Public Law Newsletter March 2014

HUMAN RIGHTS

Article 3: freedom from torture, inhuman and degrading treatment and punishment

The issue of life sentences for the crime of murder has come
before the courts on several occasions, both in the United
Kingdom and in Strasbourg (in the European Court of Human
Rights). The Court of Human Rights has ruled that the imposition
of a life sentence is not contrary to Article 3, even where a whole
life sentence is imposed, provided that at the time of sentencing
there are mechanisms in place for review of the sentence and
there exists a real possibility of release at some future date. In
other words the sentence must not be irreducible.

Under domestic law, the Murder (Abolition of Death Penalty) Act
1965 makes the imposition of a life sentence for murder
mandatory. Under the Criminal Justice Act 2003, section 269, the
trial judge must decide whether to make a minimum term of a fixed number of years, or a whole life order.
Under section 30 of the Crime (Sentences) Act 1997, the Secretary of State may direct the release of the
prisoner if there are exceptional circumstances which justify release on compassionate grounds. The Home
Secretarys policy was set out in the Indeterminate Sentence Manual (the Lifer Manual) of 2010.

The requirement of reducibility was explained by the Grand Chamber of the European Court of Human
Rights as being:

in the sense of a review which allows the domestic authorities to consider whether any changes
in the life prisoner are so significant, and such progress towards rehabilitation has been made in
the course of the sentence, as to mean that continued detention can no longer be justified on
legitimate penological grounds (Vinter v United Kingdom [2012] 55 EHRR 34, para 119).

In Vinter (No 2) (2013) 34 BHRR 605, the Court of Human Rights ruled that there was a violation of Article 3
on the basis that they were not reducible. The Home Secretarys policy regarding exceptional
circumstances was restrictive, and although judicial review proceedings might be taken to challenge his or
her decision, such possibilities are not sufficient to remedy the lack of clarity that exists at present to the
state of the applicable domestic law governing possible exceptional release of whole life prisoners (at para
129).

In Attorney Generals Reference (No 69 of 2013); R v McLoughlin, R v Newell [2014] EWCA Crim 188; Times
LR 24 February 2014, the Court of Appeal revisited the issue, rejecting the Court of Human Rights analysis
of domestic law. The Court ruled that the domestic law is clear: the Secretary of State had to exercise his
powers in a manner compatible with the principles of administrative law and with Article 3 of the ECHR.
Accordingly, he or she was not free to fetter his or her discretion by taking into account only the matters
set out in the Life Manual. In addition, the term compassionate grounds had to be interpreted in a
manner compatible with Article 3. Furthermore, his or her decision must be reasoned, and could be subject
to judicial review. Accordingly, the law was held to provide to an offender the requisite hope or possibility
of release in exceptional circumstances which render the just punishment originally imposed no longer
justifiable.


THE REFORM OF JUDICIAL REVIEW

The governments proposals for reform of judicial review so
as to lessen the burden on the courts, discussed in Recent
Developments, are brought forward under Clause 50 of the
Criminal Justice and Courts Bill 2014. Clause 50 if enacted in
its present form amends section 31 of the Senior Courts Act
1981 and the Tribunals, Courts and Enforcement Act 2007. It
provides, in part, that the High Court must refuse to grant
relief on an application for judicial review:

If it appears to the court to be highly likely that the outcome
for the applicant would not have been substantially different if the conduct complained of had not
occurred.

When considering whether to grant leave to make an application for judicial review, the High Court of its
own motion may decide whether the substantial difference principle applies, and must so decide if
requested to do so by the defendant. If the case goes to a full hearing, the court must refuse to grant any
remedy to the applicant if the outcome would not have been substantially different had the public body
acted according to law.

The government also intends to ensure that the applicant for judicial review has sufficient financial
resources. Clause 51 requires that the applicant provide the court (or Upper Tribunal) with information
about the source, nature and extent of financial resources available, or likely to be available, to the
applicant to meet liabilities arising in connection with the application. In relation to applications from
corporate bodies, if they are unable to demonstrate that they have the funds to meet any liabilities, they
must provide information about their members and their ability to provide financial support for the
purposes of the application.

Critics of the proposed reforms argue that the individual will be deterred from seeking judicial review and,
as a result, public bodies will be less concerned about the possibility of judicial review. This undermines the
constitutional role of judicial review: the upholding of the rule of law and of the will of Parliament. As Lord
Reed explained in Axa General Insurance Ltd v HM Advocate [2011] UKSC 46; [2011] 3 WLR 871 at paras
142 144:

Judicial review under the common law is based upon an understanding of the respective
constitutional responsibilities of public authorities and the courts. The constitutional function of
the courts in the field of public law is to ensure, so far as they can, that public authorities respect
the rule of law. The courts therefore have the responsibility of ensuring that the public authority in
question does not misuse its powers or exceed their limits.

Lord Reed went on to set out the dangers of powers which are so widely drawn that the courts could not
review the decisions in relation to relevant or irrelevant considerations. Likewise, where an authority is free
to decide for what purposes powers may be exercised, the possibility of review on the basis of arbitrariness
or improper purpose is reduced. The ability to rule on rationality or irrationality is also reduced where
broad powers are conferred (see paragraph 143) . Furthermore:

The principle of legality means not only that Parliament cannot itself override fundamental rights or
the rule of law by general or ambiguous words, but also that it cannot confer on another body, by
general or by ambiguous words, the power to do so (paragraph 152).

Where, however, as with the governments current proposals, the individual is deterred from seeking
judicial review, the possibilities for determining the legality or otherwise of the decisions of public bodies is
seriously curtailed at the very outset at the application for judicial review stage. Judicial review upholds
the rule of law by requiring that public bodies act according to the law: undermining access to judicial
review expands the scope for potentially unlawful conduct and undermines the rule of law.


Hilaire Barnett
March 2014