Life Meaning Life: Is There Any Hope of Release for Prisoners Serving Whole Life Orders?

DOI10.1350/jcla.2011.75.1.684
AuthorSeema Kandelia
Publication Date01 Feb 2011
SubjectArticle
Life Meaning Life: Is There Any
Hope of Release for Prisoners
Serving Whole Life Orders?
Seema Kandelia*
Abstract This article reviews the system of whole life orders in England
and Wales, looking in particular at whether such sentences constitute
inhuman or degrading treatment or punishment contrary to Article 3 of
the European Convention on Human Rights. This issue came before the
European Court of Human Rights in 2008 in the case of Kafkaris vCyprus.
The court held that a whole life tariff would not violate Article 3 as long as
there was some possibility that a life sentence was de jure or de facto
reducible. The possible grounds for the release of a prisoner serving a
whole life sentence in England and Wales is, however, extremely limited.
This article will assess to what extent the release procedures regarding
whole lifers meet the criteria laid down by the European and domestic
courts and whether there is any realistic hope of release for prisoners
sentenced to whole life orders.
Keywords Mandatory life sentence; Legality of whole life sen-
tences; Inhuman or degrading treatment or punishment; Release
of life-sentenced prisoners; Kafkaris v Cyprus
The mandatory life sentence for murder was introduced following the
abolition of the death penalty in 1965. At the time though, it was
generally understood that the offender would be detained in prison for
a set period of time after which he or she would be released by the Home
Secretary. The fact that it was a member of the executive who had the
power to release a life-sentenced prisoner did not cause any particular
concern and in practice the Home Secretary used his power somewhat
generously, releasing many life-sentenced prisoners after they had
served relatively short periods of time in custody.
Over time, the early release of those that had committed murder
began to cause a backlash. In response, the government announced
tougher measures which increased the minimum term certain mur-
derers would spend in prison. In particularly heinous cases, some
murderers would be subjected to a whole life tariff, meaning that they
would spend the rest of their natural lives in prison. These new meas-
ures gave the Home Secretary much more control over those convicted
of murder, ensuring that certain murderers would spend a longer period
of time in custody. However, in recent years, the role of the executive in
determining the length of time an offender spent in prison has started to
come under the scrutiny of both the domestic and European courts.
* Lecturer and Research Fellow, School of Law, University of Westminster. I would
like to thank Professor Hélène Lambert, Peter Hodgkinson OBE and Dr Rupa Reddy
for the helpful comments they made on earlier drafts.
70 The Journal of Criminal Law (2011) 75 JCL 70–87
doi:10.1350/jcla.2011.75.1.684
The practice of imposing a whole life tariff has also been called into
question. It has been argued that sending a person to prison for the rest
of his or her natural life without any hope of release could constitute
inhuman or degrading treatment or punishment contrary to Article 3 of
before the European Court of Human Rights in 2008 in the case of
Kafkaris vCyprus.1The Grand Chamber held that a whole life tariff
would not violate Article 3 as long as there was some possibility that a
life sentence was de jure or de facto reducible.
The possible grounds for the release of a prisoner serving a whole life
sentence in England and Wales is, however, extremely limited. More-
over, it is the Home Secretary who has the power to release a whole life-
sentenced prisoner; a judicial process is not required. This could be a
potential breach of Article 5(4) of the ECHR which requires the lawful-
ness of detention to be decided by a court.
This article reviews the system of whole life sentences in England and
Wales. It will assess to what extent the release procedures regarding
whole lifers meet the criteria laid down by the European and domestic
courts and whether there is any realistic hope of release for prisoners
sentenced to whole life orders. While the mandatory life sentence for
murder has been considered by the courts and in the academic liter-
ature, the issue of sentencing offenders to prison for the rest of their
natural life has attracted relatively little attention prior to the decision of
the European Court of Human Rights in Kafkaris. The issue of whole life
sentences is signif‌icant though as such orders represent the most severe
penalty available in this country since the abolition of the death penalty.
The article begins by charting the development of the mandatory life
sentence for murder and the introduction of whole life orders for
particular types of murder. It then leads onto an analysis of the recent
case law on the legality of whole life sentences and the power of the
Home Secretary to grant release to life-sentenced prisoners.
Development of the mandatory life sentence
Prior to 1957, the law for sentencing convicted murderers was relatively
straightforward. Offenders found guilty of murder were mandatorily
sentenced to death regardless of the circumstances surrounding the
crime although some exceptions to this had developed.2However, many
people that received the death penalty were not executed. Statistics
collected by the Royal Commission on Capital Punishment3show that
1Kafkaris v Cyprus [2008] ECHR 21906/04 (12 February 2008).
2 For example, those under the age of 18 and pregnant women were exempt from
the death penalty and were given a term of life imprisonment instead. See Children
Act 1908, Children and Young Persons Act 1933 and Sentence of Death (Expectant
Mothers) Act 1931.
3 The Royal Commission on Capital Punishment was set up by the then Labour
government to explore questions relating to the operation of the death penalty and
possible alternative sentences. See further D. van Zyl Smit, Taking Life Imprisonment
Seriously in National and International Law (Kluwer Law International: The Hague,
2002) 8792.
Life Meaning Life
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