TrustHLT/LaCour huggingface dataset:
GR1 (Government): Whether such a situation will arise cannot be determined at the point at which the sentence is imposed.
GR1 (Government): The possibility of justified detention becoming unjustified at some unknown point in the future for some unknown reason, the government submit, is speculative.
GR1 (Government): And in the submission of the government, it is in fact unlikely to arise in any case.
GR1 (Government): Certainly, no question of unjustified detention arises on the facts of the applicant's cases.
GR1 (Government): That is not the applicant's case.
GR1 (Government): The reason for the analysis which the government supports is that the justification for the sentence is the seriousness of the offence, and the seriousness of the offence is a factor which remains constant over time and which does not diminish.
GR1 (Government): Having regard to the fact that the offending by definition will have been of exceptional gravity, calling for a whole life order, it is unrealistic to suppose that subsequent events could ever be sufficient to render continued detention unjustifiable on penological grounds.
GR1 (Government): By way of contrast, the chamber minority held that Article 3 required there to be a suitable review mechanism in place from the outset of the sentence.
GR1 (Government): The minority's reasoning was that an Article 3 issue arises not merely from keeping a prisoner detained longer than would be justified, but also in circumstances where a prisoner is deprived of any hope of release in the future.
GR1 (Government): In response to that analysis, may we make six points.
GR1 (Government): First, the approach of the minority represents only one view on the ethical, political and philosophical question of what just punishment requires in the case of those who commit the most appalling crimes.
GR1 (Government): It is not the only view, and there is no settled consensus that it is the right view.
GR1 (Government): In the United Kingdom, the domestic courts have consistently rejected it, and it does not reflect and never has reflected the will of the United Kingdom's Parliament.
GR1 (Government): Moreover, the views expressed by the minority have never prevailed in any case before this Court.
GR1 (Government): Second, the differing approaches between states in this area is also reflected in the law of the European Union.
GR1 (Government): Article 5.2 of the Council Framework Decision
GR1 (Government): on the European Arrest Warrant provides that the execution of a European Arrest Warrant in respect of an offence punishable by lifetime detention may be subject to the condition that the issuing member state has provisions in its legal system for a review of the sentence at the latest after 20 years or for the application of measures of clemency aimed at non-execution of the sentence.
GR1 (Government): The fact that the condition is optional rather than mandatory not only acknowledges that there is no consensus among member states of the European Union in respect of life sentences, but also implies that lifetime detention orders without review do not of themselves amount to inhuman or degrading treatment or punishment.
GR1 (Government): If it were otherwise, the surrender of an accused or convicted person from one member state of the Union to another would not be possible in cases where a sentence of 20 years' imprisonment had been imposed or where such a sentence was likely.
GR1 (Government): The third point, as the chamber majority held, in any case of murder where the seriousness of the offending is very high, the offender will inevitably serve and expect to serve a very long prison sentence.
GR1 (Government): In the United Kingdom, minimum terms in such cases are often in excess of 30 years.
GR1 (Government): In the case of Oakes recently considered by the Court of Appeal, one of the appellants was sentenced to life imprisonment and a minimum term of 40 years was imposed.
GR1 (Government): This is a very severe penalty, but no question of a review could realistically arise before the offender has served the period imposed for the purposes of pure punishment.
GR1 (Government): The fourth point.
GR1 (Government): It may be asked in the context of an offender who has committed a murder of a most terrible kind, of what practical value is the review mechanism contemplated by the chamber minority?
GR1 (Government): As we have already submitted, the seriousness of the offending is a factor which remains constant.
GR1 (Government): The government submit it's unfeasible to proceed on the basis that circumstances may arise which could displace a determination reached by an independent and impartial judicial officer that a crime is so serious that just punishment requires lifelong incarceration.
GR1 (Government): The fifth point.
GR1 (Government): The chamber minority acknowledge that in these circumstances, any hope of release offered by a review mechanism would be tenuous.
GR1 (Government): The government submit that compliance with Article 3 does not and should not depend on the provision of a tenuous, unrealistic or false hope of release.
GR1 (Government): The true position in the government submission is that compliance with Article 3 does not require the creation of false expectations and in a case of truly exceptional gravity, a whole life sentence may be justified.
GR1 (Government): It follows from this that neither the imposition nor the serving of a whole life sentence is inhuman or degrading.
GR1 (Government): The sixth point.
GR1 (Government): The approach of the chamber majority is identical to the approach which has been taken by the court in the extradition context and in particular in the context of extradition to states outside the Council of Europe.
GR1 (Government): See for example the decision of this court in Barbar-Armand where the applicants face extradition to the United States on charges which carried sentences of life imprisonment without parole.
GR1 (Government): On this basis, to adopt the minority's approach in the present case would have two results.
GR1 (Government): First, it would undermine the approach which the court has thus far taken in respect of whole life sentences in the extradition context.
GR1 (Government): The government submit that such a result would be inconsistent with the principle that the court has repeatedly stated and which it sought to underline in the Barbar-Armand judgment, namely that the convention does not purport to be a means of imposing convention standards on other states and in particular in respect of states which have a long history of respect for democracy, human rights and the rule of law.
GR1 (Government): The second result is that it would create an inconsistency of approach to such sentences as between domestic cases and extradition cases.
GR1 (Government): The result of such an inconsistency would result in the curious position that a person facing a whole life term could not be extradited between Council of Europe states but could in the same circumstances be extradited from a member state to, say, for example, the United States.
GR1 (Government): May I turn finally to the issue of reducibility?
GR1 (Government): And on making our submissions on this issue, we first make the point that the conclusion reached by the chamber majority, which the government support, is that subject to gross disproportionality, no Article III issue arises at the time the sentence is imposed.
GR1 (Government): And so the compatibility of the sentence with that article is not dependent on whether it is reducible.
GR1 (Government): The chamber concluded that the question of de facto reducibility did not arise for examination in the present case for two reasons.
GR1 (Government): First, the applicants had not sought to argue that the whole life orders were grossly disproportionate on the facts of their cases.
GR1 (Government): And given the gravity of the murders, the chamber did not find that they were.
GR1 (Government): And secondly, the court considered that none of the applicants had demonstrated that their continued incarceration serves no legitimate penological purpose.
GR1 (Government): For the sake of completeness, may the government clarify three points on the question of reducibility.
GR1 (Government): First, the government note that without deciding the issue, the chamber doubted whether the release provisions in Section 30 of the Crime Sentences Act 1997 were sufficient to render a whole life sentence reducible.
GR1 (Government): By way of clarification, the government submit that the possibility of executive intervention in the operation of a judicially imposed sentence is necessarily and properly to be limited.
GR1 (Government): However, in Bieber, the Court of Appeals stated that the Section 30 power must be exercised compatibly with Article 3, and this is mandated by the terms of the Human Rights Act 1998.
GR1 (Government): It follows on this analysis that if a life sentence prisoner's detention is no longer justified on any penological grounds, there is a power of release.
GR1 (Government): Secondly, the government wished to make clear that there are two reasons why the sentencing scheme under the 2003 Act does not contain a review provision in relation to life sentences.
GR1 (Government): First, the scheme provides that the setting of the appropriate term is entirely judicial and removes the part played by the Secretary of State.
GR1 (Government): And second, the scheme ensures that all matters relevant to sentence are considered at the outset by the sentencing judge.
GR1 (Government): Third, the third matter by way of clarification, the prerogative of mercy.
GR1 (Government): In England and Wales, the prerogative of mercy still exists and may be exercised in a variety of circumstances.
GR1 (Government): In the context of review and release from a life sentence on Article 3 grounds, the government submit the existence of the prerogative could add nothing to Section 30 of the Crime Sentences Act 1997, which as we have made clear, provides for release should the need arise on Article 3 grounds.
GR1 (Government): In conclusion, based on the court's consistent and settled case law, the government submit that it is open to member states to make statutory provision for the discretionary imposition of a whole life order and in appropriate cases for the sentencing court to make such an order.
GR1 (Government): For these reasons and the reasons contained in the government's written observations, we invite the court to conclude that the decision of the chamber is correct and that there has been no violation of the convention in the applicants' cases.
GR1 (Government): Mr. President, those are the submissions
GR1 (Government): on behalf of the United Kingdom government.
Dean Spielmann (JudgeP): Thank you Mr. Perry.
Dean Spielmann (JudgeP): I call now Mr. Weatherby.
AP1 (Applicant): Mr. President, members of the court, good morning.
AP1 (Applicant): The issue raised in these applications can be simply stated.
AP1 (Applicant): Can a state party detain a serious offender for the rest of their life without any hope of release?
AP1 (Applicant): Or is such a sentence necessarily a breach of Article 3 because the imposition of irreducible lifelong imprisonment removes all hope and thereby denies the human dignity of the prisoner?
AP1 (Applicant): Is the warehousing of a human being forever until their dying breath inhuman and degrading of itself?
AP1 (Applicant): This court has considered this problem on at least two previous occasions prior to this application, in Kafkaris and in Leger.
AP1 (Applicant): But in neither was it able to reach a definitive resolution for quite incidental reasons.
AP1 (Applicant): In both, judges in side opinions have powerfully called for the court to declare such sentences inhuman and degrading from their imposition.
AP1 (Applicant): Judge Bratzer in Kafkaris, in a concurring opinion which asserted that the time had come to declare irreducible lifelong imprisonment a violation of Article 3, and Judge Spielman and three others in Leger, who asserted the same, referring to the consensus at European level as to the need to work toward resettlement of even the longest serving prisoners.
AP1 (Applicant): In the current case, we adopt the argument of the dissenting opinion of the chamber, which suggested that the majority had based their conclusion primarily upon a misconceived interpretation of Kafkaris by the domestic courts.
AP1 (Applicant): We submit that the decision of the majority by the slimmest of margins legitimizes a form of sentence which permanently excludes the individual from society, contrary to the historical position in the United Kingdom, contrary to the current position in Scotland and Northern Ireland, contrary to the settled European penal policy.
AP1 (Applicant): And it allows for an extreme sentence, which can achieve no penological purpose, which was not already achieved by existing measures which allowed for review after 25 years.
AP1 (Applicant): Although the applicants in the current case were unsuccessful in their attempt to persuade the fourth section that an irreducible whole life prison sentence was a breach of Article 3 ab initio, the judgment was hardly a vindication of irreducible lifelong sentences, or indeed, the UK government's position.
AP1 (Applicant): Firstly, the fourth section rightly rejected the government's argument that UK whole life sentences are not irreducible de jure and de facto because of section 30 of the 1997 crime sentences act, the provision which allows for compassionate release, but only where the prisoner is within weeks of death due to terminal illness.
AP1 (Applicant): Secondly, the chamber implicitly accepted that there could be cases where the penological justification for continued detention might become outweighed by the arguments for release.
AP1 (Applicant): And such a sentence might thereby result in violation of Article 3.
AP1 (Applicant): In essence, it was accepting that the execution of irreducible lifelong sentences, if not their imposition, may result in a violation of Article 3, but rejected the application on the basis that no violation had yet arisen.
AP1 (Applicant): The twofold problem with that approach, as identified by the opinion of the three dissenting judges, is that it fails to address the substantive issue that results from the imposition of such sentences and the procedural issue that arises where a sentence may become in violation of Article 3.
AP1 (Applicant): There must be some sort of review.
AP1 (Applicant): There must be some sort of mechanism in place whereby such violation may be recognized and remedied when it arises.
AP1 (Applicant): Most fundamentally, therefore, the judgment of the fourth section failed to address or resolve the central question, one which would provide much-needed guidance for all convention states.
AP1 (Applicant): Does irreducible lifelong imprisonment violate Article 3, both because it fails to respect human dignity ab initio and because the lack of any review mechanism makes it impossible to recognize and remedy a violation when the balance of penological justifications may change and require release?
AP1 (Applicant): Before I develop the argument, I make clear that we do not say that these applicants should necessarily ever be released, just that they should not have all prospects of future release taken away at the outset of their sentence.
AP1 (Applicant): The serious nature of the conviction of fences is obvious.
AP1 (Applicant): But to suggest that the seriousness of the offending negates all penological considerations except punishment and retribution is an emotional and not a rational response.
AP1 (Applicant): If the court finds that irreducible lifelong terms are incompatible with Article 3 per se, it would, of course, be for the United Kingdom to determine how to amend its statutory framework to comply.
AP1 (Applicant): But as an illustration of how simple the resolution of this issue really would be, the UK could amend the law to revert to the position pre-2003 and reintroduce 25-year reviews or require minimum terms or tariffs in every case.
AP1 (Applicant): A review of a whole life tariff would necessarily involve a reconsideration of all the penological justifications of the sentence.
AP1 (Applicant): This would involve reweighing the original requirements for retribution against the extent to which the offender has been rehabilitated and the extent to which his or her risk is diminished.
AP1 (Applicant): There can be no doubt that after the lapse of many years, the relative weight of these justifications may change.
AP1 (Applicant): Basic respect for human dignity requires some such re-evaluation to give a prisoner a prospect of release and the hope of life in a free society, however remote that prospect might be in fact.
AP1 (Applicant): I move now to consider a summary of the position of the applicants.
AP1 (Applicant): The fourth section drew a distinction between life terms with a fixed minimum term and discretionary life terms and mandatory life terms without prospect of release.
AP1 (Applicant): We submit a life term is not of itself a violation of any aspects of the convention if it is subject to periodic review.
AP1 (Applicant): We do not contend that those serving life terms must necessarily ever be released because the penological justifications for their continuing detention may remain and may outweigh other considerations until death.
AP1 (Applicant): A clear example of this is where a prisoner on periodic review on assessment is adjudged to remain too dangerous to be released into the general community.
AP1 (Applicant): The key point is whether the sentence is reducible, not whether it is in fact reduced.
AP1 (Applicant): The distinction between discretionary and mandatory lifelong irreducible terms appears to have first arisen in the domestic case of Bieber.
AP1 (Applicant): We say in fact it is something of a distraction.
AP1 (Applicant): Certainly the mandatory imposition of a whole life sentence is more likely to be disproportionate to the offending than one which is imposed after judicial deliberation.
AP1 (Applicant): But both result in an irreducible lifelong sentence.
AP1 (Applicant): It is that fact which is relevant to the issue in this case.
AP1 (Applicant): There is an essential difference between an irreducible life sentence and an ordinary life sentence where the prisoner in fact remains in detention after review.
AP1 (Applicant): In the former, the state declares the prisoner socially ineligible evermore.
AP1 (Applicant): In the latter, it is the personal characteristics of the prisoner and perhaps his inclination which require his or her indefinite but not permanent exclusion from society.
AP1 (Applicant): It is this difference that is at the heart of these applications.
AP1 (Applicant): The applicants argue that in the sentencing context, a violation of Article 3 arises in at least three circumstances.
AP1 (Applicant): Firstly, where the length of the sentence is grossly disproportionate to the offending.
AP1 (Applicant): Secondly, where the effect of its imposition is to destroy human dignity.
AP1 (Applicant): And thirdly, where the lack of any procedural mechanism to identify a breach, if it occurs, may lead to violation without remedy.
AP1 (Applicant): In the first case, a sentence, fixed term or indeterminate, may be manifestly disproportionate to the offending.
AP1 (Applicant): For example, a 30-year sentence for stealing a loaf of bread.
AP1 (Applicant): We do not put the applicants in this category.
AP1 (Applicant): We have acknowledged that the imposition of a life sentence does not ordinarily violate Article 3, even if de facto it lasts until death.
AP1 (Applicant): For example, where the offender remains a danger to society.
AP1 (Applicant): The problem identified in these applications arises not because the applicants have life sentences, not even that they have lifelong sentences, but because they have no prospect of release.
AP1 (Applicant): It is this which raises the second issue, the imposition of whole life sentence is precious human dignity from the outset, ab initio, as it removes any chance and therefore any hope of release in the future.
AP1 (Applicant): The individual is left in a position of hopelessness, whereby he cannot progress whatever occurs.
AP1 (Applicant): In excluding the prisoner from society on a permanent basis, it renders a human life devoid of meaning and hope.
AP1 (Applicant): And the sentence thereby becomes inhuman and degrading.
AP1 (Applicant): Indeed, it becomes pointless for society as well.
AP1 (Applicant): In respect of this point, we note and refer to the unchallenged evidence of psychologists relating to the first and second applicants, which the court has.
AP1 (Applicant): We cannot better the words of the minority dissenting opinion in the current case, and I quote, the Article 3 problem does not consist merely in keeping the prisoner in detention longer than would be justified, as suggested in the domestic judgments that we have cited.
AP1 (Applicant): Kafka shows that it consists, equally importantly, of depriving him of any hope for the future, however tenuous that hope may be, unquote.
AP1 (Applicant): Furthermore, the imposition of such a sentence of hopelessness removes any incentive or reason for the prisoner to conform, to behave, to address his or her criminal behavior.
AP1 (Applicant): It also removes any reason for the state to provide treatment or courses by which the prisoner can progress.
AP1 (Applicant): Such prisoners will inevitably spend decades in the highest security conditions.
AP1 (Applicant): They will be a danger to other inmates and prison staff, and will form a cohort of outcasts within the system, corroding its rehabilitative purpose.
AP1 (Applicant): The third category where Article 3 may arise is in the execution of the sentence, where continuing detention until death may become disproportionate to the penological justifications for its imposition, because of countervailing justifications for release.
AP1 (Applicant): This is the category implicitly recognized by the judgment of the fourth section of paragraph 92.
AP1 (Applicant): Without any mechanism for review, a violation will result in at least some cases at some indeterminate point.
AP1 (Applicant): Without any domestic procedure for review, how could such a violation ever be assessed or remedied?
AP1 (Applicant): We have noted that the second category, the effect of imposition of such sentences, is substantive.
AP1 (Applicant): The third is procedural.
AP1 (Applicant): Both in our submission result in violation of Article 3 at the present time.
AP1 (Applicant): I now turn to the purpose or utility of whole life terms.
AP1 (Applicant): What penological justification there is for a sentence of permanent exclusion from society?
AP1 (Applicant): The four key justifications for sentences of imprisonment are often said to be punishment, deterrence, public protection, and rehabilitation.
AP1 (Applicant): In essence, the only one of those that applies here, the real penological justification for whole life imprisonment, is punishment.
AP1 (Applicant): Deterrence and public protection are dealt with by the imposition of the life sentence itself, perhaps with a long minimum term.
AP1 (Applicant): The lack of a review is unlikely to touch on either.
AP1 (Applicant): Rehabilitation clearly does not arise.
AP1 (Applicant): Punishment, retribution, therefore, appears to be the only applicable justification.
AP1 (Applicant): The government argues that there are some types of offending that are so serious, so extreme, that it is entitled to determine that lifelong imprisonment should have followed for punishment and retribution alone.
AP1 (Applicant): On an arithmetic level, there may be some logic to that approach.
AP1 (Applicant): The taking of one life should incur a tariff of, say, 15 years.
AP1 (Applicant): Might not a multiple killer justify a whole life sentence?
AP1 (Applicant): But the answer to that must be that sentencing cannot be merely reduced to mathematics and must take account of other penological reasons which may justify release in the future.