The exercise of the Secretary of State's power to release from prison a murderer sentenced to a whole life order would be controversial and politically fraught. The Grand Chamber of the European Court of Human Rights’ (“ECtHR”) succinct summary of the offending leading to the whole life order imposed on the applicant in Hutchinson v United Kingdom (57592/08), Judgment of 17 January 2017, demonstrates quite why a Secretary of State would find exercising their compassionate release powers so politically unpalatable: “In October 1983, the applicant broke into a family home, where he stabbed to death a man, his wife and their adult son. He then repeatedly raped their 18-year-old daughter, having first dragged her past her father's body” (at [10]). Yet the power to release life sentence prisoners on compassionate grounds under s. 30 of the Crime (Sentences) Act 1997 has become the fig leaf covering a more fundamental disagreement between the domestic courts and the ECtHR: whether it is possible to commit offences of such gravity that, for the purposes of retribution and deterrence, a person must forfeit their right to liberty for the duration of their life.

In July 2013, the Grand Chamber of the ECtHR had held in Vinter and others v United Kingdom (2016) 63 EHRR 1 that the English whole life order was incompatible with Article 3 of the European Convention on Human Rights, which proscribes torture and inhuman and degrading treatment. This followed the Court's earlier decision in Kafkaris v Cyprus (2009) 49 EHRR 35 that the imposition of an irreducible life sentence “may raise an issue under Article 3” (at [97]). In Vinter, the UK Government had argued that whole life orders in England and Wales were not irreducible, as the Secretary of State retained the power to release a life sentence prisoner at any time “if he is satisfied that exceptional circumstances exist which justify the prisoner's release on compassionate grounds” (Crime (Sentences) Act 1997, s. 30(1)). However, the only published policy underpinning this power suggested that its exercise is applicable only where the lifer is terminally ill, with death likely to occur very shortly (usually within three months) or where they are very significantly physically incapacitated. In Vinter, the Grand Chamber held that Article 3 required more than this:

In Hutchinson it fell to the Grand Chamber to reconsider the compatibility of the English whole life order with Article 3 in light of the Court of Appeal's robust defence of the sentence in Attorney General's Reference (No. 69 of 2013) [2014] EWCA Crim 188; [2014] 1 W.L.R. 3964.

It is likely that the Court of Appeal did not view the decision in Vinter as a welcome one. In what might be seen as a warning shot following the Kafkaris decision, Lord Phillips C.J. set out the Court of Appeal's view on whole life orders in R. v Bieber [2008] EWCA Crim 1601; [2009] 1 W.L.R. 223:

The view expressed in Bieber merely reiterated the long-standing approach of the domestic courts towards whole life sentences, first articulated by Lord Bingham of Cornhill C.J. in R. v Secretary of State for the Home Department, ex parte Hindley [1998] Q.B. 751: “I can see no reason, in principle, why a crime or crimes, if sufficiently heinous, should not be regarded as deserving lifelong incarceration for purposes of pure punishment … . Successive Lord Chief Justices have regarded such a tariff as lawful, and I share their view” (at 769).

It is perhaps this underlying principle that best explains the Court of Appeal's effective neutralising of Vinter in Attorney General's Reference (No. 69 of 2013). By asserting that the Grand Chamber had overestimated the importance of the published policy in relation to the exercise of the power under s. 30, and had not acknowledged that the Secretary of State was bound to exercise it in a manner compatible with principles of domestic administrative law and with Article 3, the Court of Appeal adroitly returned the ball to the ECtHR's court. In Hutchinson, the Grand Chamber was faced with a stark choice. One option was to instigate a stand-off not only with the UK Government but also the domestic courts by reaffirming their earlier decision in Vinter that English whole life orders violated Article 3 because the compassionate release provisions still did not provide a sufficiently clear process to review such sentences, with the review process offering the whole lifer the prospect of release on the grounds of their rehabilitation. The other was to accept the Court of Appeal's wider interpretation of s. 30 to include its applicability, in addition to the compassionate grounds set out in the guidance, to cases where the whole lifer's rehabilitation meant that continued detention could no longer be justified on legitimate penological grounds. By 14 votes to three the Grand Chamber chose the latter option. The whole life order in England and Wales is, after all, compliant with Article 3.

So, will whole life order prisoners see any practical benefit from the Grand Chamber's decisions in Vinter and Hutchinson? It is difficult to see how they will. The decision in Vinter envisioned a more formal review process, to begin no later than 25 years after sentence with periodic reviews thereafter, with a clear set of criteria to enable the whole life order prisoner to understand, from the outset of their sentence, what they must do in order to have a prospect of release. In light of the decisions in Attorney General's Reference (No. 69 of 2013) and Hutchinson, it appears to be settled that simply the Secretary of State's exercise of s. 30 in an Article 3 compliant manner will suffice. However, in the absence of any further published criteria for release, it will always be open to the Secretary of State to reject applications on the basis that the legitimate penological grounds for continuing detention, namely retribution and deterrence, are not yet exhausted. Indeed it is axiomatic to the whole life order in England and Wales that, irrespective of later rehabilitation, these grounds can never be exhausted in the offender's lifetime; they are the very purpose of, and justification for, the sentence imposed.

It is not easy to square the Grand Chamber's decision in Hutchinson with its earlier decision in Vinter. A generous interpretation of Hutchinson is that it represents an uneasy compromise in which compassionate release might now have a wider applicability than it would have had without the ECtHR's intervention. However, the dissenting opinion of Judge Pinto de Albuquerque could scarcely be more damning of the majority, warning that “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” (at [38]). The blunt truth is that the Court of Appeal's view has prevailed over that of the ECtHR on this matter. In Bieber, some five years before the Grand Chamber decision in Vinter, the Court of Appeal held that a whole life order could only potentially infringe Article 3 at some distant point in the sentence when a prisoner could contend that any further detention would constitute degrading or inhuman treatment. In such circumstances, “compassionate release” might be the appropriate phraseology to explain the basis of release. However, the Grand Chamber expressly rejected this approach in Vinter by holding that the violation of Article 3 occurs at the point of sentencing if there are no clear criteria for how that sentence might be reducible on the grounds of rehabilitation; it placed potential future release in the realm of “rights” rather than “compassion”. The acceptance now in Hutchinson that the power under s. 30 is a sufficient release mechanism, despite the absence of any published criteria as to how it might operate to offer whole life order prisoners the prospect of release on the grounds of rehabilitation, is consistent with the view expressed in Bieber but not the decision in Vinter. It is difficult to conclude that Hutchinson represents anything other than a retreat by the ECtHR on English whole life orders.