In a recent judgment, the Grand Chamber of the European Court of Human Rights declared ‘whole life’ sentences (WLO/WLS) to be compatible with Art. 3 of the European Convention on Human Rights (the prohibition against inhuman or degrading treatment or punishment). The appeal, brought by the notorious triple-killer Arthur Hutchinson is the latest chapter in one of the most contentious facets of British Criminal Justice.
A whole life term is reserved for those offenders who commit the most serious of offences. Sentencing guidance and precedent necessitates that, upon conviction, the offender must spend the rest of their life in prison. In his book, ‘Life Means Life: Jailed Forever: True Stories of Britain’s Most Evil Killers’, Nick Appleyard typifies the offences with sufficient seriousness to qualify for a whole life term, stating that they are reserved for ‘crimes … of unparalleled savagery, perversion or scale’. Statutory guidance is given by Schedule 21 of the Criminal Justice Act 2003, S.4 (2) which states that a whole life order applies in cases of:
(a) the murder of two or more persons, where each murder involves any of the following:
A substantial degree of premeditation or planning,
The abduction of the victim, or
Sexual or sadistic conduct
(b) the murder of a child if involving the abduction of the child or sexual or sadistic motivation,
(c) a murder done for the purpose of advancing a political, religious or ideological cause, or
(d) a murder by an offender previously convicted of murder.
The 55 criminals currently serving whole life sentences, including 9 serving WLOs at secure institutions, are Britain's most notorious offenders, many of whom have achieved a status of infamy and celebrity as a result of their crimes. A notable example would be Dennis Nilsen, whose biography ‘Killing for Company’ narrates, in horrific and graphic detail, the macabre actions of a psychopathic, murderous cannibal. Other examples include the aforementioned Arthur Hutchinson, who was handed a whole life order after a triple-murder rape, and Robert Maudsley, the inspiration for the character ‘Hannibal the Cannibal’, of which little else needs to be said.
The purpose of this article is to examine the labyrinthine legal history of the WLO sentence, its viability and applicability, and the reasons for which it is often criticised and regularly scrutinised.
Evolution of the WLO: Origins and Early Intentions
The history of WLOs is connected to the abolition of the death penalty in 1965 (done so through the Murder (Abolition of Death Penalty) Act 1965). Compensating for what could have been, politically at least, an unpopular legalistic change and to assuage the fears of the nation on a soft approach to crime, the death penalty was replaced by a mandatory life sentence. This was done with the understanding that the offender would serve a certain amount of time in prison before being released by the Home Secretary (Kandelia, 2011). In fact, it was not the approach of the legislators at the time for any offender to spend the rest of their life in prison (Royal Commission on Capital Punishment, 1953). The Home Secretary reinforced this position, stating that ‘even with the worst type of prisoner, I would always be loath … wholly to extinguish all hope in the mind of any human being that he would ever be allowed to walk outside the prison walls’ (Hodgkinson, 2004). Notwithstanding this historic misnomer, it is necessary to explore the meaning of the term ‘life’.
In the intervening years since, semantically, the term ‘life’ has become a contested term, not only with regards to the administration of sentences by the criminal courts, but also the moralistic position of the general populace (Coe, 2013). Most of the time, a person’s stance on a life sentence is informed by their political leanings or perception of ‘justice’. A layperson approaching the term in a literalistic way, may infer that life means life. For some, this may be defined using a stance akin to a Hammurabic approach harkening back to the earliest forms of law. For a modern day Babylonian perhaps the only appropriate and proportionate sentence for a crime where someone has been intentionally or maliciously deprived of their own life is a referential and retributive punishment of a deprivation of the perpetrator’s life, or at least a deprivation of liberty for the rest of their life.
According to Schedule 21 of the Criminal Justice Act 2003, life imprisonment, in line with the sentencing protocol, is a minimum term set by a Judge, which must be served before the defendant may be considered for release by a parole board. However, in order to ensure a successful application, the defendant must prove that they are no longer a threat to society. Contained in this schedule is also a reference to the ways in which aggravating and mitigating factors relating to the crime may affect the appropriate sentence. After serving the term as directed by the courts and proving that they no longer pose a threat to society, the offender will remain on licence for the rest of their life.
Whole life orders are unique, as they remove the element of a potential release by the Parole Board. Prior to the CJA 2003, life-termers could appeal for a review of a whole life order by the Secretary of State. However, this was removed, leaving those who are sentenced to WLOs without review at any point (notwithstanding the exemptions for compassionate grounds - a power that to this date has not been exercised). (Source: Coe, 2013)
The Complex and Conflicting Recent Case History of Whole Life Orders
In 2008, Lord Chief Justice Phillips, noted in the case of R v Bieber:
‘There seems to be a tide in Europe that is setting against the imposition of very lengthy terms of imprisonment that are irreducible’. (Source: R v Bieber  EWCA Crim 1601;  1 WLR 223 at para 46)
Before this decision, the European Court of Justice had decided in the case of Kafkaris v Cyprus (App. No. 21906/04) (2009) 49 EHRR 35 that a sentence of life imprisonment without the potential for review of release may infringe Article 3 of the European Convention on Human Rights, the protections against inhuman or degrading treatment. The applicant was a triple murderer who sought to challenge the decision of the domestic court. His appeal was brought on the grounds that his life sentence was irreducible and that by being detained after the date set for his release his imprisonment was unlawful. On dismissing the appeal, the Grand Chamber noted that because domestic legislation included provision for release by a Presidential Order and through Constitutional Powers it did not amount to a deprivation of the prospect of release. (Source: Mastromatteo v Italy (App.No. 37703/97, 24 October 2002) at ; Maiorano and Others v Italy (App. No. 28634/06, 15 December 2009) at )
Following these decisions and a change in the tide regarding WLOs, the Fourth Chamber of the ECtHR in the case of Vinter and others v United Kingdom (Source: CASE OF VINTER AND OTHERS v. THE UNITED KINGDOM Applications nos. 66069/09, 130/10 and 3896/10) found that there can be little justification, in pure sentencing terms, for the use of whole life orders. Additionally, it was stated that the use of compassionate release for terminally ill prisoners had been interpreted so narrowly so as to afford little opportunity for release, that WLOs were de facto and de jure irreducible. Notably, prior to the 2003 legislation, there had been a potential for review, after a period of 25 years, by the Home Secretary to examine the need for continued detention. However, after this was removed by the 2003 legislation, it was decided that WLOs violated European Human Rights Law.
The 2015 Decision and Current Law on WLOs
In a 2015 decision by the European Court of Human Rights it was found that WLOs were in fact compatible with the ECHR: the court in Strasbourg decided that the principle of release in ‘exceptional circumstances’ and for ‘compassionate grounds’, available to the Justice Secretary, did in fact provide a function of reducibility and as a result was compliant with European legislation. It may perhaps be cynical to note that this decision came at a time where the perceptions of European legislative interference and accusations of comprised parliamentary sovereignty were rife.
With post-referendum hindsight, it could be posited that the decision to vary the interpretation which, in this writer’s position did and does not reflect the penological considerations for releasing those on WLOs, looks like an attempt at political appeasement to assuage the desires of the ‘taking back control’ brigade (with the same hindsight we now see this was an unsuccessful endeavour).
Perspective on the Obfuscate
Whilst in no way has this article been an assessment of the moralistic consideration of WLOs, which is perhaps to the detriment of its efficacy and appeal, it does narrate the inherently compromised position of the legislators and courts. In a parliamentary democracy, public opinion defines the narrative and by extension the types of laws passed. In a society with court processes predicated on the administration of proportionate punishment it is necessary that sentences reflect crime committed and have a deterrent and denunciative effect. However, the lack of reducibility and potential for appeal perhaps reflects something different. The wrangles in the courts, both domestic and European, signify the precarious nature of WLOs. A question that is extremely interesting, but beyond the ambit of this article, can be stated quite simply: barring simplistic need for retributive affirmation of harm done, are the justifications for removing rights to appeal in WLOs sufficient?