Whole Life Tariff Reviews: 'Hope for the future, however tenuous that hope may be.'

On the 28^th of November 2012, the European Grand Chamber will hear the appeal against my whole life tariff along with two other cases, Vinter and Moore.

Firstly I need to clarify what this case is actually about. Many people have assumed that if my case in the Grand Chamber is won then my tariff would be put back down to the original 25 years set by the trial judge. This is not the case. What my legal team has applied for is for a review to be inserted into my mandatory whole life sentence.

It is my position that the UK Government is in breach of Article 3 and article 5 (4) of the European Convention on Human Rights by imposing a whole life sentence without review, this amounts to ‘inhuman or degrading treatment or punishment.’ But what does this actually mean?

In light of the January ruling that whole life tariff's are not in breach of human rights law, the only appropriate submission my legal team could make to the Grand Chamber is that there is no problem with a government applying a mandatory whole life sentence, but the breach of Human Rights Law lies within there being no mechanism for review of the prisoner’s whole life sentence. It is then asserted, (and it is also my particular view) that a whole life order then becomes parallel with a death sentence. To order someone to die is to permanently exclude them from society and it then follows that to sentence a person to whole life imprisonment is also permanent social exclusion. Social death is a dimension of the slavery which replaced death in Classical society, and was and still is intrinsically linked to loss of liberty. [1] As I have stated many times, I have been sentenced to death by old age.

This leads us to the psychological state of those incarcerated for whole life without reviews. It has been clarified by psychologists including those assessing me that I am at continued risk of having depression brought about the prolonged environment of prison.[2] I am in total agreement about life without hope, after all hope is what keeps the human spirit alive and without hope there is nothing. For me, even with the insertion of a review there is still very little hope of release. If the Grand Chamber rule to allow me to have reviews there is no knowing at what point a review could be placed, it might be at 30 or 40 years into a sentence. As I have maintained innocence, there lies the other difficulty of reviewing my prison term in light of this. Because I have maintained innocence I have not taken part in any rehabilitation programmes and neither can I be viewed as a prisoner who has gained atonement. The judiciary and review boards see me as being in denial of guilt. So when the European Court of Human Rights ruled against my appeal at Strasbourg in January 2012, the three dissenting judges emphasised that Article 3 was being infringed and their words rang true for me, “equally importantly depriving him of any hope for the future, however tenuous that hope may be.” Tenuous, really is how I feel about this ruling even if we win in the Grand Chamber. After this digression, nevertheless the argument my lawyers have put forward is that this treatment, taking into account psychological effects does amount to inhuman and degrading treatment. To this I have to agree wholeheartedly, respect for ‘hope’ an essential dimension of human dignity does underpin the protection of human rights. [3]

In the USA and China the death penalty still exists in contrast to Canada where there is no death penalty and no whole life sentencing. The USA, similarly to England and Wales currently has the sentence of ‘Life Without Parole’ (LWOP) and in Florida the US Supreme Court commented broadly on the destructive impact of this sentence “It deprives the convict of the most basic liberties without giving hope of restoration.[4]

If you have always felt that England and Wales are soft on sentencing then think again because the statistics show otherwise. The position is that all majority state parties of Europe rule that life sentences must have reviews.[5] Only England and Wales and Hungary have an authentically irreducible whole life sentence,  England and Wales with almost 21 times more life sentenced prisoners than any other single European country and we currently have more whole life sentence prisoners than all of Europe put together. [6] The first whole life tariff in the UK was set in 1988, and in 2003 reviews at executive discretion for these prisoners was abolished (under a Labour government).[7] Although Scotland’s sentencing is generally similar to England and Wales their human rights laws were brought into line with Europe at the time of the devolution of powers.[8]

Whole life tariff prisoners cannot be subject to a prerogative pardon. The only mechanism for release of a prisoner (other than to overturn their conviction) on a whole life sentence in England and Wales is granted in exceptional circumstances, where the prisoner is medically incapacitated with death to occur within 3 months and no life sentence prisoner has ever been released under this or any other power in England and Wales. This exception compounds the view that a whole life sentence is literally a death sentence.[9]

As I am not guilty of the crimes I have been convicted of carrying out, where do I fit in all of this?  Currently the only avenue to appeal is through the politically controlled quango of the Criminal Cases Review Commission. When this avenue is exhausted because the commission has usurped the role of the appeal courts and is in violation of the Criminal Appeals act 1995, and non disclosure of evidential materials still prevails, surely this is a violation of both Article 3 and 5(4) of European Human Rights Law, and should be taken into consideration when assessing whole life sentences. As crime is intrinsically tied to sentencing it is axiomatic that the problem of Miscarriage of Justice cases could be expanded within this framework simply because a Miscarriage of Justice in UK law does not allow for innocence but only a “miscarriage of due process.”[10]

If we are to believe the statistics quoted by Dr Michael Naughton as opposed to the Government’s ‘massaged figures’ we face a very worrying situation indeed. Naughton reveals that there are no less than 18 convictions a day over turned in the UK which is an astonishing figure warranting a full review of the causes of wrongful convictions.[11] Indeed Naughton himself states:  “miscarriages of justice as understood from the perspective of the legal system are not the exception to the rule, rather they are a routine and even mundane feature of the criminal justice process.”[12] 

It is of course, with my own conviction and these statistics in mind when I consider what a whole life sentence means to the individuals living a ‘social death’ as I do each day. But whatever happens on the 28^th of November this year it will make little difference to my current life, release for me with my conviction intact means no life at all. There is only one freedom and one hope for me and that is that the truth of my innocence will be heard in a court of Law allowing me the liberty I have been fighting for.

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[1] Patterson, O. Slavery and Social Death: A Comparative Study, Cambridge: Harvard University Press, 1982

[2] Dr Anderson Report, 2006

[3] “reintergrationist” versus “exclusionary” types of imprisonment, Dolovich, pg 13 & 122; Life Without Parole, Ed Ogletree and Sarat, NYU Press, 2012. Absence of a “dignity tradition” comparative study USA, Europe, pg 19 & 282-310, op cit.

[4] Graham v  Florida 130, S.Ct. 2011, 2021 (2010) at 2027 & Naovarath v State, 105 Nev. 525, 526, 779 P.2d 944 (1989), at pg 4 &40

[5] http://treaties.un.org & UN report on Life Imprisonment (1994)

[6] Stats prisoners serving life or IPP http://www.justice.gov.uk/downloads/statistics/prison-probation/omsq/omsq-q1-2012.pdf, The Howard, Newsletter of the Howard League for Penal Reform, Summer 2009, http://www.coe.int/t/dghl/standardsetting/prisons/ & Hansard, Baroness Stern at Col 448 http://www.publications.parliament.uk/

[7] Provisions of CJA 2003

[8] Convention rights (Compliance) (Scotland) Act 2001 c.7

[9] PSO, 4700, para, 12.2.1

[10] Naughton, M. Rethinking Miscarriages of Justice, 2012 edition, Palgrave, Basingstoke, pp 21-24

[11] Daily average in Crown Court, CACD (including referrals from the CCRC) and House of Lords, 18.21, op cit.

[12] Ibid pg 4 

Grand Chamber to Hear Appeal against Whole Life Tariff

The European Court Grand Chamber is to hear Jeremy's appeal against his whole life tariff on the 28th of November 2012 BBC News

Jeremy Bamber to Continue Fight for Freedom in the Grand Chamber

Jeremy Bamber will take the appeal against his whole life tariff to the Grand Chamber of the European Court of Human Rights. There is more about the ruling below which was voted 4 to three that there had been no breach of article 3 of the Human Rights Convention.

Below is an extract from MOJO UK Miscarriages of Justice Organization UK which gives wrongly convicted prisoners a voice and provides a prison newsletter.

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 [2001] 1 SCR 3 as "stringent and demanding"; and in United States v. Burns [2001] 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 [2008] 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 [2008] 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.

Statement from Jeremy Bamber on the European Court of Human Rights ruling

"Both the trial judge and the Lord Chief Justice set my minimum tariff as 25 years. Quite why the Home Secretary felt that I should die in jail when the judges felt otherwise is a mystery. To then be told by the European Court that it was reasonable and fair for the Home Secretary to re-sentence me to die in jail is quite extraordinary. This ruling does not really surprise me; it is no different to the injustice of my conviction.

The evidence upon which the Crown have built their case is no longer credible, yet my imprisonment must continue until I’m dead, as evidence of my innocence cannot be disclosed because the Criminal Cases Review Commission have refused to even request it from Essex Police.

I will continue to campaign to prove my innocence and I am hoping that this will happen before my death sentence is carried out.

If the State wishes to have a Death Penalty, then they should be honest and re-introduce hanging. Instead, this political decision that I must die in jail is the Death Penalty using old age or infirmity as the method. It is a method whereby I’m locked in a cell until I’m dead – no matter if it should take 70 or 80 years to happen – I shall be dead the next time I leave jail. This despite that the trial judge said 25 years was punishment enough for a crime I did not commit."

Jeremy

To read the ruling from the ECHR click here vinter & others v the United Kingdom

To view the ITV Anglia News Item Click here (10 minutes into the programme)

"European Court Ruling on my Whole Life Tariff"

"I heard yesterday that the European Court of Human Rights will announce their ruling on the appeal against my whole life tariff through their web site on the 17th January 2012.

I have known for some time that there has been another case similar to mine through the European Court who ruled the whole life tariff was illegally implemented by a Government but later when it was appealed by that Government in a higher European court and they found the upgrading of a the tariff to whole life was not illegal and so it still stands. Basically this ruling may influence how the court hears my case although they are supposed to hear each case independently and the British Government is not at the peak of popularity in Europe.

My priority remains as always, to clear my name and gain my freedom for the truth to be known in a court of law is the most important thing. Maybe the judiciary can learn lessons from the failings in my case to make the justice system fairer for all. If you have few spare minutes over Christmas write to the Home Affairs Select Committee about the justice system view our letter here."

View my official web site at www.jeremy-bamber.co.uk read testimony by some of my campaigners www.jeremybambertestimony.co.uk join our writing campaign at www.jeremybambercampaign.co.uk

European Court Appeal of Whole Life Tariff

This morning in a letter to Jeremy Bamber the European Court of Human Rights confirmed that the closing date for their hearing is the 15th September 2011. After this date a decision will be made as to whether Jeremy's illegally imposed whole life tariff will be put back down to 25 years. If the court rule in favour of Jeremy Bamber then he will be eligible for parole which is likely to be viewed favourably and with urgency owing to the fact that he has already served almost 26 years for a crime he did not commit.

Progress in the European Court

Jeremy has asked us to announce that there will be another month at least before there is a decision on his whole life tariff in the European Court of Human Rights. He has been informed that his case passed the next stage of their process and he will give us further information on this over the coming week.

As you might be aware, Jeremy was sentenced to 25 years but the tariff was increased during the sentence to whole life. It is illegal in European Law to alter the 'goal posts' and if the sentencing judge wanted Jeremy to service a whole life tariff it should have been served from the outset. If the tariff were put back down to 25 years then Jeremy would be eligible for parole if this was granted he could be released within weeks as he served almost a year on remand.

Progress with the submissions of forensic evidence back to the CCRC for their three month deadline is moving swiftly and the case grows ever stronger.

Jeremy has also made an appeal for anyone to come forward who might have information on his case which would help. This would include first hand testimony from police officers, witnesses or contemporaneous documents. Even if you have made an approach before but felt you weren't taken seriously please try again, we now know much, much more about the case and what seemed to be unlikely events before are now proven facts to the Defence and the case is now handled by different lawyers and different administrators.

If you have information which you think might help Jeremy you can contact us in confidence. Please visit the link here with more details