An exploration of ECtHR jurisprudence governing the administration of release processes for life and long-term sentence prisoners: Perspectives from the United Kingdom
| DOI | 10.1177/20322844211061551 |
| Date | 01 December 2021 |
| Published date | 01 December 2021 |
| Author | Ger Coffey |
| Subject Matter | Articles |
Article
New Journal of European Criminal Law
2021, Vol. 12(4) 594–621
© The Author(s) 2021
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DOI: 10.1177/20322844211061551
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An exploration of ECtHR
jurisprudence governing the
administration of release
processes for life and long-term
sentence prisoners:
Perspectives from the United
Kingdom
Ger Coffey
University of Limerick, Limerick, Ireland
Abstract
The purpose of the research themes examined in this article is to contribute to the ongoing debate
pertaining to substantive criminal laws and procedures governing sentence reviews of prolonged
detention for life and long-term sentence prisoners in accordance with Article 5(4) ECHR. The
incompatibility of whole life irreducible sentences with Article 3 ECHR is examined through the lens
of the ECtHR judgment in Vinter, Moore and Bamber v United Kingdom. The analyses of ECtHR
jurisprudence is heavily skewed towards the administration of indeterminate life, and by analogy
long-term determinate sentences, in the United Kingdom which is an outlier jurisdiction in
a European context given that, in conjunction with Turkey, it accounts for the majority of persons
serving life sentences. The article focuses on pertinent ECHR provisions and associated ECtHR
jurisprudence, with perspectives from the United Kingdom on their implementation as a case study.
While key themes are disinterred from the ECtHR’s jurisprudence that will presumably inform
sentence review procedures in European states, a broader analysis of release systems operative in
a European context is beyond the scope of the article.
Keywords
Life imprisonment, irreducible life sentences, long-term determinate sentences, rehabilitation and
Corresponding author:
Ger Coffey, Centre for Crime, Justice and Victim Studies, School of Law, University of Limerick, Castletroy, Limerick V94
T9PX, Ireland.
Email: ger.coffey@ul.ie
Introduction
It is widely acknowledged that life sentence prisoners will not be incarcerated for the remainder of
their natural life and may be conditionally released by parole authorities. Equally, long-term
sentence prisoners may have an expectation of conditional release before the determination of their
sentence. The ECtHR has frequently invoked Article 5(4) as a procedural safeguard against un-
lawful and disproportionately prolonged detention. At appropriate stages of their sentence, prisoners
are entitled to frequent and speedy reviews of continued detention by a court or ‘court like’body.
Such quasi-judicial bodies, effectively a parole authority, must be invested with the power to
determine the lawfulness of continued detention.
1
It is generally not sufficient that such an authority
functions in an advisory capacity to the executive branch of government, albeit release systems
between European states for life sentence prisoners vary considerably including release by a judicial
authority/court, parole authority, release by the executive, and clemency release.
2
Sentence reviews
must adopt appropriate fair procedures and due process guarantees in the decision-making process.
Whether a review is sufficiently speedy or frequent is considered in light of the circumstances and
complexities of the sentence under review. Prisoners may have an entitlement to conditional release
if continued detention is found to be unlawful.
Prolonged detention may be proportionate commensurate with perceived risk and dangerousness
of reoffending. Sentence reviews must be sufficiently broad to determine whether the legitimate
penological justifications for continued detention prevail. National laws in conjunction with ECHR
provisions and associated ECtHR jurisprudence are equally relevant between European states, and
implementing ECHR sentence review standards into national laws is conditional on the diversity of
parole authorities. Substantive and procedural law governing release systems for life and long-term
sentence prisoners has to a great extent been formulated by ECtHR judgments. The majority of
ECtHR judicial formulations on procedures governing sentence reviews emanates from the cases
taken against the United Kingdom. Therefore, an appreciation of developments in law and practice
in that jurisdiction is particularly apposite in order to appreciate the parameters of ECtHR juris-
prudence –albeit most European states operate discretionary release systems. While the ECtHR has
emphasised the need for a quasi-judicial authority for reviewing post-tariff sentence prisoners in the
United Kingdom, that is due to the primacy of risk in the parole decision-making process in that
jurisdiction.
3
The ensuing analysis of ECHR provisions and associated ECtHR jurisprudence is
informed through perspectives from the United Kingdom on their implementation as a case study.
Through doctrinal analysis of the legalistic issues the purpose of this article is to contribute to the
ongoing analysis of legitimate penological justifications for prolonged enforcement of life and long-
term sentences commensurate with release systems governed by pertinent ECHR provisions and
associated ECtHR jurisprudence. Substantive and procedural safeguards against determinations of
parole authorities to arbitrarily prolong detention following the punitive element of sentences are
key to the analysis. The general assumption postulated is that life sentences are structured such that
they have a punitive element after which point the decision to release is based on assessments of risk
and dangerousness by a body independent of the executive –admittedly this is not the case accross
1. While the term ‘parole board’is used in relation to United Kingdom case law, the term ‘parole authority’is invoked
throughout the article as there is a multitude of such decision-making bodies in a European context.
2. Dirkvan Zyl Smit and Catherine Appleton, Life Imprisonment: A Global and Human Rights Analysis (Harvard University
Press, 2019) chp. 9.
3. The ECtHR has not had similar interpretations in other jurisdictions where there are a broader range of factors at play:
Streicher v Germany (Application no 40384/04); Meixner v Germany (Application no 26958/07).
Coffey 595
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