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Mandatory life sentence was introduced following the abolition of the death penalty. The primary purpose was to place public confidence in the criminal justice system for serious criminal offences. Schedule 21 of Criminal Justice Act 2003 sets forward the criteria for the imposition of mandatory life sentence presented to a trail judge. The effect of the whole life sentence is that the prisoner can not be released unless done so on the discretion of the Secretary of State, where he finds some compassionate grounds for releasing.
Other European states that are signatories to the same international treaties as the UK have introduced a mechanism to review a prisoner’s release after he has served a minimum life tariff set in the domestic law, thus distancing themselves from any possible breach of Article 3 of the European Convention on Human Rights (ECHR). For example, in France the minimum tariff is normally 18 but it can be up to 30 years for serious murders, and in Germany the minimum tariff can be up to 15 years.
There are arguments against abolishing mandatory life sentence that will be presented later. Nonetheless, there are plausible arguments of blatant violation of Article 3 of ECHR. However, it is neither feasible nor pragmatic to abolish mandatory life sentence outright. Therefore, a mechanism should be established similar to that which is adopted by other European states, and endorsed by the European Court of Human Rights (ECtHR).
Can mandatory life sentence be justified?
The mandatory life sentence is premised on the concept of individualism. People are not obliged to cater for one another. Equally, an individual must pay for the consequences of committing heinous acts which may have brought serious harm to others. Mandatory life sentence is a vivid reflection of how a state can protect the fabric of its society. Its imposition underlies the concept of retribution and deterrence and demonstrates the consequences of deviation from accepted norms of behaviour. However, it is worth noting that the soaring rate of inmates in the UK for mandatory sentence as compared with rest of European states leads one to question whether it actually is deterring people.
Violation of article 3?
While this may be a potent argument, a significant argument for the abolition of the mandatory life sentence is its potential violation of Article 3 ECHR. As per Article 3, no one shall be subjected to torture or to inhuman or degrading treatment or punishment. UK courts have predominantly focused on imposing the mandatory life sentence and banishing all arguments related to Article 3. Lord Steyn in the case of R v Anderson observed “there is nothing logically inconsistent with the concept of a tariff by saying that there are cases where the crimes are so wicked that even if the prisoner is detained until he or she dies it will not exhaust the requirements of retribution and deterrence”.
The first argument labelled against a mandatory sentence is that it is contrary to a secular concept of human dignity, around which Article 3 is also based. This is said because it aims to permanently deprive a person of liberty for the rest of her/his life without any possibility that rehabilitation or re-orientation of one’s own self could lead to consideration for release. States also have an integral duty to ensure the possibility of rehabilitation and the prospect of release if rehabilitation is achieved.
The second argument labelled against a mandatory sentence is the inability to distinguish between different circumstances within which murder is committed. Some murderers might be serial killers or brutal killers, while some might be mercy killers. In such a situation imposition of a mandatory life sentence would be contrary to Article 3. The circumstance in which the murder was committed would be observed from the same lens, hence a person who took the life of his/her loved one to relieve them of their suffering would be castigated as a cold blooded murderer which would be mentally torturous.
Can the potential breach be averted?
In the preceding paragraphs, it has been argued that a mandatory life sentence violates the primacy of Article 3. So, does this mean that it is inherently at odds with Article 3? No, it does not. This is because a mandatory life sentence only starts to contravene Article 3 when it curbs every hope of freedom to the prisoner. A plausible and popular solution for UK to align itself with Article 3 is to imitate France and Germany. Mandatory life sentence should not be out rightly abandoned but a review mechanism must be sought via legislative amendment; one that is premised on rehabilitation and facilitation of the prisoner. After a prisoner has served the minimum sentence awarded by the domestic court under the domestic law, he should be reviewed. If he has shown a positive change in his character, remorse, and has no penological grounds, then incarcerating him from that time would constitute a breach of Article 3. By doing so, the state will have fulfilled its essential function to punish criminals for heinous crimes and protecting the public from danger, as well as meeting the threshold of Article 3 of upholding human dignity. Essentially, having knowledge of the possibility of their release might provide an incentive for the individual to reform themselves.
Henceforth, there are two options available to the UK to avert the possibility of breaching Article 3. The first is to completely abolish mandatory life sentence. This is not a politically - perhaps nor morally - feasible option. A second, more practical solution is to introduce a review mechanism to protect the principle of human dignity and to align itself with Strasbourg.