Whole Life Orders and Article 3

AuthorAndrew Beetham
Published date01 June 2017
Date01 June 2017
DOIhttp://doi.org/10.1177/0022018317706841
Subject MatterCase Notes
Case Note
Whole Life Orders and
Article 3
Keywords
Article 3, life sentence, whole life order, reducibility
Hutchinson vUnited Kingdom (App No. 57592/08) [2017] ECHR 65
On 14 September 1984, the applicant was convicted of, inter alia, three counts of murder and sentenced
by the trial judge, McNeil J., to the mandatory life sentence. On 25 September 1984, McNeil J. wrote to
the home secretary recommending the applicant serve a minimum term of 18 years for the purposes of
retribution and deterrence. When asked again on 12 January 1988, McNeil J. recommended a whole life
order, with which Lord Lane C. J. concurred on 15 January 1988. Following the judgment of the House
of Lords in R v Secretary of State for the Home Department, ex parte Doody [1994] 1 AC 531, the
applicant was informed that the Home Secretary had decided that he should remain in prison for the
whole of his life.
Following the enactment of s. 269 and sch. 22 Criminal Justice Act 2003 (CJA 2003), the applicant
applied for a review of his minimum term, arguing that a whole life order violated art. 3 of the European
Convention on Human Rights. Article 3 provides that: ‘No one shall be subjected to torture or inhuman
or degrading treatment or punishment’.
On 16 May 2008, Tugendhat J. held, rejecting the applicant’s submissions, that he should receive a
whole life order (Re Hutchinson [2008] EWHC 860 (QB)). On 6 October 2008, the Court of Appeal
dismissed the applicant’s appeal (R v Hutchinson [2008] EWCA Crim 2490).
On 10 November 2008, the applicant filed an application with the European Court of Human
Rights (App. No. 57592/08), alleging that the imposition of the whole life order was in violation of
art. 3. On 3 February 2015, a Chamber of the Fourth Section of the E uropean Court of Human
Rights held that there had been no violation of art. 3 (Hutchinson v United Kingdom (2015) 61
EHRR 13). On 1 June 2015, a panel of the Grand Chamber decided to refer the case to the Grand
Chamber.
HELD, BY A MAJORITY OF 14 VOTES TO 3, a whole life order can be considered as reducible,
therefore there had been no violation of art. 3.
Commentary
The issue before the Grand Chamber was whether a whole life order was in compliance with art. 3 (at
[3]). This issue had been considered previously by the Grand Chamber in Vinter & Others vUnited
Kingdom (2016) 63 EHRR 1, in which the Court had held by 16 votes to 1 that a whole life order could
not be considered as reducible, therefore there had been a violation of art. 3.
The key issue in an art. 3 review of life sentences is that of reducibility. Article 3 has been
interpreted as specifying that a life sentence must be ‘reducible de jure et de facto’, meaning that
there must be both a prospect of release for the prisoner and a possibility of review’ (dissenting opi nion
The Journal of Criminal Law
2017, Vol. 81(3) 236–239
ªThe Author(s) 2017
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DOI: 10.1177/0022018317706841
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