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Tuesday, February 18, 2014 

The hope or possibility of release returns.

Say what you like about judges, and many, especially the tabloid press often do (as an aside, it's worth noting a certain Brian Leveson, in his role as President of the Queen's Bench division, was one of the presiding judges in this case), there are times when they are remarkably ingenious. Almost everyone thought the appeal court would accept the reasoning of the European Court of Human Rights' Grand Chamber, and duly find that those given whole life sentences must have some sort of body to which they could apply to have their sentence reviewed after a defined period of time. The Conservatives certainly did, floating the option of allowing judges to impose American style hundreds of years sentences, which could then be reviewed without release being any real possibility.  It seemed a great, typically Tory ploy: adhering to the ruling, if not the spirit of it, in much the same way as parliament has attempted to defy the court over giving the vote to some prisoners.

One indication that perhaps the government knew some sort of compromise was forthcoming, or had some faith in the case it was due to make to the appeal court, was that it suddenly seem to drop the above proposal, almost as quickly as it had raised it. The appeal court's rejection of the ECHR's ruling is based on what it says is a misinterpretation of the current laws: the grand chamber failed to take properly into account what section 30 of the 1997 Crime (Sentences) Act allows. Although previously it has only been used to release prisoners who are terminally ill, it can allow release in other circumstances on compassionate grounds also. The judges can't say what these circumstances might be, except that they will have to be exceptional given the fact a whole life term was considered necessary in the first place, but it still amounts to the "hope or the possibility of release" required, and to compatibility with Article 3.

Whether this is evidence of the perceived new attitude among some judges to the ECHR, no longer taking direction from Strasbourg as unquestionable, is more difficult to tell.  What it has done is both gotten ministers out of a problem, and given them a new one.  Had the appeal court agreed with the ECHR the easiest and best solution would have been to reintroduce the old system where whole life terms were reviewed after 25 years, only giving the power to the parole board or a judge rather than to a politician as was previously the case.  Instead the onus has been put back on the justice secretary, who now faces not just the likes of Ronnie Biggs applying for compassionate release on the grounds of ill-health, but the most notorious murderers and serial killers asking for the same, if that is they can point towards exceptional circumstances that have arisen since they were sentenced.  Nor will it be possible to simply dismiss such requests out of hand when the ECHR will be watching, even if it might well be a while before any such attempts to test out section 30 are made.

This itself depends on whether or not the ECHR accepts the appeal court's reasoning, should another appeal to Strasbourg be made.  It could for instance suggest that still more clarity is needed around section 30, precisely why it reached its decision in the first place, saying the appeal court hasn't in its view disproved its own analysis.  The other thing the ruling has done though, as Joshua Rozenberg notes, is to somewhat take the wind out of Chris Grayling's sails over the upcoming Tory manifesto plan for the reforming/dumping the convention.  No longer able to point to the court saying we can't lock up the worst of the worst for life, although it never said anything of the sort in the first place as both the appeal court and the QC for the government accepted, it leaves just the Abu Qatada palaver and votes for prisoners as the main grievances. A strong enough case for the Pavlovian anti-Europe Tories and tabloids certainly, but not for anyone who bothers to take an interest.  Judicial lawmaking or not, the appeal court's ruling could yet have far wider political consequences.

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