Life sentences: an evolving synthesis

Feb 20, 2014 Editorial

The appeal court’s ruling is part of an evolution that should be embraced and not abandoned, as too many so dangerously
English judges, so often the punch bag for reflexive law-and-order prejudice, may be waking up to some unaccustomed tabloid praise. On Tuesday the court of appeal ruled that judges in England and Wales can continue to impose so-called “whole life” prison sentences in the most serious murder cases.
That ruling may have come as something of a surprise in the current political climate, given that the stage had once again been so confidently set for the issues to be conscripted into the relentless rightwing argument against the jurisdiction of the European court of human rights. In the event, however, the appeal court was able to finesse the matter.
It did so by identifying some previously overlooked middle ground between the European court’s view last year that whole-life sentences should contain an element of reviewability and the government’s argument that such an element already exists in domestic law.
The upshot, unless the issue is now referred to the Supreme Court or back to Strasbourg, is that another emotive and destructive locking of horns with the human rights court – of the sort that occurred over votes for prisoners and in the Abu Qatada deportation case – has been avoided for the time being.
The worth of the appeal court’s ruling will depend, in the end, on how the ministry of justice interprets and implements paragraphs 29-36 of the ruling. These important eight paragraphs say that domestic law already enshrines a power to review the detention of whole-life prisoners.
That power, said the court, arises in exceptional circumstances. It requires the justice secretary to decide whether compassionate grounds for release exist. It must be compatible with the human rights convention’s protections against inhuman or degrading punishment. And it must be reasoned in terms of the facts of the particular case – and subject to judicial review.
Whether a justice secretary like the current incumbent Chris Grayling will accept those terms when one of the 53 prisoners currently serving a whole-life sentence tries to invoke them must unfortunately be open to doubt. Mr. Grayling welcomed the ruling on Tuesday on the grounds that the most brutal murderers should go to jail for the rest of their lives – and as a vindication of parliamentary sovereignty against the human rights court.
However, in marked contrast to the attorney general, Dominic Grieve, who stressed that the law is compatible with the human rights convention, Mr Grayling gave no hint that he recognised any of the convention obligations laid down for him by the appeal court. What is clear is that Mr Grayling must not simply adopt a blanket approach. He must be extremely careful how he speaks and acts in such cases.
The whole-life sentence is acceptable on the appeal court’s terms and not otherwise. Every sentence of imprisonment – and particularly the longer sentences to which parliament is increasingly addicted – has to have a meaningful form of rehabilitation or redemption built into it. The eventual hope of review, even in the most heinous cases, that was upheld meets that test, though perhaps only narrowly. That is why Mr Grayling’s response needs to be watched with the utmost care.
On Tuesday, the appeal court deftly avoided putting itself in the crossfire between the Tories and Europe. But it would be idle to pretend that issue is receding. On the contrary, as the Supreme Court president Lord Neuberger said last week, much debate about the convention and human rights continues to be “inappropriately unfavourable”.
Tragically, almost everything about the modern Conservative party currently makes that debate ever more inappropriate and more unfavourable. And yet, over time, Lord Neuberger also argued, the courts have in fact managed the demanding task of organically evolving a “splendid synthesis” between European civilian law and the common law. Tuesday’s ruling can be seen as part of that. It is an evolution that should be embraced and not abandoned, as too many on the right argue so dangerously. (From the Guardian of London)

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Life sentences: an evolving synthesis

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