Leading judges gave a crucial ruling backing the use of whole-life sentences today – which was criticised as ‘right wing’ by commentators.
A panel of five judges, headed by the Lord Chief Justice Lord Thomas, announced their decision on controversial “life-means-life” orders at the Court of Appeal in London.
The judges increased the 40-year minimum prison term being served by killer Ian McLoughlin, who murdered a man while on day release, to a whole-life tariff.
And they dismissed an appeal by Lee Newell, who murdered a child killer while in prison, against the whole-life order imposed in his case.
Sentencing in a number of high-profile criminal cases has been put on hold – including the terms to be handed out to soldier Lee Rigby’s murderers – pending the judgment.
The Government has said that whole-life tariffs are “wholly justified in the most heinous cases”.
Reacting to today’s ruling Attorney General Dominic Grieve said on Twitter: “I am pleased CoA (Court of Appeal) has confirmed those who commit the most heinous crimes can be sent to prison for the rest of their lives.”
Mr Grieve added: “As someone who has killed three times, Ian McLoughlin committed just such a crime, and following today’s judgment he has received the sentence that crime required.
“I asked the Court of Appeal to look again at McLoughlin’s original sentence because I did not think that the European Court of Human Rights had said anything which prevented our courts from handing down whole life terms in the most serious cases.
“The Court of Appeal has agreed with me and today’s judgment gives the clarity our judges need when they are considering sentencing cases like this in the future.”
Lord Thomas said the court had held that the statutory scheme enacted by Parliament which enabled judges to pass whole-life orders was “entirely compatible” with the European Convention on Human Rights.
“Judges should therefore continue as they have done to impose whole-life orders in those rare and exceptional cases which fall within the statutory scheme.
“Under the statutory scheme as enacted by Parliament, the Secretary of State has power to release a prisoner on licence if he is satisfied that exceptional circumstances exist which justify the prisoner’s release on compassionate grounds.”
He added that the court had given guidance as to the meaning of that under domestic law.
At a hearing in January, Lord Thomas, Sir Brian Leveson, Lady Justice Hallett, Lord Justice Treacy and Mr Justice Burnett were urged to find that imposing sentences which mean a prisoner can never be released are not “manifestly excessive or wrong in principle”.
Such terms were deemed a breach of human rights following a successful appeal to the European Court of Human Rights (ECHR) by murderers Jeremy Bamber, Douglas Vinter and Peter Moore.
Last year the trio won a ruling that their whole-life sentences amount to “inhuman and degrading treatment”.
Whole-lifers should be entitled to a review of their sentence 25 years into their term at the very latest, the Grand Chamber of the Strasbourg-based court said.
The ruling by 17 judges from across Europe sparked further outrage among critics of the court – despite reassurances that the decision did not amount to grounds for imminent release.
As well as dealing with the appeal by Newell, who murdered child killer Subhan Anwar, they were asked to decide if the 40 years imposed in McLoughlin’s case could be regarded as “unduly lenient” and should be increased.
In the case of McLoughlin, the judges heard that he was aware of the proceedings but did not wish for any argument or representations to be made on his behalf.
His stance was explained to the court by barrister Kevin McCartney, who said McLoughlin had not considered the legal aspect, but had approached it from a “purely personal approach”.
It appeared from letters written by McLoughlin that he had been “very anxious at the sentencing hearing” and that this was a “sentiment that carried on… not to act in any way that would cause any further distress to the deceased’s family”.
Mr McCartney said: “That is a factor that played very heavily, as I understand it, in his attitude towards these proceedings.”
It was successfully argued on behalf of the Attorney General that the “failure to impose a whole-life order renders the sentence unduly lenient”.
On behalf of Newell, Joe Stone QC, in seeking permission to appeal against sentence, argued that a whole-life term was “manifestly excessive”.
Newell, now 45, challenged a whole-life sentence imposed last September at Warwick Crown Court.
He was convicted alongside Gary Smith for the February 2013 murder of convicted child killer Anwar in his cell at Long Lartin Prison, Worcestershire. Newell was already serving a life sentence for a previous murder committed in 1988.
Triple killer McLoughlin, 55, was jailed for life at the Old Bailey last October for stabbing a man on his first day-release from prison after 21 years in custody.
When sentencing McLoughlin, the trial judge imposed a 40-year tariff, saying he could not pass a whole-life term because of the European court ruling.
McLoughlin – who had killed twice before – stabbed Graham Buck, 66, as he came to the aid of a neighbour in Little Gaddesden, Hertfordshire, last July.
Those currently serving whole-life terms in England and Wales include Moors Murderer Ian Brady, who tortured and murdered children along with accomplice Myra Hindley, and serial killer Rosemary West.
Mr Justice Sweeney has said he will wait to sentence Fusilier Lee Rigby’s killers, Michael Adebolajo, and Michael Adebowale, until after the Court of Appeal decision. No date has yet been fixed for that sentencing hearing.
Justice Secretary Chris Grayling said: “This is a timely and welcome decision. Our courts should be able to send the most brutal murderers to jail for the rest of their lives.
“I think people in Britain will be glad that our courts have disagreed with the European Court of Human Rights, and upheld the law that the UK Parliament has passed.”
Lord Thomas said: “These two cases are exceptional and rare cases of second murders committed by persons serving the custodial part of a life sentence.
“The making of a whole-life order requires detailed consideration of the individual circumstances of each case.
“It is likely to be rare that the circumstances will be such that a whole-life order is required.”
Lord Thomas said that “although there may be debate in a democratic society as to whether a judge should have the power to make a whole-life order”, it was evident in the court’s view that “there are some crimes that are so heinous that Parliament was entitled to proscribe, compatibly with the Convention, that the requirements of just punishment encompass passing a sentence which includes a whole-life order”.
Lord Thomas said the Strasbourg court held last July that there had been a violation of Article 3 – inhuman and degrading treatment – in relation to whole-life orders on the basis that they were “not reducible”.
He said the Court of Appeal did not read the Grand Chamber’s judgment “as in any way casting doubt on the fact that there are crimes that are so heinous that just punishment may require imprisonment for life”.
He added: “There may be legitimate dispute as to what such crimes are – at one end genocide or mass murder of the kind committed in Europe in living memory or, at the other, murder by a person who has committed other murders, but that there are such crimes cannot be doubted.”
He said: “Under our constitution it is for Parliament to decide whether there are such crimes and to set the framework under which the judge decides in an individual case whether a whole-life order is the just punishment.”
Lord Thomas said: “We therefore conclude that no specific passage in the judgment, nor the judgment read as a whole, in any way seek to impugn the provisions of the Criminal Justice Act 2003, as enacted by Parliament, which entitle a judge to make at the time of sentence a whole-life order as a sentence reflecting just punishment.”
In their ruling the five judges concluded that the sentencing regime established by Parliament does provide for “reducibility”.
They ruled that the Grand Chamber was wrong when it reached a conclusion that the law of England and Wales did not clearly provide for reducibility.
In the Court of Appeal’s view the domestic law “is clear as to ‘possible exceptional release of whole-life prisoners’.”
A power of review arose if there were “exceptional circumstances”. An offender was required to demonstrate to the Secretary of State that although a whole-life order was just punishment at the time the order was made, exceptional circumstances had arisen since.
The Secretary of State “must then consider whether such exceptional circumstances justify the release on compassionate grounds”.
Lord Thomas concluded: “In our judgment the law of England and Wales therefore does provide to an offender ‘hope’ or the ‘possibility’ of release in exceptional circumstances which render the just punishment originally imposed no longer justifiable.”
Ruling on the McLoughlin case the Court of Appeal said the sentencing judge did not think he had the power to make a whole-life order, but he was “in error”.
The seriousness of the case was “exceptionally high”, and just punishment required a whole-life order – 40 years was unduly lenient.
In a letter written by McLoughlin to his lawyers explaining why he did not want representations made on his behalf, he said: “It is just that I believe I deserve the whole-life tariff which the AG is seeking and that the family of Graham Buck deserves to know officially that I will never be released.”
In Newell’s case, Lord Thomas said: “The murder was premeditated and involved the use of an improvised weapon. It occurred in prison whilst Newell continued to serve a life sentence. The deceased took a significant time to die.
“There was no mitigation. This was a murder where the seriousness of the offence was exceptionally high. The judge was right in making a whole-life order. This appeal is accordingly dismissed.”
However Mark Leech editor of Converse, the national newspaper for prisoners in England and Wales, criticised the judgment as ‘right wing.’
Mr Leech said: “I am not against whole life tariffs in principle, for the most heinous crimes it is absolutely right that society must be able to lock the door and throw away the key.
“But the point of a review of such a sentence 20 or 25 years after it was imposed, as held by the European Court of Human Rights, is crucially important in terms of fairness even if nothing changes when those reviews take place.
“It should not be the case that a whole life prisoner should have to prove exceptional circumstances before a review takes place – all whole life sentences should be reviewed 20 or 25 years after they are imposed because they are effectively a death sentence, a sentence of death in jail, and a review of all such sentences would show that British Justice goes that extra mile of fairness for which it has become famed around the world.
“Sadly today’s judgement shows that we currently have the most right-wing higher Courts since the days of Lord Chief Justice Goddard in the 1950’s, our senior judges – who are all appointed by the Queen on the political recommendation of the Prime Minister it must be remembered – have today shown they have little respect for human rights and they have done so-called British Justice a huge disservice by serving their political masters rather than the rights of those people they swore to uphold.”