SEPARATE OPINION OF JUDGE SAJÓ

To my regret I could not follow the majority, for the reasons expressed in the separate opinion of Judge Paulo Pinto de Albuquerque. Even assuming that “compassionate grounds” may mean anything a judge finds reasonable in the United Kingdom, it certainly cannot provide the specific guidance to the prisoner that was stipulated in Murray v. the Netherlands ([GC], no. 10511/10, § 100, ECHR 2016) a mere six months ago.

[1] . R v. McLoughlin, R v. Newell, Court of Appeal, Criminal Division , 18 February 2014 [2014] EWCA Crim 188.

[2] . Vinter and Others v. the United Kingdom [GC], nos. 66069/09, 130/10 and 3896/10, ECHR 2013 (extracts).

[3] . Ibid ., §§ 124, 129 and 130.

[4] . Ibid ., §§ 122, 129 and 130. For the sake of terminological clarity, I use the word “parole” in the same sense as the Council of Europe uses it, meaning conditional release or early release of sentenced prisoners under individualised post-release conditions; amnesties and pardons are not included in this definition, as Recommendation Rec(2003)22 of the Committee of Ministers has recognised.

[5] . R.v. Bieber (2009) , 1 WLR 223, §§ 48 and 49.

[6] . The Lifer Manual was issued as Prison Service Order 4700, at Chapter 12. The official policy remained unaltered despite the judgment in Bieber.

[7] . Vinter and Others , cited above, § 129.

[8] . Ibid ., § 129.

[9] . Vinter and Others , cited above, § 122: “when the review of his sentence … may be sought”.

[10] . Murray v. the Netherlands (GC), no. 10511/10, 26 April 2016.

[11] . Trabelsi v. Belgium , no. 140/10, § 137, ECHR 2014 (extracts).

[12] . Laszlo Magyar v. Hungary , no. 73593/10, § 57, 20 May 2014.

[13] . Harakchiev and Tolumov , nos. 15018/11 and 61199/12, §§ 255, 257 and 262, ECHR 2014 (extracts)).

[14] . Murray , cited above, § 100.

[15] . Bodein v. France , no. 40014/10, § 61, 13 November 2014.

[16] . It is odd that § 45 of the present judgment refers to § 120 of Vinter and Others , but ignores § 100 of Murray .

[17] . Murray , cited above, § 100.

[18] . McLoughlin , cited above, § 29.

[19] . Ibid ., § 30.

[20] . Ibid ., § 11.

[21] . See paragraph 23 of the Chamber judgment in connection with paragraphs 25-36 in McLoughli n.

[22] . This is the expression used in McLoughlin , cited above, § 37.

[23] . See the Oxford dictionary’s definition of compassion as “the sympathetic pity and concern for the sufferings or misfortunes of others”, based on the Latin compassio , or suffer with.

[24] . Liversidge v Anderson [1941] UKHL 1.

[25] . Vinter and Others , cited above, § 126.

[26] . Vinter and Others , cited above, § 128.

[27] . Among many other authorities, Engel and Others v. the Netherlands , 8 June 1976, § 58, Series A no. 22; Amuur v. France , judgment of 25 June 1996, Reports 1996-III, p. 848, § 42; and Assanidze v. Georgia [GC], no. 71503/01, § 139, ECHR 2004‑II.

[28] . Vinter and Others , cited above, § 119.

[29] . In practice, nothing changed after Vinter. This is confirmed on the ground (see van Zyl Smit and Appleton, “ The Paradox of Reform: Life Imprisonment in England and Wales ”, in van Zyl Smit and Appleton (eds.), Life Imprisonment and Human Rights , Oxford, 2016, p. 228).

[30] . McLoughlin , cited above, § 31.

[31] . The exhaustive conditions set out in the Prison Service Order itself would not be sufficient for the purposes of Article 3 (see Vinter and Others , cited above, §§ 126, 127, 129).

[32] . As was explicitly acknowledged in the proposal of the Joint Committee on Human Rights of the United Kingdom Parliament on the issue, points 1.21-1.26.

[33] . McLoughlin , cited above, §§ 23 to 25.

[34] . Ibid ., § 29.

[35] . Lord Hoffmann in R v Lyons [2002] UKHL 44, § 27; Lord Nicholls and Lord Hoffmann in In re McKerr [2004] UKHL 12, paragraphs 25 and 62-65; Lord Bingham in R ( Al-Skeini and others ) v. Secretary of State of Defence (2007) UKHL 26, § 10; Lord Hoffman in Re G (Adoption: Unmarried Couple) (2008) UKHL 38, §§ 33-35; and Lord Neuberger in R (on the application of Nicklinson and another) v. Ministry of Justice (2014) UKSC 38, § 74.

[36] . It is admitted that the Human Rights Act did not change the constitutional balance between Parliament, the Executive and Judiciary (see Lord Dyson, “ What is wrong with human rights? ”, Lecture at the Hertfordshire University, 3 November 2011, citing the 2006 review of the Department of Constitutional Affairs).

[37] . Lord Reed in R (Osborn) v. Parole Board (2013) UKSC 61, § 57; Lord Toulson in Kennedy v. Charity Commission (Secretary of State for Justice and Others Intervening) (2014) UKSC 20, § 133.

[38] . Lord McCluskey, Scotland on Sunday, 6 February 2000.

[39] . Lord Dyson, “ Are judges too powerful? ”, Bentham Association Presidential Address 2014, 13 March 2014: “It is wholly unrealistic to suppose that Parliament believed that the Convention would remain immutable as at 1998.”

[40] . R (Ullah) v Special Adjudicator (2004) UKHL 26, § 20.

[41] . McCaughey and Another [2011] UKSC 20, § 91. See also Lady Hale, “ Beanstalk or Living Instrument? How tall can the European Convention on Human Rights grow? ”, Gray’s Inn Reading 2011, 16 June 2011.

[42] . Lord Neuberger in P and Q v. Surrey County Council (2014) UKSC 19, § 62.

[43] . Ghaidan v. Godin-Mendoza [2004] UKHL 30.

[44] . Lord Nicholls in Ghaidan , cited above, § 32.

[45] . Lady Hale, “ What’s the point of human rights? ”, Warwick Law Lecture 2013, 28 November 2013: “But statements from Lord Nicholls, Lord Steyn and Lord Roger also gave a very broad meaning to what was ‘possible’ – as long as an interpretation was not contrary to the scheme or essential principles of interpretation, words could be read in or read out, or their meaning elaborated, so as both to be consistent with the Convention rights and go with the grain of the legislation, even though it was not what was meant at the time.”

[46] . Lord Kerr, “ The UK Supreme Court: The Modest Underworker of Strasbourg? ”, Clifford Chance Lecture 2012, 25 January 2012: “even if a case can be made that in the past we were excessively deferential to Strasbourg, there are recently clear and vigorous signals that we are no longer.”

[47] . Lord Slynn in R (Alconbury Developments Ltd) v. Secretary of State for the Environment, Transport and the Regions UKHL 23, § 26. The passage was reproduced by Lord Bingham in the famous paragraph 20 of Ulhah .

[48] . Lord Philips in R v Horncastle and others (Appellants) (on appeal from the Court of Appeal Criminal Division) [2009] UKSC 14, § 11.

[49] . Lord Neuberger in Manchester City Council v Pinnock [2010] UKSC 45, § 48.

[50] . R (on the Application of Chester) v. Secretary of State for Justice (2013) UKSC 63, § 27.

[51] . Hirst v. the United Kingdom (GC), no. 74025/01, 6 October 2005.

[52] . Scoppola v. Italy (no. 3) (GC), no. 126/05, 22 May 2012.

[53] . R (on the Application of Chester) v. Secretary of State for Justice (2013) UKSC 63, § 121.

[54] . Also referring to “exceptional circumstances” for refusal to follow the Court’s clear jurisprudence, see Lord Dyson, Lecture at the Hertfordshire University, cited above.

[55] . McLoughlin , cited above, § 30, pointing to the Court’s alleged misunderstanding of an important feature of national law.

[56] . Harakchiev and Tolumov , cited above, §§ 258 and 259.

[57] . Trabelsi , cited above, § 137.

[58] . The Government refer to a recent decision of the High Court which declined to follow Trabelsi – R (Harkins) v. Secretary of State for the Home Department [2015] 1 WLR 2975.

[59] . Recommendation Rec(2006)2 of the Committee of Ministers to member States on the European Prison Rules.

[60] . It is particularly important to bear in mind the Rome Statute, because the United Kingdom is a Contracting Party to it, and therefore accepted its standards.

[61] . Harakchiev and Tolumov , cited above, § 258.

[62] . Čačko v. Slovakia , no. 49905/08, § 43, 22 July 2014.

[63] . Bodein , cited above, § 60.

[64] . See paragraph 44 of the judgment.

[65] . See paragraph 43 of the judgment.

[66] . See paragraphs 51 and 52 of the judgment.

[67] . See paragraphs 67 and 69 of the judgment.

[68] . See paragraph 55 of the judgment.

[69] . “Types of prison sentences (…) Whole life term. A whole life term means there’s no minimum term set by the judge, and the person’s never considered for release.” ( https://www.gov.uk/types-of-prison-sentence/life-sentences , Last updated: 23 September 2016). I consulted the site on 24 November 2016.

[70] . “Whole life order: For the most serious cases, an offender may be sentenced to a life sentence with a whole life order. This means that their crime was so serious that they will never be released from prison” ( https://www.sentencingcouncil.org.uk/about-sentencing/types-of-sentence/life-sentences/ , referring to the situation as of 30 June 2016, with 59 offenders serving a whole life sentence). I consulted the site on 24 November 2016.

[71] . Although specifically asked why, if the intention is to follow Vinter and Others , the Lifer Manual has not been amended, no reply was given by the respondent Government.

[72] . The sentence in § 63 of the judgment reads: “The exercise of the section 30 power will … be guided by all of the relevant case-law of this Court”.

[73] . Al-Khawaja and Tahery v. the United Kingdom [GC], nos. 26766/05 and 22228/06, § 147, 15 December 2011.

[74] . Horncastle and Others v. the United Kingdom , no. 4184/10, 16 December 2014.

[75] . See the joint partly dissenting and partly concurring opinion of judges Sajó and Karakaş in Al-Khawaja and Tahery , cited above.

[76] . Contrast National Union of Rail, Maritime and Transport Workers v. the United Kingdom , no. 1045/10, ECHR 2014-II, with Demir and Baykara [GC], no. 34503/97, ECHR 2008-V.

[77] . Contrast Animal Defenders International v. the United Kingdom [GC], no. 48876/08, ECHR 2013-II, with VgT Verein gegen Tierfabriken v. Switzerland , no. 24699/94, ECHR 2001‑VI.

[78] . See the fair assessment of the situation by Council of Europe Commissioner for Human Rights, Memorandum to the Joint Committee on the Draft Voting Eligibility (Prisoners) Bill , CommDH (2013)23, 17 October 2013.

[79] . See the July 2013 Anchugov and Gladkov Chamber judgment (finding Article 32 § 3 the Russian Constitution on prisoners’ voting rights incompatible with European standards as set out in Hirst ), the July 2015 Russian Constitutional Court judgment on the Federal Law On the Accession of the Russian Federation to the ECHR, the December 2015 Russian Law on the Constitutional Court’s power to declare rulings of international bodies non ‑ executable (including with regard to compensation) if they contradict the Russian Constitution, and, finally, the first application in April 2016 of this law in a Constitutional Court judgment, delivered precisely in the Anchugov and Gladkov case.

[80] . See the Council of Europe Human Rights Commissioner, Non-implementation of the Court’s judgments: our shared responsibility, 23 August 2016: “Some judgments may be difficult to implement because of technical reasons, or because they touch extremely sensitive and complex issues of national concern, or because they are unpopular with the majority population. Nevertheless, the Convention system crumbles when one member State, and then the next, and then the next, cherry pick which judgments to implement. Non-implementation is also our shared responsibility and we must not turn a blind eye to it any longer.”

[81] . One telling example is the divergence of views in Ambrose between the majority, who felt that no rule could clearly be found in Strasbourg jurisprudence that police questioning of a suspect, without legal advice, is unfair unless he is in custody, and Lord Kerr, who considered that the Strasbourg case-law was sufficiently clear to allow the following principle to be recognised: where a person becomes a suspect, questions thereafter put to him that are capable of producing inculpatory evidence must be preceded by information of his right to legal representation and, if he wishes a lawyer to be present, any questions must be asked to the suspect, whether in custody or not, in the presence of a lawyer.

[82] . See the joint dissenting opinion of judges Ziemele, Sajó, Kalaydjieva, Vučinić and De Gaetano, annexed to Animal Defenders International , cited above. Cautioning against the danger of “double or triple standards according to the countries and concerning the same problems”, see also President Costa, Interview, (2007), 5 Droits de l’Homme, pp. 77 and 78, and President Spielmann, “ Allowing the right margin: the European Court of Human Rights and the national margin of appreciation doctrine: Waiver or Subsidiarity of European Review? ”, (2011) 14 Cambridge Yearbook of European Legal Studies, p. 381. See also my speech at the University of Paris-Sorbonne-Assas, on 20 November 2015: “Réflexions sur le renforcement de l’obligation des arrêts de la Cour”, published in Sébastien Touze (ed.), La Cour Européenne des Droits de l’Homme, Une confiance nécessaire pour une autorité renforcée, Paris, Pedone, pp. 217-226.

[83] . See paragraphs 63 and 65 of the judgment.

[84] . The then Deputy Registrar of the Court, Michael O’Boyle, “ The Future of the European Court of Human Rights ”, in German Law Journal, 12 (2011), 10: 1862-77.

[85] . Lord Mance, “ Destruction or metamorphosis of the legal order? ”, World Policy Conference, Monaco, 14 December 2013.

[86] . Lord Moses, “ Hitting the Balls out of the Court: are Judges Stepping Over the Line? ”, Creaney Memorial Lecture, 26 February 2014.

[87] . See The Guardian , 5 March 2013: “ Senior judge warns over deportation of terror suspects to torture states ”.

[88] . To shore up this argument one example suffices. Following the McCann v. the United Kingdom judgment, the media reported: “Ministers said they would ignore it and were not ruling out the ultimate sanction of a withdrawal from the court’s jurisdiction. ‘Every possible option is being kept open, including walking away,’ said one insider.” “Downing Street said the ruling in the so-called Death on the Rock case ‘defied common sense’. Deputy Prime Minister Michael Heseltine branded it ‘ludicrous’”. See the Daily Mail , 28 September 1995.

[89] . Lord Hoffmann, “ Human Rights and the House of Lords ”, (1999) MLR 159, p. 166.

[90] . Lord Hoffmann, “ The Universality of Human Rights ”, Judicial Studies Board Annual Lecture, 19 March 2009.

[91] . John Milton, Selected Prose , New and Revised edition, ed. Patrides, Columbia, 1985, p. 120.

[92] . Among others, associating both doctrines, Bernhardt, Thoughts on the interpretation of Human-Rights Treaties , in Matscher and Petzhold (eds.), Protecting Human Rights: the European Dimension . Studies in Honour of Gérard Wiarda, Carl Heymanns, 1988, p. 71.

[93] . Lord Hoffmann in Re G (Adoption: Unmarried Couple) 2008 UKHL 38, § 31; Lord Brown in Rabone and Another v. Pennine Care NHS Trust (2012) UKSC 2, §§ 111 and 112; and Lord Hodge in Moohan and Another v. The Lord Advocate (2014) UKSC 67, § 13.

[94] . Lord Brown in R (Al-Skeini and others) v. Secretary of State of Defence , cited above, § 107.

[95] . As named by Lord Kerr, dissenting in Ambrose v. Harris (Procurator Fiscal, Oban) (2011) UKSC 43, § 126; but see Lord Hope, § 20: “It is not for this court to expand the scope of the Convention rights further than the jurisprudence of the Strasbourg court justifies.” Lord Irvine approved this opinion in his lecture “ A British Interpretation of Convention Rights ”, at the UCL’s Judicial Institute, 14 December 2011. For a response, see Lord Sales, “ Strasbourg Jurisprudence and the Human Rights Act: A Response to Lord Irvine ”, in Public Law, Issue, 2, 2012, pp. 253-267.

[96] . Lord Brown in R (Al-Skeini and others) v. Secretary of State of Defence , cited above, § 106.

[97] . Also in this direction, Lady Hale, Warwick Law Lecture 2013, cited above, and President Bratza, “ The relationship between the UK courts and Strasbourg ”, (2011) EHRR 505, p. 512.

[98] . Lord Kerr, Clifford Chance Lecture, cited above.

[99] . The White Paper, Rights Brought Home: The Human Rights Bill , 1997, Cm 3782, § 2.5.

[100] . To use the words of Lord Kerr, Clifford Chance Lecture, cited above.

[101] . To use the expression coined by Lord Kerr, Clifford Chance Lecture, cited above.

[102] . Lord Sumption (with whom Lord Hughes agrees) stated clearly in R (on the Application of Chester) , cited above, § 120, that “The international law obligation of the United Kingdom under Article 46.1 of the Convention goes further than section 2(1) of the Act, but it is not one of the provisions to which the Act gives effect.”

[103] . On the implementation of the principles set out in the judgments, see Lord Bingham’s comments in Secretary of State for the Home Department v. JJ (2007) UKHL 45, § 19; Lord Mance in Kennedy v. Charity Commission , cited above, § 60; and Lady Hale in Moohan and Another , cited above, § 53.

[104] . The perfect synthesis, in Lord Rodger’s words in AF v. Secretary of State for Home Department and Another (2009) UKHL 28, § 98; and also Lord Hoffmann’s, § 70: “But the United Kingdom is bound by the Convention, as a matter of international law, to accept the decisions of the ECtHR on its interpretation. To reject such a decision would almost certainly put this country in breach of the international obligation which it accepted when it acceded to the Convention. I can see no advantage in your Lordships doing so.” Lord Hoffmann’s views are particularly important because he thought that “the decision of the ECtHR was wrong and that it may well destroy the system of control orders which is a significant part of this country’s defences against terrorism. Nevertheless, I think that your Lordships have no choice but to submit.”

[105] . The High Level Conference on the Future of the European Court of Human rights, Brighton Declaration, paras. 7, 9 (c) IV and 12b.

[106] . Lord Neuberger, “ Who are the Masters now? ”, Second Lord Alexander of Weedon Lecture, 6 April 2011, § 64.

[107] . Lauterpacht, “ The proposed European Court of Human Rights ”, in The Grotius Society, Part II, Papers read before the Society in 1949, pp. 37 and 39.

[108] . Ibid ., p. 43. Referring to Sir Lauterpacht, Mr Barrington admitted that “we quite shamelessly borrow many ideas from his draft Convention on the Rights of Man prepared for the International Law Association in 1948.”

[109] . Loizidou v. Turkey (preliminary objections), 23 March 1995, § 75, Series A no. 310, and the Court’s Opinion on the Reform of the control system of the ECHR, 4 September 1992, para. I (5). See my opinion in Fabris v. France [GC], no. 16574/08, 7 February 2013, and the opinion of Judges Pinto de Albuquerque and Dedov in Baka v. Hungary [GC], no. 20261/12, 23 June 2016.

[110] . Lady Hale, “ Common law and Interpretation: the limits of interpretation ”, 2011 EHRLR, p. 538.

[111] . Among many authorities, United Communist Party of Turkey and Others v. Turkey , 30 January 1998, § 29, Reports of Judgments and Decisions 1998 I , and more recently, Anchugov and Gladkov v. Russia , no. 11157/04 and 15162/05, § 50, 4 July 2013.

[112] . See Seidjic and Finci v. Bosnia [GC], no. 27996/06 and no. 34836/06, for a case of conflict between constitutional provisions on the composition of highest political bodies of the State and the European standards, and more recently Baka v. Hungary [GC], cited above, on a case of conflict between constitutional provisions on the composition of the Supreme Court of Hungary and the Convention.

[113] . McNair, The Law of Treaties , 2nd edition, Oxford, 1961, p. 465.

[114] . The words are from the Preamble to the Convention.

[115] . See Lady Hale, in The Guardian , 14 March 2013, “Judges would regret Human Rights Act repeal, warns Lady Hale”.

[116] . Lady Hale, Warwick Law Lecture 2013, cited above.

[117] . Lord Nicholls in Ghaidan , cited above, § 33. Lord Neuberger was even more incisive: “The fact remains though that when Strasbourg speaks, it is ultimately for Parliament to consider what action needs to be taken.” (“ Who are the Masters now? ”, cited above, § 67).