1208 meeting (23-25 September 2014) (DH)

Transcription

1 SECRETARIAT GENERAL SECRETARIAT OF THE COMMITTEE OF MINISTERS SECRETARIAT DU COMITE DES MINISTRES Contact: Anna Austin Tel: DH-DD(2014)857 Date: 1/7/2014 Documents distributed at the request of a Representative shall be under the sole responsibility of the said Representative, without prejudice to the legal or political position of the Committee of Ministers. Meeting: 1208 meeting (23-25 September 2014) (DH) Item reference: Action report (27/06/2014) Communication from the United Kingdom concerning the case of Vinter and Others against the United Kingdom (Application No /09). * * * * * * * * * * * Les documents distribués à la demande d un/e Représentant/e le sont sous la seule responsabilité dudit/de ladite Représentant/e, sans préjuger de la position juridique ou politique du Comité des Ministres. Réunion : 1208 réunion (23-25 septembre 2014) (DH) Référence du point : Bilan d action (27/06/2014) Communication du Royaume-Uni concernant l affaire Vinter et autres v. Royaume-Uni (Requête N 66069/09) (anglais uniquement).

2 Execution of Judgments of the European Court of Human Rights Action Report Vinter, Bamber and Moore v The United Kingdom (application nos.66069/09, 130/10 and 3896/10; judgment final on 09/07/2013) Information submitted by the United Kingdom Government on 27 June 2014 Case Summary 1. Case description: - Douglas Vinter, Jeremy Bamber and Peter Moore received life sentences for murder and are subject to whole life orders (meaning that, subject to the power of release on compassionate grounds, they will never be released). They applied to the European Court of Human Rights (ECtHR) alleging that the whole life order amounts to a breach of Article 3 of the European Convention on Human Rights, which (so far as relevant) provides that no one shall be subjected to inhuman or degrading treatment or punishment. They argued that the whole life order is an irreducible sentence, i.e. no matter if the prisoner becomes rehabilitated there is no prospect of review by the courts or release from prison. - The Grand Chamber of the Court held that a violation of Article 3 arises at the point of sentence because there is no 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. [Judgment, para. 119] Individual Measures 2. Just satisfaction: - In relation to damages, the Court considered that its finding of a violation of Article 3 constituted sufficient just satisfaction and made no award under this heading. [Judgment, paras 135 and 136] - In respect of costs and expenses only the first applicant Mr Vinter put in a claim and the Court awarded 40,000 EUR in just satisfaction for his legal costs and expenses. This just satisfaction award has been paid and evidence previously supplied. [Judgment, paras 137 and 138] 3. Individual measures: - The Court noted [para. 131] that the applicants did not seek to argue that, in their individual cases, there are no longer legitimate penological grounds for their continued detention. The violation could not be taken as giving them any prospect of imminent release. Mr Vinter was sentenced to a whole life order relatively recently (2008) following a second murder conviction after his release on licence for an earlier murder, and Messrs Bamber and Moore both had their whole life orders (imposed following convictions for five and four murders respectively) reviewed and upheld by the High Court of England and Wales in 2008 under arrangements in place under Schedule 22 to the Criminal Justice Act Those arrangements allow prisoners who had their minimum term (if any) under a life sentence for murder set by the Home Secretary to apply to the High Court for a review. (Since

3 General Measures 2003, all decisions about the minimum term (if any) to be applied have been determined by the sentencing judge.) 4. General measures: The Grand Chamber in Vinter v the United Kingdom, held that an irreducible life sentence violates Article 3 of the Convention, and that the violation arises at the time the sentence is imposed. The Grand Chamber went on to consider whether a WLO imposed in England and Wales was an irreducible life sentence, or was reducible by reason of the Secretary of State s power of release under section 30 of the Crime (Sentences) Act 1997 (CSA 1997). The reasoning of the Grand Chamber was, in summary, as follows: (1) For a sentence to be reducible, there must be a prospect of release and the possibility of review: paragraphs (2) Reducibility requires the availability of 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: paragraph 119. (3) The operation of section 30 of the CSA 1997 identified by the Court of Appeal in R v Bieber [2009] 1 WLR 223 (CA) namely that the Secretary of State was under a duty to release a prisoner when continued imprisonment is held to amount to inhuman or degrading treatment was, in principle, sufficient to render a life sentence reducible: paragraph 125. (4) However, as matters stood, there was a lack of clarity in domestic law. That was because, so the Grand Chamber concluded, the Prison Service Order (PSO) was in itself too restrictive in its criteria to provide a prospect of release sufficient to render a life sentence reducible; and it was unclear how those restrictive criteria sat with section 30 of the CSA 1997 and sections 3 and 6 of the Human Rights Act 1998: paragraphs , 129. (5) Therefore, in light of the lack of clarity as to the state of applicable domestic law it could not be said that a WLO was compatible with Article 3: paragraphs Since the Grand Chamber gave its judgment, the Court of Appeal for England and Wales has given its own judgment in three appeals against the imposition of a life sentence with a whole life order (Bridger, Thomas and Newell), and a reference by the Attorney General of a life sentence with a determinate tariff of 40 years (McLoughlin) sentence. In each of these cases the sole or central legal issue was the nature of the sentencing scheme for whole life orders and the compatibility of such an order with Article 3 of the Convention. The Court of Appeal s judgment, which is final and subject to appeal, is available at:

4 The Court of Appeal confirmed that the Secretary of State has a duty to exercise his powers under section 30 of the CSA 1997 compatibly with Article 3, and that the PSO does not and cannot restrict the duty of the Secretary of State to consider all circumstances relevant to release on compassionate grounds or in any way fetter his discretion. The reasoning of the Court of Appeal may be summarised as follows. (1) The Court of Appeal considered with care the decision of the Grand Chamber in Vinter. Its particular concern and focus was whether the Grand Chamber had correctly understood domestic law as it applied to the release of those subject to a WLO. (2) The Court of Appeal specifically concluded that there was no lack of clarity as to the applicable domestic law. The Secretary of State was bound to exercise his powers under section 30 of the CSA 1997 compatibly with Article 3 of the Convention: paragraph 29. (3) There were four matters of particular significance in a proper understanding of domestic law (paragraphs 30-34): i. The power of review under section 30 arises if there are exceptional circumstances. It is not necessary to specify such circumstances or specify criteria. The term exceptional circumstances is itself sufficiently certain. The Secretary of State must consider whether such exceptional circumstances justify release on compassionate grounds. ii. The term compassionate grounds in section 30 must be read, under section 3 of the Human Rights Act 1998, compatibly with Article 3 of the Convention ie so as to ensure that any decisions about release are able to be compatible with Article 3. The term is thus not restricted to what is set out in the PSO. It has a wide meaning which can be elucidated on a case by case basis. iii. The PSO cannot restrict the duty to consider all circumstances relevant to the question whether exceptional circumstances justify release on compassionate grounds. Nor can the Secretary of State fetter his discretion by taking account only of those matters set out in the PSO. (This conclusion is a statement of wellestablished domestic public law principles.) The restrictive criteria in the PSO thus had no bearing on the applicable domestic law, and did not render the law unclear. iv. The Secretary of State must make reasoned decisions, and each case is subject to scrutiny by way of judicial review (inter alia to ensure compatibility with Article 3 and thus compliance with the duty on the Secretary of State under section 6 of the Human Rights Act 1998). In these circumstances, the Court of Appeal held that at the point of sentence domestic law does indeed provide a prisoner with hope or the possibility of release in exceptional circumstances which render the just punishment originally imposed no longer justifiable: paragraph 35.

5 The Court of Appeal has set out the operation of domestic law. That is a question which it is uniquely well placed to determine authoritatively and conclusively. The Court of Appeal judgment, which represents the definitive views of the courts in England and Wales, has provided clarity. In those circumstances, the Government considers that no further general measures are necessary in the present case. 5. Publication: - Amongst other places the judgment has been published by: - British and Irish Legal Information Institute (Bailii) - oore+and+v+and+the+and+united+and+kingdom&method=boolean - Oxford Human Rights Hub Dissemination: The judgment has been extensively reported in the media and for this reason the Government considers it unnecessary to disseminate the judgment further. 7. State of execution of judgment: - The Government considers that no further individual or general measures are required and the case should be closed.