Triple murderer and rapist loses challenge to whole-life sentence at ECtHR

British citizen Arthur Hutchinson was the first prisoner to challenge such a sentence, on the basis of article 3 of the European Convention on Human Rights (ECHR), following a ruling of the Grand Chamber from 2013 which provided such terms infringe human rights.

Its rationale was that such orders were not “reducible”.

But the court has now ruled this is not true of Mr Hutchinson’s case because the justice secretary is able to review such terms.

Mr Hutchinson was imprisoned in 1984 after he broke into the home of Basil and Avril Laitner and murdered them and their son and raped one of their daughters on the evening of their other daughter’s wedding.

The previous ruling provided that there had to be the possibility of review at some point in the sentence.

Relying on article 3, Mr Hutchinson specifically alleged that his whole life sentence amounted to inhuman and degrading treatment as he had no hope of release. The application was lodged with the ECtHR on 10 November 2008.

In its Grand Chamber judgment in the case of Vinter and Others v. the United Kingdom of 9 July 2013, the ECtHR had found that the domestic law concerning the justice secretary’s power to release a person subject to a whole life order was unclear.

In addition, prior to the entry into force of the Criminal Justice Act 2003, a review of the need for a whole life order had automatically been carried out by a minister 25 years into the sentence.

This had been eliminated in 2003 and no alternative review mechanism put in place. In those circumstances, the ECtHR had not been persuaded that the whole life sentences of the applicants in the case of Vinter and Others were compatible with the convention.

Mr Hutchinson submitted that his case was indistinguishable from Vinter and Others, in which the ECtHR had found a violation of article 3.

However, the UK government pointed out that on 18 February 2014 the English Court of Appeal had delivered its judgment in another case, R v. Newell; R v. McLoughlin, in which it had held that whole life orders were open to review under national law and therefore compatible with article 3 of the convention.

The ECtHR observed that the dispute between the parties centred on whether the justice secretary’s discretion to release a whole life prisoner under the 2003 Act was sufficient to make the whole life sentence legally and effectively reducible.

The ECtHR found that the Court of Appeal’s judgment in R v. Newell; R v. McLoughlin had indeed expressly responded to the ECtHR’s concerns detailed in the Vinter and Others case.

In particular, the Court of Appeal had underlined that if a whole life prisoner could establish that “exceptional circumstances” had arisen subsequent to the imposition of the sentence, the justice secretary had to consider – in a manner compatible with article 3 of the convention – whether such circumstances justified release.

A decision by the justice secretary would have to be reasoned by reference to the circumstances of each case and would be subject to judicial review. Following the judgment in R v. Newell; R v. McLoughlin domestic law thus provided a whole life prisoner hope and the possibility of release in the event of circumstances in which the punishment was no longer justified.

The ECtHR underlined that it was primarily for the national courts to resolve problems of interpretation of domestic law.

Having regard to the fact that the national court had specifically addressed the ECtHR’s doubts and had set out a clear statement of the legal position, the ECtHR was satisfied that the justice secretary’s power to release a whole life prisoner was sufficient to comply with article 3. There had therefore been no violation of article 3.

Judge Kalaydjieva expressed a dissenting opinion, which can be read in the court’s judgment.