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Whole-Life Orders: Does Life mean Life? PDF Print E-mail
News Reviews from 2014

Whole-life sentences

‘Whole-Life Orders’: Life means life

... except that it doesn’t quite

by Sundeep Athwal

 

The Court of Appeal has recently confirmed that judges in England and Wales are not prohibited by human rights legislation from imposing ‘whole-life orders’ when sentencing people found guilty of committing ‘exceptionally serious’ criminal acts. However, the predominant reaction to the decision, celebrating the possibility of offenders spending the rest of their lives in prison, fails to grasp the reasoning behind the decision and largely ignores the need to justify the imposition of whole-life orders.

 

The Criminal Justice Act 2003 (CJA 2003) gave judges in England and Wales the ability to impose whole-life orders on those people convicted of the most serious crimes (usually murder with certain aggravating factors). Unlike an offender serving an indefinite prison sentence with a minimum term of imprisonment, an offender subject to a whole-life order is not eligible to be considered for parole. Prior to CJA 2003 being enacted, the power to impose the equivalent of a whole-life order rested with the Home Secretary. Under the old regime, the Home Secretary had the power to review such a sentence after 25 years. In pursuit of the desire to remove sentencing decisions from the hands of politicians, the ability to impose whole-life orders was transferred by CJA 2003 to the judiciary. However, no provision was made for routinely reviewing the imposition of a whole-life order on an offender.

 

In July 2013, the Grand Chamber of the European Court of Human Rights (ECtHR) upheld an appeal by three murderers, all convicted under the laws of England and Wales, that the imposition of whole-life orders constituted a breach of their human rights. The ECtHR accepted that a state may keep a person imprisoned for the purposes of punishment, deterrence, public protection, and rehabilitation. Nor did the ECtHR reject the ability of a state to keep a person imprisoned for life. However, the ECtHR did find that depriving an imprisoned person of the opportunity to argue that they had been rehabilitated breached that person’s rights under Article 3 of the European Convention on Human Rights (ECHR), which prohibits ‘inhuman or degrading treatment or punishment’.

 

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