Beltrami & Company Criminal Law & Glasgow Solicitors Blog

The UK’s pledge to reform the European Court of Human Rights has been successfully fulfilled, according to Secretary of State for Justice Kenneth Clarke.

Reform of the Court was one of the key priorities for the UK’s chairmanship of the Council of Europe and the foundations of the reforms were laid in a speech given to the Court by Prime Minister David Cameron earlier this year.

In that speech, the Prime Minister outlined the challenges faced by the court as being:

Research released by the Equality and Human Rights Commission at the Brighton conference on the European Court of Human Rights (ECHR), shows that just a tiny minority of rulings by the Strasbourg Court are against the UK government.

The research shows that of the nearly 12,000 applications brought against the UK between 1999 and 2010, the vast majority fell at the first hurdle. Only 3% (390 applications) were declared admissible. An even smaller proportion of applications - 1.8% (215) - eventually resulted in a judgment finding a violation. The latest figures for 2011 show a rate of defeat of just 0.5%, or one in 200.

The research also shows that, in a similar situation to the Human Rights Act, where the UK parliament has sovereignty over its implementation, UK courts have the flexibility to interpret the European Convention on Human Rights in a manner different to that of the Strasbourg court. A ‘margin of appreciation’ recognises that national authorities are in the main best placed to decide how human rights should be applied.

While judgments against the UK have been relatively few in number, a significant proportion involved basic civil liberties such as the right to a fair trial; around 8% of judgments related to the right to life and the prohibition of torture and inhuman or degrading treatment.

Other important rulings have led to better protection against unnecessary intrusion into privacy through the use of secret surveillance; legislation outlawing forced labour and servitude; equal rights for lesbian, gay, bisexual or transgender people and protecting the freedom of the UK media, including the protection of journalists' sources and the importance of investigative journalism, as in the exposure by the Sunday Times of the thalidomide case.

In a Chamber judgment in the case Vinter and Others v. the United Kingdom, which is not final, the European Court of Human Rights (ECHR) has unanimously held that there had been no violation of Article 3 (prohibition of inhuman and degrading treatment) of the European Convention on Human Rights in respect of any of the three applicants.

The case concerned the applicants’ complaint that their imprisonment for life amounted to inhuman and degrading treatment as they had no hope of release.

The applicants, Douglas Gary Vinter, Jeremy Neville Bamber and Peter Howard Moore, are British nationals  currently serving mandatory sentences of life imprisonment for murder.

When convicted by the English courts, the applicants were given whole life orders, meaning they cannot be released other than at the discretion of the Secretary of State on compassionate grounds (for example, if they are terminally ill or seriously incapacitated).

The power of the Secretary of State to release a prisoner is provided for in section 30(1) of the Crime (Sentences) Act 1997. Under this Act it was practice for the mandatory life sentence to be passed by the trial judge, who – along with the Lord Chief of Justice – then gave recommendations to the Secretary of State to decide the minimum term of imprisonment (the “tariff” part of the sentence) which the prisoner would have to serve to satisfy the requirements of retribution and deterrence and be eligible for early release on licence.

In general, the Secretary of State reviewed a whole life tariff after 25 years’ imprisonment. With the entry into force of the Criminal Justice Act 2003, all prisoners whose tariffs were set by the Secretary of State are now able to apply to the High Court for review of that tariff.

Relying in particular on Article 3 (prohibition of inhuman or degrading treatment), all three applicants complained that their imprisonment without hope of release was cruel and amounted to inhuman and degrading treatment.

The application was lodged with the European Court of Human Rights on 11th December 2009.

The Court held that in each case the High Court had decided that an all-life tariff was required, relatively recently and following a fair and detailed consideration. All three applicants had committed particularly brutal and callous murders. To date, Mr Vinter had only served three years of imprisonment, Mr Bamber 26 years and Mr Moore 16 years.

The Court did not consider that these sentences were grossly disproportionate or amounted to inhuman or degrading treatment. There had therefore been no violation of Article 3 in the case of any of the applicants.

The Scottish Criminal Cases Review Commission (‘the Commission’) has made its first referral to the High Court in the wake of the Cadder ruling.
 
The case concerned is that of Ryan McCallum, who was convicted of rape on 19th May 2009, and later sentenced to five years’ imprisonment. The Commission has decided to refer the case to the High Court because it considers that, in light of the decision of the Supreme Court in Cadder v HMA, and that of the European Court of Human Rights in Taxquet v Belgium, Mr McCallum may not have had a fair trial.

The European Court of Human Rights (ECHR) has found that the use of hearsay evidence does not automatically prevent a fair trial.