Criminal Justice (Life Sentences) (Jersey) Law 201-
REPORT
- The Criminal Justice (Mandatory Minimum Periods of Actual Imprisonment) (Jersey) Law 2005 (“the 2005 Law”) made provision regarding persons who had committed offences for which there was a mandatory sentence of life imprisonment. It required the Royal Court, in relation to any such person, to order a mandatory minimum period of imprisonment in respect of the offence or offences concerned.
- The reasons for the 2005 Law were as follows:
2/1 Article 6(1) of the European Convention on Human Rights provides that a defendant in a criminal case has a right to a fair trial by an independent and impartial tribunal. In a case in the United Kingdom in 2001[1] the following principles were upheld –
- the imposition of a sentence is part of the trial;
- the sentence therefore should be imposed by an independent and impartial tribunal;
- the fixing of the tariff of a convicted murderer is legally indistinguishable from the imposition of a sentence;
- it follows that the tariff should be fixed by an independent and impartial tribunal;
- the Home Secretary is not an independent and impartial tribunal;
- it follows that the Home Secretary should not fix the tariff of a convicted murderer.
2/2 In England and Wales, since 1965, murder had been punishable with a mandatory sentence of life imprisonment. The Home Secretary, however, had a discretion to release an offender on licence if recommended to do so by the Parole Board.
2/3 The arrangements worked as follows. When imposing the life sentence, the trial judge would review the factors which mitigated or aggravated the offence and would advise the Lord Chief Justice of the day. The Lord Chief Justice was in a position to obtain an overall view from reports from trial judges up and down the country, and so would advise the Home Secretary. The Home Secretary would then make the decision on how long the offender should remain in prison before being eligible for parole. Usually the period fixed was in line with the judicial recommendations, but in a small minority of cases the period set by the Home Secretary was either longer or shorter than the Judge recommended. This process was known colloquially as “fixing the tariff”. Towards the end of the period of the tariff term, the case of the convicted murderer would be referred to the Parole Board which would consider whether it was necessary for the protection of the public that the convicted murderer should continue to be confined. If the Board concluded that it was necessary, the Home Secretary had no power to release the prisoner. If on the other hand the Board recommended that the convicted murderer should be released on licence, then the Home Secretary could, after consultation with the Lord Chief Justice, order his or her release, and indeed ordinarily did so, although the Home Secretary retained a discretion.
2/4 It was this process that was found not to be compliant with Article 6 of the European Convention on Human Rights. As a result the Government in the United Kingdom made provision – in the Criminal Justice Act 2003 – for the tariff to be fixed instead by the trial judge.
2/5 In Jersey there had been a mandatory life sentence for murder since 1986.[2] Routinely, persons convicted were sent to the United Kingdom where they were treated as if they had been convicted before a Court in England and Wales, and therefore were eligible to be released on licence. The Jersey trial judge had a discretion to recommend a minimum period which the convicted murderer should serve, in similar fashion to the procedure which existed in England and Wales.
2/6 The transfer from La Moye Prison to one of Her Majesty’s Prisons in England and Wales (or another part of the United Kingdom) was put into effect by the Secretary of State using powers conferred by the Crime (Sentences) Act 1997. In practice these are unrestricted transfers in the case of life sentences. This provision means that the rules of the receiving jurisdiction (the relevant part of the United Kingdom) apply for the purposes of any release on licence notwithstanding that the person incarcerated there has not been convicted before a court in the United Kingdom.
2/7 The 2005 Law – as mentioned at the outset – changed the position in Jersey so that the trial judge, in cases of mandatory life sentences, had to fix the tariff. It would not have been compliant with the European Convention on Human Rights had the Home Secretary continued to have any discretion to fix the minimum term of imprisonment which those convicted of murder in Jersey should serve. The 2005 Law therefore substantially adopted the approach followed in the Criminal Justice Act 2003. Accordingly a distinction was drawn between exceptionally serious cases where the Court could reach the view that life imprisonment should mean life; particularly serious cases, where the Court was to start at a period of 30 years imprisonment and then increase it or reduce it having regard to particular aggravating or mitigating circumstances; and other cases where, if the offender was 18 years of age or older, the starting point was 15 years, and in the case of an offender under the age of 18, of 12 years before again the same process of an increase or reduction according to aggravating or mitigating circumstances, was applied.
2/8 The order of the Court which set a mandatory minimum period of imprisonment took effect as a sentence against which the accused or the Attorney General had a right to appeal to the Court of Appeal.
- On 29th October 2012, in the case of The Attorney General v. Damien David Rzeszowski[3] the accused had been acquitted of 6 counts of murder, but convicted of manslaughter by reason of diminished responsibility. It fell to the Superior Number of the Royal Court to impose sentence. If the 2005 Law had permitted, the Crown would have moved for six life sentences with a minimum period of 20 years. In the event, the Crown moved for 30 years’ imprisonment in respect of each count.
- The 2005 Law was based substantially on the Criminal Justice Act 2003 of the United Kingdom. Separate provision was made in that country – by the Criminal Justice and Court Services Act 2000[4] – in relation to life sentences in circumstances where the sentence was not fixed by law i.e. where it was discretionary. That other provision was not mirrored in the 2005 Law, which was confined in its scope to sentencing in cases where the sentence was fixed by law i.e. where it was mandatory.
- The Court in Rzeszowski urged that the 2005 Law be amended to make the necessary provision in relation to discretionary life sentences.
- On 2nd July 2013 the Chief Minister lodged au Greffe the Draft Criminal Justice (Mandatory Minimum Periods of Actual Imprisonment) (Amendment) (Jersey) Law 201- [P.84/2013][5] which would have amended the 2005 Law accordingly i.e. to require a court that sentenced an offender to a discretionary life sentence to order, in relation to the offender, a minimum period of imprisonment in respect of the offence or offences concerned.
- That draft Law would have enabled such minimum period in appropriate cases to be the whole of the offender’s life (unless the offender was under 21 years of age).
- However, on 9th July 2013 the Grand Chamber of the European Court of Human Rights gave a judgment in the case of Vinter and Others v. the United Kingdom. [6] The argument before the European Court was whether a ‘whole life’ tariff was a breach of Article 3 of the European Convention (the prohibition against torture or inhuman or degrading treatment or punishment). The Court held[7] that: “in the context of a life sentence, Article 3 must be interpreted as requiring reducibility of the sentence, 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.”
- The Court looked at the practice across Europe as well as various international instruments and concluded that the overwhelming practice was not to impose sentences with no chance of release.[8] The United Kingdom accepted[9] that any sentence that was ‘grossly disproportionate’ would amount to ill-treatment that was incompatible with Article 3 and therefore unlawful. The Court concluded that a whole life tariff, where there was no effective review mechanism, fell into that category and was therefore unlawful.
- The United Kingdom Government argued that, whilst that might seem to be the case with a whole life sentence,[10] section 30 of the Crime (Sentences) Act 1997[11] meant that even a whole life sentence did not have to mean that an individual spent the remainder of his or her life in prison because it allows the Secretary of State “at any time [to] release a life prisoner on licence if he is satisfied that exceptional circumstances exist which justify the prisoner’s release on compassionate grounds.”
- The Court noted that the criteria for the exercise of that discretion were set out in Prison Service Order 4700[12] chapter 12, issued under the authority of the Secretary of State. It set out policy and guidance for the management of prisoners serving an indeterminate sentence (including those serving a mandatory life sentence), both during custody and after release on licence. Chapter 12 provided for release to be ordered only in certain exhaustively listed circumstances, namely, if a prisoner was terminally ill or physically incapacitated and other additional criteria could be met viz. that the risk of re-offending was minimal, further imprisonment would reduce the prisoner’s life expectancy, there were adequate arrangements for the prisoner’s care and treatment outside prison, and early release would bring some significant benefit to the prisoner or his or her family. This was considered by the European Court to be too restrictive. For that reason, a sentence of life imprisonment with a whole life tariff was a breach of Article 3 and therefore unlawful.
- This was relevant to the position in Jersey. P.84/2013 sought to amend the 2005 Law and (as we have seen) life prisoners were as a matter of practice transferred to England and Wales (or other parts of the United Kingdom) to serve their sentences. Such transfers were ‘unrestricted’ which meant that the prisoner’s release was governed by the provisions in the United Kingdom which the Court in Vinter had found to be inadequate to meet the needs of the European Convention on Human Rights. Moreover, Jersey did not have any statutory provisions of its own for release on licence of life prisoners and, even though ‘lifers’ were unlikely in practice to serve their sentences in Jersey, the absence of local statutory provision in this respect was inconsistent with the ruling in Vinter.
- P.84/2013 was therefore withdrawn. In its place, this draft Law would repeal and replace the 2005 Law in a more extensively amended form. The draft Law would –
(a) confer on the Royal Court the power to order a minimum period of imprisonment when passing a “discretionary life sentence” (as did P.84/2013 – the reasons for which have been explained in detail in paragraphs 2 – 6 above and need not be repeated); and
(b) make domestic provision for prisoners sentenced to life imprisonment to be able to apply for release from prison on licence.
- It is Part 4 of the draft Law that would provide the domestic mechanism for review of a life sentence – not only where the court had imposed a whole life tariff, but where it had imposed a minimum term above a certain length – to assess whether or not the prisoner’s continued incarceration was able to be justified on legitimate penological grounds. This directly addresses the issues arising from the case of Vinter and article 3 ECHR.
- The European Court emphasized[13] that it was well-established that a State’s choice of a specific criminal justice system was in principle outside the scope of the European Court’s supervision, provided that the system did not contravene the principles set forth in the Convention. The Court was also aware that States had a duty under the Convention to protect the public from violent crime. Nevertheless, it held[14] that, for a life sentence to remain compatible with article 3, there had to be a prospect of release and a possibility of review. Reference was made to the earlier English Court of Appeal judgment in R v. Bieber.[15] In considering “[i]n what circumstances will an irreducible life sentence raise an issue under article 3?” the Court of Appeal held that “an irreducible life sentence raises an issue under article 3 in circumstances where it may result in an offender being detained beyond the term that is justified by the legitimate objects of imprisonment. This is implicit in the fact that no issue under article 3 appears to arise provided that there is, in law and in practice, a possibility of the offender being released, even though it remains possible, or even likely, that no release will be granted in his lifetime. The essential requirement appears to be the possibility of a review that will determine whether imprisonment remains justified.” [emphasis supplied] The Court of Appeal went on: “The legitimate objects of imprisonment are punishment, deterrence, rehabilitation and protection of the public. Where a mandatory life sentence is imposed in respect of a crime, the possibility exists that all the objects of imprisonment may be achieved during the lifetime of the prisoner. He may have served a sufficient term to meet the requirements of punishment and deterrence and rehabilitation may have transformed him into a person who no longer poses any threat to the public. If, despite this, he will remain imprisoned for the rest of his life it is at least arguable that this is inhuman treatment. Thus we have concluded that, where a crime attracts a mandatory and irreducible life sentence regardless of the particular circumstances of the crime, an issue will arise in relation to article 3.”
- Essentially the European Court held that the mechanism for review in England and Wales[16] fell short of the level set in Bieber.
- It is against this background that Part 4 of the draft Law has been framed. It is unnecessary to replicate the detail of the draftsman’s Explanatory Note, save –
(a) to draw specific attention to Article 17 which provides for the establishment of a Panel comprising the Bailiff and 2 Jurats (appointed by the Bailiff) to exercise the functions conferred on the Panel by Part 4, and
(b) to say that the draft Article 20 is pivotal in terms of human rights compliance.
- Article 20 would empower the Panel, following a referral by the Home Affairs Minister, to direct the Minister to release from prison on licence a life prisoner in respect of whom there was an order for a minimum sentence of more than 25 years (including a minimum sentence for life) if –
(a) the life prisoner had served 25 years or more of his or her sentence; and
(b) the Panel was satisfied that it was no longer necessary that the life prisoner should be confined in prison for the purposes of –
(i) retribution and deterrence to others,
(ii) rehabilitation of the prisoner, or
(iii) protection of the public.
- A life prisoner would be able to require the Minister to refer his or her case to the Panel at any time after he or she had served 25 years of his or her sentence; and thereafter at 2 yearly intervals following any previous (unsuccessful) reference.
- Why 25 years? There is no sanctity about this particular length of time, but it may be helpful in this respect to note the following passage from Vinter:
“Life sentences in the Contracting States
68. On the basis of the comparative materials before the Court, following practices in the Contracting States may be observed.
First, there are currently nine countries where life imprisonment does not exist: Andorra, Bosnia and Herzegovina, Croatia, Montenegro, Norway, Portugal, San Marino, Serbia and Spain. The maximum term of imprisonment in these countries ranges from twenty-one years in Norway to forty-five years in Bosnia and Herzegovina. In Croatia in a case of cumulative offences, a fifty-year sentence can be imposed.
Second, in the majority of countries where a sentence of life imprisonment may be imposed, there exists a dedicated mechanism for reviewing the sentence after the prisoner has served a certain minimum period fixed by law. Such a mechanism, integrated within the law and practice on sentencing, is foreseen in the law of thirty-two countries: Albania (25 years), Armenia (20), Austria (15), Azerbaijan (25), Belgium (15 with an extension to 19 or 23 years for recidivists), Bulgaria (20), Cyprus (12), Czech Republic (20), Denmark (12), Estonia (30), Finland (12), France (normally 18 but 30 years for certain murders), Georgia (25), Germany (15), Greece (20), Hungary (20 unless the court orders otherwise), Ireland (an initial review by the Parole Board after 7 years except for certain types of murders), Italy (26), Latvia (25), Liechtenstein (15), Luxembourg (15), Moldova (30), Monaco (15), Poland (25), Romania (20), Russia (25), Slovakia (25), Slovenia (25), Sweden (10), Switzerland (15 years reducible to 10 years), the former Yugoslav Republic of Macedonia (15), and Turkey (24 years, 30 for aggravated life imprisonment and 36 for aggregate sentences of aggravated life imprisonment).
In respect of the United Kingdom, the Court notes that, in Scotland, when passing a life sentence, a judge is required to set a minimum term, notwithstanding the likelihood that such a period will exceed the remainder of the prisoner’s natural life: see the Convention Rights (Compliance) (Scotland) Act 2001.
Third, there are five countries which make no provision for parole for life prisoners: Iceland, Lithuania, Malta, the Netherlands and Ukraine. These countries do, however, allow life prisoners to apply for commutation of life sentences by means of ministerial, presidential or royal pardon. In Iceland, although it is still available as a sentence, life imprisonment has never been imposed.
Fourth, in addition to England and Wales, there are six countries which have systems of parole but which nevertheless make special provision for certain offences or sentences in respect of which parole is not available. These countries are: Bulgaria, Hungary, France, Slovakia, Switzerland (for sex or violent offenders who are regarded as dangerous and untreatable: …. and Turkey.”
- Article 21 of the draft Law would empower the Panel to release a prisoner at any time on licence if satisfied that exceptional circumstances justified the prisoner’s release on compassionate grounds. Before releasing a prisoner under this provision, however, the Panel would be required to consult the Minister, unless the circumstances were such as to render consultation impracticable.
- In the normal run of cases where a prisoner had served the minimum sentence laid down by the sentencing court, the prisoner would be able under Article 19 to require the Minister to refer his or her case to the Panel. If the Panel were satisfied that it was no longer necessary for the protection of the public that the life prisoner should be confined in prison, the Panel would be required to order the prisoner’s release on licence. If the prisoner were not released, a further reference would not be able to be made until 2 years had elapsed.
Manpower statement
This Draft Law has no implications for the financial or manpower resources of the States.
Human Rights
This note on the human rights aspects of the draft Law in the Appendix has been prepared by the Law Officers’ Department and is included for the information of States Members. It is not, and should not be taken as, legal advice.
APPENDIX
Criminal Justice (Life Sentences) (Jersey) Law 201-
This Note has been prepared in respect of the draft Criminal Justice (Life Sentences) (Jersey) Law 201- (“the draft Law”) by the Law Officers’ Department. It summarises the principal human rights issues arising from the contents of the draft Law and explains why, in the Law Officers’ opinion, the draft Law is compatible with the European Convention on Human Rights (“ECHR”).
- By way of a preliminary observation, the Report to this Projet de Loi has been prepared with the assistance of the Law Officers’ Department and already addresses in detail the implications of the Judgment of the Grand Chamber of the European Court of Human Rights gave a in the case of Vinter and Others v. the United Kingdom[17] (Applications nos. 66069/09, 130/10 and 3896/10) and the manner in which this issues arising from that judgment have been addressed in the draft Law.
- It may be noted that the Court Of Appeal (Criminal Division) on 18th February 2014 in the case of McLoughlin [2014] EWCA Crim 188 re-affirmed that the regime for reducibility of the sentence has to be in place at the time of imposing the whole life order. This is pertinent to the absence in Jersey legislation of relevant statutory provision for such a regime, and the need for such provision to be made (as it is in the draft Law).
- The Court of Appeal also held that the regime under s 30 of the Crime (Sentences) Act 1997 for reducibility did in fact satisfy article 3 ECHR (but it may also be noted that this is subject to appeal to the Supreme Court). In any event the grounds in the draft Law, on which the sentence may be reviewed after 25 years, are clearly aimed at the satisfying the criteria in Vinter, which they undoubtedly do.
- The following was said in relation to P.84/2013 and applies equally to this draft Law insofar as it adds to the provisions of the 2005 Law.
Article 6 ECHR
- The draft Law engages Article 6 as it involves the determination of the minimum period a person sentenced to life imprisonment must serve before being able to benefit from early release provisions. The 2005 Law provided for this in circumstances where a life sentence was required by law, and the purpose of the draft Law is to extend this regime to cases where the Royal Court in its discretion imposes a life sentence.
- The draft Law only makes provision for the minimum period to be ordered by the Court and does not prescribe the actual minimum period itself, leaving this decision to the Court. This therefore guarantees that the determination, of when a person may be able to benefit from early release, shall be made by the Royal Court, a self-evidently independent and impartial tribunal for the purposes of article 6 ECHR.
- The 2005 Law was introduced to cure the article 6 defect, as identified in a House of Lords case, whereby the Home Secretary made this determination as opposed to an independent court. For more details on the background and the article 6 reasoning for bringing the 2005 Law into force, members are referred to P. 80/2005.
- The draft Law does not introduce anything which might undermine article 6 ECHR but instead, it extends an already article 6 compliant regime to discretionary life sentences, as well as statutory life sentences.
- The draft Law is therefore compatible with article 6 ECHR.
- No other provisions of the ECHR are engaged by the draft Law. Article 5 ECHR provides of course for the right to liberty but this right is qualified by allowing deprivation when a person is convicted of an offence by a competent court. This does not therefore need to be considered in detail.
Draft Criminal Justice (Life Sentences) (Jersey) Law 201-
European Convention on Human Rights
In accordance with the provisions of Article 16 of the Human Rights (Jersey) Law 2000 the Chief Minister has made the following statement –
In the view of the Chief Minister, the provisions of the draft Criminal Justice (Life sentences) (Jersey) Law 201- are compatible with the Convention Rights.
Signed:
Senator I J Gorst
Chief Minister of Jersey
Dated: 4th June 2014
gov.je