Whole life orders: compassionate release for ministers

The Court of Appeal’s judgment today in McLoughlin and Newell will be warmly welcomed by the government. The UK had been told by the European Court of Human Rights that current the system of “whole life orders” for the most serious offenders is in breach of rights, because of a lack of clarity about the possibility of a review of detention. But the Court of Appeal disagrees: it says the regime is wholly compliant with human rights. Our domestic law already provides, it says, for a satisfactory review.

As a result, the government does not need, in domestic legal terms at least, to issue any Prison Service Instruction amending the current Indeterminate Sentence Manual (although that written policy will be wrong and misleading if it does not do so). That saves ministers’ face. But it’s only the end of the matter if ministers seize this chance to make a quiet compromise.

It’s always been clear that domestic legislation provided for some sort of review. In 2008 the Court of Appeal ruled in R v Bieber that the Secretary of State’s exceptional power of release on compassionate grounds under section 30 of the Crime (Sentences) Act 1997 must, legally, be exercised compatibly with the Convention rights, whatever the written policy says. Prisoners can argue that their continued detention is not justified, and a decision not to release them can be legally challenged if it’s in breach of human rights law.

It’s this system that the European Court thought inadequate, in its Vinter judgment. The contrast between the wide discretion to release on compassionate grounds, as explained by the Court of Appeal in Bieber, and the apparently restrictive approach set out in the written policy, meant that prisoners are faced with uncertainty about the chances of review – and in those circumstances, whole life orders are inhuman or degrading punishment.

It’s this that the Court of Appeal has now disagreed with. Strasbourg was wrong, the Court of Appeal says (paragraph 29 of the judgment). The law is the law, whatever the government’s written policy in the Indeterminate Sentence Manual. That policy casts no doubt on the law, which is clear: prisoners can apply for compassionate release and their applications must be decided in a Convention-compatible way. English law actually does provide the necessary review. We were right in Bieber, the Court of Appeal is saying, and Strasbourg was wrong in Vinter.

The Court of Appeal’s approach is “muscular” (as I heard the BBC’s Clive Coleman explain earlier), and fits a pattern in which British courts, and judges in their speeches, are increasingly inclined to frankly disagree with Strasbourg, and entire into “dialogue” with the European Court – argument, we might say – rather than simply accept its rulings. This isn’t entirely new, but it is a trend. The Court’s approach was simpler and blunter than the more legalistic solution I came up with. And as I said above, it enables ministers to avoid amending their written policy to suit Strasbourg.

But will that end the matter? Not necessarily. It’s still possible for Newell to appeal to the Supreme Court, which I’d expect to agree, broadly, with the Court of Appeal. More importantly, if there’s no change to the Indeterminate Sentence Manual (which is all the European Court’s ruling required), it’ll be possible for a prisoner to apply again to Strasbourg and invite the European Court to reassert its own rightness, and UK judges’ wrongness.

Any such case would not simply rehash the question whether the written policy makes English law unclear, though it certainly would do that. It could also involve a serious examination of whether the Bieber type of review now being held up as adequate by the Court of Appeal really is a proper review of sentence of the kind Strasbourg has required. I’m not sure it is.

For one thing, the Bieber review favoured by the Court of Appeal places the burden on the prisoner to show he should be released – see para. 31 of the Court of Appeal judgment. Second, while in theory in can be applied for at any time, that leaves it up to the prisoner to judge when an application might be realistic, rather than providing a clear timetable known in advance, as the European Court seemed to envisage as being necessary.

Third, the requirement for a minister on review to comply with human rights merely means he must release on compassionate grounds where continued detention would be inhuman or degrading. That’s not necessarily the same as a full reconsideration of the merits of continued detention in the light of a range of factors such as the need for retribution and deterrence, the prisoner’s rehabilitation and the need for proportionality. It’s not, arguably (to quote paragraph 199 of the Vinter judgment),

a review which allows the domestic authorities to consider whether any changes in the life prisoner are so significant, and such progress towards rehabilitation has been made in the course of the sentence, as to mean that continued detention can no longer be justified on legitimate penological grounds.

Finally, there is a serious question whether a review by a minister is really sufficiently independent to comply with modern human rights standards. While that’s not been an issue in these cases so far, it may emerge if the dispute is taken any further.

So this could be the beginning of a continuing “dialogue” between our courts and Strasbourg, or, put less decorously, a ping-pong fight over the nature and timing of the required review. It wouldn’t be the first such dialogue. Sometimes, Strasbourg realises it’s got it wrong, and blinks first – for instance on the law of hearsay evidence. But sometimes it stares the domestic courts out, as it did on proportionality in social housing possession proceedings.

There is a very simple fix, though, that might avoid all that. The written policy in the Indeterminate Sentence Manual is now completely at odds with how the Court of Appeal says ministers must approach compassionate release – surely it makes sense simply to bring it into line. It’d be a nonsense to have plainly unusable and arguably unlawful guidance, and Ministers can say they’re amending it not because of any foreign judge’s diktat but to satisfy the Court of Appeal. If they do so, prisoners could still make fresh arguments that the Bieber review must be timetabled, is biased against them or is too narrow. But the “lack of clarity” argument that failed in Vinter would be dealt with; any fresh applications would not come before Strasbourg in a context in which its judges felt any need to reassert their own authority.

Of course making such a change is all the European Court required in the first place. It should have been done regardless of today’s judgment, would always have solved the immediate problem, and probably would have been done by now, except that backbenchers and the press would have seen it as weakness. Odd as it seems the Court of Appeal, by saying Strasbourg’s wrong, has freed the government to comply with Strasbourg’s ruling. That’s how politics works.