Report on Mandatory Sentences - Law Reform Commission

irrespective of whether the sentencing court considered the sentence to be justified. These
considerations did not mean that a mandatory life sentence without the possibility of parole was per se
incompatible with the Convention, although the trend in Europe was clearly against such sentences, but
that such a sentence was much more likely to be grossly disproportionate than any other type of life
sentence. In the absence of any such gross disproportionality, an Article 3 issue would arise for a
mandatory life sentence without the possibility of parole in the same way as for a discretionary life
sentence, that is when it could be shown that: (i) the continued imprisonment of the applicant could no
longer be justified on any legitimate penological grounds; and (ii) the sentence was irreducible de facto
and de iure.
2.36 The Court observed that in the present cases, the whole life orders were, in effect, discretionary
life sentences without parole. Regarding de iure reducibility, the Court noted that once imposed, such
sentences were not subject to later review and release could only be obtained from the Secretary of State
on compassionate grounds. The policy of the Secretary of State regarding compassionate release
appeared to be much narrower than the Cypriot policy on release, which had been considered in Kafkaris.
First, the policy could conceivably mean that a prisoner would remain in prison even if his continued
imprisonment could not be justified on any legitimate penological grounds, as long as he or she did not
become terminally ill or physically incapacitated. Second, it was of some relevance that the practice of a
25-year review, which existed prior to the introduction of the Criminal Justice Act 2003, had not been
included in the reforms introduced by the 2003 Act. No clear explanation had been given for the
omission, even though it appeared that a 25-year review, supplemented by regular reviews thereafter,
would be one means by which the Secretary of State could satisfy himself that the prisoner’s
imprisonment continued to be justified on legitimate penological grounds. Third, the Court stated that it
doubted whether compassionate release for the terminally ill or physically incapacitated could really be
considered release at all, if all that it meant was that a prisoner died at home or in a hospice rather than
behind prison walls.
2.37 However, the Court considered that the issue of de facto reducibility did not arise for examination
in the present cases. First, the applicants had not sought to argue that their whole life orders were
grossly disproportionate. Given the gravity of the murders of which they had been convicted, the Court
was satisfied that the whole life orders were not grossly disproportionate. Second, none of the applicants
had demonstrated that their continued incarceration served no legitimate penological purpose. For each
case, the Court was satisfied that detention served the legitimate purposes of punishment and
deterrence. The Court thus concluded that there had been no violation of Article 3.
2.38 Regarding Article 5(4), the applicants submitted that the imposition of whole life orders without
the possibility of regular review by the courts violated Article 5(4) of the Convention.
2.39 The Court indicated that while continued detention might violate Article 3 if it was no longer
justified on legitimate penological grounds and the sentence was irreducible de facto and de iure, it did
not follow that the applicants’ detention had to be reviewed regularly in order for it to comply with the
provisions of Article 5. Moreover, it was clear from the remarks of the trial judge in respect of the first
applicant and the remarks of the High Court in respect of the second and third applicants, that whole life
orders had been imposed on them to meet the requirements of punishment and deterrence. Citing a
decision of the English Court of Appeal, 108 the Court observed that the practice in England was to impose
a whole life order where the offence was so exceptionally serious that just punishment required the
offender to be kept in prison for the rest of his or her life. The present applicants’ sentences were thus
different from the life sentence considered in Stafford v United Kingdom, 109 which the Court found was
divided into a tariff period (imposed for the purpose of punishment) and the remainder of the sentence
(under which continued detention was determined by considerations of risk and dangerousness).
Consequently, the Court was satisfied that the lawfulness of the applicants’ detention was incorporated in
the whole life orders imposed by the domestic courts and no further review was required by Article 5(4).
The Court thus found that the applicants’ complaints were manifestly ill-founded.
108
109
R v Jones and Others [2006] 2 Cr App R (S) 19.
Stafford v United Kingdom (2002) 35 EHRR 32.
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