Information Note on the Court’s case-law 203

January 2017

Hutchinson v. the United Kingdom [GC] - 57592/08

Judgment 17.1.2017 [GC]

Article 3

Degrading punishment

Inhuman punishment

Continued detention under whole life order following clarification of Secretary of State’s powers to order release: no violation

Facts – In Vinter and Others v. the United Kingdom the European Court found that the law concerni ng the prospect of release of whole life prisoners in England and Wales was unclear. Although section 30 of the Crime (Sentences) Act 1997 gave the Secretary of State the power to release any prisoner, including one serving a whole life order, chapter 12 o f the Indeterminate Sentence Manual (“Lifer Manual”)* provided that release would only be ordered if a prisoner was terminally ill or physically incapacitated. These were highly restrictive conditions and, in the Court’s view, did not afford the “prospect of release” required under the Court’s case-law for a life sentence to be regarded as reducible for the purposes of Article 3 of the Convention.

Subsequently, the Court of Appeal of England and Wales considered the position under English law in the light of the Vinter and Others judgment. In McLoughlin ** it ruled that the Lifer Manual could not restrict the duty of the Secretary of State to consider all circumstances relevant to release on “compassionate grounds” and that that term, which had to be read in a manner compatible with Article 3, was not restricted to what was set out in the Lifer Manual, but had a wide meaning that could be elucidated on a case by case basis. Further, the Secretary of State’s decision had to be reasoned and was subject to judic ial review. In the Court of Appeal’s view, therefore, the law of England and Wales did afford life prisoners the possibility of release in exceptional circumstances.

The applicant in the present case was convicted in September 1984 of aggravated burglary, rape and three counts of murder and sentenced to life imprisonment with a recommended minimum tariff of 18 years. In December 1994 the Secretary of State informed him that he had decided to impose a whole life term. Following the entry into force of the Cr iminal Justice Act 2003, the applicant applied for a review of his minimum term of imprisonment. In May 2008 the High Court found that there was no reason to depart from the Secretary of State’s decision given the seriousness of the offences. The applicant ’s appeal was dismissed by the Court of Appeal in October 2008. In his application to the European Court, the applicant alleged that he had no prospects of release from his whole life sentence, in breach of Article 3 of the Convention.

By a judgment of 3 F ebruary 2015 (see Information Note 182 ), a Chamber of the Court concluded by six votes to one that there had been no violation of Article 3. On 1 June 2015 the case was referred to the Grand Chamber at the applicant’s request.

Law – Article 3: In the McLoughlin decision the Court of Appeal had responded explicitly to the Vinter critique. It had affirmed the Secretary of State’s statutory duty to exercise the power of release compatibly with Article 3 of the Convention and clarified that the Lifer Manual could not restrict the Secretary of State’s duty to consider all circumstanc es relevant to release or fetter the Secretary of State’s discretion by taking account only of the matters stipulated in the Lifer Manual. The Court of Appeal had thus brought clarity as to the content of the relevant domestic law, resolving the discrepanc y that had been identified in Vinter .

Having established that the lack of clarity in the domestic law identified in Vinter had been dispelled, the Grand Chamber went on to consider whether, in the light of the nature of the review and its scope, the condi tions and criteria for review and the time-frame, the procedure for review of life sentences in England and Wales met the requirements of Article 3.

(i) Nature of the review – The Court saw no reason to depart from its previous case-law that the executive (as opposed to judicial) nature of a review was not in itself contrary to the requirements of Article 3. In this connection, it noted that the Secretary of State was bound t o exercise the power of release in a manner compatible with Convention rights, to have regard to the relevant case-law of the Court and to provide reasons for each decision. Furthermore, the Secretary of State’s decisions were subject to a review by the do mestic courts and the Government had stated that such review would not be confined to formal or procedural grounds, but would also involve an examination of the merits.

(ii) Scope of the review – The Court of Appeal had crucially specified in McLoughlin t hat the “exceptional circumstances” referred to in section 30 could not legally be limited to end-of-life situations as announced in the Lifer Manual, but had to include all exceptional circumstances relevant to release on compassionate grounds. Although t he Court of Appeal had refrained from specifying further the meaning of the words “exceptional circumstances” in this context, or to elaborate criteria, it had recalled earlier domestic case-law to the effect that exceptional progress by the prisoner whils t in prison was to be taken into account. It was thus evident that exceptional progress towards rehabilitation came within the meaning of the statutory language. Likewise, the narrow emphasis put on the term “compassionate grounds” in the Lifer Manual had been corrected by the judgment of the Court of Appeal, which affirmed that it was not limited to humanitarian grounds but had a wide meaning, so as to be compatible with Article 3.

(iii) Criteria and conditions for review – The Court reaffirmed that the r elevant question was whether those serving life sentences in the domestic system could know what they must do to be considered for release, and under what conditions the review takes place. In that connection, the domestic system could be regarded as posse ssing a sufficient degree of specificity or precision as, firstly, the exercise of the section 30 power would be guided by all of the relevant case-law of the European Court both present and future and, secondly, the concrete meaning of the terms used in s ection 30 would continue to be further fleshed out in practice. In this latter context the Secretary of State’s duty to give the reasons for each decision, subject to judicial review, acted as a guarantee of the consistent and transparent exercise of the p ower of release.

(iv) Time-frame – The concern that had been expressed in Vinter regarding indeterminacy – a prisoner should not be obliged to wait and serve an indeterminate number of years before being permitted to mount an Article 3 challenge – and the repercussions of this for a whole life prisoner could not yet be said to have arisen for the applicant. The process of review under section 30 could be initiated by the prisoner at any time and the applicant had not suggested that he had been prevented or deterred from applying to the Secretary of State at any time to be considered for release.

***

In conclusion, the McLoughlin decision had dispelled the lack of clarity identified in Vinter arising out of the discrepancy within the domestic system between the applicable law and the published official policy. In addition, the Court of Appeal had brought clarification as regards the scope and grounds of the review by the Secretary of State, the manner in which it should be conducted, as well as the duty of th e Secretary of State to release a whole life prisoner where continued detention could no longer be justified on legitimate penological grounds. Further specification of the circumstances in which a whole life prisoner could seek release, with reference to the legitimate penological grounds for detention, could come through domestic practice. The statutory obligation on the national courts to take into account the Article 3 case-law as it may develop in the future provided an additional important safeguard.

Accordingly, the whole life sentence could now be regarded as reducible, in keeping with Article 3 of the Convention.***

Conclusion : no violation (fourteen votes to three).

(See also Kafkaris v. Cyprus [GC], 21906/04, 12 February 2008, Information Note 105 ; Vinter and Others v. the United Kingdom [GC], 66069/09 et al., 9 July 2013, Information Note 165 ; and Murray v. the Netherlands [GC], 10511 /10, 25 April 2016, Information Note 195 ; and, more generally, the Factsheet on Life imprisonment )

* Issued as Prison S ervice Order 4700. ** R v. Newell; R v McLoughlin [2014] EWCA Crim 188. *** Since the parties’ submissions were confined to the issue whether, in light of the McLoughlin ruling, the applicant’s situation in relation to his whole life sentence was in keepi ng with the requirements of Article 3 as laid down in Vinter the Court did not examine whether there had been a violation of Article 3 in the period of the applicant’s imprisonment prior to the McLoughlin ruling. It did note, however, that the material cir cumstances in the two cases were indistinguishable.

© Council of Europe/European Court of Human Rights This summary by the Registry does not bind the Court.

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