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Archives for : March2014

Life Sentences: politics and human rights

Life sentences remain politically controversial. Recently the European Court decided the case of Vinter, which looked at the interaction between whole life sentences and Article 3, the right to freedom from degrading treatment. Vinter  had been considered by a chamber of the European Court [1], which had held that mandatory life sentences were not to be in breach of Article 3.

This has now been reviewed by the Grand Chamber[2], which agreed that having a life sentence is not by itself in breach of Article 3. However, the Grand Chamber did find a breach of Article 3 because the life sentences of the applicants were without any prospect of release or proper review. There used to be a power which required review on the part of the Home Secretary after 25 years but this had been removed. Thus, there was no prospect of any form of rehabilitation or release or review. Further, the legal position as to review and release was unclear and inconsistent. Thus there was a breach of Article 3 as there was no guarantee of the review of detention.

The effect of this has been considered by the Court of Appeal in McLoughlin[3]. A five member Court of Appeal confirmed that whole life sentences themselves were not incompatible with the Convention Rights. The Court then considered the decision in Vinter and held that the review regime in place at the time of the sentences in that case had not been compatible with the Convention Rights. However, the law had changed since then and the power on the secretary of state to review a sentence in the Crime (Sentences) Act 1997 s.30,  which provides for the possibility of release in exceptional circumstances on compassionate grounds, was sufficiently broad to ensure that the statutory scheme was compliant with the Convention. This was especially so as the secretary of state was bound to exercise his s.30 power in a manner compatible with Article 3. Thus, whilst whole life sentences would continue to be rare, they were not incompatible with the Convention as there was a real power of review and the possibility of release if justified.

The decision of the European Court was politically extremely controversial and not surprisingly was taken as another example of the European Court interfering in a political matter. However it is important to note that the decision was not that a life sentence was a breach of the Convention, nor that the individual applicants should expect their release any time soon. It was only that basic standards of humane behaviour require that anyone, no matter how heinous their crime, has the possibility of compassionate release or release if they can show that they have rehabilitated themselves.

It is also important to note that whilst the Court of Appeal did disagree with the Grand Chamber, this was not about this basic principle. Rather, it was about the Grand Chamber’s interpretation of the current law – actually, the law as it was by the time of the later decision. The Court of Appeal held that the law does allow for the sort of review required by Article 3 – this can be taken into account in our system, which allows for compassionate release.

This is a very good example of dialogue between our courts and the European Court: the European Court took into account the margin of appreciation in penal policy; the Court of Appeal considered in more detail and with more authority the current UK law position.

 



[1] Vinter v UK (2012) 55 EHRR 34

[2] Vinter v UK (apps. 66069/09, 130/10 and 3896/10), GC

[3] Re Attorney General’s Reference (69/2013),  R v Mcloughlin [2014] EWCA Crim 188

Religious Dress in Court: Religion v Justice

     One case that has been in the headlines recently is the case of Dawson.[1] In this case, a female defendant on trial at Blackfriars Crown Court for witness intimidation, Rebekah Dawson, asked to be able to wear a niqab, which included a veil covering her face, during her trial. There was no issue of identification in the case and Ms Dawson’s held the religious belief that she was required not to reveal her face to men who were not family members.

The Judge held that Ms Dawson was entitled to manifest her religion under Article 9, and the court would assume that this was a sincere request unless there was evidence otherwise, and that was not affected by differences of views within the Muslim community as to whether this was a religious requirement. However, this had to be balanced against the public interest in open justice and the trial process, which usually required witnesses to be seen so that their demeanour can be taken into account as part of the assessment of the credibility of their evidence. Thus the Judge ruled that Ms Dawson could wear her niqab in court but that she should remove it if there was any issue about identification and when giving evidence (when she could be shielded from the public but not from the Judge, jury or barristers).

The sequel to this ruling was that in the end, Ms Dawson decided not to give evidence.[2] The jury then failed to give a verdict. Before there could be a retrial, Ms Dawson admitted the charge, so the issue did not arise at a further trial.[3]

A balancing exercise of this sort is a good demonstration of the way the Act allows the courts to consider head-on the different interests at stake and take a view as to how they should be addressed. It is very much a cultural norm with UK courts that the focus is on oral evidence, and that the attitude of witnesses can be as much a  part of the assessment of their truthfulness as what they are saying. Thus, wearing a full veil interferes with that basic premise of a fair trial. In this case, the Judge went as far as he could to ensure that there was no unnecessary exposure on the part of Ms Dawson, up until the points where her religious rights conflicted with the interests of justice.