TrustHLT/LaCour huggingface dataset:
AP1 (Applicant): In Vinter, the judgment of this court did not take the law in any new direction or impose a new obligation on the contracting states.
AP1 (Applicant): The court instead took up the principles already established in previous judgments, notably in Kafkaris and Cyprus.
AP1 (Applicant): That judgment was founded on a wealth of international jurisprudence described in that judgment and described in our written submissions, which I will not repeat and take up the court's valuable time.
AP1 (Applicant): In Vinter, this court stressed that to avoid offending Article 3, a whole life order has to be reducible both in theory and, of course, in practice, de jure and de facto.
AP1 (Applicant): It's our submission that in this case, the government of the United Kingdom advances the same argument on de jure as was rejected rightly by this court in Vinter.
AP1 (Applicant): And with granted, de facto, there is, with great respect, simply a deafening silence from the government of the United Kingdom.
AP1 (Applicant): In our submissions this morning, we would like to address three subjects.
AP1 (Applicant): First, why the United Kingdom is still in violation of Article 3 on the theoretical de jure analysis of the system in place, and therefore, why the English Court of Appeals judgment in McLaughlin simply does not deal with that problem.
AP1 (Applicant): Second, why on a practical basis, the United Kingdom has done nothing to change its practice so as to abide by this court's judgment in Vinter.
AP1 (Applicant): Thirdly, and finally, why, with great respect, that even if there are delicacies or tensions in the relationship between this court and the United Kingdom, the court should nonetheless, unhesitatingly, declare a continuing violation in this application.
AP1 (Applicant): To start, if I may, with our submissions on de jure.
AP1 (Applicant): The system in theory.
AP1 (Applicant): To remind the court, with respect, of the three qualities that a convention-compliant system requires as described in Vinter.
AP1 (Applicant): First, there must be a review mechanism in place not limited to compassionate grounds.
AP1 (Applicant): Second, the prisoner must be told when the review will take place.
AP1 (Applicant): Third, the prisoner must be told what he must do to have a prospect of release, and the criteria that the review will apply when considering release.
AP1 (Applicant): The limitation, the first of those problems, the limitation of the review mechanism to compassionate grounds is, we would submit, the one required quality which the Court of Appeal in McLaughlin did at least engage with, holding, as the court will have read, that the Prison Service Order was legally far outweighed by the terms of the statute, the Crime Sentences Act, and the obligation under the United Kingdom's Human Rights Act for the minister to act compatibly with the Convention.
AP1 (Applicant): Yet, the only basis to release a whole-life order prisoner in the statute remains upon, quote, compassionate grounds, which the Court of Appeal in McLaughlin said must be given, quote, a wide meaning.
AP1 (Applicant): We remind the court, with gratitude, of the words of Judge Pinto de Albuquerque, in his opinion concurring on this point in the second Otchelan judgment, and I quote his honor on the McLaughlin judgment.
AP1 (Applicant): This opinion raises rather serious linguistic, logical, and legal questions.
AP1 (Applicant): What does compassion have to do with risk assessment, the prospect of the offender's resocialization, or the lack of a continuing penological grounds for continued imprisonment?
AP1 (Applicant): Is the wide meaning of compassionate grounds so wide it has no connection with the plain meaning of the word compassion?
AP1 (Applicant): What can be more unpredictable than a discretionary legal provision to release in exceptional circumstances, which is converted into an obligation to release with a, quote, wide meaning, unquote?
AP1 (Applicant): What can be more unclear than, quote, exceptional grounds with a wide meaning?
AP1 (Applicant): It's our submission that the time has now been reached when this court can, in fact, go beyond, with great respect, the judgment in Kafkaris and Vinter, and say there is now an international consensus that decisions about prisoners' release should be taken by courts, by judges, not by politicians.
AP1 (Applicant): Our basis for that argument is set out in great detail in our written submissions, and I will not take up this court's time by reading them out.
AP1 (Applicant): But simply to add one or two points to that.
AP1 (Applicant): Firstly, we say it is of note that the sole direction of travel, the sole direction of development in United Kingdom sentencing policy has been away from the politicians, into the hands of judges.
AP1 (Applicant): Second, we acknowledge at once that in Kafkaris and Cyprus, and indeed subsequently, this court has found no violation of Article 3 in a system that is based upon application to a politician.
AP1 (Applicant): But in Kafkaris, of course, the politician in question was the president in a contracting state, where that post, though under the Cypriot scheme an elected post, might perhaps suggest a politician with no further ambition for promotion.
AP1 (Applicant): He's the president, after all.
AP1 (Applicant): Thus, perhaps to a degree, above the rough and tumble of politics more normally.
AP1 (Applicant): And of course, I come forward to de facto, which I will come to in but a few minutes time.
AP1 (Applicant): Of course, above all in Kafkaris, this court had the comfort of knowing that numerous prisoners had been released from supposedly whole life orders over many years before the court's judgment in that case.
AP1 (Applicant): The United Kingdom, of course, has no presidential system.
AP1 (Applicant): We have no politician removed above from the daily rough and tumble of politics.
AP1 (Applicant): And of course, there's no such de facto comfort as we'll come to in a few minutes times.
AP1 (Applicant): We also on this point finally note in this concurring opinion in this court's decision in Vinter, Judge Marnie, whilst with respect, diplomatically stressing that the method of making the United Kingdom system compatible was a matter for the United Kingdom, went on to suggest that the material before this court suggests, I quote, clear support for the institution of a dedicated mechanism integrated within the sentencing legislation providing for a review of life sentences after a set period.
AP1 (Applicant): We do say, and I say with great respect, as Judge Marnie, of course, is part of the court today.
AP1 (Applicant): We do say that phrase really does not sound like a system that allows a politician to take that decision.
AP1 (Applicant): I should stress at once that these are our submissions that the court should go beyond Vinter and beyond Kafkaris.
AP1 (Applicant): We also stress that even if the court stays with the position as decided in Vinter, we make it plain, the United Kingdom has simply failed to adjust, has simply failed to mend the violation of Article 3.
AP1 (Applicant): Above all, we say, the real problem with the Court of Appeals solution, is the evidence analysis, what went wrong in the argument or in the judgment of this court in Vinter?
AP1 (Applicant): My learned friend, Mr. Eadie, with us today, of course,
AP1 (Applicant): told the Court of Appeal in McLaughlin, the court went on to accept, and I quote, the grand chamber was mistaken, unquote.
AP1 (Applicant): The argument, of course, being put forward by the government that the prison order has to be read subject to the Human Rights Act obligation upon the minister.
AP1 (Applicant): Well, with respect, was that really the problem with the judgment in Vinter?
AP1 (Applicant): It cannot be said that no one mentioned this argument to this court in Vinter.
AP1 (Applicant): The argument was advanced in detail submissions by leading counsel on that occasion of the United Kingdom, my learned friend, Mr. Perry, Queen's counsel.
AP1 (Applicant): The argument, which is supposed to be the solution in McLaughlin, had been advanced by the Court of Appeal in Beba, which was before this court in Vinter.
AP1 (Applicant): Judge Marnie, in his concurring opinion, specifically dwelt upon these submissions and the case of Beba in detail.
AP1 (Applicant): And this court, in its judgment in Vinter, began the judgment by setting out the relevant sections of the Human Rights Act, set out entirely accurately the government's submissions about the Human Rights Act and the way in the prison service rules, and dealt with the argument clearly and effectively at paragraph 128 of that judgment.
AP1 (Applicant): With all due respect to the Court of Appeal, it's not the comprehension of this court that is at fault.
AP1 (Applicant): It is the United Kingdom's system.
AP1 (Applicant): Moving on to what we call the second and third qualities required by Vinter in the de jure position, the Justice neither finds any solution, either in McLaughlin or in any of the many written submissions put forward by the United Kingdom government up until today.
AP1 (Applicant): The timing of the review.
AP1 (Applicant): Of course it would be absurd to think that any whole life order prisoner can apply at any time, as no system committed to a genuine and meaningful review could cope with such an unrestricted flow of applications.
AP1 (Applicant): There is a clear international consensus for review after 25 years.
AP1 (Applicant): Yet nowhere in the Court of Appeal's judgment is the timing of the review addressed.
AP1 (Applicant): Nowhere in the government's observations, nowhere in the government's written submissions is the timing of when that review should take place set out.
AP1 (Applicant): It's a requirement of Vinter.
AP1 (Applicant): It simply isn't addressed, even in theory, even to jury.
AP1 (Applicant): And the third quality, the need for whole life order prisoners to know the criteria they must meet.
AP1 (Applicant): We would remind the court, with respect, of the judgment of the former fifth section in Trebelsi and Belgium.
AP1 (Applicant): In finding that the system in the United States, to which an extradition was proposed, in finding the system in the United States amounted to a violation of Article III, the court in Trebelsi at paragraphs 136 and 137 said, the court now comes to the central issue in the present case, which involves establishing whether the provisions of United States legislation governing the possibilities for reduction of life sentences and pardons fulfill the criteria which is laid down for assessing the reducibility of a life sentence and its conformity with Article III.
AP1 (Applicant): No lengthy disquisitions are required to answer this question.
AP1 (Applicant): The court needs simply note that while the said provisions point to the existence of a, quote, prospect of release, unquote, within the meaning of the Kafkaris judgment, none of the procedures provided for amounts to a review mechanism requiring the national authorities to ascertain on the basis of objective, pre-established criteria to which the prisoner had precise cognizance at the time of imposition of the life sentence, whether while serving his sentence, the prisoner has changed and progressed to such an extent that continued detention can no longer be justified on legitimate penological grounds.
AP1 (Applicant): Mr. President, we say it is, with great respect,
AP1 (Applicant): a neat and simple encapsulation of the third, the jury requirement.
AP1 (Applicant): Objective, pre-established criteria on which the prisoner had precise cognizance at the time of imposition of the life sentence.
AP1 (Applicant): After the Court of Appeals judgment in McLaughlin, we know what is no longer the only criterion.
AP1 (Applicant): The whole life order prisoner does not have to be in the last stages of fatal illness.
AP1 (Applicant): We are told compassionate grounds would have to be read widely.
AP1 (Applicant): As to what the court in Trebelsie called objective, pre-established criteria, there is simply no clue to be had from the judgment in McLaughlin.
AP1 (Applicant): So once again, we say the United Kingdom's solution to the theoretical problems with the United Kingdom system simply does not address two out of three of the problems identified by this court in Vinter.
AP1 (Applicant): Turning now to whether the United Kingdom whole life order sentences are de facto reducible, we say the position is even simpler and even starker.
AP1 (Applicant): The prison service order is still in place unamended.
AP1 (Applicant): To say, as the Court of Appeals said, that its terms cannot bind a minister's discretion is all well and good.
AP1 (Applicant): But to choose, as the United Kingdom government has done, not to rewrite it so as to reflect even the concessions made by the Court of Appeal, shows, we fear, there is simply no willingness to pay any attention to this court's judgment in Vinter.
AP1 (Applicant): We remind the court, in his concurring opinion in Vinter, Judge Marnie suggested an amendment to these rules as, in effect and with great respect, the least intrusive route to rendering the United Kingdom system compatible with Article 3 on this point.
AP1 (Applicant): Yet it's now over two years since Vinter and over 18 months since the judgment in McLaughlin supposedly stripped the existing prison service rules, prison service orders of any significance, but the United Kingdom has chosen to leave those rules in place.
AP1 (Applicant): We are aware, of course, of the questions the court has posed to the party.
AP1 (Applicant): We await with interest the government's answer.
AP1 (Applicant): Why has the order not been amended in the light of these criticisms?
AP1 (Applicant): And question two, at the present time, does a whole life prisoner know at the outset of the sentence what he must do to be considered for release?
AP1 (Applicant): No, it's a simple answer, we fear, but we await the United Kingdom's answer as well.
AP1 (Applicant): The second problem with the de facto position is to contrast this situation with the case of Kafkaris and the situation in Cyprus.
AP1 (Applicant): In Kafkaris and Cyprus, this court was able to make a finding of compatibility under Article 3 on the basis of the obvious and powerful demonstration that whole life orders were de facto reducible in Cyprus, as in the 14 years before the hearing of Kafkaris, 12 prisoners serving mandatory whole life sentences had, in fact, been released.
AP1 (Applicant): In all the arguments in this case put forward by the United Kingdom, and as far as we're aware, in all the arguments put forward by the United Kingdom in the Vinter case, there is one argument the government has never sought to rely on.
AP1 (Applicant): That is that in reality, in the United Kingdom, whole life orders are reviewed and prisoners are set free.
AP1 (Applicant): We are, with great respect, very pleased that the court has posed the third question to the government specifically.
AP1 (Applicant): The government is requested to inform the court if any prisoners serving whole life sentences are considered for release, is there any example of a whole life prisoner who has been released since the date of delivery of the Vinter judgment?
AP1 (Applicant): We, like the court, perhaps, await the government's answer with considerable interest.
AP1 (Applicant): If the government are able to say there are a number of prisoners who have been so released since Vinter, then of course that will be a valuable argument in favor of the government, at least on this part of the difficulties they face.
AP1 (Applicant): If, on the other hand, the answer is the number of those released is somewhere akin to zero, we would say it is a more compelling argument as to the real nature of whole life orders in the United Kingdom than any words we can say.
AP1 (Applicant): Finally, in considering the de facto situation, we submit the court cannot ignore the reality of a system, like the United Kingdom's, that gives a politician so central a role in the sentencing decision.
AP1 (Applicant): If it is to be said, as the United Kingdom must be saying, that there is a real prospect of release by application to the politician who happens to be the Minister of Justice when the whole life order prisoner applies, if politicians are to be brought into the system by the government's argument, then it must be legitimate for us, with respect, to refer the court to the actual attitude of the real politicians when we consider the de facto situation.
AP1 (Applicant): In our written submissions to the court, we quote the comments of the Lord Chancellor and Secretary of State for the Ministry of Justice, the politician serving at the time of the court appeals judgment in McLaughlin.
AP1 (Applicant): He said this, I quote, this is a timely and welcome decision.
AP1 (Applicant): Our courts should be able to send the most brutal murderers to jail for the rest of their lives.
AP1 (Applicant): I think people in Britain will be glad that our courts have disagreed with the European Court of Human Rights and uphold the law that the United Kingdom Parliament has passed.
AP1 (Applicant): Mr. President, we suggest there are perhaps three lessons that
AP1 (Applicant): can be drawn from those comments.
AP1 (Applicant): First, it illustrates precisely why judges, not politicians, should be entrusted with the review of whole life orders under any convention-compatible system.
AP1 (Applicant): Second, it makes clear that as far as the United Kingdom government is concerned, and unlike the stance taken by the Court of Appeal, there has not been a misunderstanding in Vinter, all now cleared up by McLaughlin, but that the Court of Appeals judgment, as far as the United Kingdom government is concerned, was a flat rejection of this court's decision.
AP1 (Applicant): Third, how can any whole life order prisoner be expected to commit himself and to work towards his rehabilitation in reform in the hope that he just might one distant day win his freedom if that attitude of a serving politician is what awaits him at the end of all his decades of efforts?
AP1 (Applicant): Our third and final topic, Mr. President,
AP1 (Applicant): is addressing the margin of appreciation.
AP1 (Applicant): We appreciate this court will often need to pause before making a finding of a violation to ensure it has struck the proper balance between, on the one hand, guarding the rights guaranteed by the convention, and on the other, trespassing into the contracting state's margin of appreciation and making those rights available.
AP1 (Applicant): The fact there have been well-documented valuable discussions or even tensions between the United Kingdom government and, to a lesser extent, the United Kingdom courts, cannot, of course, sway this court in assessing where that balance lies.
AP1 (Applicant): In our submission, and I will deal with them shortly, I promise, in our submission there are seven reasons why this court should not shy away from declaring a violation.
AP1 (Applicant): First, Article III is an unqualified right.
AP1 (Applicant): So there is no question of the balancing exercise that this court would very often leave to the contracting states when dealing with a qualified right.
AP1 (Applicant): Second, in finding a violation, this court would not be imposing any particular system on the United Kingdom, as there are various routes to compliance, and the United Kingdom could choose the one that worked best.
AP1 (Applicant): Third, this is not a decision on an individual's case.
AP1 (Applicant): If this were an argument about whether the applicant should have his sentence reduced, that decision would and should remain to be taken by judges or politicians, if we must, based on the facts of the individual case.
AP1 (Applicant): That is simply not the finding this court is being asked to make.
AP1 (Applicant): Fourth, this court is not being asked, of course, and has never been asked in this case, or indeed in Vinter, to impose any prohibition on the imposition of a whole life order, or even to prohibit prisoners actually serving whole life orders.
AP1 (Applicant): The argument is, of course, just for the possibility of a reduction.
AP1 (Applicant): Fifth, it would really not be so great a change to the United Kingdom system.
AP1 (Applicant): The scheme for review after 25 years was the English system, in fact, under different political parties and governments, was the English system for many years.
AP1 (Applicant): All that we suggest needs to be added to what was the English system not so long ago is to empower the parole board to reduce a whole life order to a determinate sentence, and to describe in detail the criteria the parole board would apply upon taking that decision.
AP1 (Applicant): Sixth, it would not take much to put this right.
AP1 (Applicant): The United Kingdom Parliament's Joint Committee on Human Rights drafted a statutory clause, I think about eight lines long, that simply said, after 25 years, a whole life order prisoner may apply to the parole board, which this court will appreciate, has been treated in other judgments as a court, it's chaired by a senior judge, may apply to the parole board to decide if the prisoner has made such exceptional progress that a whole life order is no longer justified.
AP1 (Applicant): Seventh, the price of not making a finding of a violation in this case, with great respect, would be to cause near chaos in this court's jurisprudence, as it amounts to a profound undermining at least, and in fact a declaration, that a string of cases have been wrongly decided.
AP1 (Applicant): And would, we say, amount to a declaration that Trabelsi, Ocelan, Vinter, and even Kafkaris had all been wrongly decided, if the court were not to find a violation in this case.
AP1 (Applicant): Mr. President, the preamble to the European Convention speaks
AP1 (Applicant): of a declaration and reaffirmation of a belief in the rights of men and women.
AP1 (Applicant): But it also speaks of the collective enforcement of those rights.
AP1 (Applicant): Vinter found a clear violation of one of the rights guaranteed under the convention.
AP1 (Applicant): That decision has been bluntly rejected by the United Kingdom.
AP1 (Applicant): We would submit, with great respect, that the time has come for an equally direct reply from this honorable court.
Dean Spielmann (JudgeP): Thank you, Mr. Bennathan. I call now Attorney General Jeremy Wright QC.
GR1 (Government): Mr. President, thank you, members of the court.
GR1 (Government): This is a case that the government of the United Kingdom regards as being of the very greatest importance, touching as it does not merely on the content of Article III rights, but also on the relationship between the convention and domestic legal systems in the context of criminal justice and sentencing.
GR1 (Government): The facts can be shortly stated.
GR1 (Government): The applicant broke into the home of a family in Sheffield on the night of the 23rd of September, 1983.
GR1 (Government): The family had been celebrating the wedding of one of their daughters.
GR1 (Government): The applicant stabbed the parents and one of the sons to death.
GR1 (Government): He then repeatedly raped one of the other daughters of the family, having first dragged her past her father's body into the marquee where the wedding had taken place.
GR1 (Government): In 1984, he was convicted of three counts of murder, one count of rape, and one count of aggravated burglary.
GR1 (Government): He was sentenced to a whole life term of imprisonment, pursuant to the process described in paragraph seven of the fourth section's judgment.
GR1 (Government): Following the enactment of the Criminal Justice Act 2003, the applicant exercised his right under that legislation to apply to the High Court for a review of his term of imprisonment.
GR1 (Government): The whole life term was confirmed in May of 2008 by a High Court judge, who concluded that having regard to the sadistic as well as the sexual nature of the offense, a whole life term was the right sentence.
GR1 (Government): In October 2008, the Court of Appeal agreed.
GR1 (Government): Mr. President, it's my submission that a prisoner