Information Note on the Court’s case-law No. 148
January 2012
Vinter and Others v. the United Kingdom - 66069/09, 130/10 and 3896/10
Judgment 17.1.2012 [Section IV]
Article 3
Degrading punishment
Inhuman punishment
Imprisonment for life with release possible only in the event of terminal illness or serious incapacitation: no violation
[This case was referred to the Grand Chamber on 9 July 2012]
Facts – In England and Wales murder carries a mandatory life sentence. Prior to the entry into force of the Criminal Justice Act 2003 the Secretary of State was empowered to set tariff periods for mandatory life sentence prisoners indicating the minimum term they must serve before they became eligible for early release on licence. Since the entry into force of the Act, that power is now exercised by the trial judge. Prisoners whose tariff was set by the Secretary of State under the previous practice may apply to the High Court for a review.
All three applicants were given “whole life orders” following convictions for murder. Such an order means that their offences are considered so serious that they must remain in prison for life unless the Secretary of State exercises his discretion to order their release on compassionate grounds if satisfied that exceptional circumstances – in practice, terminal illness or serious incapacitation – exist. The whole life order in the case of the first applicant, Mr Vinter, was made by the trial judge under the 2003 Act and upheld by the Court of Appeal on the grounds that Mr Vinter already had a previous conviction for murder. The whole life order in the cases of the second and third applicants had been made by the Secretary of State under the previous practice, but were confirmed on a review by the High Court under the 2003 Act in decisions that were subsequently upheld on appeal. In the case of the second applicant, Mr Bamber, it was noted that the murders had been premeditated and involved multiple victims; these factors, coupled with sexual gratification, had also been present in the case of the third applicant, Mr Moore.
In their applications to the European Court, the applicants complained that the imposition of whole life orders meant their sentences were, in effect, irreducible, in violation of Article 3 of the Convention, and that the imposition of whole life orders without the possibility of regular review by the domestic courts violated Article 5 § 4. The second and third applicants also alleged a violation of Article 7 in that the whole life orders in their cases had been made not by the trial judge, but subsequently by the High Court, according to principles which they maintained reflected a harsher sentencing regime than had been in place when their offences were committed.
Law – Article 3: While, in principle, matters of appropriate sentencing largely fell outside the scope of the Convention, a grossly disproportionate sentence could amount to ill-treatment contrary to Article 3 at the moment of its imposition. However, “gross disproportionality” was a strict test that would be met only on “rare and unique occasions”. Given the gravity of the murders of which the applicants had been convicted, the whole life orders imposed on them were not grossly disproportionate.
The next point to examine was at what point in the course of a life or other very long sentence an Article 3 issue might arise. For life sentences it was necessary to distinguish between three types of sentence: (i) a life sentence with eligibility for release after a minimum period has been served; (ii) a discretionary sentence of life imprisonment without the possibility of parole; and (iii) a mandatory sentence of life imprisonment without the possibility of parole. The first type of sentence was clearly reducible and no issue could therefore arise under Article 3. As for the second and third types (discretionary and mandatory sentences of life imprisonment without the possibility of parole) in the absence of gross disproportionality, an Article 3 issue could not arise when the sentence was imposed, but only at such time as it could be shown (i) that the applicant’s continued imprisonment could no longer be justified on any legitimate penological grounds; and (ii) that the sentence was irreducible de facto and de iure.
The whole life orders imposed in the applicants’ cases were, in effect, of the second category: discretionary sentences of life imprisonment without parole. As regards the first limb of the above tests, the Court found that none of the applicants had demonstrated that their continued incarceration could no longer be justified on any legitimate penological grounds. The first applicant, Mr Vinter, had been convicted of a particularly brutal and callous murder while on parole following a previous murder and had only been serving his sentence for three years. His continued incarceration served the legitimate penological purposes of punishment and deterrence. While the second and third applicants, Mr Bamber and Mr Moore, had served respectively twenty-six and sixteen years in prison, they had effectively been re-sentenced in 2009 following their application to the High Court for review of their whole life tariffs. In the light of the relevant, sufficient and convincing reasons given in the High Court’s decisions, the Court was satisfied that their continued incarceration also served the legitimate penological purposes of punishment and deterrence.
Since the applicants had failed to show that their continued incarceration could no longer be justified on any legitimate penological grounds, the Court did not need to go on to examine the second limb of the test, namely whether the whole life orders imposed on them were irreducible de facto and de iure[1].
Conclusion: no violation in respect of all three applicants (four votes to three).
Article 5 § 4: The applicants’ complaints were indistinguishable from the complaint that was declared inadmissible in the Kafkaris decision[2]. While continued detention could violate Article 3 if it was no longer justified on legitimate penological grounds and the sentence was irreducible, that did not mean that the detention had to be reviewed regularly in order for it to comply with Article 5. It was clear from the domestic courts’ remarks that whole life orders were imposed to meet the requirements of punishment and deterrence. The applicants’ sentences were therefore different from the life sentence considered in Stafford, [3]which the Court found was divided into a tariff period (imposed for the purposes of punishment) and the remainder of the sentence, when continued detention was determined by considerations of risk and dangerousness. Consequently, as in Kafkaris, the Court was satisfied that the lawfulness of the applicants’ detention required under Article 5 § 4 was incorporated in the whole life orders and no further review was required.
Conclusion: inadmissible (manifestly ill-founded).
Article 7: The second and third applicants had complained that in its review of the Secretary of State’s decisions the High Court had imposed whole life orders on the basis of a harsher sentencing regime than had been in force when they were convicted. The Court rejected that argument. While it accepted that the setting of a minimum term in the context of a sentence of life imprisonment attracted the protection of Article 7, it noted, firstly, that the legislation under which the High Court had reached its decisions expressly protected against the imposition of a longer minimum term than was initially imposed and, secondly, that in conducting its review the High Court was required to have regard to both the new sentencing regime, which provided a comprehensive and carefully constructed framework for determining the minimum term justified for the purposes of punishment and deterrence, and the recommendations made by the trial judge and the Lord Chief Justice.
Conclusion: inadmissible (manifestly ill-founded).
(See also Kafkaris v. Cyprus [GC], no. 21906/04, 12 February 2008, Information Note no. 105; Iorgov v. Bulgaria (no. 2), no. 36295/02, 2 September 2010, Information Note no. 133; and Schuchter v. Italy (dec.), no. 68476/10, 11 October 2011, Information Note no. 145; and Harkins and Edwards v. the United Kingdom, nos. 9146/07 and 32650/07, 17 January 2012, Information Note no. 148)
[1] The Court did, however, express certain reservations about the Secretary of State’s policy on compassionate release: (i) as drafted, it could conceivably mean that a prisoner would remain in prison even if his continued imprisonment could not be justified on any legitimate penological grounds; (ii) it no longer followed the former practice of holding a twenty-five year review of the need for continued imprisonment; and (iii) could compassionate release for the terminally ill or physically incapacitated really be considered release at all, if all it meant was that a prisoner died at home or in a hospice rather than behind prison walls.
[2] Kafkaris v. Cyprus (dec.), no. 9644/09, 21 June 2011.
[3] Stafford v. the United Kingdom [GC], no. 46295/99, 28 May 2002, Information Note no. 42.
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This summary by the Registry does not bind the Court.
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