An exploration of ECtHR jurisprudence governing the administration of release processes for life and long-term sentence prisoners: Perspectives from the United Kingdom

Introduction

It is widely acknowledged that life sentence prisoners will not be incarcerated for the remainder of their natural life and may be conditionally released by parole authorities. Equally, long-term sentence prisoners may have an expectation of conditional release before the determination of their sentence. The ECtHR has frequently invoked Article 5(4) as a procedural safeguard against unlawful and disproportionately prolonged detention. At appropriate stages of their sentence, prisoners are entitled to frequent and speedy reviews of continued detention by a court or ‘court like’ body. Such quasi-judicial bodies, effectively a parole authority, must be invested with the power to determine the lawfulness of continued detention. ¹ It is generally not sufficient that such an authority functions in an advisory capacity to the executive branch of government, albeit release systems between European states for life sentence prisoners vary considerably including release by a judicial authority/court, parole authority, release by the executive, and clemency release. ² Sentence reviews must adopt appropriate fair procedures and due process guarantees in the decision-making process. Whether a review is sufficiently speedy or frequent is considered in light of the circumstances and complexities of the sentence under review. Prisoners may have an entitlement to conditional release if continued detention is found to be unlawful.

Prolonged detention may be proportionate commensurate with perceived risk and dangerousness of reoffending. Sentence reviews must be sufficiently broad to determine whether the legitimate penological justifications for continued detention prevail. National laws in conjunction with ECHR provisions and associated ECtHR jurisprudence are equally relevant between European states, and implementing ECHR sentence review standards into national laws is conditional on the diversity of parole authorities. Substantive and procedural law governing release systems for life and long-term sentence prisoners has to a great extent been formulated by ECtHR judgments. The majority of ECtHR judicial formulations on procedures governing sentence reviews emanates from the cases taken against the United Kingdom. Therefore, an appreciation of developments in law and practice in that jurisdiction is particularly apposite in order to appreciate the parameters of ECtHR jurisprudence – albeit most European states operate discretionary release systems. While the ECtHR has emphasised the need for a quasi-judicial authority for reviewing post-tariff sentence prisoners in the United Kingdom, that is due to the primacy of risk in the parole decision-making process in that jurisdiction. ³ The ensuing analysis of ECHR provisions and associated ECtHR jurisprudence is informed through perspectives from the United Kingdom on their implementation as a case study.

Through doctrinal analysis of the legalistic issues the purpose of this article is to contribute to the ongoing analysis of legitimate penological justifications for prolonged enforcement of life and long-term sentences commensurate with release systems governed by pertinent ECHR provisions and associated ECtHR jurisprudence. Substantive and procedural safeguards against determinations of parole authorities to arbitrarily prolong detention following the punitive element of sentences are key to the analysis. The general assumption postulated is that life sentences are structured such that they have a punitive element after which point the decision to release is based on assessments of risk and dangerousness by a body independent of the executive – admittedly this is not the case accross all European states. ⁴ The article concludes with an assessment of counterbalancing risk and public protection commensurate with the liberty and human dignity of prisoners who may be eligible for conditional release. There are significant differences in terms of the administration of life and long-term sentences in the United Kingdom and other European jurisdictions resulting in different ECtHR decisions that are beyond the scope of this article.

Life and long-term sentences

The imposition of life and long-term sentences includes a symbolic element of punishment for heinous criminal offences and are the most severe criminal sanctions in jurisdictions that have abolished capital punishment. The death penalty is prohibited by Article 1 of protocol No. 6 and Article 1 of Protocol No. 13 and has been replaced in European states by life imprisonment or long-term sentences as the maximum penalty. ⁵ Unlike sentences of fixed duration, life sentences are by their very nature indeterminate. Whereas prisoners sentenced to fixed term periods of detention will know the date of expected release, life sentence prisoners have no such expectation. ⁶

Life sentences are terms of imprisonment without a prescribed duration of incarceration stipulated by the sentencing court, which can be mandatory (prescribed by legislatures) or discretionary (judicially determined). ⁷ Mandatory life sentences are not easily reconciled with the overarching principle of proportionality as judges are restrained from exercising judicial sentencing discretion taking into consideration the personal circumstances of offenders and other relevant factors informing the sentencing process. ⁸ The prospect of being incarcerated for life raises human rights concerns pertaining to whether such sentences are inconsistent with liberty (Article 5) and human dignity (Article 3). Life sentences per se are not incompatible with Article 3 provided there are frequent reviews of the justification for continued detention and prisoners should have a real hope of conditional release. It is the structures governing release, or prolonged detention, where contentious issues may arise. Irreducible whole life sentences – albeit very seldom applied – equates to a prisoner’s life being reduced to mere survival in violation of Article 3, although supporters of whole life sentences advocate for their retributive and deterrent effect. ⁹

Life and long-term sentences are based on the premise that prisoners might be eligible for conditional release on the basis of good behaviour and sufficient progress towards rehabilitation. Prisoner reform and rehabilitation would typically be evidenced by participation in counselling or drug rehabilitation programmes, obtaining education or work skills, engaging with rehabilitative and therapeutic regimes, and compliance with prison regulations.

While periods of detention under life sentences are generally not stipulated by sentencing courts, parole authorities enjoy discretionary powers to decide applications for conditional release by reference to factors of risk and dangerousness that are susceptible to change. ¹⁰ These factors will be measured against progress made by prisoners which in turn will depend on the sufficiency of resources available to facilitate meaningful rehabilitation and reintegration back into society. ¹¹ The question of conditional release for life and long-term sentence prisoners is dependent on factors unknown at the time when the original sentence was imposed. Frequent reviews by parole authorities empowered to determine the lawfulness of continued detention are therefore required.

Discretionary sentence review procedures vary considerably between European states especially between minimum periods of a sentence required to have been served before prisoners may be eligible for conditional release. ¹² Once the minimum or punitive term of the sentence has been served, life and long-term prisoners may have an expectation of frequent sentence reviews and determinations regarding justifications for continued detention or conditional release. Sentence reviews are confined to decision-making procedures and do not confer a substantive right to parole. ¹³

Lawful detention

Article 5(1)(a) ECHR tolerates ‘the lawful detention of a person after conviction by a competent court’. This procedural safeguard demands that no person shall be deprived of their liberty in an arbitrary, irrational or unreasonable manner. ¹⁴ Where the lawfulness of prolonged detention is an issue, including the question whether ‘a procedure prescribed by law’ has been followed in accordance with Article 5(1), the ECtHR defers to conformity with national laws and procedures, which invariably differs between European states. The duration of detention are matters for determination by national courts and parole authorities, not the ECtHR as a supranational whose function is delimited to judicial formulations for implementation and compliance with ECHR standards. ¹⁵ Detentions must be lawful under national law conforming to ECtHR judicial pronouncements concerning the quality of the law, which must be accessible with the precision with which it is formulated to the individuals concerned; and sentence reviews must not be arbitrary, such as resorted to in bad faith, or disproportionate. ¹⁶ The multitude of different parole decision-making authorities between European states might suggest capricious implementation of ECHR standards and fundamental rights dependant on the state in which the prisoner is detained – somewhat akin to a ‘geographical lottery’ for life and long-term prisoners as to whether conformity with ECHR standards are being complied with or alternatively whether a wider margin of appreciation operates in some states, thus effectively circumventing substantive rights and procedural safeguards governing sentence release systems.

Article 5(1) stipulates that loss of liberty should be in keeping with the purpose of protecting detainees from arbitrariness, irrationality or unreasonableness and ECtHR jurisprudence has revealed that these notions vary considerably depending on the nature of detention, conditions and facilities available to prisoners between European states. Although a harmonised definition of ‘arbitrariness’ has not been devised, ECtHR jurisprudence has nonetheless pronounced judicial formulations for sentence review procedures for implementation by national parole authorities, subject to the caveat of a margin of appreciation being afforded to sovereign states.

Legal certainty and the rule of law are pivotal to safeguarding against arbitrary detention. Sentence review procedures must be clearly defined and foreseeable in their application to the extent that continued detention would only be justified on legitimate penological justifications. ¹⁷ Prisoners demonstrating sufficient progress towards rehabilitation should be considered for conditional release at appropriate stages of their sentence consistent with national laws and procedures underpinned through the review requirements of Article 5(4). Article 5 should be read as a whole and a violation of paragraphs (1) and (4) would render detention unlawful. There is no precondition to the application of this provision requiring prisoners to demonstrate ‘any particular chance of success in obtaining his release’. ¹⁸

Interconnection between original sentence and continued detention

Determinations by parole authorities to prolong detention require sufficient interconnection between the original sentence and detention commensurate with Article 5(1)(a) and frequent reviews consistent with Article 5(4). Risk assessments based on the original offence and sentencing remarks by the trial court are key criterion for sentence reviews conducted by parole authorities. This necessitates reasoned judgments by sentencing judges that may be considered by parole authorities many years or decades after the sentence was imposed. The rationale for the imposition for the criminal sanction may have incorporated prospects for reform and rehabilitation of the offender based on pre-sentence reports and other relevant considerations that should be considered by parole authorities before determining applications for conditional release.

The circumstances and nature of the original offence have frequently been invoked in decisions to revoke parole licences, recall parolees and reactivate the original sentence, thereby justifying continued detention. While the discussion in this context shifts focus to recall of released prisoners, where different considerations may apply, ECtHR jurisprudence in this regard may nonetheless inform broader penological considerations that also pertain to parole applications.

In Waite v United Kingdom, ¹⁹ the ECtHR found a sufficient correlation where the prisoner, who had killed his grandmother while addicted to glue-sniffing, had his parole licence revoked following his arrest for possession of drugs. The conviction and sentence for murder committed against a background of substance abuse established a sufficient connection, as required in accordance with ‘lawfulness’ in Article 5(1)(a), between the decision to recall and the original sentence for murder. In Weeks v United Kingdom, ²⁰ the ECtHR reiterated that discretionary life sentences are indeterminate sentences expressly based on considerations of risk and public protection, factors that are susceptible to change during the period of detention. Considering legitimate concerns regarding the applicant prisoner’s unstable, disturbed and aggressive behaviour, the ECtHR concluded that the decision to recall was not arbitrary, irrational or unreasonable commensurate and was closely linked to the objectives of the original sentence to satisfy the requirements of Article 5(1)(a).

Detention after recall of a mandatory life sentence prisoner violated Article 5 in Stafford v United Kingdom ²¹ where recall was based on the risk of non-violent offending (fraud offences) unconnected with the original sentence for murder. On the completion of the sentence for fraud the Home Secretary refused to release the prisoner and ordered continued detention on the original life sentence, on the grounds that he would commit further fraud offences. The ECtHR limited the penological grounds of risk and dangerousness (linked to the original sentence) or refusal to grant parole, and disapproved of the continued detention of a convicted murderer based on concerns that he would commit fraud offences (unconnected with the homicide offence) at some unspecified time in the future.

Reassessing the lawfulness of continued detention

Article 5(4) provides that persons deprived of personal liberty ‘shall be entitled to take proceedings by which the lawfulness of his detention shall be decided speedily by a court and his release ordered if the detention is not lawful’. This provision demands judicial supervision of the lawfulness of continued detention under the provisions of Article 5(1), which in itself necessitates quasi-judicial sentence reviews. This procedure will safeguard against unreasonable, arbitrary and irrational decisions unsupported by legitimate penological grounds to prolong detention.

Sentence reviews of the lawfulness of continued detention may be necessitated at ‘reasonable intervals’, ²² where the initial parole application has been rejected. Moreover, national parole authorities are obligated to decide sentence reviews ‘speedily’. Reviews must be sufficiently broad to include considerations as to whether the legitimate penological grounds for continued detention still prevail. ²³ While initial parole applications may be declined, the parole authority should provide guidance on what measures should be undertaken to enhance the possibility of being granted conditional release in a subsequent application. In accordance with the principle of legality, prisoners that have meaningfully engaged in rehabilitation programmes may have a legitimate expectation to receive guidance on what further measures are required to demonstrate a significant reduction in perceived risk and dangerousness if granted conditional release. Frequent reviews may be required over a period of years depending on the prisoner’s progress towards rehabilitation and significant reduction in risk and dangerousness as determined by appropriate parole authority assessments. Determinations against granting conditional release typically include recommendations for prisoners to further engage in rehabilitation programmes, pre- and post-release preparations and other stipulations, as may be determined by the assessment of a prisoner’s suitability for conditional release. This accords with the principle of legal certainty in that prisoners know what is required of them so as to ensure further progression towards satisfactory rehabilitation and perhaps eligibility for conditional release in ensuing sentence reviews.

It is noteworthy that life sentences will not exhaust the provisions of Article 5(4) demanding frequent reviews of continued detention. Many prisoners will have meaningfully engaged with rehabilitation programmes over time and may become eligible for review in due course. This was exemplified in Thynne, Wilson and Gunnell v United Kingdom ²⁴ where the ECtHR reiterated that ‘factors of mental instability and dangerousness are susceptible to change over the passage of time and new issues of lawfulness may thus arise in the course of detention’. ²⁵ The ECtHR concluded that since the grounds relied upon in sentencing the applicant to a discretionary life term concerned by reference to factors of risk and dangerousness that are disposed to change, new issues of lawfulness of detention could arise after the expiry of the punitive element of the sentence. The circumstances that gave rise to the original conviction and sentence might have changed significantly at some point during the period of detention.

Nature and characteristics of parole authorities

Sentence reviews invariably necessitate access to independent and impartial parole authorities empowered to determine parole applications. This requirement is exemplified by ECtHR jurisprudence that demands an independent and impartial court or ‘court-like’ quasi-judicial body empowered to decide applications for conditional release. ³⁸ In Weeks v United Kingdom, ³⁹ the ECtHR recapitulated fundamental characteristics of ‘court-like’ bodies that must adopt judicial procedures, with the power to ‘decide’ the ‘lawfulness’ of prolonged detention and to order the applicant’s release if detention is unlawful. ⁴⁰ The diversity of national parole decision-making authorities between European states would fulfil this requirement subject to the foregoing preconditions. The established procedures were reiterated in Thynne, Wilson and Gunnell v United Kingdom, ⁴¹ where the ECtHR concluded that parole authorities should be empowered to determine, at regular intervals, the complex issues of whether life, and by analogy long-term prisoners should be granted conditional release.

Independence of the executive branch of government and impartiality between the parties is pivotal to ensuring procedural propriety in the sentence review decision-making process. In Neumeister v Austria, ⁴² the ECtHR clarified the independence of the court from the procedures adopted in accordance with Article 5(4) in that parole authorities ‘must possess a judicial character, that is to say, be independent both of the executive and of the parties to the case; it in no way relates to the procedure to be followed’. ⁴³ Neumeister was elaborated on in De Wilde, Ooms and Versyp v Belgium (No. 1), ⁴⁴ where the ECtHR stated that the procedures must be judicial in nature and provide ‘the individual concerned [with] guarantees appropriate to the kind of deprivation of liberty in question’. ⁴⁵

National parole authorities should not adopt an interpretation of Article 5(4) unsupported by and in conflict with ECtHR jurisprudence. This accentuates the imperative of adversarial due process safeguards and fair procedures in accordance with the principle of legality and the rule of law. Moreover, accountability of the decision-making process by way of judicial review for unreasonableness, arbitrariness or irrationality is an imperative. While adversarial systems of justice are conventional in common law jurisdictions, inquisitorial systems of justice prevail in most continental civil law jurisdictions. The implications of the diverse systems of justice that pertain between European states could militate against consistency of approach and hence be more problematic for ECHR rights and associated ECtHR jurisprudence to be applied consistently regardless of the nature of release systems; albeit such diverse legal traditions might not exist in their traditional pure systems. ⁴⁶

Deprivation of liberty through decisions taken by administrative authorities, that prevail in many European civil law inquisitorial jurisdictions, necessities reviews of the lawfulness of continued detention by courts or quasi-judicial authorities. ⁴⁷ In De Wilde, Ooms and Versyp v Belgium (No 1), ⁴⁸ the applicants had been detained as vagrants by what were thought to be non-reviewable administrative decisions of the magistrates. The ECtHR contrasted decisions that deprived persons of their liberty taken by administrative bodies on the one hand and judicial bodies on the other. ⁴⁹ The ECtHR found a violation of Article 5(4) because there was no judicial remedy open to the applicants against the detention orders. Decisions depriving prisoners of personal liberty must be made by a ‘court’ within the meaning of Article 5(4) affording fundamental procedural safeguards against arbitrariness. Sentence review procedures should be judicial in character affording due process guarantees appropriate to the deprivation of liberty being challenged.

The issues surrounding administrative decisions are illustrative of the imperative of national parole authorities being empowered to act quasi-judicially in accordance with fair procedures and due process safeguards. Moreover, the decision-making process must be accountable by way of judicial scrutiny, whether on appeal or judicial review. Issues of incompatibility with ECHR and associated ECtHR jurisprudence arise in states where the parole authority is a purely administrative body thus effectively circumventing the substantive and procedural safeguards against the arbitrary loss of liberty and continued detention. Therefore, it is imperative that prisoners have access to judicial remedial procedures.

Right to an effective remedy

Prisoners benefit from the necessary judicial guarantees under Article 5(4) to challenge the lawfulness of prolonged detention. The obligation on states to safeguard human rights and vindicate individual rights for violations is underscored by Article 13, which stipulates that everyone whose rights have been violated shall have an effective remedy before a national authority. ⁵⁰ In cases of violations by national parole authorities empowered to make decisions affecting individual rights, the imperative of judicial scrutiny of sentence review procedures is underscored by the obligation on states to provide an effective remedy (including appeal against the parole authority determination or judicial review of procedures adopted during the parole decision-making process).

Perspectives from United Kingdom jurisprudence

The House of Lords has frequently invoked Article 5(4) in the context of national sentence review procedures. R (Giles) v Parole Board ⁵⁷ involved the longer than commensurate determinate sentence than should have been imposed for offences of a violent or sexual nature when the sentencing court decided this was necessary for public protection. ⁵⁸ The prisoner had been sentenced to consecutive terms of three and 4 years’ imprisonment and invoked Article 5(4). The argument put forward was that he was entitled to an oral hearing before the parole board upon the expiry of what was effectively the punitive element of his sentence, the halfway point, and thereafter at regular intervals so that he could be released if it was no longer necessary to detain him on grounds of risk and dangerousness. The House of Lords rejected this argument as the result would be inconsistent with sentence review procedures and ECtHR jurisprudence and held that the sentence fell squarely within Article 5(1). Lord Bingham considered the core rights protected by Article 5(4) commensurate with Article 5(1) and concluded that the procedure is concerned with the ‘deprivation of liberty which is arbitrary, or directed or controlled by the executive’. ⁵⁹ Lord Hope opined that the general rule was that detention in accordance with a determinate sentence imposed by a court was justified under Article 5(1) without the need for further reviews of detention under Article 5(4). Lord Hope distinguished between sentences where the length of detention was decided by a court at the close of judicial proceedings, the supervision required by Article 5(4) being incorporated in the decision, and stated ‘the lawfulness of the detention requires a process which enables the basis for it to be reviewed judicially at reasonable intervals. This is because there is a risk that the link between continued detention and the original justification for it will be lost as conditions change with the passage of time’. ⁶⁰ This procedure is necessary to ensure that decisions will not be made arbitrarily. Lord Hutton found the applicant was detained pursuant to the single sentence of the court with no break in the link between the sentence imposed by the court and continued detention. The House of Lords rejected the applicants’ submission that Article 5(4) entitled a prisoner, subject to a longer than commensurate determinate sentence for public protection, to further reviews once the punitive element of the sentence had been served during the preventative stage of his sentence as if he were a discretionary life sentence prisoner. The House of Lords did not suggest that Article 5(4) would apply once such a prisoner reached the parole eligibility date. The decision illustrates that Article 5(4) may have no direct application to long-term sentences; the review effectively being incorporated into the sentencing judgment, at least under United Kingdom release procedures. ⁶¹ Nonetheless, prisoners would be entitled to a further right of review under the provisions of Article 5(4) if new issues pertaining to the lawfulness of continued detention arose thereafter, such as sufficient progress towards rehabilitation. ⁶²

In R (West) v Parole Board; R (Smith) v Parole Board (No. 2), ⁶³ the House of Lords considered the applications of two prisoners both of whom were serving determinate sentences, released on licence and subsequently recalled by the Secretary of State for breach of conditions attached to the parole order, acting on the recommendation of the parole board. The applicants sought judicial review for the failure of the parole board to provide an oral hearing when deciding not to recommend their re-release. Lord Bingham opined that in such cases, the sentence of the trial court satisfied Article 5(1) not only in relation to the initial term served, but also in relation to recalls and revocations; since conditional release on licence is subject to the possibility of recall and formed an integral element of the sentence imposed by the court. The revocation decision must be consistent with Article 5(4), which it did since the parole board effectively made the determination and it was empowered to examine whether circumstances had arisen to justify further detention of a determinate sentence prisoner released on licence and, if so, whether the protection of the public necessitated the applicant’s continued detention. Lord Slynn dissented on this point on the basis that recall of a parolee was a new deprivation of liberty, although a review of the recall decision by the parole board could satisfy Article 5(4).

It is a fundamental principle of procedural fairness that a party to judicial proceedings is entitled to the disclosure of all materials that may be taken into account by the court when reaching a decision adverse to that party. The ECtHR affirmed the importance of this principle in criminal cases governed by Article 6(1) to the extent that all evidence must be produced in the presence of the accused at a public hearing with a view to adversarial argument and to question witnesses against him. ⁶⁴ Article 5(4) requires disclosure of adverse material and an adversarial procedure of a judicial character in which the person affected has the effective assistance of a lawyer and the opportunity to call and question witnesses. ⁶⁵ In R (Roberts) v Parole Board, ⁶⁶ the House of Lords concluded that these rights were not absolute or incapable of qualification. Nonetheless, any limitations on a prisoner’s rights must not ‘restrict or reduce the access [to the court] left to the individual in such a way or to such an extent that the very essence of the right is impaired’. ⁶⁷

In R (Clift) v Secretary of State for the Home Department, ⁶⁸ the issue for determination was whether the Secretary of State was correct to reject the parole board’s recommendation for certain prisoners, but not others, and was discriminatory under Article 14 ECHR. Lord Bingham opined that sentences imposed in cases like Clift provided lawful authority for the detention of persons until, under national law, their detention became unlawful. ECHR and associated ECtHR jurisprudence did not require states to establish schemes of early release when, as in England and Wales, there was a right under statute to seek early release that procedure fell within the ambit of Article 5(4).

In R (James) v Secretary of State for Justice, ⁶⁹ the House of Lords held that Article 5(4), which is concerned with procedure rather than substance, required parole boards to decide speedily whether the applicant prisoner continued to be lawfully detained. Prisoners would be lawfully detained unless the parole board was satisfied that continued detention was no longer necessary for public protection, or so long had elapsed without any effective review of dangerousness that the Article 5(1) causal link had to be presumed broken (commission of the same classification of offence if paroled). The fact that the prisoner might be unable to demonstrate suitability for release based on relevant material before the parole board did not as such constitute a violation of Article 5(4).

ECtHR performs a judicial somersault

Sentence review procedures commensurate with Article 5(4) have been influenced by ECtHR jurisprudence and decisions by national courts implementing ECHR standards. A considerable amount of ECtHR jurisprudence governing sentence review procedures has emanated from cases taken against the United Kingdom; however, a rift seems to have emerged with the supranational ECtHR. This divergence might be indicative of underlying issues apparently rebuffing the ECtHR’s legitimacy as a supranational court. Nonetheless, the obligation on states ‘to secure to everyone within their jurisdiction the rights and freedoms’ enshrined in Article 1 (obligation to respect human rights) ECHR prevails.

Proportionate balancing amid opposing rights

Substantive and procedural ECHR rights and obligations aim to strike a fair and proportionate balance between public protection and safeguarding individual rights, ⁹⁰ albeit such rights and freedoms may be qualified by limitations prescribed by law. ⁹¹ Balancing risks of reoffending and public protection concerns with liberty and human dignity must incorporate competing objectives of human rights safeguards. ⁹² Prolonged detention might be justified on legitimate penological grounds that prisoners would present a significant risk of reoffending and danger to society if conditionally released. ⁹³ Individual risk assessments are essential in order to determine whether eligible prisoners are suitable for parole or whether they continue to pose a serious risk of harm to self or others. ⁹⁴ The composition of national parole authorities must include sufficient expertise in law, psychiatry and related disciplines so as to possess the appropriate competencies ensuring that the decision-making process accords with the principles of legality and the rule of law.

Analysis

As a general proposition, life and long-term sentence prisoners are detained for the commission of heinous criminal offences and justifiably are perceived as presenting serious risks of reoffending if inappropriately granted conditional release. Nonetheless, the relationship between the commission of the most heinous offences and the likelihood of reoffending evidenced by recalls to prison, is somewhat tenuous in the case of the most serious offenders such as murderers who are very often unlikely to commit further offences.

Sentencing in European states is generally governed by the cardinal principle of proportionality. ¹²⁵ Justifications for imposing criminal sanctions on convicted offenders incorporates elements of retribution, incapacitation, restitution and deterrence that are proportionate to the gravity of the offence and personal circumstances of offenders. Individual sentences might also include prospects of rehabilitation with the aim of significantly reducing the offender’s criminal propensity, improving prospects for conditional release and reintegration back into society under the supervision of probation services. When reviewing parole applications from life and long-term sentenced prisoners, parole authorities are required to strike a proportionate balance between liberty and human dignity with perceived risks of reoffending and public protection considerations.

The 2020 Council of Europe Annual Penal Statistics (SPACE) indicate there are 1,528,343 prisoners in detention between Council of Europe member states of which 1.8% are serving life sentences, 1.3% are serving 20 years and over, and 11.7% between 10 and 20 years. ¹²⁶ These statistics accentuate the imperative of proportionate balancing between the public interest regarding risk and dangerousness and individual rights of prisoners to rehabilitation and conditional release. Sentence review processes consistent with ECHR rights and associated ECtHR jurisprudence are underpinned by the prevention of arbitrariness in determinations to prolong detention. European penal policy underscores the significance of rehabilitation to the forefront in national penal systems, Council of Europe Prison Rules and relevant international instruments. Moreover, the UN Standard Minimum Rules for the Treatment of Prisoners (Nelson Mandela Rules) stipulate that rehabilitation and reduction in recidivism rates is a key purpose of imprisonment; however, life imprisonment controverts this purpose. Removing realistic prospects of rehabilitation for life (effectively indeterminate) and long-term determinate sentenced prisoners undermines the right to human dignity. ¹²⁷

The imposition of life and long-term sentences are complex and far-reaching sanctions bestowing the power to suspend the right to liberty for the remainder of their natural lives. ¹²⁸ While life sentences are the ultimate sanction imposed for the most heinous criminal offences, ¹²⁹ loss of liberty must be reconciled with ECHR fundamental rights standards combined with associated ECtHR jurisprudence.

Consistency of approach and quality of sentence reviews are pivotal to ensure outcomes of sentence reviews and monitoring of conditions of parolees are not de facto geographical lotteries. ¹³⁰

Harmonised analyses to identify emerging themes and patterns are not easily achievable owing to the various types of release systems in states, and there is great diversity in prison and probation systems between European criminal law jurisdictions. ¹³¹ Indeterminate life and long-term determinate sentences without hope of release are in many respects akin to a sentence of death as the offender can never atone for the offence and harm caused to victims.

His Holiness Pope Francis has advocated for the abolition of life sentences, which has been removed from the Vatican’s Criminal Code for the reason that ‘[a] life sentence is just a death penalty in disguise’. ¹³² These profound words were spoken against the background of penal populism and the pervasive belief that harsh punishments ‘can resolve these most disparate social problems as if completely different diseases could be treated with the same medicine’. ¹³³ This accentuates penological and ethical concerns regarding how society should punish offenders convicted of heinous criminal offences and concomitant dilemmas relating to sentence reviews and determinations of life sentences, ¹³⁴ and compatibility with human dignity. ¹³⁵ Whereas the Pontiff advocated for the abolition of life imprisonment, ECtHR jurisprudence accepts the lawfulness of life sentences provided that sentence review procedures conform to ECHR demands requiring frequent and speedy reviews of prolonged detention, with a real hope of the possibility of release for rehabilitated prisoners.

A life sentence lasts for the natural life of the prisoner however, the entire sentence is generally not served in detention. ¹³⁶ Temporary or early release of life prisoners is a feature of prison systems internationally, and the issue of release has been a cause of increasing concern in many European states. ¹³⁷ The need to reduce prison numbers, facilitate and encourage rehabilitation and reintegrating prisoners back into society subject to a sufficient period of pre- and post-release supervision in the community would conceivably make early and temporary release policies attractive to government administrations. Conversely, there might be concerns that the quality of sentence reviews and determinations whether or not to grant release may not always be applied equally and fairly to all prisoners. In any event, not all prisoners will be suitable for release based on independent and impartial assessments of risk and dangerousness, and recidivism.

Although life sentences do not constitute a violation of human rights, whole life sentences with no real hope of release are disproportionate and constitute inhuman and degrading treatment of prisoners in violation of Article 3. Human dignity has a practical impact on life sentences, which are an anomaly as most life sentence prisoners will not spend the remainder of their natural lives incarcerated. The emphasis on rehabilitation is to the forefront of European penal policy which suggests life imprisonment should be abolished and replaced by determinate sentences and strict compliance with rehabilitative programmes and post-release supervision.

Frequent sentence reviews stipulated for by Article 5(4) restrain potential arbitrariness in discretionary powers and ensure transparency, accountability and fairness of procedures in the sentence review decision-making process. ¹³⁸ Sentence review procedures safeguard against the arbitrary deprivation of liberty, which in the context of life sentences means that the decision to prolong detention must not be taken arbitrarily, irrationally or unreasonably. Notwithstanding the review mechanism stipulated for by Article 5(4), ECtHR jurisprudence accepts the necessity for prolonged detention on the limited penological grounds of risk and public protection.

Article 5(4), which has an autonomous meaning, guarantees the right to have the lawfulness of prolonged detention reviewed by parole boards possessing a judicial character and due process values. ECtHR jurisprudence has invoked Article 5(4) and formulated judicial guidelines for consistency of approach ensuring adversarial procedures ensuring due process values are afforded to applicant prisoners. Parole authorities must be invested with the power to determine the lawfulness of continued detention and be independent of the executive, impartial of the parties and must adopt appropriate procedures in decision-making processes. Whether sentence reviews are sufficiently frequent or decided speedily will be determined according to the complexity of parole applications.

Legitimate penological grounds when the original sentence was imposed might be difficult to decipher from the sentencing court’s judgment if a fully reasoned decision was not promulgated. Moreover, the personality of the sentencing judge would determine whether incapacitation, retribution or rehabilitation should have underpinned the sentence with the result that the rationale for the sentence imposed could be at the discretion of the sentencing judge as opposed to legitimate penological grounds. ¹³⁹ It might very well be the case that a sentencing judge should have given greater consideration to the prospects of rehabilitation rather than incapacitation and retribution and these penological justifications, and any recommendations from the court that imposed the sentence, will inform the decision-making process of parole authorities. Whether the personality of the sentencing judge will be determinative of the penological rationale underpinning the sentence varies significantly by jurisdiction. Nonetheless, relevant dynamic factors should also be taken into account and given sufficient weight.

The extent to which states have ceded authority for the ECtHR to promulgate judicial formulations based on fundamental principles reflecting international human rights standards pertaining to legitimate penological grounds has been somewhat contentious. National sentence review procedures have featured regularly in ECtHR jurisprudence and there might be conflicts of interest between perceived opposition to the ECtHR’s legitimacy to decree harmonised standards and the autonomy of sentence review procedures adopted by release systems.

The multitude of release systems adopted by parole authorities between European states and quality of sentence reviews may undermine the legitimate authority of the supranational ECtHR to formulate harmonised standards to ensure consistency of approach to sentence reviews.

The United Kingdom’s withdrawal from the European Union has underscored the somewhat fraught relationship between national courts and supranational courts. The apparent non-compliance with ECtHR jurisprudence as evidenced in Vinter being justified on the basis of exceptionalism could ultimately weaken the legitimate authority of the ECtHR. ¹⁴⁰ Be that as it may, the ECtHR’s legitimacy might be secured through political concessions, albeit potentially at the cost of individual rights that might be perceived in some quarters as secondary to securing compliance with ECtHR jurisprudence. ¹⁴¹

Conclusion

ECtHR jurisprudence has aimed to develop a harmonised approach to sentence review procedures and the place of parole within national criminal justice and sentencing systems. It is notable that a perceived United Kingdom ‘exceptionalism’ towards the ECtHR seems to have emerged which may have profound implications for the authority of the ECtHR as a supranational court if other European states adopt a similar approach.

Release systems invariably raise human rights concerns pertaining to opportunities to participate in rehabilitative and reintegrative measures, which might be perceived as futile due to perceived risk and dangerousness and unwillingness of prisoners to meaningfully engage with rehabilitation measures. Life sentences should be reducible in accordance with national laws and procedures (de jure) and practices (de facto) to constitute substantive and procedural compatibility with Article 3. Determinations by parole authorities must strike a necessary and proportionate balance between the purpose of detention and individual rights being restricted. Determinations on parole applications should be balanced with the obligation on states to protect society against the risk and dangerousness presented by recidivists and habitual offenders.

Sentence reviews must be sufficiently broad to allow a determination as to whether the grounds for prolonged detention continue to operate. Assessments of risk and public protection with liberty and human dignity safeguard a fair and proportionate balance between competing interests. Conditions of release on licence safeguard against the perceived risk and dangerousness (linked to the original sentence) and a breach of those conditions triggers the parolee’s recall to detention. Much will depend on prisoner’s meaningful and positive engagement with therapeutic services (including psychiatric, psychological services, education and work training services) and willingness to be rehabilitated and reintegrated back into society.

It cannot be gainsaid that the realisation of prospects of conditional release is dependent on the rehabilitation progress made by prisoners that may enhance their prospects for parole, reintegration and repatriation. ¹⁴² Compliance with ECHR provisions, in particular Articles 3, 5 and 7, and associated ECtHR jurisprudence by parole authorities would enhance the quality and consistency in the sentence review decision-making processes. The spirit of the ECHR emphasises the rule of law, legal certainty and protection from arbitrariness. These are key values to the implementation of substantive and procedural safeguards governing the administration of release systems for life and long-term sentence prisoners

The foregoing analysis has demonstrated a central set of key arguments that underscore ECHR rights and associated ECtHR jurisprudence that reform a more critical function in the interpretation and implementation of substantive and procedural safeguards for determining issues of prolonged detention. The issues that arise for determination by the ECtHR are not generally unique to the state concerned and while the analysis provided hold their own intrinsic values they may shed light on similar contentious issues between European states. This may ensure consistency of approach between states albeit facilitating a margin of appreciation in accordance with state sovereignty and the diversity of release systems.