Inhuman and Degrading Punishment, Dignity, and the Limits of Retribution
| Date | 01 March 2014 |
| DOI | http://doi.org/10.1111/1468-2230.12067 |
| Published date | 01 March 2014 |
Inhuman and Degrading Punishment, Dignity,
and the Limits of Retribution
Natasa Mavronicola*
The recent judgment of the Grand Chamber of the European Court of Human Rights (ECtHR)
in Vinter and others vUnited Kingdom provides a much needed clarification of the parameters of the
prohibition on inhuman and degrading punishment under Article 3 of the European Convention
on Human Rights (ECHR) as it applies to whole life orders of imprisonment under mandatory
life sentences – essentially, life imprisonment without parole. The Grand Chamber’s judgment
refines Strasbourg doctrine on life imprisonment and the prospect of release and illuminates key
principles concerning inhuman and degrading punishment under Article 3 of the ECHR. This
article considers the judgment’s profound significance in relation to both human rights and
penology.
INTRODUCTION
The recent judgment of the Grand Chamber in Vinter and others vUnited
Kingdom1(Vinter) has been met with criticism from senior members of the UK
government and some media-fuelled public ire, portrayed by some as yet another
example of the European Court of Human Rights (ECtHR) dictating criminal
justice principles in England and Wales contrary to the popular will.2In this
comment, I argue that it embodies a ground-breaking decision on the parameters
of the absolute prohibition on inhuman and degrading punishment under Article
*Lecturer in Law, Queen’s University Belfast. The author would like to thank Jonathan Bild, Alan
Greene, Nicola Padfield and the anonymous referee for their insightful and extremely valuable
comments on an earlier draft. Special thanks are also due to Professor David Feldman for his invaluable
guidance on Article 3 of the ECHR. The analysis is current to the best of my knowledge as of 17 July
2013. All errors are, of course, my own.
1Vinter and others vUnited Kingdom App Nos 66069/09, 130/10 and 3896/10, Grand Chamber
Judgment of 9 July 2013 (Vinter [GC]).
2 For the government’s reaction, see N. Watt and A. Travis, ‘Tory ministers condemn ECHR ruling
on whole-life prison sentences’ The Guardian 9 July 2013 at http://www.guardian.co.uk/law/
2013/jul/09/whole-life-sentences-david-cameron-human-rights (last visited 17 July 2013); for the
media take see, for instance, G. Wilson, ‘Victory for Evil’ The Sun 10 July 2013 at http://
www.thesun.co.uk/sol/homepage/news/politics/5005765/Victory-for-evil-as-EU-judges
-declare-that-whole-life-sentences-are-inhumane.html (last visited 17 July 2013); N. Tebbit, ‘Time
to leave the European Court for Criminal Privileges’ The Telegraph 10 July 2013 at http://
blogs.telegraph.co.uk/news/normantebbit/100225858/time-to-leave-the-european-court-for
-criminal-privileges/ (last visited 16 July 2013); but cf M. Riddell, ‘Why the European Court is
right on whole-life sentences’ The Telegraph 9 July 2013 at http://blogs.telegraph.co.uk/news/
maryriddell/100225661/why-the-european-court-is-right-on-whole-life-sentences/ (last visited
17 July 2013). The case has already been the subject of – generally positive – academic coverage on
various blogs. See, for instance, N. Holcroft-Emmess, ‘Vinter v UK – Why The Majority Are
Right To Find That Whole Life Orders Violate Article 3 ECHR’ Oxford Human Rights Hub
Blog 12 July 2013 at http://ohrh.law.ox.ac.uk/?p=2247 (last visited 17 July 2013); D. Bunting,
‘Whole Life tariffs unlawful – Vinter v UK in the ECHR’ UK Criminal Law Blog 11 July 2013
at http://ukcrime.wordpress.com/2013/07/11/whole-life-tariffs-unlawful-vinter-v-uk-in-the
-echr/ (last visited 17 July 2013).
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Inhuman and Degrading Punishment and the Limits of Retribution
© 2014 The Author. The Modern Law Review © 2014 The Modern Law Review Limited.
292 (2014) 77(2) MLR 277–307
3 of the European Convention on Human Rights (ECHR), but one which is
also faithful to previous ECtHR case law and the underlying values encompassed
in the prohibition and the Convention itself. The judgment clarifies Strasbourg
doctrine on life imprisonment without the possibility of parole and casts light on
key principles underpinning the notions of inhuman and degrading punishment
under Article 3. It carries important implications for penology and human
rights although, as I indicate below, the full extent of its implications remains
undefined.
In the analysis below, I set out the facts and legal background to the case and
the Court’s judgment on the merits. I proceed to demonstrate that the Grand
Chamber in Vinter not only imposes a procedural duty of review of whole life
sentences but also establishes a principle of reducibility based on a rejection of
‘pure’ punishment – wording used by the UK government and the ECtHR, and
carrying the meaning of ‘retribution’ – as a legitimate penological ground for
imprisoning an individual for life. The rejection of ‘pure’ punishment in this
context and the emphasis on prisoner rehabilitation in the Court’s reasoning
impact on penology as it relates to the absolute right enshrined in Article 3 of
the ECHR and to the value of human dignity, which the Court portrays as
underpinning not only Article 3 but the Convention more broadly.
BACKGROUND
The law in England and Wales imposes the mandatory sentence of life impris-
onment on those convicted of murder.3As the law currently stands, upon an
individual’s conviction for murder, which automatically triggers the mandatory
sentence of life imprisonment, the trial judge is required to set a minimum term
of imprisonment, which must be served by the individual convicted for the
purposes of punishment and retribution before consideration for parole. Trial
judges have been responsible for setting this minimum period of imprisonment
since the Home Secretary’s role in setting the ‘tariff’ period was removed by the
Criminal Justice Act 2003 after a series of judicial decisions on the right to a
fair trial.4
The principles which guide the trial judge’s assessment of the appropriate
minimum term are set out in Schedule 21 to the Criminal Justice Act 2003. A
‘whole life order’ may be imposed by the trial judge instead of a finite minimum
term if the judge considers the seriousness of the offence to be exceptionally
high, applying the principles in Schedule 21. If the whole life order has been
imposed on conviction, the prisoner cannot be released other than at the
discretion of the Secretary of State under section 30(1) of the Crime (Sentences)
Act 1997. The Secretary of State’s criteria for the exercise of that discretion are
set out in Prison Service Order 4700, chapter 12, and comprise a cumulative set
3 See Murder (Abolition of Death Penalty) Act 1965, s 1.
4 See Stafford vUnited Kingdom App No 46295/99, Grand Chamber Judgment of 28 May 2002;
Benjamin vUnited Kingdom App No 28212/95, Judgment of 26 September 2002; and R (Anderson)
vSecretary of State for the Home Department [2002] UKHL 46.
Natasa Mavronicola
© 2014 The Author. The Modern Law Review © 2014 The Modern Law Review Limited. 293(2014) 77(2) MLR 277–307
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