Jeremy Bamber ECtHR Decision was not Unanimous
'For the reasons we have set out we would find, in respect of all the applicants, inhuman and degrading treatment in breach of Article 3'. Judges Garlicki, David Thór Björgvinsson and Nicolaou
MOJUK apologies for sending out an Email on Tuesday 17th January, 'European court upholds, 'Death by Incarceration' of Jeremy Bamber, with out having read the actual judgement itself. Though not mentioned in the ECtHR press release that MOJUK circulated verbatim there were three dissenting opinions (judges Garlicki, David Thór Björgvinsson and Nicolaou) of the seven judges who determined the case. This was a very narrow decision!
Bamber, Vintner and Moore, have the option of requesting that the case is referred to the Grand Chamber of the Court and they should do so.
'If such a request is made, a panel of five judges would consider whether the case deserves further examination. In that event, the Grand Chamber will hear the case and deliver a final judgment. If the referral request is refused, the Chamber judgment will become final on that day.'
The actual decision of the court on the matter before them was as follows:
3. Holds, by four votes to three, that there has been no violation of Article 3 of the Convention in respect of Mr Vinter;
4. Holds, by four votes to three, that there has been no violation of Article 3 of the Convention in respect of Mr Bamber;
5. Holds, by four votes to three, that there has been no violation of Article 3 of the Convention in respect of Mr Moore.
Joint Partly Dissenting Opinion Of Judges Garlicki, David Thór Björgvinsson And Nicolaou
We fully share the majority view that there has been no violation of Articles 5 § 4, 6 and 7 of the Convention. However, on the Article 3 issue of inhuman or degrading treatment we conclude that there was a procedural infringement by reason of the absence of some mechanism that would remove the hopelessness inherent in a sentence of life imprisonment from which, independently of the circumstances, there is no possibility whatsoever of release while the prisoner is still well enough to have any sort of life outside prison.
Like the majority we see no problem in so far as the substantive aspect of Article 3 is concerned. A wholly unjustified or grossly disproportionate sentence could, at the time it is imposed, fall foul of Article 3. But the test is a strict one. It was described in the Canadian case of R v. Latimer  1 SCR 3 as "stringent and demanding"; and in United States v. Burns  SCR 283 it was added, in an extradition context, that it must lead to the conclusion that the sentence would "shock the conscience" or violate principles of fundamental justice. As the Court pointed out in Kafkaris v. Cyprus [GC], no. 21906/04, § 97, ECHR 2008-..., a sentence of life imprisonment "is not in itself prohibited by or incompatible with Article 3". It made no difference that it was a mandatory rather than a discretionary sentence. Both may, at the time they are imposed, reflect the need for punishment and deterrence for the crimes committed and there would be no Article 3 issue on that score. The Court would, quite obviously, accord a large measure of deference to a judicial determination of sentence but both mandatory and discretionary life sentences are subject to the same overriding principle that they should not be wholly unjustified or grossly disproportionate. It should be noted, however, that in the present case nothing turns on this, for the applicants have not shown that the whole life orders imposed on them did not accord with principle.
It was made clear in Kafkaris that even in the case of a mandatory sentence of life imprisonment the whole of that sentence may be served without infringing Article 3. At the same time Kafkaris underlined that in a particular case circumstances may eventually arise that make it appropriate for domestic authorities to consider, in some way, whether continued detention would amount to inhuman or degrading treatment. The present United Kingdom provisions for compassionate leave which, subject to various conditions apply to prisoners who are terminally ill and about to die as also to prisoners who, being very severely incapacitated, are paralysed or bedridden with not much life to live outside prison walls, do not meet the procedural requirement referred to in Kafkaris. In the light of what the Court said in Kafkaris, the House of Lords accepted in R (Wellington) v. Secretary of State for the Home Department  UKHL 72 that a time may come when even a discretionary whole life order may have to be looked at again to see whether the prisoner's circumstances have so changed as to render further detention inhuman and degrading.
The real point at issue in the present case lies in whether the need for a possibility of revisiting a whole life order requires that there should already be in place a suitable mechanism in the domestic system, so as to lend credence to the existence of such possibility, and thus afford a measure of hope to the convicted person; or whether, as stated in paragraphs 92-94 of the judgment, once it is accepted that the sentence was appropriate at the time it was passed, nothing remains to be said unless and until such time, if ever, as the prisoner is in a position to show that continued detention would be in breach of Article 3, whereupon the existence of such procedural mechanism may, for the first time, become relevant. Our preference is for the first alternative and it is, essentially, on this that we differ from the majority.
The majority view echoes what Lord Phillips CJ had said in R v Bieber  EWCA Crim 1601, and cited with approval in R(Wellington). The following passage is from the opinion of Lord Brown (at § 82):
"Article 3 is violated only when the prisoner's further imprisonment can no longer be justified. In this I agree entirely with the view expressed by Lord Phillips in Bieber at para 43:
'Can the imposition of an irreducible life sentence itself constitute a violation of article 3, or will the potential violation only occur once the offender has been detained beyond the period that can be justified on the ground of punishment and deterrence? In other words, is it the sentence or the consequent detention that is capable of violating article 3? We believe it is the latter. We think that this is implicit from the passage of the judgment [in Kafkaris at para 107, cited at para 70 above]. As we have recorded it was the detention itself that the applicant in Kafkaris contended amounted to a violation of article 3.'
In my judgment it cannot be contended that the mere passing of a mandatory life sentence, even in circumstances where no satisfactory laws or procedures exist for thereafter reviewing the case on an individual basis to determine the actual period to be served, violates article 3."
This approach seems to us to be due, at least in part, to the guarded language used by the Court, particularly in the Grand Chamber case of Kafkaris (§ 97), when speaking about the impact of Article 3 on irreducible life sentences. It repeated that, as it had held, an irreducible life sentence "may" raise an Article 3 issue. It did not say in terms that such an issue will inevitably arise and this has been taken to mean that the Court has accepted the possibility that an irreducible sentence will pose no problem under Article 3, either substantive or procedural: see, indicatively, the opinion of Baroness Hale (at § 49) and that of Lord Brown (at § 71) in R (Wellington). The Court explained the difference between a reducible and an irreducible sentence by saying that where there was a possibility of review, by which de jure and de facto the prisoner was not deprived of any prospect or hope of release, the sentence could not be regarded as irreducible; and it did not become so merely by the fact that it may be served in full. By using the word "may" in connection with irreducible sentences and by classifying sentences as reducible where there is a de jure and de facto mechanism for revisiting them, the Court left a question mark in respect of the former. Was it contemplating a real possibility that a truly irreducible sentence could be compatible with Article 3? In what circumstances might that be conceivable when it emphasised so strongly the importance of a revisiting mechanism? In fact the Court has never held that an irreducible life sentence did not breach Article 3.
It seems to us that the Court used the word "may" in order to avoid a categorical general statement which went beyond the needs of the case when previous cases, to which it referred, had gone no further than that. We are, respectfully, unable to accept the view expressed in R v Bieber and R (Wellington), and shared here by the majority, that an irreducible life sentence can be upheld as compatible with Article 3. We are therefore also unable to accept the corollary of that view, namely that the absence of an Article 3 problem justifies the present lack of a suitable release mechanism. In our opinion it is necessary to have a suitable review mechanism in place right from the beginning. The Article 3 problem does not consist merely in keeping the prisoner in detention longer than would be justified, as suggested in the domestic judgments that we have cited. Kafkaris shows that it consists, equally importantly, of depriving him of any hope for the future, however tenuous that hope may be.
For the reasons we have set out we would find, in respect of all the applicants, inhuman and degrading treatment in breach of Article 3.