‘Whole life’ sentences justified

Posted: 18th February 2014

Murderers who commit the most ‘heinous’ of crimes can be sent to prison for the rest of their lives, a specially constituted panel of five Court of Appeal judges has ruled. Backing the use of ‘life-means-life’ orders, the Court increased the ‘unduly lenient’ 40-year minimum imposed on Ian McLoughlin, who murdered a man while on day release, to a whole life term.

PrisonThe judges also dismissed a challenge by Lee Newell, who murdered a child killer while in prison, against an order that he will never be released. The Court’s decision came in the wake of a decision by the European Court of Human Rights which had cast doubt on the legitimacy of ‘whole life’ tariffs.

The Lord Chief Justice, Lord Thomas, ruled that the statutory scheme enacted by Parliament which enabled judges to pass such sentences was ‘entirely compatible’ with the European Convention on Human Rights and that ‘judges should therefore continue as they have done’. The right to pass whole life sentence was, he added, saved by the Home Secretary’s power to release whole life prisoners on licence if wholly exceptional compassionate grounds exist.

Sentencing in a number of high-profile cases had been put on hold - including the terms to be handed out to soldier Lee Rigby's murderers Michael Adebolajo and Michael Adebowale - pending the Court of Appeal's decision. The Attorney General, Dominic Grieve QC, who had referred McLoughlin’s sentence to the Court for review, said later: "I am pleased that the Court of Appeal has today confirmed that those who commit the most heinous crimes can be sent to prison for the rest of their lives.

"As someone who has killed three times, Ian McLoughlin committed just such a crime and, following today's judgment, he has received the sentence that that crime required. I asked the Court of Appeal to look again at McLoughlin's original sentence because I did not think that the European Court of Human Rights had said anything which prevented our courts from handing down whole life terms in the most serious cases. The Court of Appeal has agreed with me and its judgment gives the clarity our judges need when they are considering sentencing cases like this in the future."

The Court’s decision followed a successful appeal to the European Court of Human Rights (ECHR) by murderers Jeremy Bamber, Douglas Vinter and Peter Moore. The ECHR held that there had been a violation of Article 3 of the European Convention on Human Rights - which bans inhuman or degrading treatment - on the basis that whole-life orders were not ‘reducible’.

The ECHR did not rule that whole-life sentences were inherently incompatible with the Convention but that there had to be the possibility of a review at some stage and that current laws allowing for release in exceptional circumstances were unclear.

However, Lord Thomas ruled that the Grand Chamber was wrong when it concluded that the law of England and Wales did not clearly provide for ‘reducibility’ of whole life sentences, saying that domestic law was ‘clear as to possible exceptional release of whole-life prisoners.’

A power of review arose where an offender was able to demonstrate to the Secretary of State that, although a whole life order was just punishment at the time that the sentence was imposed, exceptional circumstances had since arisen that justified release on compassionate grounds. Lord Thomas added: "In our judgment the law of England and Wales therefore does provide to an offender 'hope' or the 'possibility' of release in exceptional circumstances which render the just punishment originally imposed no longer justifiable."

The Court found that, on a true interpretation of the ECHR’s decision, it could not be read as ‘in any way casting doubt on the fact that there are crimes that are so heinous that just punishment may require imprisonment for life.  Lord Thomas added: "There may be legitimate dispute as to what such crimes are - at one end genocide or mass murder of the kind committed in Europe in living memory or, at the other, murder by a person who has committed other murders, but that there are such crimes cannot be doubted.

"Under our constitution it is for Parliament to decide whether there are such crimes and to set the framework under which the judge decides in an individual case whether a whole-life order is the just punishment. We therefore conclude that no specific passage in the judgment (of the ECHR), nor the judgment read as a whole, in any way seeks to impugn the provisions of the Criminal Justice Act 2003, as enacted by Parliament, which entitle a judge to make at the time of sentence a whole-life order as a sentence reflecting just punishment."

Triple killer McLoughlin was jailed for life at the Old Bailey in October 2013 for stabbing a man on his first day release from prison after 21 years in custody. When sentencing McLoughlin, the trial judge imposed a 40-year tariff, saying he could not pass a whole-life term because of the ECHR ruling. The Court of Appeal found that approach was ‘in error’ and that 40 years was unduly lenient.

Newell, who murdered child killer Subhan Anwar in his prison cell, challenged a whole-life sentence imposed in September 2013 at Warwick Crown Court. Newell was already serving a life sentence for a previous murder committed in 1988.

In dismissing Newell's appeal, Lord Thomas said: "The murder was premeditated and involved the use of an improvised weapon. It occurred in prison whilst Newell continued to serve a life sentence. The deceased took a significant time to die. There was no mitigation. This was a murder where the seriousness of the offence was exceptionally high. The judge was right in making a whole life order”.

The judge concluded:  "These two cases are exceptional and rare cases of second murders committed by persons serving the custodial part of a life sentence. The making of a whole life order requires detailed consideration of the individual circumstances of each case. It is likely to be rare that the circumstances will be such that a whole life order is required."