On 21 November 2012, the UK Court of Appeal upheld whole life prison terms in England and Wales. In this post Marion Vannier summarizes the case and pinpoints three areas ripe for further discussion.
In R v David Oakes and others (hereinafter ‘R v Oakes’), three of the appellants were sentenced to mandatory life imprisonment for murder and two to discretionary life imprisonment for rape and sexual crimes. Their appeals were confined to the question of the judicial assessment of the minimum term to be served before release could be considered. Amongst the three murder cases, one whole life order was maintained, another was quashed and replaced with a 40 years minimum term while the final one retained its 30 years minimum period. In the two rape appeals, whole life terms were replaced by shorter fixed term.
It is noteworthy that this ‘tariff’ period, whether combined with a mandatory or a discretionary life sentence, is now exclusively determined by sentencing judges since the Criminal Justice Act 2003 in England and Wales. Under Schedule 21(4) a judge’s decision to order a whole life order is discretionary.
Although some judges have concerns about the implications raised by a whole life term, others argue that certain heinous crimes deserve life long incarceration. Disquiet is usually grounded in the absence of hope (e.g. dissenting opinion of Judges Garlicki, David Thorbe Jorgivsson and Nicolaou in Vinter and Others v United Kingdom (hereinafter ‘Vinters and Others’)). The withdrawal of hope implies that a prisoner’s life is reduced to his mere survival (see Lord Justice Laws in R (Wellington) v Secretary of State for the Home Department, at 53). In contrast, those supporting whole life term argue for its retributive and deterrent effect (see Lord Bingham in R. v Secretary of State for the Home Department, ex parte Hindley, at 769).
In R v Oakes, the Court of Appeal extensively refers to the European Court of Human Rights’ (ECHR) jurisprudence under Article 3 of the European Convention of Human Rights according to which ‘[N]o one shall be subjected to torture or to inhuman or degrading treatment or punishment’. The ECHR has previously ruled that discretionary life sentence without the possibility of parole does not violate Article 3 at the moment it is imposed. The sentence may however become in breach of human rights once the defendant’s continued imprisonment is no longer justified by any penal rationale. The ECHR further stressed that judges had considered relevant mitigation and aggravating factors (Vinter and Others). The Strasbourg court also specified that mandatory life imprisonment does not de facto breach Article 3. However, the court underlined that such a sentence would likely be considered grossly disproportionate if the sentencing court was required to disregard mitigation factors (Id.).
R v Oakes opens a window to engage in a variety of debates about whole life imprisonment and whole life terms, of which three appear to be particularly pertinent:
1. The case illustrates the increasing overlap between punishment and human rights concerns. As Dirk Van Zyl Smit stresses (2012), human rights have increasingly become directly applicable to punishment pursuant to international, regional or national instruments, both of primary and secondary nature. Human rights impact punishment in two ways: when it is imposed and at the later implementation stage. At the imposition stage, certain types of punishment, such as the death penalty, have been declared to be contrary to human rights norms. Some academics argue that whole life imprisonment can be criticized on similar grounds (Appleton and Grover 2007). Van Zyl Smit (2012) suggests that should the sentence be imposed, the ECHR should require national specific release procedures, whereby prisoners’ case would be automatically reviewed. At the implementation stage, whole term sentences raise imprisonment-related concerns that will be further addressed.
The extent to which human rights impact such an ultimate punishment remains a topical issue. The European Court is currently re-examining whole life tariffs in England and Wales. One of the appellant in R v Oakes has brought the issue of life imprisonment assorted with a whole life term before the ECHR under Article 3. The Great Chamber of the ECHR has also been asked to re-assess whole life terms in the appeal brought by Vinter and Others; the judgment should be released in the near future. Tellingly, England and Wales are one of the rare member states to be handing out these whole-life sentences. Since 2001, Scotland has ensured that a minimum period is set for life sentences, thereby further singling out England and Wales (The Guardian 2012a).
2. The case further highlights the issues raised by life sentences at their implementation stage. First, R v Oakes reminds that even if whole life terms do not breach Article 3 at the point of sentencing, this form of punishment may become contrary to human rights during its implementation. When the defendant’s continued imprisonment can no longer be justified under any legitimate penal rationales, the ECHR may consider that there is violation of Article 3 (Vinter and Others). In practice however, it is difficult to imagine lawyers resurrecting cases 30 years down the line to launch Article 3 attacks before the ECHR. Lifers indeed become faceless and as Capers (2012) suggests, society fails to imagine life behind bars. The saliency of life sentences is somehow short lived. It attracts the media and the public’s attention at the imposition stage but later in time those sentenced to life fade from memory. As a consequence, the calling into question of life sentences during their implementation can appear unrealistic.
Second, the imposition of life sentences may complicate their implementation. Some lifers become extremely violent, living under the impression that their sentence has placed them above the law (The Guardian 2012a-b). Others become increasingly depressed and, left with not hope, would rather give up their right to survive behind bars (The Guardian 2012a). The violent reaction of some prisoners and the psychological deterioration of others, show how life sentence creates difficulties in managing the prison population.
As a result, further research on the conditions of lifers prison experience and the ensuing human rights violations is needed. Most importantly, academics focusing on whether punishment is justified under penal rationales should increasingly converse with those focusing on the punishment’s implementation. Human rights’ violation and management issues at the implementation stage could arguably revive the lost attention and call into question the imposition of the punishment.
3. Another area for discussion is the comparison between the Britain’s use of life imprisonment and the United States’ punishment trends. The United States is increasingly using life without parole (LWOP) both as an alternative to its death penalty and as an all-encompassing punishment (Ogletree and Sarat, 2012). If the Court of Appeal in R v Oakes stresses that whole life minimum terms are exceptional and rare, academics highlight the net-widening effect of LWOP whereby petty offenders are convicted to the same ultimate punishment as murderers (Idem). Hopefully, England and Wales will refrain from following the same trend.
R v Oakes opens the floor for further debate.
Appleton, C., & Grover, B. (2007). ‘The pros and cons of life without parole’, British Journal of Criminology, 47, 597-615.
Capers, B. (2012), ‘Life without parole and the hope for real sentencing reform’, in Life without Parole: America’s New Death Penalty?, Ogletree, C.J., and Sarat, A., (eds), New York : New York University Press.
Ogletree, C.J., and Sarat, A., (2012), Life without Parole: America’s New Death Penalty?, Ogletree, C.J., and Sarat, A., (eds), New York: New York University Press.
The Guardian (2012a), ‘Are whole-life prison sentences an infringement of human rights?’, http://www.guardian.co.uk/law/2012/dec/05/whole-life-prison-sentence-human-rights, last accessed 7/12/2012.
The Guardian (2012b), ‘Jailing more people for life risks a prison revolution’, http://www.guardian.co.uk/commentisfree/2012/nov/22/jailing-people-life-risks-prison-revolution, last accessed 7/12/2012.
Van Zyl Smit, D. (2012), ‘Punishment and Human Rights’, in The SAGE Handbook of Punishment and Society, Sparks, J. and Simon, J. (eds), SAGE Publications Ltd.
R v Oakes and others,  EWCA Crim 2435
R (Wellington) v Home Secretary  1 AC 335
R v Secretary of State for the Home Department, ex parte Hindley  QB 751
Vinter and Others v United Kingdom  ECHR 023 (