Whole Load of…Shambles: ECHR and the Government by @TheLegal_Eagle

By Craig Chappell

The 9th of July was a remarkable day; the ECHR ruled that whole life terms, without any parole review, are unlawful in their nature. The Government’s position on whole life terms is, per my blog title, a whole load of…shambles.

Vinter

The appeal itself was brought by Vinter, who stabbed his wife in February 2008, but subsequently means that the cases of Bamber, who killed his parents, sister and her two young children in August 1985, and Peter Moore, who killed four gay men for his sexual gratification in 1995, will also be considered.

The court ruled that their sentences amount to inhuman and degrading treatment, which is an absolute right under article 3 HRA 1998, per the European Convention on Human Rights. The judges’ decision means the Government will now have to amend the law to ensure it complies with human rights legislation, under article 10 HRA, or face challenges for release by the convicted murderers.

*Floodgates open*

This is extraordinary because it means that the 49 prisoners who are now serving ‘whole life terms’, which currently prohibit any review of parole, may make a challenge to the Government, too, or launch appeals for release. Those prisoners include the notorious Peter Sutcliffe, the Yorkshire Ripper; Ian Brady, the Moors murderer; and Rosemary West, the “House of Horrors” serial killer.

There are, however, no prospect of any one them being released imminently, if ever.

The Justice Secretary can free the prisoners only on compassionate grounds if they are terminally ill or seriously incapacitated. David Blunkett, the former home secretary who introduced the life tariff system has said:

 “In 2003 we changed the law so that ‘life’ really meant life when sentencing those who had committed the most heinous crimes… I pushed this through Parliament in response to the overwhelming demand of the British people for clear, transparent sentencing and for certainty that what starts out as a clear and unambiguous punishment will in the end be carried out… Whatever the technical justification the Strasbourg court may have, it is the right of the British Parliament to determine the sentence of those who have committed such crimes, and for democracy – which chose such a sentence many years ago as an alternative to capital punishment – to have the will of the people implemented… To do otherwise can only lead to disillusionment, mistrust of, and a dangerous alienation from, our democracy itself.”

Serious Crimes

I bold the three above sentences because they are most interesting. Yes, the public want certainty and the public do want those convicted of the most serious crimes to suffer, often through the abolished death sentence, and never be freed. This is not the issue. The issue is that people can change, however far-fetched that seems of some of those currently serving life sentences, and that a review is needed to ensure that the best course of action is being taken. Yes, it is the right of the ‘British’, I shall assume he means Westminster given devolution means we don’t have a ‘British’ Parliament, to determine the sentence of those who have committed heinous crimes but by joining the EU we gave away some of our right to do that and EU prevails over domestic law. If that is to be changed then we would be in unchartered waters.

Whole life terms have been heavily criticised long before this judgement and now it seems that the Judiciary is on a direct collision course with the Executive and Parliament because it cannot implement the will of Parliament when such a sentence is now effectively deemed incompatible with our international obligations. And EU law prevails over Domestic law. This is decidedly even more serious than the recent Qatada case.

50 Shades of Grayling

Chris Grayling is, predictably, furious with the decision. He said that the ruling would leave the original authors of the European convention on human rights “turning in their graves” and also that it reinforced his determination to curtail the role of the Strasbourg court. “The British public will find this ruling intensely frustrating and hard to understand,” he added. It seems that the Tories are going to put up a huge fight, Theresa May will use this to justify leaving the ECHR, I presume.

They are my initial thoughts as I have yet to read the full judgement. What do you think? Should whole life terms means whole life or is review a fundamental right of prisoners?

© Craig Chappell, 2013

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