TrustHLT/LaCour huggingface dataset:
GR1 (Government): such as this applicant, sentenced to a whole life term, has under domestic law both the prospect of release and the possibility of review, and that that domestic law is compatible with Article III of the Convention.
GR1 (Government): The key statutory power is in Section 30 of the Crime Sentences Act of 1997.
GR1 (Government): The power to release the prisoner may be exercised by the Secretary of State, and I quote, at any time.
GR1 (Government): The basis on which the power may be exercised is also expressly set out in Section 30 as exceptional circumstances which justify the prisoner's release on compassionate grounds.
GR1 (Government): The Human Rights Act of 1998 applies alongside Section 30.
GR1 (Government): It has two legal effects.
GR1 (Government): It means, and this is Section 3 of the Human Rights Act, that Section 30 itself must be interpreted as far as it is possible to do so in a way which is compatible with Convention rights.
GR1 (Government): It also means, and this is Section 6 of the Human Rights Act, that the Secretary of State is bound to exercise his powers, including the power under Section 30, compatibly with the provisions of the Convention, thus including specifically Article III.
GR1 (Government): In addition, there is the Prison Service Order 4700, or Life and Manual, referred to by the Grand Chamber in Vinter, and to which the applicant has also referred.
GR1 (Government): It is this document that appears to have led to some confusion.
GR1 (Government): How do these elements, then, of domestic law and policy interrelate?
GR1 (Government): That question and the significance of the Life and Manual in domestic law were recently reconsidered by the Court of Appeal in the Newell case.
GR1 (Government): The Court of Appeal specifically did so in the light of the concerns expressed by this court in Vinter.
GR1 (Government): The seriousness of the issue was reflected in the fact that this was a five-person court presided over by the Lord Chief Justice and including the President of the Queen's Bench Division.
GR1 (Government): The result is that there is no longer any scope for argument about the clear state of domestic law.
GR1 (Government): Three points emphasized by the Court of Appeal need to be emphasized also in this court.
GR1 (Government): First, Section 30 empowers the Secretary of State to release a prisoner whenever Article 3 so requires.
GR1 (Government): The concepts of exceptional circumstances and compassionate grounds are to be read accordingly.
GR1 (Government): And the power it confers must be exercised compatibly with Article 3 rights under Section 6 of the Human Rights Act 1998.
GR1 (Government): This is the clear and authoritatively stated position under English law, as the fourth section in this case correctly acknowledged.
GR1 (Government): Judge Pinto de Albuquerque questioned the Court of Appeal's reasoning in his dissenting opinion in Ocalan against Turkey No. 2.
GR1 (Government): His comments are relied on by the advocate and the intervener.
GR1 (Government): But those comments were not joined with by any of his fellow judges in that case or by any of the judges in the fourth section in this case.
GR1 (Government): With the greatest respect to him, whatever difficulties he may have with its reasoning, the Court of Appeal's judgment is clear, coherent, and perhaps most importantly, represents the authoritative statement of domestic law.
GR1 (Government): Secondly, as the Court of Appeal pointed out, as a matter of basic domestic public law principle, nothing in the life of manual restricts the circumstances in which release can and must occur.
GR1 (Government): The law is in Section 30, interpreted and applied to achieve compliance with Article 3 of the Convention.
GR1 (Government): It is therefore fundamentally wrong and wholly inconsistent with the clear conclusion of the Court of Appeal to assert, as the applicant does, that the life of manual limits the power to release on compassionate grounds under Section 30.
GR1 (Government): Under domestic law, it does not do so, as the Court of Appeal expressly indicated.
GR1 (Government): All the circumstances of the case must be considered.
GR1 (Government): Release must be effected if, in all those circumstances, Article 3 requires it.
GR1 (Government): The Court in its first question asks why, given that this is the position under domestic law, the manual has not been altered, and whether it is intended to do so.
GR1 (Government): The short answer is that as a matter of domestic law, it is unnecessary to do so in the light of the clarity of the legal position set out in the Court of Appeal judgment.
GR1 (Government): The references to and guidance on release on medical grounds in it are not exhaustive of the circumstances in which release may be appropriate, although the fact remains that that part of the manual, dealing with medical grounds, continues to provide useful guidance in that medical grounds context.
GR1 (Government): But the Court also asks whether the law is sufficiently accessible and foreseeable in view of the continued existence of the manual.
GR1 (Government): I submit it is plain that it is.
GR1 (Government): As the Court's consistent jurisprudence indicates, the foreseeability requirement comes accompanied by the rider that the legal position shall be foreseeable with appropriate legal advice if necessary.
GR1 (Government): The position, as the Court of Appeal indicated, is clear.
GR1 (Government): A prisoner concerned to ascertain the position would, in any event, not simply go to the manual.
GR1 (Government): It sits alongside the legislation, the Human Rights Act, the domestic court's previous jurisprudence, and now the Court of Appeal's judgment.
GR1 (Government): In practice, there are only two scenarios when considering the possibility of release from the prisoner's perspective.
GR1 (Government): Either he will take legal advice, in which case the lawyer will tell him that the Court of Appeal has made the position entirely clear and will explain it to him.
GR1 (Government): Or, even if he's not legally represented, he can, and can reasonably be expected, to ask the authorities what the position is, if he's considering an application.
GR1 (Government): And if the question is asked, we know what the answer will be.
GR1 (Government): We know that because Mr. Vinter, through his solicitor
GR1 (Government): Simon Crichton, who you might care to note is also the joint author of the intervention from the European Litigation Network, asked the question.
GR1 (Government): The response is at annex three to our observations.
GR1 (Government): And it said, you ask when your client may have a review of his detention.
GR1 (Government): He may apply at any time, setting out the exceptional circumstances in his particular case which have arisen since he was sentenced, such that his detention is no longer justified on penological grounds.
GR1 (Government): The third point is this.
GR1 (Government): An application for release can be made to the Secretary of State at any time, as section 30 itself expressly provides.
GR1 (Government): When such an application is made, the Secretary of State must then make a reasoned decision in relation to release.
GR1 (Government): That decision is subject to judicial review, including in order to challenge a refusal to release as incombatible with the convention, as the Court of Appeal specifically noted.
GR1 (Government): If flesh were required to be put on the bones of the concepts of exceptional circumstances or compassionate circumstances or legitimate penological grounds, that judicial review process is the place in which it would be done.
GR1 (Government): It is submitted that this court can therefore confidently proceed, and in principle must proceed, on the basis that whatever doubt there may or may not have been as to the precise state of domestic law, that has now been cleared away.
GR1 (Government): Domestic law is clear in each of these respects.
GR1 (Government): This case is thus a very long way, indeed, from cases such as Ocalan against Turkey number two, which concerned a system under which there was no sufficient possibility of release or review, and in which the prisoner was positively excluded from any release on parole.
GR1 (Government): The live question is, therefore, whether given that this is so, that domestic legal structures are compliant with Article 3.
GR1 (Government): And it is submitted that they plainly are.
GR1 (Government): The Grand Chamber in Vinter concluded in terms that if the clear position in domestic law was that there was a duty to release the whole life term prisoner if it could be shown that continued detention was no longer justified on penological grounds, that was in principle sufficient to render the life sentence reducible.
GR1 (Government): This is what the court said.
GR1 (Government): This reading of section 30, ensuring some prospects under the law for release of whole life prisoners, would in principle be consistent with this court's judgment in Kafkaris.
GR1 (Government): If it could be established that in the applicant's cases a sufficient degree of certainty existed as to the state of the applicable domestic law to this effect, it could not be said that their sentences were irreducible, and thus no violation of Article 3 would be disclosed.
GR1 (Government): And that, Mr. President, is precisely where we are.
GR1 (Government): It not merely could be, but now definitively has been established, that that is the state of domestic law.
GR1 (Government): And the consequence follows.
GR1 (Government): It therefore cannot be said that the sentence is irreducible and no violation of Article 3 is disclosed.
GR1 (Government): And it's submitted that this is the right answer in principle.
GR1 (Government): There's an overarching point.
GR1 (Government): This is properly an area in which the convention and this court should be concerned, I submit, with the setting only of what are genuinely minimum standards.
GR1 (Government): Sentences have been properly and justly imposed to reflect the extraordinarily serious nature of the crimes in question.
GR1 (Government): The court's jurisprudence has been consistent in the need for some prospect of release and some system of review.
GR1 (Government): But the nature of those systems is in the field of criminal justice and sentencing.
GR1 (Government): Moreover, different contracting states can perfectly properly have different ways of achieving those basic aims.
GR1 (Government): As the intervener's observations demonstrate, such differences do in fact exist.
GR1 (Government): This is not an area in which it is necessary or appropriate for there to be a prescriptive approach to the nature of those systems.
GR1 (Government): As the Grand Chamber acknowledged in terms at paragraph 120 of VINTA, and has acknowledged in many other cases before and since, there is a margin of appreciation to be afforded to contracting states, as Mr. Benetton has
GR1 (Government): said, in matters of criminal justice and sentencing.
GR1 (Government): There is, I submit, no proper basis for narrowing it.
GR1 (Government): And let me address the prospect of and the grounds for release.
GR1 (Government): That there is such a prospect, both de jure and de facto, is uncontested.
GR1 (Government): The Grand Chamber in VINTA referred at paragraph 122 to a whole life prisoner being entitled to know at the outset of his sentence what he must do to be considered for release and under what conditions.
GR1 (Government): The content of that entitlement is the subject of the second, and to some extent the first, of the court's questions for this hearing.
GR1 (Government): And I make three submissions of principle about it.
GR1 (Government): My first is that under domestic law, the prisoner knows what he must do to be considered for release and the conditions to be met before release.
GR1 (Government): The question is whether legitimate penological grounds continue to exist that are sufficient to justify the continuing detention.
GR1 (Government): Punishment, deterrence, public protection, and rehabilitation were the penological grounds identified in VINTA.
GR1 (Government): In Koroshenko against Russia, paragraph 121, the Grand Chamber, unsurprisingly, and continuing the court's analysis to the same effect in VINTA, emphasized the increasing relative importance of the rehabilitative aim of imprisonment, particularly towards the end of a long sentence.
GR1 (Government): So be it.
GR1 (Government): As noted by the Court of Appeal, domestic law applies this Article III standard.
GR1 (Government): In any event, the concept of exceptional circumstances naturally accommodates exceptional rehabilitative progress by the prisoner.
GR1 (Government): So applying domestic law, the prisoner knows that he must satisfy the Secretary of State that exceptional circumstances exist so that his detention can no longer be justified on legitimate penological grounds on account, in particular, of his steps towards rehabilitation.
GR1 (Government): That is the test.
GR1 (Government): My second submission is that the standard or grounds that this court has set for release is necessarily set at a level of generality.
GR1 (Government): That is because the circumstances which might affect that standard are almost limitless.
GR1 (Government): They will vary from prisoner to prisoner.
GR1 (Government): All the circumstances affecting the position of each such prisoner will need to be considered.
GR1 (Government): No one in this case, and no judgment of the court, has sought to lay down some set of detailed criteria.
GR1 (Government): It is neither necessary, nor possible, nor even desirable to do so.
GR1 (Government): That does not mean that legal certainty has not been secured.
GR1 (Government): It means that some legal rules must inevitably be set at a relatively high level of generality.
GR1 (Government): Doing so gives them the necessary flexibility to react to the myriad of different factual situations they have to cover.
GR1 (Government): That is a virtue, not a vice.
GR1 (Government): And no doubt for that reason, this court's constant jurisprudence on the requirements of, in accordance with, or prescribed by law, has consistently acknowledged that laws may be set at a level of generality, with clarification and development occurring on a case-by-case basis, for example, through practice or judicial review.
GR1 (Government): Thirdly, we make the positive submission that the convention does not insist on greater specificity.
GR1 (Government): The Grand Chamber and Vinter referred, as I've said, simply to it being necessary for the prisoner to know under what conditions he may be released.
GR1 (Government): The Grand Chamber did not indicate, whether expressly or by the use of that general phrase, that domestic law must set out a detailed, prescriptive, or descriptive scheme, seeking, in effect, to delineate the boundaries of what would or might amount to the absence of continuing penological justification, or what the prisoner must do by way of rehabilitation.
GR1 (Government): It did not do so, no doubt, because it would be inappropriate in principle to do so, having regard to the proper margin to be afforded.
GR1 (Government): And because, for all the reasons I have given, this is a context in which such a degree of prescription is a vice and not a virtue.
GR1 (Government): In those circumstances, we make the respectful submission that if the section's reference in its highly controversial judgment in Trabelsi against Belgium to objective, pre-established criteria implies something more, and it is far from clear that it did so, that would be a wrong approach.
GR1 (Government): There is nothing in Vinter to warrant it.
GR1 (Government): It would be inconsistent with the proper emphasis in Vinter on the margin to be afforded for any such added set of rules and structures to be imposed on domestic systems.
GR1 (Government): And it should be made clear by this court that that is not the position.
GR1 (Government): And of course, Trabelsi was an extradition case, raising a number of issues that do not apply here.
GR1 (Government): On the facts of this case, the applicant's sentence was reviewed in 2008 by the High Court and Court of Appeal.
GR1 (Government): They considered that the whole life term was appropriate.
GR1 (Government): The applicant has produced no material whatever before this court to suggest that the penological basis for that position is no longer in place, or that his progress has been such that he should now be released applying Article III standards.
GR1 (Government): Nor has he sought to suggest that even if that were to be properly arguable, he has been prevented in some way from applying to the Secretary of State.
GR1 (Government): More generally, the court asks in its third question what the Secretary of State's present practice is in this respect.
GR1 (Government): His present practice is consistent with his legal obligations.
GR1 (Government): He must faithfully apply Section 30 using the approach indicated by the Court of Appeal and which I have described.
GR1 (Government): There are currently 56 whole life term prisoners.
GR1 (Government): Some of them, like this applicant, sentenced before the 2003 came into force, have taken the opportunity it afforded for a judicial reconsideration of their sentence.
GR1 (Government): None have been released since the Finter judgment, directly to answer the question asked by the court.
GR1 (Government): But that tells one nothing about the domestic system, given the small numbers involved.
GR1 (Government): As Mr. Finter was told in terms, applications can be
GR1 (Government): made at any time.
GR1 (Government): And the grounds on which such an application can be made are as I have described.
GR1 (Government): Turning finally then to the process of review and its timing.
GR1 (Government): The Grand Chamber in Vinter referred to the whole life prisoner being entitled to know at the outset of his sentence when a review of his sentence will take place, or may be sought.
GR1 (Government): That is in paragraph 122.
GR1 (Government): That statement sits alongside the express acknowledgment in paragraph 120, that it is not for the court to determine when that review should take place.
GR1 (Government): And that was precisely for the reason I mentioned a moment ago, namely the proper extent of convention prescription in this area of criminal justice and sentencing.
GR1 (Government): It is also to be noted in considering this aspect of Vinter, that the final sentence of paragraph 122 defined the minimum standard here.
GR1 (Government): It is breached if domestic law, and I quote, does not provide any mechanism or possibility for review of a whole life sentence.
GR1 (Government): The first submission I make is therefore that it is plain that domestic law both provides for such a mechanism or possibility, and allows the prisoner to know when a review of his sentence may be sought.
GR1 (Government): In domestic law, the process or form of review is established and clear.
GR1 (Government): It involves the Secretary of State applying, as he's required to, Article III standards, and it includes the right to apply for judicial review of the Secretary of State's decision to ensure that they have indeed been applied, and applied correctly.
GR1 (Government): In Vinter, the court made explicitly clear that applying the margin, it was not the court's task to prescribe the form, executive or judicial, which the review should take.
GR1 (Government): In any event, the courts have an entirely appropriate and proper role in judicial review under the Human Rights Act, ensuring that Article III standards are properly applied.
GR1 (Government): The timing is likewise clear and established.
GR1 (Government): The review may be sought at any time.
GR1 (Government): That is the express provision in section 30.
GR1 (Government): The effect of it is that whenever and as soon as the penological justification has ceased, or to put it another way, whenever and as soon as the Article III standard for continuing detention has dropped away, the prisoner can apply to the Secretary of State, who will then consider his case.
GR1 (Government): There is, again, to take words from paragraph 122 of Vinter, no obligation to wait and serve an indeterminate number of years before the prisoner can raise the challenge to his continuing detention.
GR1 (Government): The prisoner is not obliged to wait, either an indeterminate or a fixed period.
GR1 (Government): He can apply at any time, as the letter to Mr. Vinter made
GR1 (Government): clear.
GR1 (Government): The requirements in Vinter, whether you take paragraph 122 or paragraph 120, are therefore met.
GR1 (Government): The second submission is that it is no part of those requirements to insist that a review happens a fixed time after sentence.
GR1 (Government): So to insist would run directly contrary to the court statement at paragraph 122 of Vinter that the prisoner must know when a review will take place or may be sought.
GR1 (Government): It is plain from the word or that it is acceptable for the prisoner to know the circumstances in which he may seek a review.
GR1 (Government): The court's statement of principle also highlights that the convention does not insist upon a system of review that operates even in circumstances where the prisoner does not seek it.
GR1 (Government): In any event, the need for a set or fixed time for review of a sentence might be an interesting debate in a domestic system which had nothing else or which permitted such a review only a very large number of years after sentence.
GR1 (Government): It entirely drops away, however, where the domestic system permits an invitation to review the penological grounds at any time.
GR1 (Government): Such a system obviates the need for a fixed period, long-stop provision.
GR1 (Government): It is open to the prisoner to apply throughout his sentence.
GR1 (Government): There is no requirement to have a system enabling a review to be applied for at any time and also some fixed term system of review.
GR1 (Government): Moreover, a system permitting a review to occur at any time is more, not less, favorable to the prisoner precisely because it does not insist on any set period.
GR1 (Government): And it has the added advantage of being more nuanced and better tailored to react to individual cases because it allows for applications whenever there are proper grounds for supposing that the penological basis for detention has dropped away.
GR1 (Government): The Grand Chamber in Vinter's proper and express conclusion was that because of the margin, it was not for the court to determine when the review should take place.
GR1 (Government): It was not even prepared to say that 25 years from sentence for the first review would be the outer limit, despite materials suggesting emerging international consensus, which you've heard about.
GR1 (Government): Consistently with that position, an entitlement to review only after 30 years under the French LIFER system was found to be sufficient in Bodan against France.
GR1 (Government): It is, I submit, impossible to see how, if this is the position, a system providing expressly for a right of review at any time could be considered to be incompatible.
GR1 (Government): So, Mr. President, my overall and final submission to this
GR1 (Government): court is, therefore, that the majority of the fourth section were plainly right for the reasons they gave.
GR1 (Government): Their reasoning as to the correct approach under Vinter, as to the reasoning of the Court of Appeal, and as to the facts of this case should, I submit, be upheld by the Grand Chamber.
Dean Spielmann (JudgeP): Thank you, Attorney General. I turn now to the judges. Are there any questions?
Dean Spielmann (JudgeP): Judge Pinto de Albuquerque.
Paulo Pinto de Albuquerque (Judge): The question is put to the government but can also be dealt with by the applicant.
Paulo Pinto de Albuquerque (Judge): I looked for the position of the UK government on the Internet this morning, and the UK government has a webpage where the issue of the types of prison sentences is clarified.