Criminal Justice and Courts Bill

Lord Lester of Herne Hill Excerpts

Monday 14th July 2014 Lords Chamber

Moved by

[Lord Lester of Herne Hill]

7: After Clause 4, insert the following new Clause—
“Review of whole life orders
After section 30 of the Crime (Sentences) Act 1997, insert—“30A Review of whole life orders
(1) A prisoner who is—
(a) the subject of a whole life order made under—(i) section 269 of the Criminal Justice Act 2003, or(ii) section 82A(4) of the Powers of Criminal Courts (Sentencing) Act 2000, and(b) has been in custody for 25 years,may apply to the Parole Board for a review of the whole life order.(2) If on an application under subsection (1) the Parole Board is satisfied that the prisoner has made such exceptional progress towards rehabilitation that a whole life order is no longer justified, it shall substitute a determinate tariff for the whole life order.
(3) No fresh application may be made by a prisoner under subsection (1) before the period of five years has elapsed since the Parole Board’s determination of the prisoner’s previous application.””

[Lord Lester of Herne Hill (LD)]

My Lords, the amendment was proposed by the Joint Committee on Human Rights, of which I am a member, in a report published on 14 May and is in the Printed Paper Office. I mention that because I realise that what I am about to say will certainly be intelligible to the distinguished jurists who are present, but ordinary members of the public might be a little puzzled by some of it. I shall do my best to make it straightforward. I am delighted that my friends, noble and learned and otherwise, are supporting the amendment.

In the case called Vinter v United Kingdom, the Grand Chamber of the European Court of Human Rights decided that for life sentences to remain compatible with Article 3 of the European Convention on Human Rights there had to be a possibility of release and a possibility of review, both in theory and in practice.

Currently, under Section 30 of the Crime (Sentences) Act 1997, prisoners on a whole life order cannot be released except with the discretion of the Secretary of State for Justice on compassionate grounds. The Strasbourg court held that this did not offer sufficient legal certainty. In the recent case of McLoughlin and Newell on sentencing appeals which was decided on 18 February 2014, the Court of Appeal held that the current regime under Section 30 is compatible with Article 3 of the convention because the Secretary of State is not restricted to the medical grounds set out in the Prison Service order, but is under a public law duty to take into account all exceptional circumstances.

The Joint Committee on Human Rights, as I have mentioned, published its report on 14 May. It commended the usefulness of the Government’s European Convention on Human Rights memorandum, which is fully in accordance with our recommendations for best practice by government departments. As the memorandum rightly acknowledges, the fact that the provisions in the Bill bring some terrorist-related offences within the scope of possible whole life orders for the first time directly raises a human rights compatibility issue as to whether the law currently provides sufficient opportunity for a review of a whole life order in the light of the judgment of the Grand Chamber in Vinter, and the position of the Court of Appeal in McLoughlin.

In paragraph 1.23, our report says:

“There is some continuing legal uncertainty, however, as to whether the domestic law, as interpreted by the Court of Appeal, now provides an adequate mechanism for review of whole life prison orders. The Grand Chamber in Vinter was unequivocal that ‘a whole life prisoner is entitled to know, at the outset of his sentence, what he must do to be considered for release and under what conditions, including when a review of his sentence will take place or may be sought’.

The judgment is clear that the procedure for such a review mechanism should be set out clearly in law so that prisoners subject to a whole life order clearly know, at the outset of their sentence, the process by which they may or may not be eligible to apply for a review of their whole life order should they wish to challenge it on the grounds that there are no longer justifiable penological grounds for their continued life detention, including the time when they can expect to be able to make such an application for a review.

In our view, while the Court of Appeal's judgment in McLoughlin significantly clarifies the law, it does not provide legal certainty about these three important aspects of the review mechanism”.

When we asked the Government,

“whether any further measures are required in order to provide the requisite degree of legal certainty”,

they responded, indicated that they were awaiting the outcome of appeal to the Supreme Court arising from one of the appellants in the McLoughlin case. The JCHR said that,

“for the review mechanism to be sufficiently certain, more specific details need to be provided … including the timetable on which such a review can be sought, the grounds on which it can be sought, who should conduct such a review, and the periodic availability of further such reviews after the first review”.

The Bill provides Parliament with an opportunity to remove any legal uncertainty by specifying the details of the review mechanism. That is what the amendment is designed to achieve. That is even more necessary than it was at the time of the JCHR report because of the inclusion by the Government of Clause 24, which makes a whole life order the usual term of imprisonment for murder of a police officer or prison officer and which may result in more whole life orders being imposed.

--- Later in debate ---

[Lord Faulks]

My Lords, I fully understand what lies behind this amendment, which seeks to provide a review mechanism for whole life order prisoners. Mention has been made of hope and redemption, and understandably so. This issue has indeed been raised previously in your Lordships’ House and we were reminded by the noble and learned Lord, Lord Lloyd, who has been wholly consistent on this subject, in particular of the debate which he initiated during the passage of the LASPO Bill on 9 February 2012. I am also conscious of what was described by the noble Lord, Lord Elystan-Morgan, as the distinguished support that has been provided for this amendment.

However, I really doubt whether the noble Lords supporting this amendment or the Joint Committee on Human Rights, which suggested it, truly meant to give the Parole Board a sentencing function in the way that the amendment suggests. There is no precedent for this and nothing in the amendment indicates how it might approach the task of replacing a whole life order with a determinate minimum term. There is a real risk that, were this to be the law, it would put the Parole Board in potential conflict with the judiciary—or at least, set up a tension—which would hardly be desirable.

I am glad that the noble Lord, Lord Beecham, mentioned the protection of the public and the nature of a whole life order, because the Committee should not forget that such an order is imposed only where the court is satisfied that the offence is so exceptionally serious that the sentence is justified for the purposes of punishment and deterrence. In those circumstances, the court is fully aware that the offender will then face spending the rest of his or her life in prison, so we are talking about the most serious offences. Indeed, the noble and learned Lord, Lord Hope, referred to that in his equivalent experience in Scotland.

The key concern expressed by your Lordships is to put a clear scheme for review in place for whole life orders. This issue has come to the fore following the judgment of the European Court of Human Rights in the Vinter case, when it found last year that whole life orders without a review mechanism are incompatible with Article 3 of the convention at the point of sentence. However, as has been referred to in the debate, since then there has been domestic litigation and the Government now consider that the Court of Appeal has settled the domestic position in relation to whole life order prisoners. Earlier this year, a specially constituted Court of Appeal heard the cases of McLoughlin, Newell and others, whole life order prisoners who were appealing their sentences including on the grounds of incompatibility with Article 3. The court determined two crucial issues: that whole life orders can and should be imposed in the most exceptionally serious cases; and that the operation of Section 30 of the Crime (Sentences) Act 1997, which deals with release on compassionate grounds, was sufficient to render a whole life order reducible.

The Court of Appeal confirmed that the Secretary of State has a duty to exercise his or, as the case may be, her powers under Section 30 compatibly with Article 3 and must consider all circumstances relevant to release on compassionate grounds. The Court of Appeal found that there was no lack of clarity as to the applicable domestic law. The judgment explained that the power of review under Section 30 arises if there are “exceptional circumstances”—a term which the court found to be of sufficient certainty in itself and which will be applied on a case-by-case basis. Indeed, the Court of Appeal said that “compassionate grounds” should be read in that manner:

“It is a term with a wide meaning that can be elucidated, as is the way the common law develops, on a case by case basis”.

The Court of Appeal therefore concluded that domestic law provides the offender with the possibility of release in exceptional circumstances such that the just punishment originally imposed is no longer justifiable. The court also said:

“We find it difficult to specify in advance what such circumstances might be, given that the heinous nature of the original crime justly required punishment by imprisonment for life. But circumstances can and do change in exceptional cases. The interpretation of s.30 we have set out provides for that possibility and hence gives to each … prisoner the possibility of exceptional release”.

The Court of Appeal, presided over by the Lord Chief Justice, was uniquely placed—authoritatively and conclusively, the Government suggest—to explain how domestic law operates. It has done so in the manner that I acknowledged earlier. As a result, the Government consider that there is no further action that we need to take to give the clarity provided by that judgment.

The Newell appeal has not been allowed, so there is no outstanding domestic litigation following the McLoughlin and Newell case action report. The report sent to the Committee of Ministers sets out the Government’s position. We would not of course simply have said that we should await the Supreme Court position, but it would be idle for a Government to say that they would ignore a decision of the Supreme Court. Had the matter reached that court, the Government would have been mindful of our obligations, but in fact that particular road is now closed.

The Court of Appeal having considered the matter, with its particular experience both of whole life sentences and of the dynamism of the common law to deal with the situations that naturally concern noble Lords, we conclude that the amendment is unnecessary. Notwithstanding its distinguished support and the strength of feeling, we invite the noble Lord to withdraw it.

[Lord Lester of Herne Hill]

My Lords, I am grateful to everyone who has spoken in this extraordinary debate, including the Minister. One has to bear in mind that under Article 46 of the convention there is a duty on the UK to abide by the final judgment of the Strasbourg court in the British case. That duty must be performed not just by the Government, thank goodness, but by Parliament and by the judiciary. When the Committee of Ministers of the Council of Europe—that is, 47 Governments, including 46 that will be looking at this debate and particularly at what the Minister has just said—next meets to scrutinise whether the UK has in fact properly complied with the judgment, it will no doubt read the debate, including the Minister’s reply, and the report of the Joint Committee on Human Rights with some interest. It will note that three of those who have spoken contrary to the view of the Minister have all exercised judicial power in our apex courts, the House of Lords and the Supreme Court, including the President of the Supreme Court, and they will view with some surprise the notion that the Minister’s view of the Court of Appeal judgment is somehow more significant when looking at the matter than the views of those extremely distinguished jurists, all of whom, as I say, have exercised judicial power at the very apex of our legal system.

I simply do not understand how the Government think they can get away with it. They have already spent years and years, like their predecessors, in trying to get away with their refusal to abide by the final judgments in the prisoners’ voting rights case. By a strange quirk of life, I go to the Committee of Ministers every quarter. I shall not be at the next one but I usually go there because I am deemed to be Cypriot, for the purposes of the Cyprus/Turkey dispute. I observe what happens, without speaking, in the British cases. I have to say to the Minister, who has not had that experience, that our reputation at the moment is right at the bottom. Everyone I speak to—ambassadors, judges, civil servants in Europe—view with astonishment the fact that we now have a Minister of Justice, a Home Secretary and a Prime Minister who feel sick when they read judgments of the Strasbourg court and say so, and who threaten to tear up the convention or, rather, to withdraw from the court’s jurisdiction and the Human Rights Act. One cannot imagine quite what it is like to have lived through a period when the United Kingdom had such a fine international reputation and then to find that the pseudo-democracies of Europe—the dictatorships and totalitarian regimes—say, “If the United Kingdom can do this so can we”.

The JCHR said that this was a probing amendment, and that is what it is, but it is an extremely valuable probing amendment because those experts on penal reform, such as the former Chief Inspector of Prisons, the noble Lord, Lord Ramsbotham, and distinguished human rights advocates, within the law or in some other occupation, have all spoken in the same way. I have no doubt that the Government will not get away with it and that the Committee of Ministers will not close the matter, as the Government are now saying, but will demand further explanations. Having said all that, I beg leave to withdraw the amendment.

Amendment 7 withdrawn.