Whole-life sentences can still be imposed on serious and serial offenders despite objections from the European court of human rights, the court of appeal has been told.
Existing provisions for considering inmates for release on compassionate grounds are sufficient to meet Strasbourg’s demand for intermittent reviews of whole-life sentences, James Eadie QC said.
His comments came in applications before the court of appeal concerning the prison terms of two murderers, which have been seen as a test of whether parliament or the ECHR constitutes the ultimate legal authority. A judgment by the Strasbourg court last year ruled that whole-life terms were a breach of human rights because they did not allow for any prospect of release or of the sentence being reviewed.
Eadie, appearing on behalf of the attorney general, Dominic Grieve QC, told the court there was already provision for release under domestic law.
“Any prisoner can approach the secretary of state for release on compassionate grounds,” he explained. “The secretary of state is bound to give it careful consideration.”
Whole-life sentences themselves were not said by the ECHR to be incompatible with human rights law, Eadie added. The decision in Strasbourg “does not render the imposition of a whole-life order manifestly excessive or wrong in principle”.
UK courts only had to “take into account” Strasbourg rulings and if it was thought those judges were mistaken they could be asked to reconsider their decision, he said.
Because of the sensitivity of the case five judges sat on the court of appeal to consider the applications. The lord chief justice, Lord Thomas, sat alongside Lord Justice Leveson, president of Queen’s Bench Division; Lady Justice Hallett; Lord Justice Treacy, who heads the sentencing council; and Mr Justice Burnett.
The appeal relates to two cases. Ian McLoughlin, 55, a convicted double killer, murdered again last year when a person went to the aid of a neighbour. Lee Newell, 45, also has two convictions for murder. In 1989, he strangled a woman after tricking his way into her house. Last year he asphyxiated a fellow inmate in a prison cell.
Newell is appealing against a whole-life sentence imposed on him last year. Lawyers for the attorney general are arguing that McLoughlin’s sentence of 40 years was too lenient and should have been a whole-life sentence.
On behalf of Newell, Joe Stone QC, said a whole-life term was “manifestly excessive”. If he was given a 40-year minimum it would give him hope and the “flickering possibility that one day, when he is 85, he will be released from prison”. Stone added: “This defendant must maintain the right to hope that one day he will have the right to atone.”
McLoughlin was not given a whole-life sentence at his trial last year because the judge took into account the ruling by Strasbourg that such sentences in their current form in England and Wales, without a dedicated review mechanism, violated article 3 of the European convention on human rights, which outlaws torture, inhuman or degrading treatment.
McLoughlin, the judges heard, was aware of the proceedings but did not want any argument or representations to be made on his behalf. Barrister Kevin McCartney told the court McLoughlin did not want to “act in any way that would cause any further distress to the deceased’s family”. He was not present in court or via videolink.
The appeal had been due to hear another application from Matthew Thomas, 53, who murdered a woman he met at a night shelter in 2003. Thomas had previous convictions for rape and robbery. During the hearing, however, it emerged that he had not been given a whole-life sentence but a minimum term of 16 years.
Judgment was reserved. Speaking after the hearing, Grieve said: “This hearing was about preserving the principle that whole-life orders can be imposed for particularly heinous and serious crimes. I asked the court of appeal to look again at the sentence handed down to Ian McLoughlin as I believed the sentencing judge mistakenly took into account a decision of the European court of human rights which is inconsistent with the domestic legislation and case law by which he was bound.
“I believed the seriousness of this case required a whole-life order because McLoughlin had a previous conviction for manslaughter in 1984, a conviction for murder in 1992, and because the murder for which he was being sentenced was committed in the course of robbery.”