GRAND CHAMBER
 
 
 
 
 
 
 
 
CASE OF VINTER AND OTHERS v. THE UNITED KINGDOM
 
(Applications nos. 66069/09, 130/10 and 3896/10)
 
 
 
 
 
 
 
JUDGMENT
 
 
 
STRASBOURG
 
 
9 July 2013
 
 
This judgment is final but may be subject to editorial revision. In the case of Vinter and Others v. the United Kingdom,
The European Court of Human Rights, sitting as a Grand Chamber composed of:
 Dean Spielmann, President,
 Josep Casadevall,
 Guido Raimondi,
 Ineta Ziemele,
 Mark Villiger,
 Isabelle Berro-Lefèvre,
 Dragoljub Popović,
 Luis López Guerra,
 Mirjana Lazarova Trajkovska,
 Nona Tsotsoria,
 Ann Power-Forde,
 Işıl Karakaş,
 Nebojša Vučinić,
 Linos-Alexandre Sicilianos,
 Paul Lemmens,
 Paul Mahoney,
 Johannes Silvis, judges,
and Michael O’Boyle, Deputy Registrar,
Having deliberated in private on 28 November 2012 and on 29 May 2013,
Delivers the following judgment, which was adopted on the last‑mentioned date:
PROCEDURE
1. The case originated in three applications (nos. 66069/09, 130/10 and 3896/10) against the United Kingdom of Great Britain and Northern Ireland lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by three British nationals, Mr Douglas Gary Vinter (“the first applicant”), Mr Jeremy Neville Bamber (“the second applicant”) and Mr Peter Howard Moore (“the third applicant”), on 11 December 2009, 17 December 2009 and 6 January 2010 respectively. 2. The first applicant was born in 1969 and is currently detained at Her Majesty’s Prison Frankland. He is represented before the Court by Mr S. Creighton, a lawyer practising in London with Bhatt Murphy Solicitors, assisted by Mr P. Weatherby QC, counsel, and Professor D. van Zyl Smit. 3. The second applicant was born in 1961 and is currently detained at HMP Full Sutton. He is represented before the Court by Mr B. Woods, a lawyer practising in Leeds with Cousins Tyrer Solicitors, assisted by Mr R. Horwell QC and Mr L. Hindmarsh, counsel. 4. The third applicant was born in 1946 and is currently detained at HMP Wakefield. He is represented before the Court by Chivers Solicitors, Bingley, assisted by Mr M. McKone, counsel. 5. The United Kingdom Government (“the Government”) were represented by their Agent, Ms L. Dauban of the Foreign and Commonwealth Office. 6. The applicants alleged that the whole life orders which had been imposed on them amounted to ill-treatment contrary to Article 3 of the Convention. 7. The applications were allocated to the Fourth Section of the Court (Rule 52 § 1 of the Rules of Court). In its judgment of 17 January 2012, a Chamber of that Section composed of Judges Garlicki, David Thór Björgvinsson, Bratza, Hirvelä, Nicolaou, Bianku, De Gaetano and also of T.L. Early, Section Registrar, decided unanimously to join the applications, to declare the applicants’ complaints concerning Article 3 admissible and the remainder of the applicants’ complaints inadmissible. The Chamber also held, by four votes to three, that there had been no violation of Article 3 in respect of each applicant. A concurring opinion of Judge De Gaetano and a joint partly dissenting opinion of Judges Garlicki, David Thór Björgvinsson and Nicolaou were appended to the judgment. 8. On 9 July 2012, pursuant to a request by the applicants dated 12 April 2012, the Panel of the Grand Chamber decided to refer the case to the Grand Chamber in accordance with Article 43 of the Convention. 9. The composition of the Grand Chamber was determined according to the provisions of Article 26 §§ 4 and 5 of the Convention and Rule 24 of the Rules of Court. At the final deliberations, Işıl Karakaş, substitute judge, replaced András Sajó who was unable to take part in the further consideration of the case (Rule 24 § 3 of the Rules of Court). 10. The applicants and the Government each filed further written observations (Rule 59 § 1 of the Rules of Court) on the merits. 11. A hearing took place in public in the Human Rights Building, Strasbourg, on 28 November 2012 (Rule 59 § 3 of the Rules of Court). There appeared before the Court:
(a)  for the Government
Ms L. Dauban, Agent,
Mr D. Perry QC,
Mr L. Mably, Counsel,
Mr J. Guess,
Ms. A. Foulds, Advisers;
 
(b)  for the applicants
Mr R. Horwell QC,
Mr P. Weatherby QC, 
Mr L. Hindmarsh, Counsel,
Mr S. Creighton,
Mr B. Woods,
Prof  D. Van Zyl Smit, Advisers. The Court heard addresses by Mr Perry and Mr Weatherby and their answers in reply to questions put by the Court. THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
A. Introduction
12. Since the abolition of the death penalty in England and Wales, the sentence for murder has been a mandatory sentence of life imprisonment. Currently, when such a sentence is imposed, the trial judge is required to set a minimum term of imprisonment, which must be served for the purposes of punishment and retribution, taking into account the seriousness of the offence. The principles which guide the trial judge’s assessment of the appropriate minimum term are set out in schedule 21 to the Criminal Justice Act 2003 (see paragraphs 38–39 below). Once the minimum term has been served, the prisoner may apply to the Parole Board for release on licence. Exceptionally, however, “a whole life order” may be imposed by the trial judge instead of a minimum term if, applying the principles set out in schedule 21, he or she considers that the seriousness of the offence is exceptionally high. The effect of a whole life order is that the prisoner cannot be released other than at the discretion of the Secretary of State. The power of the Secretary of State to release a prisoner is provided for in section 30(1) of the Crime (Sentences) Act 1997. The Secretary of State will only exercise his discretion on compassionate grounds when the prisoner is terminally ill or seriously incapacitated (see Prison Service Order 4700 set out at paragraph 43 below). 13. Prior to the entry into force of the 2003 Act, it was the practice for the mandatory life sentence to be passed by the trial judge and for the Secretary of State, after receiving recommendations from the trial judge and the Lord Chief Justice, to decide the minimum term of imprisonment which the prisoner would have to serve before he would be eligible for early release on licence. At the time, the minimum term was also referred to as the “tariff” part of the sentence. It was also open to the Secretary of State to impose a “whole life tariff” on a prisoner. In such a case, it was the practice of the Secretary of State to review a whole life tariff after twenty-five years’ imprisonment to determine whether it was still justified, particularly with reference to cases where the prisoner had made exceptional progress in prison (see the case of Hindley at paragraph 46 below). With the entry into force of the 2003 Act (and, in particular, section 276 and schedule 22 to the Act, which enact a series of transitional measures concerning existing life prisoners: see paragraphs 40 and 41 below), all prisoners whose tariffs were set by the Secretary of State have been able to apply to the High Court for review of that tariff. Upon such an application the High Court may set a minimum term of imprisonment or make a whole life order. 14. This case concerns three applicants who, having been convicted of murder in separate criminal proceedings in England and Wales, are currently serving mandatory sentences of life imprisonment. All three applicants have been given whole life orders: in the first applicant’s case this order was made by the trial judge under the current sentencing provisions; in the case of the second and third applicants, who were convicted and sentenced prior to the entry into force of the 2003 Act, the orders were made by the High Court. All three applicants maintain that these whole life orders, as they apply to their cases, are incompatible inter alia with Articles 3 and 5 § 4 of the Convention. The facts of the applications, as submitted by the parties, may be summarised as follows. B. Mr Vinter
15. On 20 May 1996, the first applicant was sentenced to life imprisonment for the murder of a work colleague, with a minimum term of ten years. He was released on licence on 4 August 2005. 16. He began living with a woman who was to become the victim of his second murder offence. The couple married on 27 June 2006. On 31 December 2006 the first applicant was involved in a fight in a public house and charged with affray (using or threatening unlawful violence). His licence was revoked and he was recalled to prison. In July 2007, having pleaded guilty to the charge of affray, he was sentenced to 6 months’ imprisonment. He was released on licence again in December 2007 and returned to live with his wife and her four children. The couple became estranged and the first applicant left the marital home. 17. On 5 February 2008, the first applicant followed his wife to a public house. He had been drinking and had taken cocaine. The couple argued and the wife’s daughter, who was present, telephoned the police to alert them to the dispute. The first applicant ordered his wife to get into a car. When the daughter tried to get into the car to protect her mother, the first applicant forcibly removed her. He then drove off with his wife. When the police telephoned her to ascertain if she was safe, the first applicant forced his wife to tell them that she was fine. The first applicant also telephoned the police to tell them that his wife was safe and well. Some hours later he gave himself up to the police, telling them that he had killed her. A post-mortem examination revealed that the deceased had a broken nose, deep and extensive bruising to her neck (which was consistent with attempted strangulation), and four stab wounds to the chest. Two knives were found at the scene, one of which had a broken blade. 18. On 21 April 2008, the first applicant pleaded guilty to murder and instructed his counsel not to make any submissions in mitigation lest it add to the grief of the victim’s family. The trial judge considered that the first applicant fell into that small category of people who should be deprived permanently of their liberty. He passed the mandatory life sentence and made a whole life order. 19. The Court of Appeal dismissed his appeal on 25 June 2009. It considered the general principles for determining the minimum term of a mandatory life sentence (as set out in schedule 21 to the 2003 Act: see paragraphs 38 and 39 below). It found that, given the circumstances of the offence, there was no reason whatever to depart from the normal principle enshrined in schedule 21 to the 2003 Act that, where murder was committed by someone who was already a convicted murderer, a whole life order was appropriate for punishment and deterrence. C. Mr Bamber
20. On 7 August 1985, the second applicant’s parents, his adoptive sister and her two young children were shot and killed. The second applicant was subsequently charged and, on 28 October 1986, convicted of the murders. The prosecution’s case was that the murders were premeditated and planned and had been committed for financial gain. It was also alleged that the second applicant had arranged the crime scene so as to mislead the police by making it appear as if his adoptive sister had killed the family and then herself. 21. The trial judge recommended to the Secretary of State that the second applicant serve twenty-five years’ imprisonment “as a minimum” (his underlining). On the trial judge’s letter to the Secretary of State, the Lord Chief Justice added the comment “for my part I would never release him”. In 1988, the Secretary of State imposed a whole life tariff. The practice at the time was not to inform the prisoner of this decision. By letter dated 15 December 1994, the applicant was informed that the Secretary of State had concluded that the requirements of retribution and deterrence could only be satisfied by the second applicant remaining in prison for the whole of his life. 22. In 2008, following the entry into force of section 276 and schedule 22 to the 2003 Act, the second applicant applied to the High Court for review of the whole life tariff. Having regard to schedule 21 to the Act, the High Court concluded that, given the number of murders involved and the presence of premeditation by the second applicant, the offence plainly fell within that category of cases where the appropriate starting point was a whole life order. Having further regard to statements submitted by the victims’ next-of-kin and submissions by the second applicant, including reports as to the behaviour and progress he had made in prison, the High Court found that there was no reason to depart from the views of the Lord Chief Justice and the Secretary of State. It therefore imposed a whole life order. 23. The second applicant appealed to the Court of Appeal, which dismissed the appeal on 14 May 2009. The court found that, when the Secretary of State had set a whole life tariff in 1988, he had been provided with two different judicial recommendations: one from the trial judge recommending a minimum term of twenty-five years and one from the Lord Chief Justice recommending that the second applicant should never be released. The Secretary of State had been entitled to choose between those recommendations or to adopt neither of them. The Court of Appeal also found that the whole life order imposed by the High Court was not only correct but, for the purposes of punishment and retribution, fully justified. 24. Relying on its previous judgment in R v. Bieber (see paragraph 47 below), it found that no issue arose under Article 3 of the Convention as the whole life order was not an irreducible life sentence as that term had been used in Kafkaris v. Cyprus ([GC], no. 21906/04, ECHR 2008‑...). Finally, it found that the review procedure created by the 2003 Act was compatible with Article 7 of the Convention as, properly construed, the relevant statutory provisions meant a prisoner could not be disadvantaged by the outcome of the review: the term to be served could be reduced, or maintained, but it could not be increased or extended. 25. The second applicant applied to the Court of Appeal to certify that its judgment concerned a point of law of general public importance which ought to be considered by the House of Lords. That application was refused on 23 June 2009. D. Mr Moore
26. On 29 November 1996 the third applicant was convicted after trial in the Crown Court at Chester of four counts of murder. The victims were homosexual men and the applicant, himself a homosexual, was alleged to have committed the murders for his own sexual gratification. Each victim was stabbed many times with a large combat knife which the third applicant had bought for that purpose. The first victim was attacked in his home on 23 September 1995. Soon after, on the weekend of 7 October 1995, the third applicant met his second victim in a bar and arranged to take him home for sex; he instead took him to a forest, stabbed him to death and left the body there. The third victim was stabbed in the caravan where he lived on 30 November 1995. Finally, shortly before Christmas 1995, the third applicant went to a beach which was well-known for homosexual trysts. He met the fourth victim on the beach and stabbed him there. 27. Blood from the first and third victims was found on the third applicant’s jacket and on the knife. Property from the first, second and fourth victims was found in his possession. He made extensive admissions about all four murders to the police. The police had been unaware of the second victim until the third applicant mentioned him to them. The body was recovered from the forest with his assistance. At trial, the applicant’s defence was that the murders had been committed by someone else, though he admitted to having been present at all the murders save for that of the second victim. 28. After the third applicant was convicted, the trial judge passed the mandatory sentence of life imprisonment and recommended to the Secretary of State for the Home Department that, in his view, the applicant should never be released. Upon review, the Lord Chief Justice reported that he thought the minimum period before eligibility for release should be set at thirty years. On 27 September 2002, the Secretary of State decided to set a whole life tariff. 29. In 2008, pursuant to section 276 and schedule 22 to the Criminal Justice Act 2003, the third applicant applied to the High Court for review of the whole life tariff set by the Secretary of State. In its judgment of 12 June 2008 the High Court rejected the third applicant’s submission that it should accept the Lord Chief Justice’s recommendation of a minimum term of thirty years. It found that, while weight should be accorded to that recommendation, the Lord Chief Justice did not have regard to the principles set out in schedule 21 as the High Court was required to do. It also rejected the submission that an issue arose under Article 6 of the Convention, given that a whole life tariff had been set by the Secretary of State. The High Court found that the procedure for applying to the High Court under section 276 and schedule 22 of the Act provided the necessary independent review as to whether a prisoner should be released. The court also found that a whole life order was compatible with Articles 3 and 5 of the Convention. Having regard to the general principles for determining the minimum term of a mandatory life sentence (as set out in schedule 21 to the Act), no issue of arbitrariness arose and whether such a sentence was disproportionate depended on the facts of each case. 30. The High Court found that, since the case involved the murder of two or more persons, sexual or sadistic conduct and a substantial degree of premeditation, under schedule 21 the starting point was a whole life order. There were no mitigating features and even the Lord Chief Justice, although recommending a minimum term of thirty years, had shared the trial judge’s view that it might never be safe to release the third applicant. There were no reasons, therefore, to mitigate the starting point of a whole life order. The High Court added that, even if the starting point were a minimum term of thirty years, the aggravating features of the murders were such as to make a whole life order appropriate. 31. On 26 February 2009, the Court of Appeal dismissed the third applicant’s appeal, finding that the High Court was not only entitled, but clearly right, to conclude that a whole life order was appropriate. 32. It appears that the third applicant, in order to allow him to appeal to the House of Lords, then applied to the Court of Appeal to certify that its judgment concerned a point of law of general public importance which ought to be considered by the House of Lords. On 14 August 2009, he was informed by the Court of Appeal’s Criminal Appeal Office that, because the Court of Appeal had refused his application for permission to appeal against sentence (as opposed to granting permission to appeal against sentence and then dismissing the appeal), an application to certify a point of law for the House of Lords could not be made. II. RELEVANT DOMESTIC LAW AND PRACTICE
A. The Human Rights Act 1998
33. Section 3(1) of the Human Rights Act 1998 (“the Human Rights Act”) provides as follows:
“So far as it is possible to do so, primary legislation and subordinate legislation must be read and given effect in a way which is compatible with the Convention rights.”
Section 6(1) of the Act provides that it is unlawful for a public authority to act in a way which is incompatible with a Convention right. Section 7(1) provides that a person who claims that a public authority has acted in a way made unlawful by section 6(1) may bring proceedings against the authority. B. Statutory provisions on mandatory life sentences
1. The Murder (Abolition of the Death Penalty) Act 1965
34. In England and Wales, the mandatory life sentence for murder is contained in section 1(1) of the Murder (Abolition of the Death Penalty) Act 1965. 2. The Criminal Justice Act 2003
(a)  Part 12, Chapter 7
35. The power of the Secretary of State to set tariff periods for mandatory life sentence prisoners, as contained in section 29 of the Crime (Sentences) Act 1997, was found by the House of Lords to be incompatible with Article 6 of the Convention in R (Anderson) v. the Secretary of State for the Home Department [2003] 1 AC 837. This led to the enactment of Part 12, Chapter 7 (“Effects of life sentences”) of the Criminal Justice Act 2003 (sections 269 to 277) and schedules 21 and 22 to that Act. 36. Section 269 of the 2003 Act directs a trial judge, in passing a mandatory life sentence, to determine the minimum term which the prisoner must serve before he or she is eligible for early release on licence. By section 269(3), this minimum term must take into account the seriousness of the offence. Section 269(4) allows the trial judge to decide that, because of the seriousness of the offence, the prisoner should not be eligible for early release (in effect, to make a “whole life order”). Section 269(4) only applies to an offender who is 21 years of age or over when he committed the offence. Section 269(5) directs the trial judge, in considering the seriousness of the offence, to have regard inter alia to the principles set out in schedule 21 to the Act. 37. Section 276 gives effect to schedule 22 (on transitional cases): see paragraph 40 below. (b)  Schedule 21
38. Schedule 21 (“Determination of minimum term in relation to mandatory life sentence”) provides for three different “starting points” which may be increased or decreased depending on the presence of aggravating or mitigating features in the offence: a whole life order, a minimum term of thirty years’ imprisonment and a minimum term of fifteen years’ imprisonment. 39. By paragraph 4(1) of the schedule, if the seriousness of the offence is “exceptionally high” the appropriate starting point is a whole life order. Paragraph 4(2) provides that the following cases would normally fall within this category:
“(a)  the murder of two or more persons, where each murder involves any of the following—
(i)  a substantial degree of premeditation or planning,
(ii)  the abduction of the victim, or
(iii)  sexual or sadistic conduct,
(b)  the murder of a child if involving the abduction of the child or sexual or sadistic motivation,
(c)  a murder done for the purpose of advancing a political, religious or ideological cause, or
(d)  a murder by an offender previously convicted of murder.”
By paragraph 5(1), if the seriousness of the offence does not fall within paragraph 4(1) but is “particularly high”, the appropriate starting point in determining the minimum term is thirty years’ imprisonment. Paragraph 5(2) provides that the following cases would normally fall within this category:
“(a)  the murder of a police officer or prison officer in the course of his duty,
(b)  a murder involving the use of a firearm or explosive,
(c)  a murder done for gain (such as a murder done in the course or furtherance of robbery or burglary, done for payment or done in the expectation of gain as a result of the death),
(d)  a murder intended to obstruct or interfere with the course of justice,
(e)  a murder involving sexual or sadistic conduct,
(f)  the murder of two or more persons,
(g)  a murder that is racially or religiously aggravated or aggravated by sexual orientation, or
(h)  a murder falling within paragraph 4(2) committed by an offender who was aged under 21 when he committed the offence.”
Paragraphs 6 and 7 provide that, in all other cases, the appropriate starting point in determining the minimum term is fifteen years’ imprisonment (twelve years for those less than eighteen years of age). Paragraphs 8 and 9 provide that, having chosen a starting point, the trial judge should take into account any aggravating or mitigating factors which may result in a minimum term of any length (whatever the starting point), or in the making of a whole life order. Paragraph 10 provides that aggravating factors include:
“(a)  a significant degree of planning or premeditation,
(b)  the fact that the victim was particularly vulnerable because of age or disability,
(c)  mental or physical suffering inflicted on the victim before death,
(d)  the abuse of a position of trust,
(e)  the use of duress or threats against another person to facilitate the commission of the offence,
(f)  the fact that the victim was providing a public service or performing a public duty, and
(g)  concealment, destruction or dismemberment of the body.”
Paragraph 11 provides that mitigating factors include:
“(a)  an intention to cause serious bodily harm rather than to kill,
(b)  lack of premeditation,
(c)  the fact that the offender suffered from any mental disorder or mental disability which (although not falling within section 2(1) of the Homicide Act 1957 (c. 11)), lowered his degree of culpability,
(d)  the fact that the offender was provoked (for example, by prolonged stress) in a way not amounting to a defence of provocation,
(e)  the fact that the offender acted to any extent in self-defence,
(f)  a belief by the offender that the murder was an act of mercy, and
(g)  the age of the offender.”
(c)  Schedule 22
40. Schedule 22 (“Mandatory life sentences: transitional cases”) enacts a series of transitional measures for those prisoners who were given mandatory life sentences prior to the entry into force of section 269 of the Act and whose minimum terms of imprisonment were set by the Secretary of State. It also applies to those prisoners whom the Secretary of State directed should never be eligible for early release on licence (that is, those prisoners for whom a whole life tariff had been set). Paragraph 3 of the schedule allows both categories of prisoners to apply to the High Court. Upon such an application the High Court must, in the case of a prisoner who is subject to a minimum term of imprisonment set by the Secretary of State, make an order specifying the minimum term that prisoner must serve before he or she is eligible for early release. Under paragraph 3(1)(b), where the Secretary of State notified the prisoner that a whole life tariff had been set, the High Court may make an order that the prisoner should not be eligible for release (“a whole life order”). The minimum term set by the High Court must not be greater than that previously set by the Secretary of State (paragraph 3(1)(a)). Similar provisions apply to sentences passed after the commencement of the Act in respect of murders committed before commencement. Paragraph 10 provides that the court may not make an order which, in its opinion, is greater than that which the Secretary of State would have been likely to have made under the previous practice. 41. In determining an application under paragraph 3, the High Court must have regard inter alia to the seriousness of the offence and, in so doing, must also have regard to the general principles set out in schedule 21 and any recommendations to the Secretary of State by the trial judge or the Lord Chief Justice as to the minimum term to be served by the offender before release on licence (paragraphs 4 and 5 of schedule 22). The offender may also make representations to the High Court, including representations as to his or her behaviour and progress in prison since the offence, before the High Court determines the application. Representations can also be made by the victim or victims’ families. C. The Secretary of State’s discretion to release
42. Section 30(1) of the Crime (Sentences) Act 1997 provides that the Secretary of State may at any time release a life prisoner on licence if he is satisfied that exceptional circumstances exist which justify the prisoner’s release on compassionate grounds. 43. The criteria for the exercise of that discretion are set out in Prison Service Order 4700 chapter 12. This is an order that is issued under the authority of the Secretary of State. It sets out policy and guidance for the management of prisoners serving an indeterminate sentence (including those serving a mandatory life sentence), both during custody and after release on licence. Chapter 12, where relevant, provides:
“The criteria for compassionate release on medical grounds for all indeterminate sentence prisoners (ISP) are as follows:
•  the prisoner is suffering from a terminal illness and death is likely to occur very shortly (although there are no set time limits, 3 months may be considered to be an appropriate period for an application to be made to Public Protection Casework Section [PPCS]), or the ISP (Indeterminate Sentenced Prisoner) is bedridden or similarly incapacitated, for example, those paralysed or suffering from a severe stroke;
and
•  the risk of re-offending (particularly of a sexual or violent nature) is minimal;
and
•  further imprisonment would reduce the prisoner’s life expectancy;
and
•  there are adequate arrangements for the prisoner’s care and treatment outside prison;
and
•  early release will bring some significant benefit to the prisoner or his/her family.”
[underlining in the original]
The Order also specifies that compassionate release must be approved personally by a Minister; it is not a decision which is delegated to officials. 44. According to the Government, as of 28 April 2011, 4,900 prisoners were serving mandatory life sentences for murder in England and Wales. Forty-one prisoners are currently subject to whole life orders (including those held in secure hospitals). Since 2000, no prisoner serving a whole life term had been released on compassionate grounds. In response to a freedom of information request by the first applicant, the Ministry of Justice indicated that, as of 30 November 2009, thirteen life-sentence prisoners who had not been given whole life terms had been released on compassionate grounds. D. Relevant domestic case-law on mandatory life sentences and the Convention
1. Case-law on the pre-2003 Act system
45. In R. v. Lichniak and R. v. Pyrah [2003] 1 AC 903, the House of Lords considered that, in its operation at that time, a mandatory life sentence was not incompatible with either Articles 3 or 5 of the Convention. Such a sentence was partly punitive, partly preventative. The punitive element was represented by the tariff term, imposed as punishment for the serious crime which the convicted murderer had committed. The preventative element was represented by the power to continue to detain the convicted murderer in prison unless and until the Parole Board, an independent body, considered it safe to release him, and also by the power to recall to prison a convicted murderer who had been released if it was judged necessary to recall him for the protection of the public (Lord Bingham of Cornhill at paragraph 8 of the judgment). The House of Lords therefore held firstly, that the appellant’s complaints were not of sufficient gravity to engage Article 3 of the Convention and secondly, that the life sentence was not arbitrary or otherwise contrary to Article 5 § 1 of the Convention. Lord Bingham added:
“If the House had concluded that on imposition of a mandatory life sentence for murder the convicted murderer forfeited his liberty to the state for the rest of his days, to remain in custody until (if ever) the Home Secretary concluded that the public interest would be better served by his release than by his continued detention, I would have little doubt that such a sentence would be found to violate Articles 3 and 5 of the European Convention on Human Rights ... as being arbitrary and disproportionate.”
46. In R. v. Secretary of State for the Home Department, ex parte Hindley [2001] 1 AC 410, HL and R. v. Anderson [2003] 1 AC 837, HL, the House of Lords found that, under the tariff system then in operation, there was “no reason, in principle, why a crime or crimes, if sufficiently heinous should not be regarded as deserving lifelong incarceration for purposes of pure punishment” (per Lord Steyn at pp. 416H). Lord Steyn also observed: “there is nothing logically inconsistent with the concept of a tariff by saying that there are cases where the crimes are so wicked that even if the prisoner is detained until he or she dies it will not exhaust the requirements of retribution and deterrence” (p. 417H). The House of Lords also found that the Secretary of State had not unlawfully fettered his discretion in reviewing the cases of prisoners where a whole life tariff was in place after the prisoner had served twenty-five years’ imprisonment and reducing the tariff in appropriate cases. The judgment records the Secretary of State’s policy statement of 10 November 1997, in which the Secretary of State indicated that he was open to the possibility that, in exceptional circumstances, including for example, exceptional progress by the prisoner whilst in custody, a review and reduction of the tariff may be appropriate. The Secretary of State indicated that he would have this possibility in mind when reviewing at the twenty-five year point the cases of prisoners given a whole life tariff and in that respect would consider issues beyond the sole criteria of retribution and deterrence (p. 417A-C). 2. Case-law on the 2003 Act system and its compatibility with Article 3 of the Convention
(a)  R v. Bieber
47. In R v. Bieber [2009] 1 WLR 223 the Court of Appeal considered the compatibility of the 2003 Act with Article 3 of the Convention in the light of Kafkaris v. Cyprus [GC], no. 21906/04, ECHR 2008‑... Having observed that, in Kafkaris, this Court had found that the imposition of an irreducible life sentence might raise an issue under Article 3, the Court of Appeal went on to state:
“39. It seems to us that the Court [in Kafkaris] considered that an irreducible life sentence raises an issue under Article 3 in circumstances where it may result in an offender being detained beyond the term that is justified by the legitimate objects of imprisonment. This is implicit in the fact that no issue under Article 3 appears to arise provided that there is, in law and in practice, a possibility of the offender being released, even though it remains possible, or even likely, that no release will be granted in his lifetime. The essential requirement appears to be the possibility of a review that will determine whether imprisonment remains justified. 40. The legitimate objects of imprisonment are punishment, deterrence, rehabilitation and protection of the public. Where a mandatory life sentence is imposed in respect of a crime, the possibility exists that all the objects of imprisonment may be achieved during the lifetime of the prisoner. He may have served a sufficient term to meet the requirements of punishment and deterrence and rehabilitation may have transformed him into a person who no longer poses any threat to a public. If, despite this, he will remain imprisoned for the rest of his life it is at least arguable that this is inhuman treatment. Thus we have concluded that, where a crime attracts a mandatory and irreducible life sentence regardless of the particular circumstances of the crime, an issue will arise in relation to Article 3. 41. The decision in Kafkaris raises a more difficult issue. Is there some maximum term of imprisonment that can be justified by the objects of punishment and deterrence, after which a prisoner ought to be released if rehabilitation has transformed him into a man who no longer poses a threat of criminal behaviour? If this question falls to be answered in the affirmative, then an irreducible life sentence that may result in detention beyond that term is arguably inhuman and raises an issue under Article 3. The concurring opinion of Judge Bratza and the opinion of the five dissentients suggest that they were of the view that this was indeed the position. The European material to which we have referred suggests that some Member States consider that there is a maximum sentence of imprisonment that can be justified by way of punishment, after which humanity requires that the offender be given the opportunity to demonstrate that he is fit to be permitted back into society. 42. The United Kingdom does not rank among such Member States. Schedule 21 of the 2003 Act proceeds on the premise that some crimes are so heinous that they justify imprisoning the offender for the rest of his life, however long that may be. The differences in approach between different Member States was recognised by the comment made by in the majority decision in Kafkaris at paragraph 104. The Court was in that case dealing with a mandatory life sentence and the approach of the Court must be considered in that context. We do not consider that it follows from the decision of the majority of the Grand Chamber that an irreducible life sentence, imposed by a judge to reflect the appropriate punishment and deterrence for a very serious offence is in potential conflict with Article 3."
48. The Court of Appeal then considered whether it was the imposition of an irreducible life sentence itself which constituted a violation of Article 3 or whether the potential violation could only occur once the offender had been detained beyond the period that could be justified on the ground of punishment and deterrence. The court concluded that it was the latter. 49. On that basis, the Court of Appeal concluded:
“45. While under English law the offence of murder attracts a mandatory life sentence, this is not normally an irreducible sentence. The judge specifies the minimum term to be served by way of punishment and deterrence before the offender’s release on licence can be considered. Where a whole life term is specified this is because the judge considers that the offence is so serious that, for purposes of punishment and deterrence, the offender must remain in prison for the rest of his days. For the reasons that we have given, we do not consider that the Strasbourg court has ruled that an irreducible life sentence, deliberately imposed by a judge in such circumstances, will result in detention that violates Article 3. Nor do we consider that it will do so. 46. It may be that the approach of the Strasbourg court will change. There seems to be a tide in Europe that is setting against the imposition of very lengthy terms of imprisonment that are irreducible. Thus it may become necessary to consider whether whole life terms imposed in this jurisdiction are, in fact irreducible.
... 48. Under the current regime the Secretary of State has a limited power to release a life prisoner under section 30 of the Crime (Sentences) Act 1997.
... At present it is the practice of the Secretary of State to use this power sparingly, in circumstances where, for instance, a prisoner is suffering from a terminal illness or is bedridden or similarly incapacitated. If, however, the position is reached where the continued imprisonment of a prisoner is held to amount to inhuman or degrading treatment, we can see no reason why, having particular regard to the requirement to comply with the Convention, the Secretary of State should not use his statutory power to release the prisoner.
49.

Article of the Convention at issue: Article 3
Outcome: violation