Report on Mandatory Sentences - Law Reform Commission

serving mandatory life sentences, who had received minimum terms under the old system, were entitled
to apply to the High Court to have their sentences reviewed. The practice whereby whole life orders were
reviewed after 25 years was discontinued.
2.31 The applicants’ whole life orders were upheld by the High Court and they applied to the European
Court of Human Rights, alleging violations of Article 3, Article 5(4) and Article 7 of the Convention.
Regarding Article 3, the applicants made a number of submissions. First, citing Kafkaris v Cyprus, 105 they
argued that it was clear that the European Court of Human Rights considered that an irreducible life
sentence would not merely raise an issue under Article 3, but would in fact violate Article 3. Second, they
argued that the English Court of Appeal had erred in R v Bieber 106 by distinguishing between irreducible
mandatory life sentences and irreducible discretionary life sentences. There was no proper basis in
Kafkaris for the Court of Appeal to conclude that only an irreducible mandatory life sentence could raise
an issue under Article 3. Such a conclusion would, in any case, lead to inconsistent findings where some
irreducible life sentences would violate Article 3 because they were mandatory, whereas others would not
violate Article 3 because they were discretionary, even though both types of sentence would entail the
same hopelessness regarding release. Third, they argued that the Court of Appeal had erred in finding
that a violation of Article 3 could not arise at the moment of the imposition of a sentence. They submitted
that a violation arose because of the imposition of hopelessness that came with such a sentence. Finally,
they argued that the Secretary of State’s power of compassionate release was not sufficient to make a life
sentence reducible. The second applicant further relied on the fact that he had been promised reviews at
various stages of his sentence, and that an irreducible sentence imposed on a young man was very
different to one imposed on a much older man, which served to underline the inequality, cruelty and
illogicality of irreducible life sentences.
2.32 The Court stated that it was first necessary to consider whether a grossly disproportionate
sentence would violate Article 3 and, second, at what point in the course of a life sentence or other very
long sentence an Article 3 issue might arise. In relation to the first issue, the Court stated that it was
prepared to accept that a grossly disproportionate sentence could amount to ill-treatment contrary to
Article 3 at the moment of its imposition. It observed, however, that “gross disproportionality” was a strict
test and that it would only be on “rare and unique occasions” that the test would be met. 107
2.33 In relation to the second issue, the Court indicated that, subject to the general requirement that a
sentence should not be grossly disproportionate, it was necessary to distinguish between three types of
life sentence: (i) a life sentence with eligibility for release after a minimum period has been served; (ii) a
discretionary sentence of life imprisonment without the possibility of parole; and (iii) a mandatory
sentence of life imprisonment. The Court indicated that the first type of sentence was clearly reducible
and thus no issue could arise under Article 3.
2.34 Regarding the second type of sentence, the Court indicated that if a discretionary life sentence
was imposed by a court after due consideration of all relevant mitigating and aggravating factors, an
Article 3 issue could not arise at the moment it was imposed. Rather, it would only arise when it could be
shown that: (i) the applicant’s continued imprisonment could no longer be justified on any legitimate
penological grounds (such as punishment, deterrence, public protection or rehabilitation); and (ii) the
sentence was irreducible de facto and de iure.
2.35 Regarding the third type of sentence, the Court indicated that a mandatory sentence of life
imprisonment without the possibility of parole would require greater scrutiny. The Court observed that the
“vice of any mandatory sentence is that it deprives the defendant of any possibility to put any mitigating
factors or special circumstances before the sentencing court”. This was especially true in respect of a
mandatory life sentence without the possibility of parole, a sentence which, in effect, condemned a
defendant to spend the rest of his or her days in prison, irrespective of his or her level of culpability and
105
106
107
Kafkaris v Cyprus (2009) 49 EHRR 35.
R v Bieber [2009] 1 WLR 223.
Vinter, Bamber and Moore v United Kingdom European Court of Human Rights 17 January 2012. (Application
Nos 66069/09, 130/10 and 1396/10) at paragraph 89.
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