Whole Life Sentences and Article 3 of the European Convention on Human Rights: Time for Certainty and a Common Approach?

Whether the law should reserve the power to impose a whole life sentence on an individual found guilty of murder in the most serious cases raises issues surrounding just punishment, public protection and a humane criminal justice system. The prospect of a prisoner being incarcerated for their whole life—as opposed to receiving a life sentence where they will be considered for release on license for life after a determined, or flexible term, begs the question whether such sentences are inconsistent with the liberty and dignity of the prisoner. In addition, there are two related questions: whether each individual state (within the Council of Europe) should be at liberty to promulgate and apply its own domestic rules in this area, or whether a supra national court—the European Court of Human Rights—should lay down common standards for all states, such rules being based on fundamental principles reflecting international human rights standards; and the extent to which any relevant domestic laws have to provide the prisoner and the domestic authorities with sufficient guidance on what factors will be taken into account when any such review takes place. These issues have been raised in a number of recent decisions—in both the European Court of Human Rights and the UK domestic courts—and this article examines these cases and attempts to assess the extent to which the Convention, and the jurisprudence of the European Court, requires the regulation of domestic law with respect to the passing and review of such sentences.