Michelle Miao writes:

In his talk at the final All Souls Seminar for 2013, entitled ‘Whole Life Sentences and the Tide of European Human Rights Jurisprudence: What is to be done?’, Professor Dirk van Zyl Smit examined the decision by the European Court of Human Rights (ECtHR) in the case of Vinter and others v United Kingdom.

The Grand Chamber of ECtHR held by 16-1 that the irreducibility of a whole life order under the Crime Justice Act 2003 amounted to a violation of Article 3 of the European Convention on Human Rights (ECHR). The current law, according to Professor van Zyl Smit, does not offer a realistic hope of release and a meaningful review of the lawfulness of continued detention after a certain period of time, and therefore infringes upon the right of lifers to be free from inhuman or degrading treatment or punishment. At the heart of the ECtHR judgement – that an irreducible life term constitutes a violation of Article 3 of the ECHR – lies concern about a lack of real opportunities for rehabilitation and a failure to respect the ‘inherent dignity of the human person’. Professor van Zyl Smit believes both should be recognised and afforded to all prisoners, no matter how heinous the nature of their crimes is.

In contrast with fixed term sentences, there is a distinct need to review the continued detention of prisoners at the expiry of the minimum period (tariff) for all indeterminate incarcerations. The existing review mechanism of compassionate release at the discretion of the Secretary of the State at best offers ‘faint hope’ for lifers, as it only promises release for those who were terminally ill or physically incapacitated. This limited ministerial review could lead to the continued incarceration of a prisoner even if his or her imprisonment could no longer be justified on legitimate penological grounds.

Hence, the Vinter decision concludes that in cases where whole life order is imposed, the prisoners should be assured of the prospect of a comprehensive review of factors ranging from the gravity and nature of the original offense to the progress of rehabilitation in prison. Professor van Zyl Smit labeled this a ‘Vinter review’. The broad parameter of the Vinter review makes it distinguishable from the post-tariff review, which is limited to a consideration of the potential dangerousness the offender could pose to society.

The Strasbourg decision suggests that there should be no criminal cases – regardless of the gravity of the original criminal conduct of the offender – where the purposes of retribution and deterrence could only be satisfied by whole life orders without the possibility of future release until close to death or seriously ill. Indeed, even ‘the worst of the worst’ criminals who are sentenced to whole life orders are entitled to know, at the outset of their sentence, the specific date when they could be considered for release under a meaningful review. They should not have to wait to know whether, when and under what conditions this review will take place after serving an indeterminate number of years.

The Vinter case, therefore, indicates a growing importance of rehabilitative goal of imprisonment during the review that takes place at the later stage of the incarceration. As argued by Professor van Zyl Smit, ‘a right to rehabilitation’ should be recognised in Britain’s prison legislation and ‘comprehensive and manifestly fair procedures’ need to be set up to evaluate progress toward release for lifers subject to whole life orders.