West Law Report

Whole life sentence not inhuman treatment

Posted in Times Law Report by mrkooenglish on August 10, 2008

From The TimesAugust 11, 2008

Whole life sentence not inhuman treatment
Court of Appeal, Criminal Division

Published August 11, 2008

Regina v Bieber

Before Lord Phillips of Worth Matravers, Lord Chief Justice, Mr Justice Pitchford and Mrs Justice Dobbs

Judgment July 23, 2008

The imposition of a whole life sentence did not result in inhuman or degrading treatment, contrary to Article 3 of the European Convention on Human Rights.

The Court of Appeal, Criminal Division, so held in a reserved judgment allowing an appeal by David Francis Bieber against a whole life prison sentence imposed by Mr Justice Moses at Newcastle upon Tyne Crown Court on December 2, 2004 following his conviction for murder of a police officer, two counts of attempted murder of police officers and two counts of possession of a firearm and ammunition with intent to endanger life. A 37-year minimum term was substituted for the whole life term.

Mr Andrew Trollope, QC and Ms Rachel Bright, assigned by the Registrar of Criminal Appeals, for the appellant; Mr Robert Smith, QC and Ms Jessica Simor for the Crown.

THE LORD CHIEF JUSTICE, giving the judgment of the court, said that murder carried a mandatory life sentence but under the Criminal Justice Act 2003, the judge was required either to specify a minimum period to be served before the offender was considered for early release by the Parole Board or to order, pursuant to section 269(4), that the early release provisions were not to apply. An order made under section 269(4) had the result that the offender was sentenced to serve the remainder of his life in prison.

The appellant, relying on the decision of the European Court of Human Rights in Kafkaris v Cyprus (Application No 21906/04) (February 12, 2008), contended that an irreducible life sentence, without any prospect of release or any reconsideration of the facts and regardless of any changes which might occur in the mind or behaviour of the inmate or progress made by him towards rehabilitation, amounted to inhuman treatment, contrary to article 3 of the Convention.

The Crown submitted that the Strasbourg court had not held that an irreducible whole life order necessarily violated article 3 and that, in any event, a whole life order was not irreducible because there was always the possibility that a prisoner subject to such an order might nonetheless be released under section 30 of the Crime (Sentences) Act 1997.

In their Lordships’ judgment, where a whole life term was specified, that was because the judge considered that the offence was so serious that, for purposes of punishment and deterrence, the offender must remain in prison for the rest of his days.

Having considered Kafkaris, their Lordships did not consider that the Strasbourg court had ruled that an irreducible life sentence, deliberately imposed by a judge in such circumstances, would result in detention that violated article 3. Nor did their Lordships consider that it would do so.

Under the regime that predated the 2003 Act it was the Home Secretary’s practice to review the position of prisoners serving a whole life tariff after they had served 25 years with a view to reducing the tariff in exceptional circumstances, such as where the prisoner had made exceptional progress while in custody.

No suggestion was then made that the imposition of a whole life tariff infringed article 3.

Under the current regime, the Home Secretary had a limited power to release a life prisoner on compassionate grounds under section 30 of the 1997 Act. At present it was the Home Secretary’s practice to use that power sparingly.

If, however, the position was reached where the continued imprisonment of a prisoner was held to amount to inhuman or degrading treatment, their Lordships could see no reason why, having regard to the requirement to comply with the Convention, the Home Secretary should not use his statutory power to release the prisoner.

For those reasons, applying the approach of the Strasbourg court in Kafkaris, their Lordships did not consider that a whole life term should be considered as a sentence that was irreducible.

Any article 3 challenge where a whole life term had been imposed should therefore be made, not at the time of the imposition of the sentence, but at the stage when the prisoner contended that, having regard to all the material circumstances, including the time that he had served and the progress made in prison, any further detention would constitute degrading or inhuman treatment.

Solicitors: Crown Prosecution Service, Leeds.

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