TrustHLT/LaCour huggingface dataset:
AP1 (Applicant): Can it really be maintained that a person cannot reform, cannot atone, after several decades of incarceration?
AP1 (Applicant): And even if it be correct in principle that some crimes are so serious that lifelong punishment could be justified, why must such sentence be irreducible?
AP1 (Applicant): In the UK, the irreducible lifelong sentence is a very recent invention indeed.
AP1 (Applicant): The history of whole life tariffs was traced in the domestic case of Hindley.
AP1 (Applicant): The United Kingdom has only had whole life sentences since 1988.
AP1 (Applicant): And until the 2003 Criminal Justice Act, such sentences were de facto reducible because of the policy of review of such sentences after 25 years.
AP1 (Applicant): The government asserts that it is for member states, including the UK, to determine their own penal policies.
AP1 (Applicant): We agree.
AP1 (Applicant): But they must do so in compliance with their international obligations, including the convention.
AP1 (Applicant): It is no answer to those obligations simply to say that there are some offenses which are so serious as to merit irreducible lifelong incarceration.
AP1 (Applicant): Without review, the policy considers only one penological issue, punishment, to the exclusion of all others.
AP1 (Applicant): We submit that this is not a position that reflects settled or longstanding domestic penological opinion, but is a recent departure from previously recognized domestic and international policy, certainly within Europe.
AP1 (Applicant): The golden thread of such policy has been the moving away from capital and corporal punishments to rehabilitation and resocialization.
AP1 (Applicant): The longstanding approach to punishment in English law, the nature and purpose of imprisonment for the last century, was set in the oft-quoted speech of Winston Churchill, Home Secretary in 1910.
AP1 (Applicant): And I quote, a calm and dispassionate recognition of the rights of the accused against the state, and even of convicted criminals against the state, a constant heart-searching by all charged with the duty of punishment, a desire and eagerness to rehabilitate in the world of industry, all those who have paid their dues in the hard coinage of punishment, tireless efforts towards the discovery of curative and regenerating processes, and an unfaltering faith that there is a treasure, if only you can find it, in the heart of every man.
AP1 (Applicant): These are the symbols which, in the treatment of crime and criminals, mark and measure the stored-up strength of a nation, and are the signs and proof of the living virtue in it, unquote.
AP1 (Applicant): We note the position before the International Criminal Court.
AP1 (Applicant): The Rome Statute recognizes that there are offenses for which prisoners can be sentenced to life imprisonment, often for the most serious of offenses, war crimes and genocide amongst them.
AP1 (Applicant): But under the statute, these are automatically subject to review after 25 years.
AP1 (Applicant): It is difficult to understand why, in 2003, the UK ceased the same practice of 25-year review.
AP1 (Applicant): Certainly, little explanation has been forthcoming from the government.
AP1 (Applicant): In Parliament, the question arose earlier this year when an amendment to the law to reintroduce a review in such cases was proposed by Lord Lloyd, an ex-lawlord.
AP1 (Applicant): During the course of the debate, the noted jurist, Lord Panick, said, and I quote, The argument for the amendment is very simple.
AP1 (Applicant): It is simply wrong in principle for anyone, however wicked, to be told that they must spend the whole of their life in prison with no possibility of review, however long it's going to elapse, and whatever progress they make.
AP1 (Applicant): It is unlikely that a murderer who's committed such grave crimes that he has received a whole life tariff will ever make the progress that would make release appropriate.
AP1 (Applicant): But the point surely is that basic humanity demands that the offender has a chance, however remote, to prove to others and himself that he can live a worthwhile life, end quote.
AP1 (Applicant): Neither have we had much more of an explanation in the course of these proceedings as to why the 25-year review was abolished in 2003.
AP1 (Applicant): In this regard, it is of note that the second applicant was sent a letter dated the 15th of December, 1994, which the court has, which promised a review at the 10 and 25-year stage of his whole life sentence, and where appropriate, every five years thereafter, a promise which has not been kept due to the abolition of the policy.
AP1 (Applicant): Before I leave this part of the argument, I have been referring advisedly to the United Kingdom.
AP1 (Applicant): I remind the court, however, that in Scotland, since the 2001 Convention Rights Compliance Scotland Act, minimum terms which determine when the review of a life sentence will take place have to be set in every case.
AP1 (Applicant): There can be no whole life tariff in Scotland.
AP1 (Applicant): In Northern Ireland, there is provision for whole life tariffs, but subject to review at any time by the Secretary of State.
AP1 (Applicant): As already noted from Les Gers, it is undeniable that pan-European penal policy is against irreducible lifelong sentences.
AP1 (Applicant): Resolutions and recommendations of the Committee of Ministers and the European prison rules have all expressly stated that rehabilitation and resocialization should be a part of all prison sentences, and no prisoner should be left without hope, without possibility of redemption, as we've demonstrated with a detailed analysis of such documents in our written submissions.
AP1 (Applicant): As long ago as 1976, the general report of the subcommittee, which drafted Resolution 76-2 to the Committee of Ministers relating to long-term prisoners, starkly asserted it is inhuman to imprison a person for life without any hope of release.
AP1 (Applicant): Further recommendations and the European prison rules have made clear that resocialization and rehabilitation are required components of all prison sentences.
AP1 (Applicant): The CPT, too, has indicated that conditional release, and I note distinguishing such from compassionate release, is a requirement of all prison sentences.
AP1 (Applicant): Recently, the CPT, in a report relating to Switzerland that we've submitted to the court, at paragraph 118, unequivocally asserted, and I quote, the CPT considers that it is inhuman to imprison a person for life with no real hope of release.
AP1 (Applicant): The government has been quite unable to identify any pan-European policy or document, which even accepts the proposition that any prison sentence can be designed to last until death and be irreducible.
AP1 (Applicant): The very notion of an irreducible lifelong sentence is contrary to the prevailing direction of European penal policy.
AP1 (Applicant): An irreducible lifelong sentence is a sentence of permanent social exclusion, the only such sentence available since the abolition of the death penalty.
AP1 (Applicant): Whereas it is undoubtedly for national systems to determine their own penal policies and to determine their own sentencing ranges, they must do so not only within the law, but also within their international obligations, which include compliance with the convention.
AP1 (Applicant): It must be recognized that the UK is very significantly out of step in its policies towards long-term prisoners generally.
AP1 (Applicant): It currently has more indeterminate sentenced prisoners, life sentence prisoners, than all of the other Council of Europe states put together, more than 13,000 in England and Wales alone.
AP1 (Applicant): Comparative studies referred to in our written submissions, particularly by Professor Vanzil-Schmidt, note that the UK is almost alone in Europe in having irreducible lifelong sentences.
AP1 (Applicant): And a few exceptions seem to have developed systems where, by the terms, can be commuted or be subject to pardon.
AP1 (Applicant): This is not the case in the UK.
AP1 (Applicant): And this has not been suggested to be a case by the government at any stage of these proceedings or elsewhere.
AP1 (Applicant): Whereas the prevailing pan-European policy does not bind this court, it is plainly of strong persuasive effect in interpreting the living instrument that is the convention.
AP1 (Applicant): I now turn to the case law.
AP1 (Applicant): I've already noted that the dissenting opinion argued that the majority had adopted a flawed analysis of the Kafkaris case by the Court of Appeal in Biba.
AP1 (Applicant): This flawed analysis had been accepted by the House of Lords in Wellington.
AP1 (Applicant): And the words of the majority in this case were repeated in the recent extradition cases, Harkins and Baba Ahmed, as already referred to.
AP1 (Applicant): We respectfully agree with the analysis of the dissenting judges for reasons which I will develop.
AP1 (Applicant): But before I do, it is a matter of note that neither Biba nor Wellington nor the extradition cases were ultimately held to involve irreducible lifelong sentences.
AP1 (Applicant): A proper and careful analysis of Kafkaris is therefore vital to the proper resolution of these applications.
AP1 (Applicant): Firstly, it is clear that the government of Cyprus conducted Kafkaris on the basis that an irreducible lifelong sentence was indeed incompatible with Article 3.
AP1 (Applicant): Such is clear from paragraphs 86 and 89, where the government cited the proper test as, and I quote, whether an applicant had been deprived of all hope of obtaining an adjustment to his sentence, unquote.
AP1 (Applicant): The position could not be much clearer than that.
AP1 (Applicant): And nothing said in the court's assessment from 95 in any way disputed that test.
AP1 (Applicant): It is true that the court did not expressly state that an irreducible life term was incompatible with Article 3.
AP1 (Applicant): But this was because the sentence under consideration was found by the majority to be reducible.
AP1 (Applicant): It is that fact that led to the guarded language used at 98 of the judgment.
AP1 (Applicant): If there were any doubt that the court would have held an irreducible sentence incompatible, one only has to look at the next section of the judgment headed application of the above principles to the instant case.
AP1 (Applicant): The judgment continued at 100.
AP1 (Applicant): In the instant case, the court must determine whether the sentence of life imprisonment imposed on the applicant in the particular circumstances has removed any prospect of release.
AP1 (Applicant): There was no suggestion that if so, the court had then to look at any other factor.
AP1 (Applicant): The court determined at 107 that given there were some prospects for release, the indeterminate nature of the sentence was not incompatible with Article 3.
AP1 (Applicant): It is important, too, to remember that seven of the judges found a breach of Article 3 on the facts in Kafkaris.
AP1 (Applicant): And one of the majority made plain in his concurring opinion that he would have found a violation had the sentence been irreducible.
AP1 (Applicant): It does not follow that the remaining nine judges believed otherwise.
AP1 (Applicant): So returning to the domestic authorities in cases which did not ultimately involve irreducible sentences, we respectfully agree with the minority opinion.
AP1 (Applicant): In the current case, the Court of Appeal and House of Lords misinterpreted the guarded language used in Kafkaris as indicating that irreducible life terms would not necessarily violate Article 3.
AP1 (Applicant): We note what has already been said about Lord Bingham, and we'll return to that perhaps in reply.
AP1 (Applicant): But in the Privy Council case of de Boucherville versus Mauritius, he took a similar view to that of the minority in this case, that Kafkaris, decided as it was on the irreducibility point, would have determined irreducible life sentences violated Article 3 per se if it had fallen for determination.
AP1 (Applicant): Properly interpreted, Kafkaris gives no vindication to irreducible life sentences whatsoever, quite the opposite.
AP1 (Applicant): Furthermore, we note the domestic courts decided that UK whole life tariffs did not constitute irreducible terms because of Section 30, which allows for compassionate release where the prisoner has but a few weeks to live.
AP1 (Applicant): This argument was rightly rejected by six of the seven judges in the fourth section of the present applications.
AP1 (Applicant): As a matter of domestic law, release from any life sentence can only be directed by the parole board, which simply cannot happen in a whole life case because there's no review, or by Section 30.
AP1 (Applicant): Although the government have tried to reassert this argument, we respectfully say that the fourth section was correct on this issue.
AP1 (Applicant): Release only available on medical prognosis that the prisoner has weeks to live cannot make an otherwise lifelong sentence reducible in any meaningful way.
AP1 (Applicant): The suggestion that this power could be stretched to accommodate Article 3, we say, is misconceived because that would plainly be ultra varies.
AP1 (Applicant): It has not been suggested by the domestic courts or by the government in these proceedings that any other prerogative power allows for early release of UK whole life prisoners.
AP1 (Applicant): We note there has not been a single compassionate release of a whole life tariff prisoner in the history of such sentences.
AP1 (Applicant): Can I make one further point about the domestic cases?
AP1 (Applicant): The domestic cases suggest that irreducible lifelong terms do not contravene Article 3 because lifelong detention is justified for punishment and retribution alone by the seriousness of the offending in these cases, which does not recede over time.
AP1 (Applicant): If this were so, how could it be the case that Article 3 issues might arise for determination in the future?
AP1 (Applicant): That is a situation which we say belongs in a work by Franz Kafka.
AP1 (Applicant): We submit that however seriously offending, there will always be a need for a review at some point, a mechanism by which the balance of penological reasons for continued detention or release can be resolved and that retribution cannot simply override of the penological justifications evermore.
AP1 (Applicant): In conclusion, may I make the following points.
AP1 (Applicant): Firstly, we note that respect for human dignity has been recognized as fundamental to the protection of human rights in most of the basic documents.
AP1 (Applicant): The cases that we've cited link human dignity to the issue of irreducible lifelong sentences as being inherently inhuman and degrading.
AP1 (Applicant): Secondly, pan-European penal policy is unequivocally against irreducible lifelong sentences.
AP1 (Applicant): Thirdly, the majority appear to have based their decision on the misconceived analysis of Kafkaris by the domestic courts.
AP1 (Applicant): When viewed in that context, we say that the United Kingdom government position is untenable, and we urge this court to say that the time has come to state unequivocally that irreducible lifelong detention is a violation of Article 3.
Dean Spielmann (JudgeP): Thank you very much, Mr. Weatherby.
Dean Spielmann (JudgeP): I now turn to the judges and ask if there are questions. Judge Sicilianos.
Linos-Alexandre Sicilianos (Judge): I have two questions.
Linos-Alexandre Sicilianos (Judge): The first is for the government.
Linos-Alexandre Sicilianos (Judge): Mr. Perry, if I got it correctly,
Linos-Alexandre Sicilianos (Judge): you have said that, and I quote, long-life incarceration is imposed for the purposes of pure punishment, end of quote.
Linos-Alexandre Sicilianos (Judge): May I ask you whether you conceive punishment as the only purpose of a life sentence?
Linos-Alexandre Sicilianos (Judge): My second question goes to the applicants.
Linos-Alexandre Sicilianos (Judge): Mr. Weatherby, you allege that in this case,
Linos-Alexandre Sicilianos (Judge): there would be a violation of Article 3.
Linos-Alexandre Sicilianos (Judge): If I understood correctly, your written submissions, as well as your pleadings this morning, you seem to suggest that such a violation would be both procedural and substantive.
Linos-Alexandre Sicilianos (Judge): Could you please analyze a bit more the nature of the violation you invoke, taking into account the case law of the court in this respect?
Linos-Alexandre Sicilianos (Judge): Thank you, Mr. Chairman.
Paul Mahoney (Judge): I should like to put a question to the United Kingdom government.
Paul Mahoney (Judge): I should like to know whether the government have given consideration to redrafting the relevant prison service order so as to bring it into line with the explanations that the government themselves have given to the three applicants and to the court in the present proceedings in relation to the applicable law governing the exercise by the Secretary of State of his discretionary power to release under Section 30 of the 1997 Act, and in particular, in relation to the duty incumbent on the Secretary of State by virtue of the Human Rights Act 1998 to take into account considerations relating to Article III of the Convention, as well as terminal illness and physical incapacity.
Paul Mahoney (Judge): Thank you.
Dean Spielmann (JudgeP): Judge Paulo Pinto de Albuquerque, please.
Paulo Pinto de Albuquerque (Judge): I have a question for the government.
Paulo Pinto de Albuquerque (Judge): I would like to know if the government can give a single example where the Secretary of State exercised his power of release under the 1997 Act for penalogical grounds.
Paulo Pinto de Albuquerque (Judge): A single example.
Dean Spielmann (JudgeP): Judge lemmens.
Paul Lemmens (Judge): Could I simply extend that question and ask the government not only for examples where, in fact, the Secretary of State exercised his power to release prisoners serving a life sentence, but could you give examples of situations where it could be imagined that after some time, the continued detention becomes unjustified?
Paul Lemmens (Judge): So not necessarily situations that have actually occurred, but which, according to the government, might justify a release.
Dean Spielmann (JudgeP): Now we will have a break now and we will resume our hearing at 10.45.
Dean Spielmann (JudgeP): Please be seated. The hearing is resumed.
Dean Spielmann (JudgeP): Mr. Perry, please, you have the floor.
GR1 (Government): Mr. President, members of the court, may I make, first of all, six short points in response
GR1 (Government): to the submissions advanced on behalf of the applicants?
GR1 (Government): And if it pleases the court, may I then move on to address the questions that have been put to the government?
GR1 (Government): Mr. President, the six short points that we would make in response to the applicants'
GR1 (Government): arguments are these.
GR1 (Government): First of all, insofar as reliance is placed on the opinions and reasoning of Judge Bratzer in Kafkaris, we simply note that he was part of the majority in the instant cases and adopted the analysis which had been adopted by the domestic courts.
GR1 (Government): That's the first point.
GR1 (Government): The second point that the government would wish to make concerns Section 30 of the Crime Sentences Act.
GR1 (Government): And the point that we would make in relation to that at this stage is that in Bieber, Lord Phillips made it clear that Section 30 would have to be interpreted in such a way so as to permit release if continued detention amounted to inhuman or degrading treatment.
GR1 (Government): See Lord Phillips at paragraph 48.
GR1 (Government): Also, and this is perhaps of some significance given the issues before the court, the court will recall that in the second applicant's case, his sentence was reviewed by the High Court in 2008 and he appealed to the Court of Appeal.
GR1 (Government): And Lord Judge presiding over the Court of Appeal also said that if the time were to arise when his continued detention was inhuman or degrading, then the Secretary of State would be required to exercise his powers under Section 30.
GR1 (Government): And if he did not do so, he would be subject to supervision by the court.
GR1 (Government): May I just give the court the reference to remind the court, it's at paragraph 34 of the second applicant's case before the Court of Appeal.
GR1 (Government): The third point.
GR1 (Government): On behalf of the applicants, it has been submitted that the government could easily revert to the pre-2003 position.
GR1 (Government): May I just explain the government's position in relation to this.
GR1 (Government): First, the pre-2003 position was a process involving the executive.
GR1 (Government): The whole point of the reforms enacted in 2003 was to judicialize the process and ensure that the independent and impartial judiciary were responsible for setting tariffs and, in appropriate cases, setting whole life terms.
GR1 (Government): Moreover, both the second and third applicants in this case have had their cases considered by the High Court because they were transitional cases.
GR1 (Government): The second applicant in May 2008 and the third applicant in June 2008 and, of course, the first applicant was sentenced for offenses committed after the new scheme had come into effect.
GR1 (Government): We do wish to emphasize that a review would involve a radical change, given that the sentence originally imposed is imposed by a judicial officer.
GR1 (Government): Of course, if the applicant's argument is correct, it is difficult to see where it would stop.
GR1 (Government): Why is not every sentence, every determinate sentence, subject to a review to ensure that there are good penological reasons for its continuation?
GR1 (Government): Any determinate or indeterminate sentence.
GR1 (Government): So we submit that the judicialization of the process is the important point to note in relation to the review.
GR1 (Government): The fourth point is that an amendment, a proposed amendment to the legislation, has been rejected by the House of Lords in Parliament.
GR1 (Government): So the very point that is advanced by the applicant has been rejected by Parliament, at least the upper chamber in the United Kingdom.
GR1 (Government): And we submit that it would not be appropriate for it to be achieved by judicial fiat.
GR1 (Government): The fifth point, we do not accept that there is a settled consensus in sentencing policy in this area, as the court noted in Kafkaris.
GR1 (Government): We also rely on the pan-European document or pan-European Union document, the European arrest warrant, to which we've already made reference, which makes it clear that there is no mandatory prohibition on the surrender between Union states of those who've been sentenced to imprisonment for more than 20 years.
GR1 (Government): And the sixth and final point in response to the applicant's arguments, the government do not accept that its position is either irrational or emotional.
GR1 (Government): It has been supported by successive Lords Chief Justice.
GR1 (Government): It has been supported by the House of Lords in its judicial capacity.
GR1 (Government): And it has been supported most recently by the Court of Appeal, specially convened to consider this very issue.
GR1 (Government): So Mr. President, members of the court, those are the points that we make in reply.
GR1 (Government): May I then turn to answer the questions posed by the court.
GR1 (Government): And the first question is whether pure punishment is the only purpose of the whole life tariff.
GR1 (Government): May I just make this point first of all.
GR1 (Government): The Criminal Justice Act 2003 contains statutory guidance on the purposes of punishment.
GR1 (Government): And they include punishment, the reduction of crime and deterrence, public protection, reform and rehabilitation, and the making of reparations.