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Wednesday, July 10, 2013 

The usual posturing on the ECHR.

If nothing else, the ruling by the European Court of Human Rights' grand chamber that those sentenced to whole life terms must have at the least a slight hope of one day being freed, has thrown up an somewhat heartening statistical comparison.  We might lock up far more people than most of the rest of Europe, with 83,902 in prison or immigration centres last week (a figure that doesn't include those in either maximum, medium, or low secure mental health wards) but only 49 of those will definitively never be released.  Obviously, some of those given life terms with a minimum period they must serve before being able to apply for parole will also never be released, while others will die in prison, but it can't be said that judges lightly pass sentences that deny the convicted any chance of reform and rehabilitation.

It's understandable then that some have been angered by the ECHR ruling, unusual in that the grand chamber disagreed with the judgement handed down by the court itself, which found against Douglas Vinter, Jeremy Bamber and Peter Moore.  Politicians and commentators alike have made the point that in abolishing capital punishment, the compromise was that life sentences that meant life for the most serious offences would be the replacement.  In actuality though, it was only back in 2003 that all discretion was removed with the passing of that year's Criminal Justice Act, when the power to increase the minimum term of life sentences was rightly taken out of the hands of politicians.  With it also went the appeal after 25 years that those sentenced to whole life terms could make.  Oddly however, those who are considered terminally ill or incapacitated still make their appeal for release on compassionate grounds to the justice secretary, hence the controversy over the release of both Ronnie Biggs (still alive, although definitely incapacitated) and al-Megrahi (dead).  The system is also different across the UK: Scotland doesn't have whole life tariffs, while Northern Ireland still has the 25-year system.

The very existence of the whole life sentence poses problems which have never been fundamentally answered.  When there is no hope of release, there is little reason for the prisoner to cooperate with the system except to make what life they have slightly easier for themselves, and in turn, the prison officers.  We saw this just last month with Ian Brady's appeal to the mental health tribunal: whether he genuinely wants to return to prison in order to starve himself to death only he really knows.  What he definitely likes doing is challenging the system, which is what his "hunger strike" protest has long been about.  It's also possible it can have even grimmer side-effects: we can't know whether Dale Cregan's motivation for killing two police officers having already murdered two members of a local crime family was, as he said when he gave himself up, for the hassle the police had caused his family, or that he knew full well the net was closing in and he was likely to spend the rest of his life in prison anyway.

As Joshua Rozenberg points out, it wouldn't take much for the government to meet the court's ruling, whether it amended the 1997 act that provides for compassionate release, or established a system through which whole life terms could be reviewed either by the parole board or a judge after 25 years. It seems extremely unlikely that any of those currently on a whole life tariff would be deemed suitable for release, precisely because they have been used so sparingly. The real issues are two-fold: that a whole life term doesn't seem like one if there is the possibility of release, however remote, the same problem there is with the life sentence which really means life on licence rather than actual life in prison; and that this is in the view of some, another example of the ECHR interfering in laws that should be left to the discretion of member states.

However much it does go against decent liberal sensibilities, that there is always the possibility of redemption and reform, there are some cases where life has to mean life.  That doesn't mean there shouldn't be a system where even the hardest cases should be reviewed, but getting the message across that this won't mean the most depraved criminals could still walk free after 25 years is going to be incredibly difficult if not impossible.  This said, the idea this is going to be legislated on swiftly is laughable: it's now 8 years since the ECHR first ruled that some prisoners should get the vote, and as yet there still hasn't been an act facilitating it.

Instead we will get plenty of posturing.  Chris Grayling we're told wants further reform of the ECHR rather than the exit, while Theresa May apparently wants us out.  It doesn't matter that however often scrapping the human rights act is discussed or leaving the ECHR is proposed, we never hear specifically what it is about the convention that makes it beyond the pale.  We hear complaints about the right to a family life preventing the deportation of criminals as well as the whole Abu Qatada fandango, when the reality is that the objection is to the way judges, both British and at the ECHR interpret the law.  Getting rid of the HRA and replacing it with a "British" bill of rights which will almost certainly contain the exact same protections is not going to change things without the legislation being so specific as to be discriminatory itself.  Unless the Tories win a majority in 2015, and they're certainly not on course for one at the moment, we might eventually get round to putting back in place a system that until very recently wasn't regarded as beyond the pale.

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