THE ECtHR has for the second time in three years engaged with the British Government's handling of whole-life prison terms. In Hutchinson v United Kingdom (Application no. 57592/08), Judgment of 3 February 2015, not yet reported, the Fourth Section accepted the authoritativeness of an English court's decision on the meaning of English law relating to the Home Secretary's discretion to reduce a whole-life sentence. It also yielded to national judges on whether this sentence review mechanism complies with the proscription on inhuman and degrading treatment in Article 3 of the ECHR.

Arthur Hutchinson was convicted in 1984 of aggravated burglary, rape, and three counts of murder. In December 1994, the Secretary of State for the Home Department informed Hutchinson that he had, at the Lord Chief Justice's recommendation, imposed a whole-life term of imprisonment. In 2008, a judicial review of the sentence under the Criminal Justice Act 2003 and a subsequent appeal found no reason to reduce this sentence. In November 2008, Hutchinson lodged a claim with the ECtHR, alleging an Article 3 violation.

The ECtHR was invited to consider the English legislative regime for reviewing whole-life sentences. Section 30(1) of the Crime (Sentences) Act 1997 provides that “The Secretary of State may at any time release a life prisoner on licence if he is satisfied that exceptional circumstances exist which justify the prisoner's release on compassionate grounds”. Chapter 12 of the Indeterminate Sentence Manual (“the Manual”), issued by the Home Secretary in 2010, limits compassionate release on medical grounds to prisoners with a terminal illness likely to cause their death very shortly.

Two prior cases concerning whole-life sentences under this regime provide crucial background to Hutchinson. In Vinter and Others v United Kingdom (Application nos. 66069/09, 130/10, and 3896/10) (2012) 55 EHRR 34, handed down in July 2013, the ECtHR's Grand Chamber affirmed (at [107]–[122]) that whole-life sentences, while not inherently inimical to Article 3, are unlawful if they are “irreducible” in law or fact. National mechanisms for reviewing sentences must provide a realistic prospect of release based on a shifting balance between legitimate penological purposes – retribution, deterrence, public protection, and rehabilitation – over the course of a prisoner's sentence. Although the ECtHR will not prescribe the form of such a review mechanism, the general principle is that “[a] whole life prisoner is entitled to know, at the outset of his sentence, what he must do to be considered for release”. The Grand Chamber proceeded to find (at [125]–[130]) that the UK's regime for reviewing whole-life sentences violated Article 3, because the Manual's restrictive and apparently exhaustive grounds for sentence reduction did not accommodate other legitimate penological grounds for a commutation. It was unclear how the Home Secretary would exercise his or her discretion to reduce a life sentence outside of the bases in the Manual.

The second decision was of a specially constituted Court of Appeal in Attorney General's Reference (No. 69 of 2013) [2014] EWCA Crim 188; [2014] 1 W.L.R. 3964 (McLoughlin, after one of the appellants). This February 2014 judgment affirmed that whole-life sentences are compatible with Article 3 provided that a review mechanism exists when a sentence is imposed (at [14]–[22]). The Court found that the Grand Chamber in Vinter had misconstrued the UK's review mechanism. It held (at [31]–[36]) that the Home Secretary's power to review a whole-life sentence under s. 30 of the Crime (Sentences) Act arises whenever exceptional circumstances exist. The Manual provides guidelines on certain grounds for sentence relief but cannot fetter the Home Secretary's discretion, which (by virtue of s. 6 of the Human Rights Act 1998) he or she is bound to exercise in conformity with Article 3. The Court of Appeal found that the term “exceptional circumstances” was a “term with wide meaning” that could be developed through the common law (at [31], [36]).

In Hutchinson, the Fourth Section interpreted Vinter as establishing that “if section 30 … impos[es] a duty on the Secretary of State to exercise his power of release if it could be shown that the prisoner's continued detention was no longer justified on penological grounds, … this would, in principle, be consistent with the requirements of Article 3” (at [22]). While Vinter had found that the UK's regime did not permit the review demanded by Article 3, the subsequent Court of Appeal decision provided an “unequivocal statement” that, under British law, the Home Secretary must consider all exceptional circumstances that could warrant a sentence reduction. The ECtHR considered itself bound to recognize the Court of Appeal's interpretation of national law as definitive (at [24]–[25]). For that reason, it accepted that the UK's system of reviewing whole-life sentences complied with Article 3.

It is well established in the ECtHR's jurisprudence that domestic courts bear primary responsibility for interpreting national law. The Court of Appeal's explanation in McLoughlin that the Manual did not exhaustively enumerate the grounds on which the Home Secretary may reduce a whole-life sentence – a discretion that must be exercised based on any exceptional circumstances and compatibly with Article 3 – is a structural feature of British law on which the Fourth Section in Hutchinson rightly deferred to English judges. There are, however, two grounds for questioning the result in Hutchinson.

The first relates to chronology. Both Vinter and McLoughlin established that a review mechanism must be available and visible to a prisoner at the time a whole-life sentence is imposed. For Hutchinson, that was in December 1994. The McLoughlin ruling on the relationship between the Manual and s. 30 of the Crime (Sentences) Act was handed down in 2014 and related to a whole-life sentence imposed in 2013. As Judge Kalaydjieva pointed out in her dissenting opinion, it was not clear whether the Court of Appeal's finding was “an ex tunc or an ex nunc” exposition on the exercise of the Home Secretary's discretion. She could not “see the bearing of this progressive development of the law on [Hutchinson's] situation” when he submitted his complaint to the ECtHR in 2008. Moreover, before the enactment of the Human Rights Act 1998, there was no legislative imperative for the Home Secretary to exercise his or her discretion compatibly with Article 3. To the contrary, a policy announced by the then Home Secretary in December 1994 (cited in McLoughlin at [7]) indicated that he would exercise his discretion under the predecessor to s. 30 of the Crime (Sentences) Act based only on “considerations of retribution and deterrence”. R. v Home Secretary ex p. Hindley [1998] Q.B. 751 found that this policy had unlawfully fettered the Home Secretary's discretion, and was redeemed only in 1997 when the Home Secretary introduced additional considerations including a prisoner's rehabilitation (at 770). Even adopting the Court of Appeal's view in McLoughlin of English law as it now stands, it is arguable that no adequate review mechanism existed when Hutchinson's whole-life sentence was imposed – essential to Article 3 compliance.

The second concern is over the ECtHR's uncritical acceptance that the UK's regime provides whole-life prisoners with a realistic and discernible prospect of release. In Vinter, the Grand Chamber found not only that the Manual unlawfully restricted the grounds for sentence relief, but also that the general scope of exceptional circumstances cognisable by the Home Secretary was unclear. While McLoughlin addressed the first issue by explaining that the Manual could inform but not condition the Home Secretary's discretion, it paid short shrift to the broader lack of clarity, claiming simply that “the term ‘exceptional circumstances’ is of itself sufficiently certain” (at [31]). It is for this reason that critics consider the McLoughlin approach unsatisfactory (see e.g. Bild [2015] C.L.J. 1, at 3). Previous case law suggests that an enquiry into this aspect of English law may have altered the Hutchinson outcome. In Trabelsi v Belgium (Application no. 140/10), Judgment of 4 September 2014, not yet reported, the Fifth Section considered whether the Belgian government's extradition of an accused criminal to the US violated Article 3. In the US, a whole-life sentence could be reduced by a presidential pardon, as well as through various legislative channels which demanded consideration of a prisoner's assistance in another criminal investigation and more general “extraordinary and compelling reasons” including factors of retribution, deterrence, the protection of society, and a defendant's access to rehabilitative services (18 US Code §3553(a)). Even with these factors enumerated, the Fifth Section found that the review mechanisms failed to provide “objective, pre-established criteria of which the prisoner had precise cognisance” (at [137]). Although the British Home Secretary, unlike the American authorities in Trabelsi, is obligated to act compatibly with Article 3, the fact that the circumstances under which he or she will discretionarily reduce a life sentence under legislation – let alone under the prerogative of mercy, not addressed in Hutchinson – are undefined casts doubt on whether Hutchinson's whole-life sentence is reconcilable with Article 3.