| CRIME — Sentence — Life imprisonment — Appellant sentenced to life imprisonment for murder — Whole life term specified — Whether sentence without prospect of release constituting inhuman treatment — Whether whole life term in fact irreducible — Human Rights Act 1998 (c 42), Sch 1, Pt I, art 3
R v Bieber; [2008] WLR (D) 249
CA: Lord Phillips of Worth Matravers CJ, Pitchford and Dobbs JJ: 23 July 2008
An irreducible life sentence for murder, which was imposed because the offence was so serious that for the purposes of punishment and deterrence the offender must remain in prison for the rest of his days, did not result in detention that constituted inhuman or degrading treatment. In any event, a whole life term was not an irreducible sentence since the Home Secretary could always use his statutory power to release a prisoner whose continued imprisonment would amount to inhuman or degrading treatment.
The Court of Appeal, Criminal Division, so held in allowing an appeal by David Francis Bieber against a sentence of life imprisonment with a whole life term, pursuant to s 269(4) of the Criminal Justice Act 2003, imposed by Moses J at the Crown Court at Newcastle on 2 December 2004 following his conviction for murder, two counts of attempted murder and two counts of possession of a firearm and ammunition with intent to endanger life. A 37-year minimum term was substituted for the whole life term.
LORD PHILLIPS OF WORTH MATRAVERS CJ, giving the judgment of the court, said that under English law the offence of murder attracted a mandatory life sentence but that was not normally an irreducible sentence. The judge specified the minimum term to be served by way of punishment and deterrence before the offender’s release on licence could be considered. Where a whole life term was specified pursuant to s 269(4) of the 2003 Act that was because the judge considered that the offence was so serious that, for purposes of punishment and deterrence, the offender must remain in prison for the rest of his days. The European Court of Human Rights in Kafkaris v Cyprus (Application No 21906/04) (unreported) 12 February 2008 had not ruled that an irreducible life sentence, deliberately imposed by a judge in such circumstances, would result in detention that violated the requirement in art 3 of the Convention for the Protection of Human Rights and Fundamental Freedoms that no one should be subjected to inhuman or degrading treatment. Nor did their Lordships consider that it would do so. It might be that the approach of the Strasbourg court would change. There seemed to be a tide in Europe that was setting against the imposition of very lengthy terms of imprisonment that were irreducible. Thus it might become necessary to consider whether whole life terms imposed in this jurisdiction were, in fact, irreducible. The Home Secretary had a limited power to release a life prisoner on compassionate grounds under s 30 of the Crimes (Sentences) Act 1997. At present it was the Home Secretary’s practice to use that power sparingly, in circumstances where, for instance, a prisoner was suffering from a terminal illness or was bedridden or similarly incapacitated. If, however, the position was reached where the continued imprisonment of a prisoner was held to amount to inhuman or degrading treatment, there was no reason why, having particular regard to the requirement to comply with the Convention, the Home Secretary should not use his statutory power to release the prisoner. For those reasons, a whole life term should not be considered as a sentence that was irreducible. Any art 3 challenge where a whole life term had been imposed should therefore be made, not at the time of the imposition of the sentence, but at the stage when the prisoner contended that, having regard to all the material circumstances, including the time that he had served and the progress made in prison, any further detention would constitute degrading or inhuman treatment. Accordingly, the challenge to the appellant’s sentence founded on art 3 was rejected. However, having considered the facts, the order that the early release provisions should not apply would be quashed and a minimum period of 37 years before consideration was given to release on licence would be specified.
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