Whole life orders should include the possibility of review

The European Court of Human Rights (ECHR) ruled this week that three British men who had been given whole life sentences had suffered a breach of Article 3 of the European Convention on Human Rights, which prohibits inhuman and degrading treatment.

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

The Court found in particular that, for a life sentence to remain compatible with Article 3, there had to be both a possibility of release and a possibility of review. It noted that there was clear support in European and international law and practice for those principles, with the large majority of Convention Contracting States not actually imposing life sentences at all or, if they did, providing for a review of life sentences after a set period (usually 25 years’ imprisonment).

In addition, said the Grand Chamber, UK law relating to the Justice Secretary’s power to release a person subject to a whole life order was unclear. Furthermore, prior to 2003 a review of the need for a whole life order had automatically been carried out by a Minister 25 years into the sentence, but this had been eliminated in 2003 and no alternative review mechanism put in place. 

In these circumstances, the Court was not persuaded that the applicants’ whole life sentences were compatible with the European Convention.

The Court stressed however, that in finding a violation in this case, it did not intend to give the applicants any prospect of imminent release. Whether or not they should be released would depend, for example, on whether there were still legitimate penological grounds for their continued detention and whether they should continue to be detained on grounds of dangerousness. 

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