CONCURRING OPINION OF JUDGE MAHONEY

1. I unreservedly subscribe to the conclusions and reasoning of the judgment of the Grand Chamber in the present case (“GCJ”). I would, however, like to add some further words on the questions of the applicability of and compliance with Article 3 in relation to whole life prisoners.

I. Applicability

2. The following comments on applicability concern:

- the requirement to be read into Article 3 whereby life sentences must be “reducible”; and

- the moment in time when, to u se the language of the Chamber judgment (“CJ”) in the present case, “a n Article 3 issue” can be said to arise in regard to that implicit requirement.

For the development of the reasoning, it is perhaps easier to begin with the second of these two points.

1. The timing

3. In its judgment (at CJ § 92 in fine – as cited in GCJ § 87), the Chamber expressed the test for the applicability in time of Article 3 in relation to the applicants ’ complaints as being that an Article 3 issue would only arise when it could be shown that: (i) the individual prisoner ’ s continued imprisonment could no longer be justified on any legitimate penological grounds; and (ii) the sentence was irreducible in law and in practice.

4. It is of course true that, in relation to prisoners, Article 3 applies only to punishment or ill-treatment that attains a certain level of suffering or humiliation going beyond the suffering and humiliation inevitable in all imprisonment (see Tyrer v. the United Kingdom , 25 April 1978, Series A no. 26, § 30) and that a whole life prisoner will not have been subject to any suffering or humiliation attaining that level simply by reason of his or her whole life sentence at the moment of passing of that sentence. The prospect, at the moment of sentencing, of spending the whole of one ’ s remaining life behind bars is not in itself sufficient to generate suffering or humiliation of the requisite level. As was intimated by the Chamber in its judgment ( CJ § 92, quoted at GCJ § 86), defendants convicted of very serious crimes of violence such as murder or manslaughter must expect to serve a significant number of years in prison before they can realistically have any hope of release; and life sentence prisoners, even if they benefit from a possibility of release on parole, must know that there is no guarantee of release being granted in their lifetime.

5. That is not to say, however, that the responsibility of a Contracting State can never be engaged under Article 3 until the person concerned is in a position to claim that he or she is actually undergoing punishment or treatment attaining the prohibited level. As illustrated by the early extradition case of Soering v. the United Kingdom (7 July 1989, Series A no. 161, §§ 88 and 90), the abhorrence of torture and of inhuman or degrading punishment or treatment in democratic society is such that it requires that the responsibility of the State be engaged not only for actual violations of Article 3 but also for measures foreseeably entailing potential violations in the future, so as to prevent such future violations occurring.

6. In the penal context, there is no reason why this preventive aspect of Article 3 should not enter the picture when a convicted criminal is sentenced, depending on the nature of the sentence imposed. To take one illustration of this, if a sentence of imprisonment that is grossly disproportionate by reason of its length is imposed (it being common ground in the present case that such a sentence would violate Article 3 – see G CJ § § 83 and 102), the person concerned should be immediately entitled to challenge the compatibility of the sentence with Article 3, without being obliged to wait until the proportionate part of the sentence has been served and the gross disproportionality begins to bite. The prohibition of gross disproportionality can be seen to be a preventive requirement of Article 3 that concerns the nature of the sentence the moment it is passed.

7. Similarly, if it can be said that there is inherent in Article 3 a prohibition on irreducible life sentences, this in itself is a preventive requirement that should logically come into play at the moment of sentencing and not later.

8. To that extent, an “Article 3 issue” arises at the moment of sentencing. That issue is evidently not the substantive question of fact (stated by the Chamber as the first limb of its test – see § 3 above in this separate opinion) whether, for the particular prisoner concerned, the circumstances have so exceptionally evolved that the balance of penological justifications has shifted to the point where continued detention could be claimed by the prisoner to involve inhuman and degrading treatment or punishment contrary to Article 3. That point may in all likelihood never be reached in practice, as the applicants in the present proceedings themselves conceded (see GCJ § 131). What arises on sentencing is the issue of a general character going to the very nature of the sentence imposed, namely whether the sentence as imposed complies with Article 3 in meeting the preventive requirement of reducibility. This issue is quite distinct from the subsequent issue going to the aleatory circumstances of the ensuing execution of the sentence in the particular case.

9 As I read the Chamber ’ s test for the applicability of Article 3 set out above, it brings together two distinct requirements under Article 3 that arise at different points in time, one being a procedural requirement (as the three dissenters in the Chamber, Judges Lech Garlicki, David Thór Björgvinsson and George Nicolaou, described it in their separate opinion) or a preventive requirement concerning the nature of the sentence (as I have expressed it), the other being a substantive requirement concerning the actual conditions of the serving of the sentence.

2. The requirement of reducibility

10. The Grand Chamber ’ s judgment (G CJ § § 104-118) explains – at some length – why it is that Article 3 is to be interpreted as requiring reducibility of life sentences, “in the sense of 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 made in the course of the sentence, as to mean that continued detention can no longer be justified on legitimate penological grounds” (G CJ § 119).

11. In stating reducibility of a life sentence to be a requirement of Article 3, the judgment does not take the case-law in a new direction or impose a new obligation on the Contracting States; rather it takes up principles already enounced in the previous case-law, notably in the Grand Chamber ’ s judgment in Kafkaris v. Cyprus ([G.C.], no. 21906/04 , ECHR 2008- ... ). The Court of Appeal in the 2009 case of B i eber (summarised, with extracts, at G CJ § § 47-49) deduced the principle of reducibility from the Kafkaris judgment:

“It seems to us that the Court [in Kafkaris ] considered that an irreducible life sentence raises an issue under Article 3 in circumstances where it may result in an offender being detained beyond the term that is justified by the legitimate objects of imprisonment. This is implicit in the fact that no issue under Article 3 appears to arise provided that there is, in law and in practice, a possibility of the offender being released, even though it remains possible, or even likely, that no release will be granted in his lifetime. The essential requirement appears to be the possibility of a review that will determine whether imprisonment remains justified.” (§ 39 of the Court of Appeal ’ s judgment, quoted at G CJ § 47)

12. The Chamber in the present case, in putting as its second condition for an Article 3 issue to arise that the sentence should be irreducible in law and in practice (see § 3 above), was likewise re-affirming reducibility as an inherent requirement of Article 3, albeit a requirement that, in its view, could only be invoked by a life prisoner at the hypothetical moment in time, which might never come, when he or she could claim that, contrary to Article 3, his or her continued imprisonment could no longer be justified on legitimate penological grounds.

13. What may be said to be a development of the case-law in the present case is that the Grand Chamber ’ s judgment specifies, in a manner differing from the approach taken by the Chamber in its judgment, the moment when an issue may arise under Article 3 as to compatibility of a life sentence with the requirement of reducibility.

II. Compliance

14. The Court of Appeal in B ieber “[did] not consider that a whole life term [under English law] should be considered as a sentence that is irreducible”, because the Secretary of State ’ s statutory power to release (namely the discretionary power under section 30(1) of the 1997 Act to order a life prisoner ’ s release on licence on compassionate grounds in exceptional circumstances – see G CJ § § 42– 44), read together with the duty incumbent on the Minister under section 6 of the Human Rights Act to comply with the Convention, and notably with the requirements of Article 3, in the exercise of that statutory power, would enable the release of a whole life prisoner if ever the position were reached where his or her continued imprisonment would amount to inhuman or degrading punishment or treatment (§§ 48– 49 of the Court of Appeal ’ s judgment, quoted above at G CJ § 49). As noted above and, more importantly, in the Grand Chamber ’ s judgment (G CJ § 111), the balance between the various penological justifications for life imprisonment (punishment, deterrence, protection of the public and rehabilitation) are susceptible of shifting with the passage of time, such that in exceptional circumstances the point may be reached where it would constitute “inhuman or degrading treatment or punishment”, contrary to Article 3, to maintain the prisoner in continued detention.

15. As emerges from the Court of Appeal ’ s judgment in Bieber , compliance with this Article 3 requirement of the continuance of a penological justification for the detention would be a relevant consideration that the Secretary of State would be obliged to take into consideration in the exercise of his statutory power to release. Indeed, to quote the Government ’ s own words, “as a matter of English law, when exercising the power the Secretary of State must act compatibly under the Con vention” (see the Government ’ s written o bservations before the Grand Chamber , § 68 ‑ underlining supplied); with the consequence that, if the continued detention of a whole life prisoner is shown to amount to inhuman or degrading treatment, contrary to Article 3, the Secretary of State would not merely be free but would be duty-bound to exercise his power to release the prisoner. The Government have acknowledged that whole life prisoners such as the applicants could contend, in an application to the Secretary of State for exercise in their favour of his power of release under the 1997 Act, that their continued detention is not justified on any penological grounds; and any negative decision by the Secretary of State would be amenable to judicial review and a challenge on Article 3 grounds (see the Government ’ s written observations , § 66).

16. On such a reading of the applicable national law, the Human Rights Act, taken together with the Secretary of State ’ s statutory power to release on compassionate grounds, would enable whole life prisoners to be released if the issue were concluded in their favour, either by the Secretary of State on the initial examination of their application for exercise of the power to release on compassionate grounds or on judicial review by the national courts applying the Convention so as to quash the Minister ’ s negative decision. Despite the apparently exhaustive wording of Prison Service Order 4700, the instrument issued under the authority of the Secretary of State, in which the Minister ’ s policy regarding the possible release of whole life prisoners is set out (see G CJ § 43), life prisoners would have open to them the possibility to make representations to the Secretary of State to exercise his power of release “on compassionate grounds” under the 1997 Act for reasons other than terminal illness and physical incapacity.

17. The Grand Chamber ’ s judgment (at G CJ § 125) recognises that, on the above reading of section 30 of the 1997 Act, there would thus, in principle, be available to whole life prisoners under English law a review mechanism of the kind required by Article 3, a mechanism giving them what has sometimes been referred to as a “faint hope” of release and, what is more, a guarantee that, notwithstanding their whole life sentence, they should not be imprisoned beyond the term that is justified by the legitimate penological purposes of imprisonment.

18. The problem is not only that the official instrument stating the Secretary of State ’ s policy in relation to his exercise of the discretionary power of release under section 30(1) of the 1997 Act, namely Prison Service Order 4700, passes over in silence the possible avenue of seeking release open to whole life prisoners through reliance on the Human Rights Act, but also that the criteria set out in the Prison Service Order are framed in exhaustive and restrictive terms, as being the only grounds in which the discretion will be exercised. Although as a matter of English law, the restrictive terms of that administrative, “policy” text are overridden by the Secretary of State ’ s duty to act compatibly with the Convention when exercising his discretion, the specific instrument on the statutory power to release “on compassionate grounds” is less than transparent. As the Grand Chamber puts it in its judgment (at G CJ § 128 in fine above), “the Prison Service Order is liable to give to whole life prisoners – those directly affected by it – only a partial picture of the exceptional circumstances capable of leading to the exercise of the Secretary of State ’ s power under section 30”.

19. The Government had argued in their pleadings (at § 68 of their written observations ) that it “would be apparent at the outset of any sentence” that “if any Article 3 issue arises [in the sense of disappearance of penological justification for continued detention] a mechanism exists by which the prisoners may be released, and the operation of that mechanism is subject to review by the courts”. In view of the lack of clarity as to the current state of the domestic law concerning the conditions on which the prospect of release for whole life prisoners exists, the Grand Chamber was unable to accept that submission (see G CJ § 129). The Court ’ s conclusion may be paraphrased as being that the uncertain and ambiguous relationship between the various sources of the applicable domestic law prevents the applicants ’ life sentences, “at the present time”, from being regarded as reducible in law and in practice for the purposes of Article 3 (see G CJ § 130).

III. Concluding remarks

20. The main aspects of the reasoning in the Grand Chamber ’ s judgment that I would want to pinpoint are the following:

- Reducibility (in the sense of the existence of a mechanism affording a not wholly unreal prospect of eventual release) must exist, in law and in practice, at the time of sentencing in order for the requirements of Article 3 to be met in relation to the nature of the sentence passed.

- In principle, in view of the reasoning of the Court of Appeal in Bieber as to the effect of the Human Rights Act and of Article 3 on the exercise of the Secretary of State ’ s exceptional power to release under the 1997 Act, such a mechanism could be said to exist under English law in the form of: (a) the possibility for the life prisoner to apply to the Secretary of State for exercise of the statutory power of release on Article 3 grounds (disappearance of penological justification); and (b) the Secretary of State ’ s duty to release if such grounds are shown.

- There was, however, a lack of sufficient clarity existing at the relevant time as to the wider nature of the criteria on which the statutory discretion to release whole life prisoners must, as a matter of English law, be exercised. For this reason, the present applicants, at the moment of their sentencing, could not be expected to harbour the requisite prospect – “faint hope” – of release.

- As consequence of this lack of sufficient clarity in the manner of operation of the applicable domestic law, the whole life sentences in issue, when imposed on the applicants, cannot be regarded as having been “reducible” for the purposes of Article 3; and there has been what the dissenting minority in the Chamber called a procedural breach of Article 3.

- However, as the Chamber (majority) held, none of the applicants has demonstrated on the particular facts, or even argued, that, at present, their continued detention serves no penological purpose and, consequently, no substantive issue under Article 3 arises as yet.

21. The respondent Government are of course free to choose the means whereby they will fulfil their international treaty obligation under Article 46 of the Convention to “abide by” the Grand Chamber ’ s judgment in the present case. Greater clarity in the Prison Service Order (see G CJ § § 128 ‑ 129 above) may be one option, for example. Another possible option – in terms of means for ensuring the r educibility required by Article 3 – may be inferred from the passages in the Grand Chamber ’ s judgment analysing the comparative and international law materials adduced before the Court. As the Court observed, these materials show clear support for the institution of a dedicated mechanism, integrated within the sentencing legislation, providing for a review of life sentences after a set period, usually after twenty-five years ’ imprisonment, with further periodic reviews thereafter (see G CJ § § 117, 118 and 120 above; see also G CJ § 130). Indeed, prior to 2003 the English sentencing system itself included provision for such a review, albeit one that was carried out in the first place by the executive (see G CJ § § 46 and 124 above).