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.