McLoughlin, R. v
2014
COURT OF APPEAL (CRIMINAL DIVISION)
United Kingdom
CORAM
- THE LORD CHIEF JUSTICE OF ENGLAND AND WALES
- THE PRESIDENT OF THE QUEEN'S BENCH DIVISION
Areas of Law
- Criminal Law and Procedure
- Human Rights Law
2014
COURT OF APPEAL (CRIMINAL DIVISION)
United Kingdom
CORAM
AI Generated Summary
The case involved challenges to the statutory scheme for whole life orders under Article 3 of the Convention, focusing on whether they were compatible with the right against inhuman or degrading treatment. The court held that whole life orders are compatible with Article 3, emphasizing a possibility of release under exceptional circumstances as specified under s.30 of the Crime (Sentences) Act 1997. The relevant statutory scheme mandates life sentences for murder and allows judges to set either a minimum term or a whole life order. The regime under the Human Rights Act ensures that the rules for reducibility provide a significant possibility of review and release.
Lord Thomas of Cwmgiedd, CJ:
Introduction
The statutory scheme enacted by Parliament for sentencing an adult guilty of murder is set out in the Murder (Abolition of Death Penalty) Act 1965 (the 1965 Act), the Criminal Justice Act 2003 (the 2003 Act) and Crime (Sentences) Act 1997 (the 1997 Act):
A trial judge must, under s.1 of the 1965 Act, impose a life sentence for murder. Under s.269 of the 2003 Act, the judge must decide whether to make a minimum term of a fixed number of years or a whole life order.
If a fixed minimum term order is made, the Parole Board has the power under the provisions of s.28 of the 1997 Act, commonly called the early release provisions, to direct release of the offender after the expiry of any minimum term for a fixed number of years set by the trial judge; it considers in essence the risk to the public if release is ordered. However, the Parole Board has no such power where a whole life order is made.
A power of release is given under s.30 of the 1997 Act to the Secretary of State, if there are exceptional circumstances which justify release on compassionate grounds.
In the cases before the court a challenge is made to this scheme. It is advanced under Article 3 of the Convention and founded on decisions of the Strasbourg Court:
On 12 February 2008, the Grand Chamber of the Strasbourg Court decided in Kafkaris v Cyprus ( Application no. 21906/04) that whilst a sentence of life imprisonment did not violate Article 3, there would be a violation if such a sentence was irreducible – that is to say a sentence for the duration of the life of the offender with no “possibility” or “hope” or “prospect” of release from the sentence.
In R v Bieber [2009] 1 WLR 223 , this court held, in the light of the decision in Kafkaris that, as the Secretary of State had a power of release under s.30 of the 1997 Act, a sentence with a whole life order was not irreducible and thus not in violation of Article 3.
On 17 January 2012 the Fourth Chamber of the Strasbourg Court in Vinter v UK [2012] 55 EHHR 34 held that there was no violation of Article 3. On 9 July 2012, the Grand Chamber decided to hear the case.
Prior to the hearing by the Grand Chamber, a special constitution of this court considered appeals where four of the appellants had received whole life orders and one a minimum term of 30 years. In its decision given in November 2012, R v David Oakes and others [2012] EWCA Crim 2435 , [2013] 2 Cr App R (S) 22, this court conclude