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Whole-life sentences: Why ignoring the European Court of Human Rights was the only sensible option

The European Convention arose from the horrors of Hitlerism and the Second World War. That is what it is for; the extremes of totalitarianism

Sean O'Grady
Tuesday 18 February 2014 13:20 GMT
(Getty Images)

A victory – ironically – for Human Rights. The UK’s Court of Appeal has decided to uphold the principle that judges can set whole-life sentences, and rejected the European Court of Human Rights ruling that such terms should be reviewed. The European view was so silly that it was actually harming the cause of human rights; they are now just a little safer, and saner.

As Lord Chief Justice Lord Thomas said, there may be debate in a democratic society as to whether a judge “should have the power to make a whole-life order”, but that some crimes were “so heinous” that Parliament was entitled to allow whole-life orders “entirely compatibly” with the European Convention on Human Rights.

As a parliamentary purist, I find this a little unsatisfactory. For it should not be up to judges in London or in Strasbourg to determine such matters. Before the judgement there was an enlightening discussion on the Today programme about whole-life tariffs. Dominic Raab MP was making the case for parliamentary supremacy in such matters; Baroness (Helena) Kennedy pleading for the rights of an independent judiciary. As you’d expect.

Of the two, Raab had much the better of this argument. First, tariffs and sentencing policy should be prescribed by Parliament. I happen to think hanging is wrong, because mistakes are made, even when everyone thinks the evidence is overwhelming, as we saw with the Birmingham 6, Guildford 4, Timothy Evans (hanged for the Christie murders) and other appalling examples - but I am clear that the policy should be decided by a free vote in the Commons. And, by the way, back in the 1960s when we finally abolished hanging, the “deal” was that life sentences would really mean life: Otherwise the public and MPs would not have accepted that cop killers should escape the rope.

Of course no judge or jury should be interfered with in administering justice, and in setting punishments they consider appropriate, even if politicians, the public or the media find them distasteful and, generally, too “soft”. There is a balance here, and we should avoid “judge made law” as avidly as we should oppose “politician prescribed sentencing”.

Is this row merely one about “review” of lifers’ terms after, say, 25 years? A sensible judicial safeguard? It sounds innocent enough, but the point is that it should be up to parliament, not judges, as to whether this is a wise and sensible move. In some miscarriages of justice a review should come long before 25 years, and there are procedures in place to review such miscarriages, offer pardons and the rest of it. If there is no new evidence or new doubts about a conviction, there is no reason why a tarff should not stand. No one claims that Ian Brady is innocent or was fitted-up; it was right to put him away for ever in 1966, and remains right today.

Human Rights are in danger – some would say have gone beyond mere danger – of falling into disrepute because of their blatant and often absurd misapplication. This is what gives the real enemies of human rights so much ammunition, and discredits a noble and even sacred cause. Nothing turns the public off the idea of minimum standards of human decency – and who can be against those? - than the idea that some brutal criminal is prevented from being deported because he happens to have fathered a child in this country, and therefore has a “right to a family life”.

Human rights are not being balanced by human responsibilities, and they will not survive if we carry on with such lunacies. The European Convention on Human Rights, as Mr Raab rightly says, arose from the horrors of Hitlerism and the Second World War. That is what it is for; the extremes of totalitarianism. It is not really, with a few exceptions, for the UK or other civilised nations. Of course Britain has been and should be held to account for, for example, war crimes committed in Kenya, Ireland and Iraq – all true violations of rights. In that case the armed forces, in difficult conditions, went beyond what Parliament wanted, and, eventually, the victims found some redress.

I’m not sure the human rights judges are applying the sort of “ progressive agenda” by the back door Mr Raab alleges; more likely they are simply prey to the usual bureaucratic disease of empire building and finding themselves things to do that are none of their business. That, though, could be a fatal illness so far as their institution and the wider cause of universal a human rights are concerned.

Sarah Hyde: 100-year sentences deny perpetrators the chance of change - and allow us to forget their humanity
Poll: Should police killers automatically get whole-life sentences?
Archie Bland: Why throwing away the key doesn't work

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