EHRM, 17-01-2017, nr. 57592/08

The Human Rights Act provides, as relevant:

Section 30 of the Act provides, as relevant:

The policy of the Secretary of State for Justice on the exercise of the power of release on compassionate grounds is set out in chapter 12 of the Indeterminate Sentence Manual (‘the Lifer Manual’), issued as Prison Service Order 4700. The criteria, as formulated in April 2010, provide as follows:

A special composition of the Court of Appeal was constituted to hear these appeals, including the Lord Chief Justice of England and Wales, the President of the Queen's Bench Division, the Vice-President of the Court of Appeal Criminal Division, one other Lord Justice of Appeal and a senior High Court judge. It gave its decision (‘McLoughlin’) on 18 February 2014, in light of the judgment of this Court in the Vinter case.

The appellant Newell challenged as contrary to Article 3 of the Convention the whole life order imposed on him for a murder committed while he was already serving a life sentence for a previous murder. The McLoughlin case took the form of a reference by the Attorney General under section 36 of the Criminal Justice Act 1986, who contended that the trial judge had been mistaken in his view that the judgment in Vinter precluded the imposition of a whole life order. The trial judge had instead imposed a life sentence with a tariff of forty years for a murder committed by a man with previous convictions for murder and manslaughter.

In its decision, the Court of Appeal traced the development of the whole life sentence and the review of such sentences. It stated at paragraph 7 (citations omitted):

The Court of Appeal then set out the relevant criteria of the Lifer Manual (see paragraph 16 above), commenting that these were ‘highly restrictive’ (paragraph 11 of the McLoughlin decision). It raised the question whether the statutory scheme was compatible with Article 3. In answering the question, it stated:

The Chamber noted that the Government initially considered themselves not to be in a position to submit observations on the merits of the case, as they recognised that the principles set out in the Vinter case were applicable. The Government changed their stance following the McLoughlin decision, arguing that a whole life sentence was now to be regarded as reducible. The Chamber examined the McLoughlin decision and recalled that it is primarily for the national authorities, notably the courts, to resolve problems of interpretation of domestic law. It further observed that it was a well-entrenched and necessary part of the legal tradition of the United Kingdom to develop the law through judicial interpretation. As the Court of Appeal had specifically addressed the doubts raised in Vinter regarding the clarity of the applicable domestic law, and set out an unequivocal statement of the legal position, that interpretation had to be accepted by the European Court. It concluded that the power of release under section 30 of the 1997 Act, exercised in the manner delineated in McLoughlin, was sufficient to comply with the requirements of Article 3.

The parties' submissions were confined to the issue whether, in light of the McLoughlin ruling, the applicant's situation in relation to his whole life sentence is in keeping with the requirements of Article 3 as these were laid down in the Vinter judgment (Vinter and Others, cited above §§ 123–131). In this connection, the Court will examine, first, whether the unclarity in the domestic law has now been dispelled, and, if so, whether the relevant requirements are now met in the applicant's case. No separate examination will be made as to a possible violation of Article 3 in the period of the applicant's imprisonment prior to the McLoughlin ruling.

On 9 July 2013 the European Court of Human Rights (‘the Court’) held, in Vinter and Others, that whole life orders violate Article 3 of Convention. The Court's critique concerned two interconnected issues: the lack of clarity as to the law at the relevant time concerning the prospect of release for life prisoners given the discrepancy between various sources3., as well as the absence of any dedicated parole mechanism for whole life orders4.. In view of both of these deficiencies in the domestic law, the Court found that the applicants' life sentences could not be regarded as reducible for the purposes of Article 3 of the Convention.

For the Court, the discrepancy between domestic case-law as stated in Bieber5. and the official policy set out in the Indeterminate Sentence Manual (the ‘Lifer Manual’)6. made it unclear ‘at the present time’ whether ‘the Secretary of State would apply his existing, restrictive policy, as set out in the Prison Service Order, or would go beyond the apparently exhaustive terms of that Order by applying the Article 3 test set out in Bieber’7.. The Court did not find the possibility of judicial review of any ministerial refusal to release a life prisoner, in the course of which the legal framework would come to be clarified, sufficient to remedy the lack of clarity existing at the relevant (‘present’) time as to the state of applicable domestic law8..

The Court further added that, for a whole life order to be compatible with Article 3, a parole mechanism has to be in place at the time that a sentence is imposed. States must establish a mechanism to review the justification of continued imprisonment on the basis of the penological needs of the prisoner sentenced to a whole life order. The parole review must take place within a pre-determined, reasonable timeframe, but this does not prevent it being sought at the prisoner's initiative at any point after sentencing9..

The criteria and conditions, including timing, for assessing the appropriateness of parole must be established by law in a clear and foreseeable manner and be based primarily on rehabilitation (i.e. special prevention) considerations and secondarily on deterrence (i.e. general preventive) considerations. The criteria should not be limited to the prisoner's mental or physical infirmity or closeness to death. Such ‘compassionate grounds’ are clearly too restrictive. According to the Court, that was the case with section 30 of the Crime (Sentences) Act 1997 and the Lifer Manual.

The logical conclusion from the above is that, if a parole mechanism must be available to those convicted of the most heinous crimes, a fortiori it must be available to other prisoners. It would fly in the face of justice if offenders convicted of less serious offences could not be paroled whenever they are apt to reintegrate society, while such an opportunity would be afforded to offenders convicted of more serious crimes. In other words, the Convention guarantees a right to parole, if and when the legal requisites of parole obtain. Furthermore, parole is not a release from the sentence, but a modification of the form of State interference with the sentenced person's liberty, by way of supervision of his or her life at large, and this supervision may take a very stringent form, with strict conditions attached, according to the needs of each paroled person.

In Murray, the Court was even more explicit10.. According to paragraphs 99 and 100 of that judgment, the parole mechanism must comply with the following five binding, ‘relevant principles’:

In Murray, the Court reaffirmed that, as a matter of principle, the criteria on which to assess the appropriateness of parole must be established by law in a clear and foreseeable manner. Beyond Vinter and Others, the authorities confirmed by the Grand Chamber were Trabelsi11., László Magyar12. and Harakchiev and Tolumov13.. This position is also provided for by paragraph 10 of the Committee of Ministers Resolution (76) 2, paragraphs 3, 4 and 20 of the Committee of Ministers Recommendation Rec(2003)22, and paragraph 34 of the Committee of Ministers Recommendation Rec(2003)23, and, on the world stage, by Article 110 of the 1998 Statute of the International Criminal Court (Rome Statute) and Rule 223 (Criteria for review concerning reduction of sentence) of its Rules of Procedure and Evidence. Thus, according to the Grand Chamber, the parole assessment criteria are not left to the discretion of the member States. The parole review mechanism must be based on ‘objective, pre-established criteria’, namely those ‘legitimate penological grounds’ explicitly established in paragraph 100 of the Murray judgment. Most importantly of all, the Court restated that penological grounds do not equate to, and should not be confused with, ‘compassionate grounds for reasons of health related to ill-health, physical integrity and old age’14..

According to Murray, the parole review must take place within a pre-determined, reasonable timeframe. The authority invoked by the Court was Bodein v. France15.. This position is in line with paragraph 9 of the Committee of Ministers Resolution (76) 2 and paragraph 5 of the Committee of Ministers Recommendation Rec(2003)22 and also, at the global level, with Article 110 §§ 3 and 5 of the Rome Statute. In the event that parole is not determined at the time of the initial review, the prisoner's situation should be reviewed at reasonable, not too widely spaced intervals, as also indicated by paragraph 12 of Committee of Ministers Resolution (76) 2, and paragraph 21 of Committee of Ministers Recommendation Rec(2003)22.

Finally, still in the light of the Murray ‘relevant principles’, the parole decision must be taken in a fair and adversarial procedure, reasoned and amenable to judicial review16.. This is also provided by paragraph 32 of Committee of Ministers Recommendation Rec(2003)22, Article 110 § 2 of the Rome Statute and Rule 224 of its Rules of Procedure and Evidence17..

To sum up, having established the above-mentioned ‘relevant principles’, it could be expected that the Court had reached in Murray a point of no return in its standard-setting function for the protection of human rights of prisoners in Europe. Unfortunately this expectation proved to be wrong in the present case.

In McLoughlin, the Court of Appeal was specifically constituted to consider the issue of compatibility of a whole life order with the Convention. It found that the Vinter and Others judgment did not prevent imposition of whole life orders for ‘heinous crimes’, since the law of England and Wales did provide for reducibility as the conditions set out in the Lifer Manual, although ‘exceptional’, were not too restrictive and indeed had a ‘wide meaning that can be elucidated, as is the way the common law develops, on a case-by-case basis’. In other words, the Court of Appeal held that the Grand Chamber was wrong in its interpretation of section 30 of the Crime (Sentences) Act 1997 and the Lifer Manual18..

The Court of Appeal addressed the critique of Vinter and Others in the following terms: ‘As we understand the Grand Chamber's view, it might have been thought that the fact that policy set out in the Lifer Manual has not been revised is of real consequence. However, as a matter of law, it is, in our view, of no consequence.’19. Hence, it is implicit in the Court of Appeal's formulaic reasoning that it would be unlawful for the Secretary of State to follow his own published policy, which the Court of Appeal also regarded as ‘highly restrictive’20.. In the Court of Appeal's understanding, if an offender subject to a whole life order can establish that ‘exceptional circumstances’ have arisen subsequent to the imposition of the sentence, the Secretary of State must consider all the relevant circumstances, in a manner compatible with Article 3. Any decision by the Secretary of State must be reasoned by reference to the circumstances of each case and is subject to judicial review, which would serve to elucidate the meaning of the terms ‘exceptional circumstances’ and ‘compassionate grounds’, as is the usual process under the common law21..

The fact that the national court specifically addressed the first critique expressed by the Grand Chamber in Vinter and Others as to the clarity and certainty of the state of domestic law is not the end of the matter. The domestic court's interpretation of domestic law raises rather serious linguistic, logical and legal questions, as the applicant argued. In terms of linguistic precision, the thorny question to be put is the following: what does ‘compassion’ have to do with ‘justifiable penological grounds’22. for continued imprisonment? It is plain that the Court of Appeal's interpretation of the letter of section 30 of the Crime (Sentences) Act 1997 and the exhaustively listed, and not merely illustrative, circumstances of Prison Service Order 4700 chapter 12 simply does not square with the meaning of the concept of ‘compassion’ in Western culture23.. Is the ‘wide meaning’ of compassionate grounds so wide that it has no connection with the dictionary meaning of the word ‘compassion’? In this respect, Lord Atkin's judgment in Liversidge v Anderson should not be forgotten:

In terms of logical coherence, the unavoidable question is the following: How can it be logically sustained that a ‘highly restrictive’25. provision like Prison Service Order 4700 chapter 12 can be interpreted with a ‘wide meaning’? How can a ‘highly restrictive’ rule on ‘exceptional conditions’26. capable of leading to the exercise of the Secretary of State's power under section 30 be interpreted extensively? The golden rule of interpretation is that restrictive rules, with exhaustive terms, must be interpreted narrowly27.. And this for a basic reason, one that already appeared in the Humpty-Dumpty story: ‘When I use a word, it means just what I intended it to mean, and neither more nor less’. ‘But’, said Alice, ‘the question is whether you can make a word mean different things.’ ‘Not so’, said Humpty-Dumpty, ‘the question is which is to be the master. That's all.’ Figuratively, the master, that is, the Secretary of State, may know what ‘exceptional circumstances’ are when he sees them, but prisoners, lawyers and even judges will find it difficult to anticipate his or her judgment.

The linguistic and logical fragility of the Court of Appeal's line of argument necessarily impacts on its legal force. In purely legal terms, the crucial question is this: What can be more unclear, uncertain and therefore unpredictable than a discretionary power to release in ‘exceptional circumstances’ which is converted into an obligation to release with a ‘wide meaning’ in accordance with the principles set out in the Court's case-law on Article 3 of the Convention? What can be more unclear, uncertain and therefor unpredictable than ‘exceptional circumstances’ with a ‘wide meaning’? How can judges and lawyers, even experienced ones, apply such an unpredictable system and how can prisoners rely on it? No answer to these questions is to be found in the majority's judgment in the present case.

On the face of it, it is evident that the review mechanism provided for by section 30 of the Crime (Sentences) Act 1997 and the Lifer Manual, even when read in the light of the Court of Appeal's interpretation, does not provide for ‘a review which allows the domestic authorities to consider whether any changes in the life prisoner are so significant, and such progress towards rehabilitation has been made in the course of the sentence, as to mean that continued detention can no longer be justified on legitimate penological grounds’28.. As already indicated, the violation in Vinter rests on two grounds, the first one being the lack of certainty and the second one being the absence of a dedicated review mechanism. They remain untouched29..

First, the lack of clarity and certainty of the legal framework was not dispelled by McLoughlin. The Court of Appeal did not clearly state what are the ‘exceptional circumstances’ that are capable of triggering the review mechanism, or what are the grounds on which this review can be sought. On the contrary, it stated that ‘the term ‘exceptional circumstances’ is of itself sufficiently certain’30.. In spite of the fact that the relevant provision of the Lifer Manual is still headed ‘Compassionate release on medical grounds’, which plainly shows what section 30 was intended for, the Court of Appeal contended that the ‘wide meaning’ of ‘compassionate grounds’ encompasses ‘legitimate penological reasons’. The contention is not new. It had already been made by the Government and explicitly rejected by the Grand Chamber in paragraph 129 of the Vinter judgment31.. This way, the dialogue between courts risks becoming two parallel monologues until one of them gives up.

Second, the Court of Appeal did not provide the slightest hint on the features of the dedicated parole process by which a prisoner may be or may not be eligible to apply for review of his or her whole life order, including the time when he or she can expect to be able to make such an application for review, who should conduct the review and the periodic availability of further reviews after the first one32..

The Court of Appeal argued that by virtue of sections 3 and 6 of the Human Rights Act, section 30 of the 1997 Act had to be interpreted and applied broadly enough so as to comply with Article 3 of the Convention in every case. The Lifer Manual did not and could not restrict or in any way fetter this obligation. Here lies the crux of the case. This argument raises a more general, and fundamental issue: that of the compatibility of section 2 of the Human Rights Act, as applied in the present case by the Court of Appeal, with the Convention obligations of the United Kingdom33..

The Act lays a general duty on all public authorities to respect Convention rights (section 6), adding to their general duty to act in accordance with administrative law principles34.. They are domestic rights and their formal source is the Act35.. Being ‘public authorities’, the duty applies to the domestic courts as much as to the Secretary of State. To fail to observe Convention rights and freedoms is to act unlawfully, giving rise to appropriate judicial relief (sections 6 and 8). The Act places the domestic courts under a duty to ‘take into account’ the case-law of this Court (section 2). Section 3 of the Act is a crucial provision, laying down the obligation to read and give effect to legislation, primary and secondary, in a way that is compatible with Convention rights, so far as it is possible to do so. Section 3 does not affect the validity of any incompatible primary legislation or of any secondary legislation if in the latter case primary legislation prevents the removal of incompatibility (save for the possibility of revocation). The purpose behind the Act is to delegate to the courts the bulk of the work of ensuring Convention-compliant application of domestic law. In short, declarations of incompatibility should be the last resort.

Hence, the Convention was given legal effect in domestic law by the Human Rights Act and a constitutional status in the legislation establishing the devolution of legislative power in Scotland, Northern Ireland and Wales36.. It did not supersede the human-rights protection afforded by common law or statute, or create a discrete body of law based upon the judgments of the European court37.. In spite of the critique that the Act would represent ‘A field day for crackpots, a pain in the neck for judges and a gold mine for lawyers’38., domestic courts have sought, in their interpretation and application of the Convention, to take greater responsibility for the implementation of the Convention rights and freedoms. They did this in the belief that it could not have been Parliament's intention that Convention rights and freedoms enshrined in the Human Rights Act were to remain set in stone as they were when the Act was passed39..

In Ullah, Lord Bingham enunciated the ‘mirror principle’, stating that national courts must ‘keep pace with the Strasbourg jurisprudence as it evolves over time: no more, but certainly no less’40.. In McCaughey, Lady Hale shared the same insight, stating that

Furthermore, where no specific case-law exists regarding the respondent State, the domestic courts are supposed, under the Human Rights Act, to take into consideration the Court's decisions concerning similar legal problems and ‘seek to extract specific principles from those decisions, and then apply them to the facts of the cases before us’42., or in other words, to respect the res interpretata effect of the Court's decisions for all Contracting parties.

It should be noted that the domestic courts have been prepared to go to great lengths, and to adopt more expansive interpretations of legislative language in order to comply with the statutory command to achieve compatibility with the Convention. In the leading House of Lords case Ghaidan v. Godin-Mendoza43., the House held, reversing earlier case-law, that the phrase ‘a person who was living with the original tenant as his or her wife or husband shall be treated as the spouse of the original tenant’ must be read as including same-sex partners. Lord Nicholls wrote:

Hence, the role of the courts in United Kingdom is not, as in traditional statutory interpretation, to find the true meaning of the provision, but to find, if possible, the meaning which best accords with Convention rights and freedoms. Accordingly, even when the words of an Act of Parliament are, approaching them literally, clear and unambiguous, they can still be departed from, added to or ignored under Section 3 of the Human Rights Act if it is necessary to do so in order to achieve compatibility with a Convention right45..

Yet some cases have arisen were the domestic courts have preferred to say that the beams were in the eyes of others46.. Pointing the finger to some unclear and inconstant case-law on the part of the Court, Lord Slynn set the tone for the future as far back as in R (Alconbury Developments Ltd) v. Secretary of State for the Environment, Transport and the Regions:

In R v Horncastle, Lord Philips went a step further:

The following year, Lord Neuberger summarised in Manchester City Council v Pinnock this apparently settled view in the following terms:

There are limits to this process, as Lord Mance (with whom Lord Hope, Lord Hughes and Lord Kerr concurred) clearly admitted in Chester50., ‘particularly where the matter has been already to a Grand Chamber once or, even more so, as in this case, twice’, referring to the two Grand Chamber judgements of Hirst51. and Scoppola (no. 3)52.. His Lordship added:

Lord Sumption made much the same point when he wrote:

In other words, the domestic authorities' ultimate test for acceptance of the Court's judgments guidance seems to be determined by an apparently strict logic of norm/exception, according to which only in ‘rare cases’ or ‘exceptional cases’ when particularly important aspects of the domestic legal order are ignored or misunderstood the authorities will venture to say that the Court's judgments should not be followed54.. This was precisely the understanding underlying the Court of Appeal's judgment55..

Second Part (§§ 26–47)

The Government argue that the applicant's point about the dictionary meaning of the word ‘compassion’ is beside the point. In its statutory context the term ‘compassionate grounds’ should now be understood in light of the requirements of Article 3 in this regard. Even assuming, for the sake of the discussion, that this should be the case under the Human Rights Act, the question still remains that the Court of Appeal declined to give more precise or concrete meaning to the term ‘exceptional circumstances’, finding it to be sufficiently certain of itself. Where Vinter and Others invoked the principle of legal certainty, the Court of Appeal found it ‘entirely consistent with the rule of law’ to consider requests on an individual basis against the criterion of an exceptional change in circumstances. It should be recalled that in Bieber, which remains good law, the Court of Appeal referred to ‘all the material circumstances, including the time … served and the progress made in prison’. No more specific indication appears to exist in domestic case-law regarding the criteria to be taken into account in reviewing a whole life sentence. Instead of specificity, as required by the principle of legality, there is breadth.

The Court's standard on the definition of the relevant parole grounds is much more demanding. In Harakchiev and Tolumov, the Court emphasized the importance of official policy statements and the general criteria guiding the authorities in the exercise of the power of clemency. It emphasized the importance of the transparency of the procedure56.. In the László Magyar case which followed Vinter, the Chamber faulted the lack of specific guidance as to the governing criteria and applicable conditions for the exercise of presidential clemency (the gathering and organisation of personal particulars and the assessment of the request). The suggested remedy, in the Article 46 part of that judgment, was to introduce legislation enabling prisoners ‘to foresee, with some degree of precision, what they must do to be considered for release and under what conditions’. The point was put even more exactingly in Trabelsi, where the Chamber referred to ‘objective, pre-established criteria of which the prisoner had precise cognisance at the time of imposition of the life sentence, whether, while serving his sentence, the prisoner has changed and progressed to such an extent that continued detention can no longer be justified on legitimate penological grounds’57..

The Government disagree with the statement in Trabelsi that there need to be ‘pre-established criteria’ for the review of sentence58.. They consider it neither necessary nor practicable to describe what a whole life prisoner must do, such as in terms of progress towards rehabilitation. In the view of the Government rather, all relevant circumstances must be taken into consideration. The Government's position does not sit comfortably with Recommendation Rec (2003) 22, in which it is emphasised that the criteria which prisoners have to fulfil in order to be conditionally released should be clear and explicit and Rule 30.3 of the European Prison Rules59., which provides that prisoners who are sentenced shall be informed about the time to be served and the possibilities of early release. Likewise, Article 110 (4) of the Rome Statute provides that the Court may reduce the sentence if it finds that there are factors establishing a clear and significant change of circumstances sufficient to justify the reduction of sentence60.. These factors are further elaborated in Rules 223 and 224 of the Rules of Procedure and Evidence where the following examples are given: the conduct of the sentenced person while in detention, which shows a genuine dissociation from his or her crime; the prospect of the resocialisation and successful resettlement of the sentenced person; whether the early release of the sentenced person would give rise to significant social instability; any significant action taken by the sentenced person for the benefit of the victims as well as any impact on the victims and their families as a result of the early release; individual circumstances of the sentenced person, including a worsening state of physical or mental health or advanced age.

Already at paragraph 128 of Vinter and Others, the Court observed that those directly affected are only given a partial picture of the exceptional conditions which might lead to the exercise of the Secretary of State's power under section 30. As stated by the applicant, the Lifer Manual is still the only text that is accessible to whole-life prisoners on the subject of the possibility of release. There are still no published criteria. Yet the Court's case-law gives examples of the factors that are relevant to determining whether a whole-life sentence ought to be reviewed. In Harakchiev and Tolumov, the judgment noted that in the Bulgarian system the circumstances taken into consideration include equity, humanity, compassion, mercy, the health and family situation of the convicted offender, and any positive changes in his or her personality61.. In Čačko, the basis in domestic law for review is where the prisoner ‘has demonstrated improvement by fulfilling his or her obligations and by good behaviour, and where it can be expected that the person concerned will behave in an appropriate manner in the future’62.. In Bodein63., the judgment considered that the prisoner's application for reduction or variation of sentence will be assessed in the light of the degree of danger he or she poses, his or her behaviour and the evolution in his or her personality. These factors have been regarded by the Court as sufficient to fulfil the requirements of Article 3 of the Convention.

It is true that in the present judgment the Grand Chamber confirms the overarching role of the principle of legality in prison law and specifically in the domain of parole64., as well as the prison authorities' obligation to strive towards a life-sentenced prisoner's rehabilitation65.. It is also true that the Grand Chamber adds that the Secretary of State is required to take reasoned decisions on whether to release or not to release in a manner compatible with the Convention, that these decisions are to be judicially appealable, and that this judicial review must involve an ‘examination of the merits’ of the prisoners' penological needs66.. Finally, it is true that the Grand Chamber restates that there should be an automatic parole review after a specific minimum term, in principle 25 years after the imposition of the life sentence, without prejudice to a parole review requested by the prisoner at any time67.. It is good news that the majority is not prepared to leave the details of such questions to the domestic authorities. But this is only half the picture.

The other, less positive half is that the Grand Chamber is satisfied with the Court of Appeal's vague reference to ‘exceptional circumstances’ without any further substantive specification or clarification of these circumstances68.. The Court of Appeal provided no guidance as to the criteria, respective weight and procedure for assessing the penological needs of further detention of the whole-life prisoner. The Court of Appeal stated that the section 30 power should and would be read in compliance with the Convention and the Court's case-law. Yet the Court of Appeal did not say what exactly that reading would be. In fact, the Court of Appeal gave a chèque en blanc to the Secretary of State, and the Court has nothing to say on this matter in the present judgment. Like Lord Atkin in his dissent in Liversidge v Anderson, I protest against strained construction put by the Court of Appeal and the majority upon words, with the practical effect of giving a Minister boundless power over the liberty of women and men.

This condescendence is further evidenced by the lack of any domestic application of the Court of Appeal's interpretation to date. The Government could not provide one single example since the entry into force of section 30 of the Crime (Sentences) Act 1997, or at least since Bieber, of release of a whole-life sentenced individual on the basis of penological grounds. Nor could the Government point to any practice showing that, notwithstanding these flaws, the system does in fact operate in a Convention-compliant way, in terms of basic procedural safeguards, such as disclosure, the right to make oral representations at the review hearing and the right to be given reasons for a negative decision. The absence of any case where the mentioned interpretation was applied only shows that it was, and still is, purely virtual. As a matter of fact, the Court of Appeal's interpretation even contradicts the Government's policy as stated black on white, urbi et orbi, on the web pages of the United Kingdom Government (‘the person's never considered for release’)69. and the Sentencing Council, which is a public body of the Ministry of Justice (‘they will never be released from prison’)70.. Indeed, the practice of the courts remains faithful to the strict punitive policy of the Government and its Sentencing Council and has paid no heed to the Court of Appeal's interpretation, as it is shown in the Sentencing Remarks of Sir John Griffiths Williams, in R v Christopher Halliwell, Bristol Crown Court, 23 September 2016:

the Sentencing Remarks of Mr Justice Wilkie, in R v Thomas Mair, Central Criminal Court, 23 November 2016:

and the Sentencing Remarks of Mr Justice Openshaw, in R v Stephen Port, Central Criminal Court, 25 November 2016:

It bears mention at this stage that the Grand Chamber itself admitted the ‘inaccessibility’ of the Court of Appeal's interpretation in paragraph 65 of the present judgment, in what is obviously a complacent understatement of reality71.. This complacency goes hand in hand with the diminished role assigned to the Court by the pivotal paragraph 63 of the judgment. In it, the majority is supposed to provide the ultimate justification for not finding a violation. The paragraph disappoints the reader. The present lack of clarity and certainty in the domestic legal framework is saved by the Court's generous assumption that the Secretary of State will follow a certain policy while exercising section 30 powers, different from that which he has deliberately maintained in force since Vinter and Others.

It is odd that the majority pretend that a future clarification of the law is capable of remedying its present lack of clarity and certainty and thus the violation that exists today, but it is even odder to assume that this clarification will result from the adhesion of the Secretary of State to the Court's desired policy72.. In any event, like Judge Kalaydjieva in the Chamber, I fail to see the bearing of the progressive development of the law since the Bieber decision in 2009 on the applicant's situation a year earlier, in 2008, when his complaints were submitted to the Court, or at the time of their examination by the Chamber in 2015 and the Grand Chamber in 2016.

The Court of Appeal stated that it was right in Bieber and that the Court was wrong in Vinter and Others. Now, the Grand Chamber is backtracking from Vinter and Others and admitting that the Court of Appeal was right and English law already had, since at least Bieber, a Convention-compatible parole mechanism for lifers. This is not an isolated event. In Al-Khawaja and Tahery73., the Grand Chamber accepted the principle set out in the Supreme Court's Horncastle judgment, and in Horncastle v. the United Kingdom74., the Chamber found no violation of Article 6 despite the use of hearsay evidence leading to the conviction. After the Al-Khawaja and Tahery retreat on the issue of conviction based solely or to a decisive extent on hearsay evidence75., the RMT regression in the role of other international sources of law in the interpretation of the Convention labour rights76., the Animal Defenders reversal on the issue of prohibition of political advertisement77., and still suffering from the ongoing Hirst saga on the voting rights of prisoners78., the Court is faced with an existential crisis. The pre-catastrophic scenario is now aggravated by the unfortunate spill-over effect of Hirst on the Russian courts79..

No great effort is needed to identify the source of the crisis. It lies in the attractive force of the Horncastle ‘rare occasions’ argument. The problem is that ‘rare occasions’ tend to proliferate and become an example for others to follow suit. Domestic authorities in all member States will be tempted to pick and choose their own ‘rare occasions’ when they are not pleased with a certain judgment or decision of the Court in order to evade their international obligation to implement it, especially when the issue is about the protection of minorities, such as prisoners, LGBT people, asylum seekers, migrants, aliens, Roma and other non-State peoples living in Contracting Parties, such as, for example, the Kurdish people, to mention but a few. There is always a minority that the majority is prone to treat as a scapegoat for all the ills in society, by imposing on them objectionable restrictions and limitations on the exercise of Convention rights and freedoms80..

The risk of self-interested manipulation becomes intolerably high when domestic authorities pretend that they are only bound by a ‘clear and constant’ line of Strasburg case-law, denying the res interpretata effect to ‘incongruous’, ‘stray’, ‘overly broad’ Chamber judgments or even Grand Chamber judgments. The domestic authorities' test for acceptance of the Court's judgments guidance then becomes even more discretionary, based on an admittedly very fluid distinction between clear/unclear, constant/not constant case-law, allowing for the rejection of the binding and interpretative force of any Court judgment on new or polemic issues81.. As if the Convention system did not have its own internal mechanisms for guaranteeing consistency and coherence, including, inter alia, referral to the Grand Chamber and the office of the Jurisconsult. As if any attempt by the Court to enter unchartered waters or to change course had to be accorded an ex post fiat by domestic authorities. As if, ultimately, the domestic authorities were entrusted with the power of Article 19 of the Convention, and not the Court.

In this context, the present judgment may have seismic consequences for the European human-rights protection system. The majority's decision represents a peak in a growing trend towards downgrading the role of the Court before certain domestic jurisdictions, with the serious risk that the Convention is applied with double standards82.. If the Court goes down this road, it will end up as a non-judicial commission of highly qualified and politically legitimised 47 experts, which does not deliver binding judgments, at least with regard to certain Contracting Parties, but pronounces mere recommendations on ‘what it would be desirable’ for domestic authorities to do, acting in an mere auxiliary capacity, in order to ‘aid’ them in fulfilling their statutory and international obligations83.. The probability of deleterious consequences for the entire European system of human-rights protection is heightened by the current political environment, which shows an increasing hostility to the Court. As one commentator put it:

Lord Mance confirms this assessment:

Lord Moses is of the same view:

Lord Neuberger calls this campaign ‘exaggerated’ and ‘slanted’87.. In fact, the Strasbourg-sceptic rhetoric is not really new88.. The easy, superficial scepticism indulged in by the cynics and the contemptuous, inconsequent criticism expanded by the scoffers has always been there. It reflects a deep-rooted attitude vis-a-vis international law and courts, which disputes the universality of human rights.

The fact is that some domestic authorities have always been reluctant to learn from the Court, considering the good of human rights as being for export only, not for import. To put it in the words of Lord Hoffmann:

In his 2009 Judicial Studies Board Annual Lecture, Lord Hoffmann made the point even clearer, pledging against uniformity of the application of the Convention ‘abstract rights’ and attacking in severe words ‘the basic flaw in the concept of having an international court of human rights to deal with the concrete application of those rights in different countries.’90. The avowed purpose was to put in question the authority of the Court to set European-wide human-rights standards. This approach squares perfectly with a certain Weltanschauung which was aired by Milton's The Doctrine and Discipline of Divorce in these terms: ‘Let not England forget her precedence of teaching nations how to live.’91.

Seen through these lens, the relationship between national law and the Convention is peculiarly unbalanced: the impact of national law on the Convention should be maximised, whereas the impact of the Convention on the domestic law should be minimised, if not downright rejected, sometimes even with an explicit call for solutions that are supposedly home-grown and sensitive to Britain's legal inheritance and that would enable people to feel they have ownership of their rights. In this context, the ‘human rights diversity’ argument reveals its real face as a politically unidirectional, sovereigntist card, played with regard to the import of human rights and justifying the refusal of ‘alien’, i.e., Convention standards imposed by an international court. At the same time, the ‘human rights diversity’ card is consciously downplayed with regard to the export of human rights and the imposition, by means of an international court, of domestic values and policies on the other Contracting Parties. Of course, this also entails a biased understanding of the logical obverse of the doctrine of the ‘diversity of human rights’, namely the doctrine of the margin of appreciation92.: the margin should be wider for those States which are supposed ‘to set an example for others’ and narrower for those States which are supposed to learn from the example. This evidently leaves the door wide open for certain governments to satisfy their electoral base and protect their favourite vested interests. In my humble view, this is not what the Convention is all about.

Two different situations must be distinguished. When the level of domestic protection of human rights is higher than the one afforded by the Convention, it may be convincingly argued that the European standards set out by the Court are supererogatory. The Convention itself allows for this (Article 53). Nothing prevents the domestic authorities from leaping ahead of the Strasbourg standard in the protection of human rights, and not only on issues that the Court had declared to be within the national margin of appreciation93.. The ‘greater danger’, perceived by Lord Brown, ‘in the national court construing the Convention too generously in favour of the Applicant than in construing it too narrowly’94., misunderstood this point: from the Strasbourg perspective, there is never an erroneous, ‘too generous’ domestic interpretation of the Convention, simply because domestic courts may err on the side of caution, but they certainly do not err on the progressive side. When domestic authorities, courts included, choose the path of a more pro persona Convention interpretation, this interpretation is safeguarded by Article 53.

Also from the UK perspective, the Ullah-type reticence95., according to which domestic courts should not go where Strasbourg has not yet gone, or in the words of Lord Brown, should do ‘no less but certainly no more’96., seems unfounded, and this for a variety of reasons97.. Firstly, in Ullah Lord Bingham was not concerned with the situation where Strasbourg had not yet pronounced98.. Secondly, the lack or insufficiency of Strasbourg case-law should not be used to inhibit domestic courts from giving full effect to Convention rights. Such an agnostic, passive position would defraud the obligations of the Contracting Parties as frontline administrators of the Convention. Thirdly, the Human Rights Act itself was meant to allow British judges to ‘contribute to this dynamic and evolving interpretation of the Convention’99., in other words, to the development of Convention law on human rights in new directions. So it is entirely correct to hold in this context that Strasbourg is not ‘the inevitable and ultimate source of all wisdom’100.. One could say, amending the amended judgment of Lord Kerr, ‘Argentoratum non locutum, nunc est nobis loquendum — Strasbourg has not spoken, now it is our time to speak’101..

But when the domestic level of human-rights protection is lower than that of the Court, when the domestic reading of the Convention rights is more circumscribed than that of Strasbourg, the domestic authorities, courts included, must act as faithful trustees of the Convention values and concede preponderance to the Court's ultimate and authoritative reading (see Article 19 of the Convention), indeed even over Parliament, the different branches of Government and the judiciary of the United Kingdom. This is not a mere obligation of means, to find, as far as possible, the best possible way of harmonising domestic law and European standards, or to look for a Convention-friendly interpretation of domestic law where such an interpretation appears tenable in view of the traditionally recognised methods of statutory and constitutional interpretation. It is much more than that102.. It is an obligation of result, to implement fully and in good faith the Court's judgments and decisions and the principles that they set out103.. Even though we are dealing with rights under a United Kingdom statute, in reality, the domestic authorities have no choice, as Lord Rodger so brilliantly put it: ‘Argentoratum locutum, iudicium finitum — Strasbourg has spoken, the case is closed’.104.

This is also the understanding ratified at the highest political level by the representatives of the Contracting Parties in the Brighton declaration: ‘All laws and policies should be formulated, and all State officials should discharge their responsibilities, in a way that gives full effect to the Convention’105.. Or to use the wise words of Lord Neuberger, when he referred to the regrettable Hirst saga: ‘We may think that it is inappropriate that Strasbourg pokes its nose into the votes for prisoners' issues on the basis that it should be left to our Parliament to decide.’ But he also added, ‘It may be thought to be a small price to pay for a civilised Europe that we sometimes have to adapt our laws a little.’106. And certainly this corresponds to the best international-law tradition of Britain, synthesised in the words of the 1949 Grotius lecture of Professor Lauterpacht when he affirmed

He went on with the indication of a long list of ‘questions which might arise in Great Britain’, including arbitrary imprisonment. The point was made even more explicitly when he admitted that

On the same occasion, Mr Barrington, who had been with Sir David Maxwell Fyfe in the meetings of the European Movement and in the drafting of the European Convention on Human Rights, stated the visionary, principled position of the British delegation:

Consequently, domestic authorities, courts included, must act in a way that coheres with the principle of pacta sunt servanda and therefore comply with the letter and abide by the principles underlying the Court's judgments and decisions, including those delivered against other Contracting Parties. As administrators of first resort of the Convention, the domestic authorities must therefore be deferential to the final say of the Court, which is entrusted with the uniform upholding of the ‘constitutional instrument of European public order’109., whenever the domestic level of human-rights protection is lower than that of the Court.

As Lady Hale wrote, ‘It stands to reason that, once a State has committed itself to certain minimum standards, it cannot contract out of those by defining the terms used in its own way.’110. Neither the supremacy of Parliament nor the independence of the judiciary may be invoked to fail to perform the Convention obligation of implementation of the Court's judgments and decisions (Article 27 of the Vienna Convention on the Law of Treaties). The Convention ‘makes no distinction as to the type of rule or measure concerned and does not exclude any part of the member States’ ‘jurisdiction’ from scrutiny under the Convention’111..

As a matter of constitutional law, not even the core of the national constitution, where the political stakes are higher (such as the provisions on the composition of the highest political and judicial bodies of the State), may be determinative in case of conflict with international obligations derived from the Convention and its Protocols112.. Any other approach, which pays lip service to the Court's judgments and decisions but ultimately rejects its legal force as res judicata among the parties and res interpretata for all Contracting parties, will breach the principle of pacta sunt servanda and the instrumental precept of good faith (Article 26 of the Vienna Convention on the Law of Treaties). As the first President of the Court, Lord McNair, put it, ‘the performance of treaties is subject to an overriding obligation of mutual good faith’113.. Either the Convention and the Court's judgments and decisions are honoured fully and faithfully or friction between Strasbourg and the domestic authorities will become the norm rather than the exception. This would evidently be to the detriment of the individuals and legal persons who come to Strasbourg for justice, and ultimately determinative of the fate of the system itself. The choice between two opposite paths is now clear for Governments all over Europe. Between the isolationist, sovereigntist temptation and the genuine commitment to a ‘greater unity’ between European States pursuing the ‘further realisation of Human Rights and Fundamental Freedoms’114., it is expected that the founding fathers of the system will not be the architects of its demise, and respect for Sir Hersch Lauterpacht's inspirational legacy and Sir David Maxwell Fyfe's accomplishing work will prevail.

The Court notes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.