the case of Trabelsi seems to recognise that the American system fails to comply with Article 3. And that it is wrong to extradite to the US to face a sentence of mandatory life without parole.

7. Conclusion

So we are back where we started. The issues raised by the sentence of life without parole are truly global issues confronted by criminal justice systems throughout the world. They go to the very heart of what our criminal justice system is about. Even in the very worst cases it should not be solely about retribution and deterrence. There should be some recognition of the need for prison to rehabilitate and some recognition of the infinite capacity for change in all of us. Experience really has shown that even those convicted of the worst imaginable crimes can change over the years. And our justice system ought to recognise that fact and encourage that possibility.

EDWARD FITZGERALD Q.C. (©)
3rd NOVEMBER 2016