Last week the Court of Appeal considered the issue of whole life tariffs, which in three separate cases heard together were appealed on the basis that whole life orders were incompatible with Art 3 of the European Convention of Human Rights, which prohibits torture and inhuman or degrading treatment and punishment.
Although the panel, comprising the Lord Chief Justice and four appellate judges, overturned the whole life tariff for murderer Danilo Restivo and rapists Michael Roberts and David Simmons, they upheld the sentence for killer David Oakes. Their ruling, which comes just prior to the appeal by Jeremy Bamber and two other murderers to overturn their whole life tariffs at the Grand Chamber of the European Court of Human Rights, sends a signal to the Strasbourg that the courts in England and Wales are content that power to jail someone forever is, in some instances, justified.
Lord Judge stated that it was open to the individual state to make statutory provision for the imposition of a whole life minimum term and, if appropriate, as a matter of judicial discretion, for the court to make such an order; it was not for the European Court to intervene. In the UK, Parliament has legislated to enable judges to impose whole life sentences without the possibility of release, which for would be appropriate where punishment and retribution required detention for life in the literal sense.
So who do whole life tariffs apply to? They are, and should remain the court held, reserved for the few exceptionally serious offences committed by offenders judged to be the most dangerous to society. Currently 46 offenders are subject to whole life orders. Unlike other life term prisoners, they are not eligible for release on licence if, after their minimum term, they can prove that they are no longer a risk to society.
Following the rejection of his appeal, one of those remaining on a whole life tariff is David Oakes, a 51-year-old male who sadistically tortured and shot his former partner Christine Chambers and their two-year-old daughter Shania in Essex, before attempting to turn the gun on himself. He had been, said Lord Judge, “utterly merciless”, putting his former partner through “the most terrifying and agonising ordeal that he could envisage”.
No longer subject to a whole life order is Danilo Restivo, a 40-year-old Italian national, who was given a whole-life tariff in June last year for the “depraved” and “callous” murder of his neighbour Heather Barnett, a mother-of-two, in Bournemouth. Whilst the circumstances of Ms Barnett’s death were deemed “horrific” and “profoundly disturbing”, including the mutilation of her body which Restivo had known would be found by the victim’s children, it was held that the decision to impose a whole life tariff had been influenced by evidence adduced by the Crown during the trial of a separate murder of a 16-year-old girl in 1993 in Italy, which Restivo had not at the time been convicted of. It should not, therefore, have been taken into account when sentencing. Reviewing the sentence, the court concluded that the minimum term for Heather Barnett’s murder should be fixed at 40 years.
Also no longer subject to whole life orders are rapists Michael Roberts and David Simmons. Roberts, a 46-year-old male dubbed the ”Bermondsey Beast”, terrorised elderly women for more than a decade, raping three victims – one aged 83 – and viciously attacking a fourth in Bermondsey, south London. He evaded justice for 15 years but was captured after a cold case review by Scotland Yard. His term was reduced to 25 years. David Martin Simmons, aged 40, is now serving a life sentence with a 10 year minimum. He pleaded guilty to rape and false imprisonment and was sentenced to life in December 2004. The trial judge did not specify a specific term, but on his transfer from Broadmoor Hospital back to HMP Bristol in 2010 he was told for the first time that he was regarded as a whole-life prisoner. Lord Judge said that “profoundly disturbing as this offence certainly was, it was not an offence of the extreme level of seriousness to justify a whole-life order”.
It is important to remember, however, that commutation to a life sentence does not guarantee release. Minimum term lifers can apply for parole once the minimum term expires, but are not released unless they are deemed to no longer pose a threat to the public. In the words of Lord Judge, it was ”highly unlikely” that that Restivo, Roberts or Simmons will ever be released. He said, “We should perhaps emphasise at the outset that each of these appellants is dangerous, and on the available evidence, likely to remain dangerous for the indefinite future. At present it is difficult to see how it will ever become safe for any of them to be released from custody.”
For Restivo et al it may be that last week’s decision was nothing more than a pyrrhic victory and life will continue to mean life. With the backlog of cases before the Parole Board (currently approximately 1600 cases are yet to be heard) and with the lifer release rate hovering around 15%, the statistical prospects of release at the end of the minimum term are modest. For those convicted of sexual or violent offences involving women or children, victims from whom offenders are segregated from by virtue of the prison environment, it is very difficult for such offenders to show to the requisite degree that they no longer pose a risk. Rightly or wrongly, such offenders can wind up languishing in prison with no hope of ever being able to demonstrate that they are no longer a danger to society: life really meaning life.