Note – this article is available free for a limited time: Whole Life Sentences and the Tide of European Human Rights Jurisprudence: What Is to Be Done? Dirk van Zyl Smit, Pete Weathery, Simon Creighton. Human Rights Law Review. Volume 14, Issue 1. Pp. 59-84.
“In Vinter and Others v United Kingdom [Application Nos 66069/09, 3896/10 and 130/10, Merits, 9 July 2013 (‘Vinter [GC]’)] the Grand Chamber of the European Court of Human Rights ruled that all offenders sentenced to life imprisonment had a right to both a prospect of release and a review of their sentence. Failure to provide for these twin rights meant that the applicants had been deprived of their right under Article 3 of the European Convention on Human Rights (ECHR) to be free from inhuman or degrading treatment or punishment. Two principles established in this judgment require changes in the enforcement of whole life orders that prevent some prisoners sentenced to life terms from being considered for release. (1) Implicit in the right to a prospect of release is a right to an opportunity to rehabilitate oneself. (2) Implicit in the right to review of the continued enforcement of a life sentence is a right to a review that meets standards of due process. This article focuses on the type of review now required to satisfy these principles. Such a review, a Vinter review, differs from the review by the Parole Board currently required in England and Wales after an offender has served a minimum period set by the sentencing court, a post-tariff review. The key difference is that in a Vinter review all the penological justifications for the original sentence—including the seriousness of the offence—must be reviewed to determine whether the balance between them has changed and continued detention is justified. In contrast, the post-tariff review is limited to a review of the risk to society posed by the offender, as detention for the minimum period is deemed sufficient for retribution and deterrence. Both the Vinter review and the post-tariff review should be undertaken at appropriate times during a life sentence. Moreover, both forms of review must satisfy the standards of due process set by Article 5(4) of the ECHR and common law. Major reform of the legal framework for the implementation of such sentences is required to fully satisfy European developments.”