Sentence

Updated 02.03.13

British Government Maintains ‘Reviews in Whole Life Orders’ are Giving Prisoners False hope.

On the 28th of November 2012 the European Grand Chamber heard the case for appeal against the whole life tariff’s of three prisoners from the UK, Vinter, Bamber and Moore.

Back in January 2012 the European Court of Human Rights in Strasbourg, voted that whole life sentences do not contravene Article 3 of Human Rights Law, even in cases where a sentence was imposed on the prisoner retrospectively and in secret.

The case is for prisoners to have a ‘review’ inserted into their whole life sentences. The prisoners assert that in contrary to article 3 of the Human Rights Act, to have a whole life sentence imposed without a mechanism for review is inhuman and degrading on the following grounds.

Whole life sentencing means permanent exclusion from society in a similar way that its predecessor did - sentence to death was also permanent exclusion from society.[1] The appellants argued that to be imprisoned for whole life, means withdrawing not only the possibility of atonement, but also hope, it is then argued that to live without hope amounts to inhuman and degrading treatment.

Law in England and Wales currently has conflicting ideologies where the objective of imprisonment is concerned.  Our present alignment with European law makes us part of the reintergationist view of imprisonment, where prisoners rehabilitate as part of their punishment and become integrated back into our communities. Contrasting with this is whole life sentencing, without any reviews, which follows the exclusionary doctrine of hanging, and is at odds with the European reintergrationist ideology.

As the British Government detail in their defence to the Grand Chamber, whole life orders are for the ‘purposes of punishment and deterrence,’ with not a single reference to redemption, atonement or re-integration or the possibility of a miscarriage of justice.[2]  

The public dissatisfaction which preceded the abolition of the death penalty in the UK, was brought about because of high profile cases where innocent people had been hanged.[3] Those who are wrongly convicted, and posthumously cleared can never have their lives back, and this is a very strong argument considering the high volume of miscarriages of justice which according to Dr Michael Naughton, of Bristol University Innocence Project, are a ‘mundane part of the justice system’ and which now total 18 cases per day.[4] 

One of the appellants who has always maintained innocence and makes serious representations to support his claims, is Jeremy Bamber, who was convicted by a 10:2 majority verdict in 1986. Under the old system he would not have been sentenced to death because hanging was only an option for those convicted by a unanimous verdict. Bamber would likely have had a sentence fixed at 25 years, and is therefore one of the few whole life sentence prisoners who would be better off under the archaic system abolished in 1965.

The trial judge, Mr Justice Drake, sentenced Bamber to serve ‘life’ and both he and the Lord Chief Justice recommended that Jeremy Bamber should serve a minimum of 25 years before a review. However, in 1988 the Secretary of State, Mr Douglas Hurd, imposed a whole life tariff without informing Bamber.[5]

After prisoners won a Judicial Review of the Secretary of State’s reserved right not to tell prisoners the length of their sentence, on the 15th of December 1994, the Home Office Prison services, then formally advised Jeremy Bamber of this decision.[6] Until this point, Jeremy Bamber had been unaware that his sentence had been upgraded by the Government retrospectively. The fact that whole life sentences were introduced in 1983, and the first one was not set until 1988, is surprisingly not in breach of Article 7 (1) of the Human Rights Convention.

The Home Office Prison Service also formally advised Jeremy that he would serve the whole life sentence with a review which was already set for 2002 by the Secretary of State.[7]  But this review was withdrawn when the House of Lords held that the Secretary of State was not an ‘independent and impartial tribunal,’ and that political sentencing of this type was incompatible with the convention right to a fair trial.[8]  

The Criminal Justice Act (CJA) 2003, reformed the law in England and Wales, and removed all reviews from mandatory life sentences upgraded to discretionary whole life orders, thus withdrawing the powers previously held by the Secretary of State to apply sentence reviews or set tariffs.[9]  Transitional provisions of the CJA of 2003, allowed Bamber to apply to the High Court for a review of the whole life term because it had been set by a politician and not a judge.[10] In accordance with this provision, Bamber challenged his new sentence which had been imposed by the Secretary of State, it was heard, and astonishingly still upheld by the High Court on the 16th of May 2008 despite the CJA aiming to ‘judicialise’ sentencing.

In 2012 Jeremy Bamber took his case to the European Court of Human Rights with this background, and made appeals that the British Government were in breach of Articles, 3, 5 and 7 of European Human Rights Law. Submissions by his lawyers included:

“the sentence which the trial judge would have passed, if he had had the power to do so, namely a minimum term of 25 years, was reviewed by the High Court nearly 22 years afterwards applying a sentencing regime created 17 years afterwards, which is more severe than the one which prevailed at the time the offences were committed. That can neither be fair nor compatible with the requirements of Article 7 (1).”

Bamber’s legal team added:

“It cannot be acceptable for the Government to have promised a whole life prisoner a series of reviews at the stages identified in this letter and then to renege on that promise and withdraw that right to review, and consequently the possibility of release.” [11]

On 17th of January 2012 the European Court ruled that there had been no breach of Article 3. This was a narrow majority ruling, with three out of the seven judges dissenting. Clearly exclusionary forms of sentencing are still favourable in contrary to European integrationist penal trends. The dissenting judges stated that the appellants were denied the Human Right to ‘hope’ which did amount to inhuman and degrading treatment.

On the 28th of November 2012 Bamber, Vinter and Moore returned to Europe, this time in the Grand Chamber to see if they could have some ‘hope’ put into their sentences.

On the 24th of September 2012, a non Governmental Organization known as the ‘Hungarian Helsinki Committee’ sought leave to submit a third party intervention on behalf of Vinter, Bamber and Moore under rule 44 (3) of the court. The Committee ‘monitors the enforcement of human rights’ and ‘has for years been advocating for abolishing lifelong imprisonment without the possibility of parole.’ The application made by the Committee was refused by the court as was their intervention into the case of a Hungarian man jailed for whole life without a mechanism for release.[12] It seems even Strasbourg reject the insertion of release mechanisms, so the possibility of the appellants winning their case is slim. Our concern is that not only has England and Wales have been unethical in setting sentences, and is still in the mode of political meddling, but this country brings itself into conflict with Europe and Scotland as a result.

Michael Mansfield QC has suggested the following where miscarriages of justice are concerned.

“Despite the CCRC there are cases where strong evidence of innocence or serious doubts of the conviction, exist, which do not meet the stringent criteria of the CCRC and the appeal courts. The INUK and this book, then, present an imperative attempt to resurrect alternatives for such cases where the CCRC can offer no hope to, such as petitioning the Secretary of State for a pardon under the prerogative of mercy”[13]  

Most concerning of all is that Jeremy Bamber is not eligible for a prerogative pardon under his whole life order - there is no mechanism for review.

The Bamber case highlights the most unusual set of circumstances in which the government ‘secretly’ interfered with the imposition of sentences. We should be even more concerned that there is no provision for the possibility that the judiciary is setting what is effectively a ‘death sentence’ to individuals who maintain innocence with no mechanism for review, and this has echoes of the death sentence imposed on Troy Davies in the USA, despite his maintaining innocence with supporting evidence.

More attention must be paid to the absurdity of political sentencing ethics which are supported by the UK judiciary (when it suits) and how these conflict with European Human rights laws if we are ever to find a system that works satisfactorily.



[1] “reintergrationist” versus “exclusionary” types of imprisonment, Dolovich. pg 13 & 122; Life Without Parole, Ed Ogletree and Sarat, NYU Press, 2012.

[2] Observations on Behalf of the Government of the United Kingdom, 18th September, 2012.

[3] Derek Bentley, Timothy Evans

[4] Daily average in Crown Court, CACD (including referrals from the CCRC) and House of Lords, Naughton, M. Rethinking Miscarriages of Justice: Hope for the Innocent, 2012 edition, Palgrave, Basingstoke.

[5] Observations on Behalf of the Government of the United Kingdom, 18th September, 2012.

[7] Home Office, Prison Service letter to Mr Bamber, 15th December 1994

[8] R (on the application of Anderson) v Secretary of State for the Home Department [2002]

[9] Schedule 21, CJA 2003

[10] Schedule 22, CJA 2003

[11] Bamber v United Kingdom, 2012

[12] Letters Grand Chamber and Hungarian Helsinki Committee, 27th January 2012

[13] Mansfield, foreward xxii.  Naughton, M. The Criminal Cases Review Commission: Hope for the Innocent, 2012 edition, Palgrave, Basingstoke. 


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“The enormity of the universe can make us feel so small but there is nothing greater than our own capacity to endure.” 

Jeremy Bamber September, 2012