European Court's Judgment on Whole Life Sentences & Article 3 Compliance, Summaries of Human Rights

Download European Court's Judgment on Whole Life Sentences & Article 3 Compliance and more Summaries Human Rights in PDF only on Docsity! GRAND CHAMBER CASE OF HUTCHINSON v. THE UNITED KINGDOM (Application no. 57592/08) JUDGMENT STRASBOURG 17 January 2017 This judgment is final but it may be subject to editorial revision. HUTCHINSON v. THE UNITED KINGDOM – JUDGMENT 3 THE FACTS I. THE CIRCUMSTANCES OF THE CASE 9. The applicant was born in 1941 and is detained in Her Majesty’s Prison Durham. 10. 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. He was arrested several weeks later and charged with these offences. At trial he pleaded not guilty, denying the killings and claiming that the sexual intercourse had been consensual. On 14 September 1984, he was convicted of three counts of murder, rape, and aggravated burglary. 11. The trial judge sentenced the applicant to a term of life imprisonment and, in accordance with the rules on sentencing then in force, recommended a minimum period (tariff) of 18 years to the Secretary of State for the Home Office. When asked to give his opinion again on 12 January 1988, the judge wrote that “for the requirements of retribution and general deterrence this is genuinely a life case”. On 15 January 1988 the Lord Chief Justice recommended that the period should be set at a whole life term stating that “I do not think that this man should ever be released, quite apart from the risk which would be involved”. On 16 December 1994, the Secretary of State informed the applicant that he had decided to impose a whole life term. 12. Following the entry into force of the Criminal Justice Act 2003, the applicant applied to the High Court for a review of his sentence, arguing that he should receive the 18-year tariff mentioned at his trial. On 16 May 2008, the High Court gave its judgment. It found that there was no reason to depart from the Secretary of State’s decision. The seriousness of the offences alone was such that the starting point was a whole life order. A number of very serious aggravating factors were present, and no mitigating factors. On 6 October 2008, the Court of Appeal dismissed the applicant’s appeal. II. RELEVANT DOMESTIC LAW AND PRACTICE 13. The domestic law and practice relating to the procedure for setting a whole life order under the Criminal Justice Act 2003 is set out in paragraphs 12-13 and 35-41 of the Court’s judgment in Vinter and Others v. the United Kingdom [GC], nos. 66069/09, 130/10 and 3896/10, ECHR 2013 (extracts). At the hearing in the present case, the Government indicated that there were on that date 56 prisoners serving whole life sentences. No prisoner in this category has been released since the date of the Vinter judgment. 4 HUTCHINSON v. THE UNITED KINGDOM – JUDGMENT A. The Human Rights Act 1998 14. The Human Rights Act provides, as relevant: “Section 2 - Interpretation of Convention rights. (1) A court or tribunal determining a question which has arisen in connection with a Convention right must take into account any— (a) judgment, decision, declaration or advisory opinion of the European Court of Human Rights, ... Section 3 - Interpretation of legislation. (1) So far as it is possible to do so, primary legislation and subordinate legislation must be read and given effect in a way which is compatible with the Convention rights. ... Section 6 - Acts of public authorities. (1) It is unlawful for a public authority to act in a way which is incompatible with a Convention right. (2) Subsection (1) does not apply to an act if— (a) as the result of one or more provisions of primary legislation, the authority could not have acted differently; or (b) in the case of one or more provisions of, or made under, primary legislation which cannot be read or given effect in a way which is compatible with the Convention rights, the authority was acting so as to give effect to or enforce those provisions. (3) In this section “public authority” includes— (a) a court or tribunal, and (b) any person certain of whose functions are functions of a public nature, but does not include either House of Parliament or a person exercising functions in connection with proceedings in Parliament. ... Section 7 - Proceedings. (1) A person who claims that a public authority has acted (or proposes to act) in a way which is made unlawful by section 6(1) may— (a) bring proceedings against the authority under this Act in the appropriate court or tribunal, or (b) rely on the Convention right or rights concerned in any legal proceedings, but only if he is (or would be) a victim of the unlawful act. ... Section 8 - Judicial remedies. HUTCHINSON v. THE UNITED KINGDOM – JUDGMENT 5 (1) In relation to any act (or proposed act) of a public authority which the court finds is (or would be) unlawful, it may grant such relief or remedy, or make such order, within its powers as it considers just and appropriate. ...” B. The Crime (Sentences) Act 1997 15. Section 30 of the Act provides, as relevant: “(1) The Secretary of State may at any time release a life prisoner on licence if he is satisfied that exceptional circumstances exist which justify the prisoner’s release on compassionate grounds.” C. Prison Service Order 4700 16. 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: “the prisoner is suffering from a terminal illness and death is likely to occur very shortly (although there are no set time limits, 3 months may be considered to be an appropriate period for an application to be made to Public Protection Casework Section [PPCS]), or the ISP is bedridden or similarly incapacitated, for example, those paralysed or suffering from a severe stoke; and the risk of re-offending (particularly of a sexual or violent nature) is minimal; and further imprisonment would reduce the prisoner’s life expectancy; and there are adequate arrangements for the prisoner’s care and treatment outside prison; and early release will bring some significant benefit to the prisoner or his/her family”. D. Court of Appeal decision in R v. Newell; R v. McLoughlin 17. 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. 8 HUTCHINSON v. THE UNITED KINGDOM – JUDGMENT combination with others, it must order that those provisions do not apply. That being so, section 6(2) of the Human Rights Act disapplies the obligation on the court as a public authority to act compatibly with the Convention. 24. The only remedy available in the domestic courts on this hypothesis would be a declaration of incompatibility, the discretionary remedy available under section 4 of the Human Rights Act when primary legislation is found to be incompatible with the Convention. Such a remedy is not available in the Crown Court and would not, in any event, affect the continuing operation of the statutory scheme. (c) Is the regime under section 30 a regime for reducibility which is in fact compliant with Article 3? 25. The questions therefore arise as to whether the provisions of section 30 provide such a regime compatible with Article 3 as interpreted by the Grand Chamber and on the assumption that, discharging our duty under s.2 of the Human Rights Act to take into account the decision of the Strasbourg Court, we should adopt that interpretation. 26. Lord Phillips CJ in giving the judgment of this court in R v Bieber concluded that the regime was compatible and a whole life order was reducible, because of the power of the Secretary of State under section 30 of the 1997 Act. He said at paragraph 48: “At present it is the practice of the Secretary of State to use this power sparingly, in circumstances where, for instance, a prisoner is suffering from a terminal illness or is bedridden or similarly incapacitated. If, however, the position is reached where the continued imprisonment of a prisoner is held to amount to inhuman or degrading treatment, we can see no reason why, having particular regard to the requirement to comply with the Convention, the Secretary of State should not use his statutory power to release the prisoner.” In R v Oakes, this was reaffirmed in the judgment of this court – see paragraph 15. 27. The Grand Chamber whilst accepting that the interpretation of section 30 of the 1997 Act as set out in R v Bieber would in principle be consistent with the decision in Kafkaris, was concerned that the law might be insufficiently certain. It added at paragraphs 126-7: “The fact remains that, despite the Court of Appeal’s judgment in Bieber, the Secretary of State has not altered the terms of his explicitly stated and restrictive policy on when he will exercise his section 30 power. Notwithstanding the reading given to section 30 by the Court of Appeal, the Prison Service Order remains in force and provides that release will only be ordered in certain exhaustively listed, and not merely illustrative, circumstances, ... These are highly restrictive conditions. Even assuming that they could be met by a prisoner serving a whole life order, the Court considers that the Chamber was correct to doubt whether compassionate release for the terminally ill or physically incapacitated could really be considered release at all, if all it meant was that a prisoner died at home or in a hospice rather than behind prison walls. Indeed, in the Court’s view, compassionate release of this kind was not what was meant by a “prospect of release” in Kafkaris, cited above. As such, the terms of the Order in themselves would be inconsistent with Kafkaris and would not therefore be sufficient for the purposes of Article 3.” 28. The Grand Chamber therefore concluded that section 30 did not, because of the lack of certainty, provide an appropriate and adequate avenue of redress in the event HUTCHINSON v. THE UNITED KINGDOM – JUDGMENT 9 an offender sought to show that his continued imprisonment was not justified. It concluded at paragraph 129: “At the present time, it is unclear whether, in considering such an application for release under section 30 by a whole life prisoner, 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. Of course, any ministerial refusal to release would be amenable to judicial review and it could well be that, in the course of such proceedings, the legal position would come to be clarified, for example by the withdrawal and replacement of the Prison Service Order by the Secretary of State or its quashing by the courts. However, such possibilities are not sufficient to remedy the lack of clarity that exists at present as to the state of the applicable domestic law governing possible exceptional release of whole life prisoners.” 29. We disagree. In our view, the domestic law of England and Wales is clear as to “possible exceptional release of whole life prisoners”. As is set out in R v Bieber the Secretary of State is bound to exercise his power under section 30 of the 1997 Act in a manner compatible with principles of domestic administrative law and with Article 3. 30. As we understand the Grand Chamber’s view, it might have been thought that the fact that the 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. It is important, therefore, that we make clear what the law of England and Wales is. 31. First, the power of review under the section arises if there are exceptional circumstances. The offender subject to the whole life order is therefore required to demonstrate to the Secretary of State that although the whole life order was just punishment at the time the order was made, exceptional circumstances have since arisen. It is not necessary to specify what such circumstances are or specify criteria; the term “exceptional circumstances” is of itself sufficiently certain. 32. Second, the Secretary of State must then consider whether such exceptional circumstances justify the release on compassionate grounds. The policy set out in the Lifer Manual is highly restrictive and purports to circumscribe the matters which will be considered by the Secretary of State. The Manual cannot restrict the duty of the Secretary of State to consider all circumstances relevant to release on compassionate grounds. He cannot fetter his discretion by taking into account only the matters set out in the Lifer Manual. In the passages in Hindley to which we have referred at paragraph 7 the duty of the Secretary of State was made clear; similarly the provisions of section 30 of the 1997 Act, require the Secretary of State to take into account all exceptional circumstances relevant to the release of the prisoner on compassionate grounds. 33. Third, the term “compassionate grounds” must be read, as the court made clear in R v Bieber, in a manner compatible with Article 3. They are not restricted to what is set out in the Lifer Manual. It is a term with a wide meaning that can be elucidated, as is the way the common law develops, on a case by case basis. 34. Fourth, the decision of the Secretary of State must be reasoned by reference to the circumstances of each case and is subject to scrutiny by way of judicial review. 35. In our judgment the law of England and Wales therefore does provide to an offender “hope” or the “possibility” of release in exceptional circumstances which render the just punishment originally imposed no longer justifiable. 10 HUTCHINSON v. THE UNITED KINGDOM – JUDGMENT 36. It is entirely consistent with the rule of law that such requests are considered on an individual basis against the criteria that circumstances have exceptionally changed so as to render the original punishment which was justifiable no longer justifiable. We find it difficult to specify in advance what such circumstances might be, given that the heinous nature of the original crime justly required punishment by imprisonment for life. But circumstances can and do change in exceptional cases. The interpretation of section 30 we have set out provides for that possibility and hence gives to each such prisoner the possibility of exceptional release. Conclusion 37. Judges should therefore continue to apply the statutory scheme in the CJA 2003 and in exceptional cases, likely to be rare, impose whole life orders in accordance with Schedule 21. Although we were told by Mr Eadie QC that it might be many years before the applications might be made under section 30 and the three applicants in Vinter (Vinter, Bamber and Moore) did not seek to contend that there were no longer justifiable penological grounds for their continued detention, we would observe that we would not discount the possibility of such applications arising very much sooner. They will be determined in accordance with the legal principles we have set out.” III. RELEVANT INTERNATIONAL MATERIALS 20. The Court makes reference to the materials referred to in the Vinter judgment (at §§ 59-81). It refers in particular to one of the Council of Europe texts mentioned there, Recommendation Rec(2003)22 of the Committee of Ministers to member states on conditional release (parole). This provides, as relevant: “Discretionary release system 16. The minimum period that prisoners have to serve to become eligible for conditional release should be fixed in accordance with the law. 17. The relevant authorities should initiate the necessary procedure to enable a decision on conditional release to be taken as soon as the prisoner has served the minimum period. 18. The criteria that prisoners have to fulfil in order to be conditionally released should be clear and explicit. They should also be realistic in the sense that they should take into account the prisoners’ personalities and social and economic circumstances as well as the availability of resettlement programmes. ... 20. The criteria for granting conditional release should be applied so as to grant conditional release to all prisoners who are considered as meeting the minimum level of safeguards for becoming law-abiding citizens. It should be incumbent on the authorities to show that a prisoner has not fulfilled the criteria. 21. If the decision-making authority decides not to grant conditional release it should set a date for reconsidering the question. In any case, prisoners should be able to reapply to the decision-making authority as soon as their situation has changed to their advantage in a substantial manner. ... HUTCHINSON v. THE UNITED KINGDOM – JUDGMENT 13 26. The domestic law was both accessible and foreseeable for prisoners. It was enough that they sought legal advice, which was available to them, or asked the prison administration, and they would receive an explanation of the applicable legal provisions. To every request the Secretary of State was required to give a reasoned response, which would be subject to judicial review. That review would not merely react to the decisions of the Secretary of State, but would bear on the merits of the case. The procedure had the capacity to develop the practical working out of the relevant considerations in this context, such as what amounted to a legitimate penological ground. Nor would successful judicial review merely mean the Secretary of State taking the decision again. It was within the power of the courts to directly order the release of a prisoner, if this was warranted. 27. Regarding the timing of the review, the Government recalled that Vinter had regarded this matter as being within the margin of appreciation of the domestic authorities, which should not now be narrowed. That judgment did not prescribe a review after twenty-five years, but simply observed that the comparative and international materials reflected clear support for this particular arrangement. In any event, identifying such a timeframe was more relevant to a system which did not provide for a review for a very long period, which was not the case in the domestic system. Legal certainty did not require a specific time constraint on sentence review, when that review was premised on the ability of the prisoner to make a case that their detention was no longer justified. This they could do at any time; they were not obliged to wait an indeterminate number of years. That could be regarded as more advantageous to the prisoner than being required to serve a long, minimum term of years before being permitted to apply for review. Regarding the circumstances of the applicant, they noted that he had not suggested at any stage that there was no legitimate penological ground for his continued detention. There was nothing to stop him applying to the Secretary of State at any time in the future for a review of sentence. 2. The applicant 28. The applicant disagreed with the Chamber judgment, which he criticised as being inconsistent with Vinter, as well as with other cases decided by this Court since that judgment. He considered that the situation in domestic law remained contrary to Article 3, the McLoughlin decision having failed to remedy the deficiencies identified in Vinter. The Court of Appeal had proceeded on the incorrect assumption that the European Court was mistaken in its analysis of domestic law. Consequently, McLoughlin had merely sought to correct that perceived error, without developing the de jure situation. The review of whole life sentences was still based on a vague discretion vested in a Government minister. He considered that the Court should now rule that such a function must be entrusted to judges not politicians, this proposition finding clear support in the relevant 14 HUTCHINSON v. THE UNITED KINGDOM – JUDGMENT international and comparative materials referred to in Vinter, and being implicit in the Vinter reasoning itself. He drew an analogy in this respect with the evolution that took place both in domestic case-law and Convention case-law requiring the removal of any role for the executive in the determination of sentences. Even if executive review could still be accepted in principle, the domestic system was deficient since the review was conducted by a partisan political figure, as illustrated by public remarks made by the then-Secretary of State following the McLoughlin decision. The procedure therefore did not offer any prospect of fairness, balance and certainty. 29. The McLoughlin decision had indicated that the statutory terminology was to be given a broad meaning, but this should not be regarded as sufficient to meet the requirements of Article 3, as laid down in Vinter and subsequent judgments of this Court. The meaning of the terms “exceptional circumstances” and “compassionate grounds” had not been elucidated. Greater specificity was required for the sake of legal certainty; without it, a prisoner’s motivation to attempt rehabilitation would be completely undermined. The only detailed point of reference for whole life prisoners remained the Lifer Manual, the restrictive wording of which had been criticised in Vinter. 30. Concerning the timing of the review, this issue was still affected by legal uncertainty. It was not stipulated in any legal provision, and had not been addressed in the McLoughlin decision. Whole life prisoners had no clarity as to when their sentences would be reviewed. The applicant recalled that prior to 2003, such sentences were systematically reviewed after twenty-five years, and that the proposal had been made in Parliament (a proposal put forward by the Joint Committee on Human Rights in 2013 and debated in the House of Lords in 2014) to reintroduce this practice via legislation. The Court’s post-Vinter cases confirmed that a specific timeframe must be provided for in domestic law. Were the Court to now find no violation of Article 3, this would cause chaos in the relevant Convention case-law. 31. Nor had the situation improved de facto since the Vinter judgment. The applicant criticised the Government’s refusal to revise the Lifer Manual despite the criticism expressed by this Court and subsequently by the Court of Appeal. As a matter of fact, no whole life prisoner had ever been released in the way envisaged in Vinter. It could only discourage such prisoners from making the huge effort required to achieve rehabilitation to know that ultimately their fate would be decided by political decision, rather than an independent and impartial judge. 32. The applicant further submitted that the system of sentence review should not be treated as falling within the margin of appreciation of the respondent State. This was, first, because of the absolute nature of Article 3. Further, to find a violation in the present case would not impose any HUTCHINSON v. THE UNITED KINGDOM – JUDGMENT 15 particular solution on the United Kingdom. The domestic system had included a twenty-five year review in the past, which could easily be re-introduced and entrusted to the Parole Board. This was not in any way complicated, as the legislative proposal made in Parliament showed. A violation would not mean that the whole life order as such was contrary to the Convention – the requirement was that it be reducible. Nor would it mean that the applicant should be released; this was a quite separate issue to be assessed elsewhere at another time. 3. The third party intervener 33. The EPLN underlined the need for the law relating to the consideration of the release of whole life prisoners to be clear, foreseeable and accessible to those affected by it. Imposing an irreducible life sentence could no longer be regarded as a matter within the margin of appreciation of States, since Article 3 required reducibility. It was only regarding certain details of the requisite review that the State could claim a margin of appreciation, although it was ultimately for the Court to determine whether the review included the necessary procedural safeguards, having regard to the international consensus in this area and the great importance of what is at stake for the prisoner. Any margin available should be narrow. 34. Referring to the relevant international instruments cited in the Vinter judgment, the EPLN argued that purely punitive or retributory sentencing is not compatible with human rights principles. Rehabilitation must be at the heart of sentencing, implying some prospect of release for life prisoners. For this to be a realistic prospect, there must be sentence planning, the opportunity to progress through the prison system, and structured reviews. The relevant international instruments identified certain basic procedural standards, demanding clarity and foreseeability as regards the timing of the review and the criteria governing it. These points had been endorsed in the Vinter judgment. In subsequent cases they had been reiterated and further developed. It was not just a question of rehabilitating the prisoner, but a matter of personal safety as well. A prisoner with no real prospect of ever being released risked the destruction of his personality, posing real danger to himself and to those in contact with him in the prison environment. To illustrate this point, a statement from a serving life prisoner was also submitted. 35. The EPLN submitted that the Vinter judgment was not based on any misunderstanding of the domestic system, but had correctly revealed its shortcomings, i.e. the lack of a fixed timeframe and clear, published criteria. No steps had been taken domestically to develop the review into something more than mere compassionate release, already held to be insufficient. This stood in contrast to German constitutional law, cited in Vinter, which held that the preconditions for release and the procedures must be stipulated in 18 HUTCHINSON v. THE UNITED KINGDOM – JUDGMENT not be so after a lengthy period of service of sentence. The importance of the ground of rehabilitation is underlined, since it is here that the emphasis of European penal policy now lies, as reflected in the practice of the Contracting States, in the relevant standards adopted by the Council of Europe, and in the relevant international materials (Vinter and Others, cited above, §§ 59-81). 43. As recently stated by the Court, in the context of Article 8 of the Convention, “emphasis on rehabilitation and reintegration has become a mandatory factor that the member States need to take into account in designing their penal policies” (Khoroshenko v. Russia [GC], no. 41418/04, § 121, ECHR 2015; see also the cases referred to in Murray, cited above, § 102). Similar considerations apply under Article 3, given that respect for human dignity requires prison authorities to strive towards a life sentenced prisoner’s rehabilitation (see Murray, cited above, §§ 103-104). It follows that the requisite review must take account of the progress that the prisoner has made towards rehabilitation, assessing whether such progress has been so significant that continued detention can no longer be justified on legitimate penological grounds (Vinter and Others, cited above, §§ 113-116). A review limited to compassionate grounds is therefore insufficient (ibid., § 127). 44. The criteria and conditions laid down in domestic law that pertain to the review must have a sufficient degree of clarity and certainty, and also reflect the relevant case-law of the Court. Certainty in this area is not only a general requirement of the rule of law but also underpins the process of rehabilitation which risks being impeded if the procedure of sentence review and the prospects of release are unclear or uncertain. Therefore prisoners who receive a whole life sentence are entitled to know from the outset what they must do in order to be considered for release and under what conditions. This includes when a review of sentence will take place or may be sought (Vinter and Others, cited above, § 122). In this respect the Court has noted clear support in the relevant comparative and international materials for a review taking place no later than twenty-five years after the imposition of sentence, with periodic reviews thereafter (ibid., §§ 68, 118, 119 and 120). It has however also indicated that this is an issue coming within the margin of appreciation that must be accorded to Contracting States in the matters of criminal justice and sentencing (ibid., §§ 104, 105 and 120). 45. As for the nature of the review, the Court has emphasised that it is not its task to prescribe whether it should be judicial or executive, having regard to the margin of appreciation that must be accorded to Contracting States (Vinter and Others, cited above, § 120). It is therefore for each State to determine whether the review of sentence is conducted by the executive or the judiciary. HUTCHINSON v. THE UNITED KINGDOM – JUDGMENT 19 b. Application of these principles i. Nature of review 46. In England and Wales the review of sentence is entrusted to the Secretary of State. The applicant submitted that this was wrong in principle, arguing that the review ought to be judicial in nature. He further argued that systems of presidential clemency should be distinguished from the domestic system on the ground that State Presidents can be regarded, by the nature of their office, as non-partisan figures who are above the political fray and thus less susceptible to the pressures of public opinion. Entrusting sentence review to a Government minister left little hope for fair, thorough and consistent assessment of the grounds for releasing a whole life prisoner. 47. The Court observes that a judicial procedure brings with it a series of important guarantees: the independence and impartiality of the decider, procedural safeguards and protection against arbitrariness. In two cases, the Court found that due to the existence of a judicial procedure of sentence review the domestic law was in keeping with Article 3 of the Convention (see Čačko v. Slovakia, no. 49905/08, 22 July 2014, and Bodein v. France, no. 40014/10, 13 November 2014). 48. In the Bodein case, the Court discounted the power of presidential clemency (cited above, at § 59). Similar systems in Hungary and Bulgaria were likewise found not to meet the requisite standard: László Magyar v. Hungary, no. 73593/10, 20 May 2014, and Harakchiev and Tolumov v. Bulgaria, nos. 15018/11 and 61199/12, ECHR 2014 (extracts) (referring to the system of presidential clemency in the period up to January 2012). However, it was because of various shortcomings in the procedures and not the executive nature of the review as such that the States in question were found to be in violation of Article 3. Moreover, in the László Magyar case the Court made some suggestions regarding the measures to be taken to execute the judgment but without suggesting that a judicial mechanism was required (at § 71 of that judgment; see in the same sense Öcalan v. Turkey (no. 2), nos. 24069/03, 197/04, 6201/06 and 10464/07, § 207, 18 March 2014). 49. That an executive review can satisfy the requirements of Article 3 is shown by the Court’s assessment of the systems in Cyprus and Bulgaria. Regarding the former, the power of the President of Cyprus, in light of the practice followed, was found to be sufficient (Kafkaris, cited above, §§ 102-103). Regarding the latter, the power vested in the President of Bulgaria was likewise found to be in compliance with Article 3, following reform in 2012 (Harakchiev and Tolumov, cited above, §§ 257-261). The Court notes here that the relevant European standard does not exclude executive review but refers to decisions on conditional release being taken by the “authorities established by law” (paragraph 32 of Recommendation Rec(2003)22, see paragraph 20 above). 20 HUTCHINSON v. THE UNITED KINGDOM – JUDGMENT 50. It is therefore clear from the case-law that the executive nature of a review is not in itself contrary to the requirements of Article 3. The Court sees no reason to depart from this. 51. As for the applicant’s criticisms of the domestic system, the Court considers that these are countered by the effect of the Human Rights Act. As recalled in McLoughlin (see paragraph 29 of that decision, set out at paragraph 19 above), the Secretary of State is bound by section 6 of that Act to exercise the power of release in a manner compatible with Convention rights. He or she is required to have regard to the relevant case-law of this Court and to provide reasons for each decision. The power or, depending on the circumstances, the duty of the Secretary of State to release a prisoner on compassionate grounds cannot therefore be regarded as akin to the broad discretion conferred on the Head of State in certain other jurisdictions and found to be insufficient for the purposes of Article 3 in the cases referred to above. 52. Furthermore, the Secretary of State’s decisions on possible release are subject to review by the domestic courts, themselves bound by the same duty to act compatibly with Convention rights. The Court notes here the Government’s statement that judicial review of a refusal by the Secretary of State to release a prisoner would not be confined to formal or procedural grounds, but would also involve an examination of the merits. Thus the High Court would have the power to directly order the release of the prisoner, if it considered this to be necessary in order to comply with Article 3 (see paragraph 26 above). 53. Although the Court has not been provided with any examples of judicial review of a refusal by the Secretary of State to release a life prisoner, it is nonetheless satisfied that a significant judicial safeguard is now in place (see E. v. Norway, 29 August 1990, § 60, Series A no. 181-A). The absence of any practice to date, which is unsurprising given the relatively brief period since the McLoughlin decision, does not necessarily count against the domestic system, just as it did not count against the Slovak and French systems, both found to be in conformity with Article 3 without reference to any judicial practice (see in particular § 60 of Bodein). ii. Scope of review 54. In the McLoughlin decision, the Court of Appeal took the view, as did this Court in Vinter, that the policy set down in the Lifer Manual was a highly restrictive one. It reiterated the position stated in Bieber that the Secretary of State must exercise his power of release in a manner compatible with principles of domestic administrative law and with Article 3 of the Convention (see, respectively, paragraphs 32 and 29 of McLoughlin, set out at paragraph 19 above). 55. In addition, and crucially, it specified, having regard to the Court’s judgment in Vinter, that the “exceptional circumstances” referred to in HUTCHINSON v. THE UNITED KINGDOM – JUDGMENT 23 for the giving of reasons in individual cases, transparency was nonetheless ensured by other means. The Clemency Commission, created to advise on requests for clemency, functioned in accordance with published Rules of Procedure. These required it to take account of the relevant case-law of international courts on the interpretation and application of the relevant international human rights instruments. The rules also required the Clemency Commission to publish activity reports, which it did monthly and yearly, detailing its examination of requests for clemency, its advice to the Vice-President and the latter’s decision on such requests (ibid., §§ 90-107). The Court found that these measures increased the transparency of the clemency procedure and constituted an additional guarantee of the consistent and transparent exercise of the presidential power (ibid., § 259). 62. In the Čačko case, the Court noted that the criteria for early release were that the prisoner “has demonstrated improvement by fulfilling his or her obligations and by good behaviour” and that “it can be expected that the person concerned will behave in an appropriate manner in the future” (Čačko, cited above, § 43). In the Bodein case, the Chamber noted that the review in French law was based on the dangerousness of the prisoner as well as any changes in his personality during the service of sentence (Bodein, cited above, § 60). 63. The Court does not regard the domestic system as deficient in this particular respect for two closely-related reasons. First, the exercise of the section 30 power will, as is clear from McLoughlin and by virtue of the Human Rights Act, be guided by all of the relevant case-law of this Court as it stands at present and as it may be further developed or clarified in future. By setting out its relevant case-law in the preceding paragraphs, the Court’s purpose is to aid the Secretary of State and the domestic courts to fulfil their statutory duty to act compatibly with the Convention in this area. 64. The second reason is that, as the Court of Appeal stated and the Chamber accepted, it can be expected that the concrete meaning of the terms used in section 30 will continue to be further fleshed out in practice. The duty on the Secretary of State to give the reasons for each such decision, subject to judicial review, is of significance here, being a guarantee of the consistent and transparent exercise of the power of release. 65. The Court sees fit to add, however, that a revision of the Lifer Manual (and other official sources of information) so as to reflect the law as it has been clarified by the Court of Appeal, and to reflect also the relevant Article 3 case-law, would be desirable so that the applicable law is readily accessible. The Court refers once again to the relevant standard defined by the Council of Europe (see paragraph 18 of Recommendation Rec(2003)22, at paragraph 20 above). 24 HUTCHINSON v. THE UNITED KINGDOM – JUDGMENT iv. Timeframe for review 66. One particular aspect of legal certainty is the timeframe for sentence review, the Court having stated in Vinter that a prisoner should not be obliged to wait and serve an indeterminate number of years before being permitted to mount an Article 3 challenge (see paragraph 44 above). 67. In general, providing for an automatic review of sentence after a specified minimum term represents an important safeguard for the prisoner against the risk of detention in violation of Article 3. The Court refers in this respect to the Öcalan (no. 2) case. It found there that domestic law clearly prohibited the applicant from applying at any point in his sentence of aggravated life imprisonment for release on legitimate penological grounds. The Turkish authorities were therefore required to establish a procedure to review whether the applicant’s incarceration remained justified after a minimum term of detention (Öcalan (no. 2), cited above, § 204 and § 207). The domestic system in this case differs in that the process of review can be initiated by the prisoner at any time. The Court recalls that it took note of a similar arrangement in Cyprus, where life prisoners could benefit from the relevant provisions at any time without having to serve a minimum period of imprisonment (Kafkaris, cited above, § 103). It is possible to regard this as being in the interest of prisoners, since they are not required to wait for a set number of years for a first or subsequent review. In light of the very serious nature of the crimes committed by persons in this category though, it has to be expected that their period of detention will be lengthy. 68. In two of the post-Vinter cases decided by this Court, the domestic system included a review of sentence after a set period – 25 years in Čačko and 30 years in Bodein (effectively 26 years in that applicant’s case). In the Harakchiev and Tolumov case though, the domestic system subsequent to the 2012 reforms did not include a fixed timeframe for review of sentence. Furthermore, the Court found a violation of Article 3 in the László Magyar case and gave indications under Article 46 as to the necessary measures without referring to the question of the timing of the review in either context. 69. Turning to the facts of the present case, the Court does not consider that the concern expressed in Vinter regarding indeterminacy, and the repercussions of this for a whole life prisoner (Vinter and Others, cited above, § 122) can be said to arise for the applicant at present. As is stated in section 30 of the 1997 Act, the Secretary of State may order release “at any time”. It follows, as the Government have confirmed, that it is open to the applicant to trigger, at any time, a review of his detention by the Secretary of State. It is not for the Court to speculate as to how efficiently such a system, which has minimum regulation, might generally operate in practice. It is the individual situation of the applicant that is the focus of these proceedings, and he has not suggested that he is prevented or deterred from applying to the Secretary of State at any time to be considered for release. HUTCHINSON v. THE UNITED KINGDOM – JUDGMENT 25 Before concluding, though, the Court refers once again as it did in the Vinter case to the relevant comparative and international materials that show “clear support for the institution of a dedicated mechanism guaranteeing a review no later than twenty-five years after the imposition of a life sentence, with further periodic reviews thereafter” (Vinter and Others, cited above, § 120; see more recently and in the same sense Murray, cited above, § 99). v. Conclusion 70. The Court considers that the McLoughlin decision has dispelled the lack of clarity identified in Vinter arising out of the discrepancy within the domestic system between the applicable law and the published official policy. In addition, the Court of Appeal has brought clarification as regards the scope and grounds of the review by the Secretary of State, the manner in which it should be conducted, as well as the duty of the Secretary of State to release a whole life prisoner where continued detention can no longer be justified on legitimate penological grounds. In this way, the domestic system, based on statute (the 1997 Act and the Human Rights Act), case-law (of the domestic courts and this Court) and published official policy (the Lifer Manual) no longer displays the contrast that the Court identified in Vinter (cited above, § 130). Further specification of the circumstances in which a whole life prisoner may seek release, with reference to the legitimate penological grounds for detention, may come through domestic practice. The statutory obligation on national courts to take into account the Article 3 case-law as it may develop in future provides an additional important safeguard. 71. As the Court has often stated, the primary responsibility for protecting the rights set out in the Convention lies with the domestic authorities (see for example O.H. v. Germany, no. 4646/08, § 118, 24 November 2011). It considers that the Court of Appeal drew the necessary conclusions from the Vinter judgment and, by clarifying domestic law, addressed the cause of the Convention violation (see also Kronfeldner v. Germany, no. 21906/09, § 59, 19 January 2012). 72. The Court concludes that the whole life sentence can now be regarded as reducible, in keeping with Article 3 of the Convention. 73. As indicated at the outset (see paragraph 37 above), given that the parties’ submissions were confined to the current state of the domestic law, the Court has not found it necessary to examine separately whether the requirements of Article 3 in relation to whole life sentences, as laid down in the Vinter judgment, were complied with in the applicant’s case prior to the McLoughlin decision. It would nevertheless observe, as the Government themselves in effect recognised before the Court of Appeal delivered its judgment in McLoughlin, that at that time the material circumstances regarding the applicant’s whole life sentence were indistinguishable from those of the applicants in the Vinter case (see paragraph 23 above). 28 HUTCHINSON v. THE UNITED KINGDOM – JUDGMENT – SEPARATE OPINIONS case. It accepts that the principles established in that judgment in 2014 have dispelled the deficiencies identified in Vinter with regard to the United Kingdom’s legal system in respect of life imprisonment and its compatibility with Article 3, namely concerning the possibility of a review of the terms of a life sentence, the scope of such a review, the criteria and conditions to be applied and the timeframe for the review. Therefore, it concludes that, at the present time and as a consequence of McLoughlin, the whole life sentence imposed on the applicant can now be regarded as reducible, in keeping with Article 3 of the Convention. There is now, according to the Grand Chamber, no violation of that article. Notwithstanding the applicant’s submissions, I see no reason to differ from the detailed reasoning of the Grand Chamber on this point. But of course, this conclusion (and the use of the term “now” in paragraph 72 of the judgment is revealing) refers to the situation existing at the present moment, and more precisely to the situation existing now (in 2016) as a consequence of the McLoughlin judgment in 2014. Even admitting that, in the opinion of the Grand Chamber, there is not at present a violation of Article 3 with respect to the applicant as a result of the above ruling, an issue remains concerning his situation between the point that he was sentenced to a whole life term and the date on which the McLoughlin judgment was delivered, thus translating into the United Kingdom’s legal system the principles set out by this Court in Vinter. In the latter judgment, the Court found that the situation in the United Kingdom concerning life imprisonment was in contradiction with the standards of Article 3. As it transpires from the Grand Chamber’s considerations in the present case, such a situation persisted until 2014, the date of the McLoughlin judgment. Therefore, the applicant was subject from his sentencing to a whole life term until that date (that is, for thirty years) to a situation which in itself represented a violation of Article 3. I find it somewhat puzzling that the Grand Chamber considers that the applicant’s claim was confined “to the present state of the domestic law” (see paragraph 73), given that he submitted his application in 2008 and then only after having unsuccessfully attempted for many years to obtain a remedy, on many occasions, before the United Kingdom authorities. During this time, the applicant, sentenced to a whole life term, was deprived of any prospect of review, or of mitigation of that penalty. He was therefore subjected to what was defined by the Court in Vinter as inhuman treatment, and I consider that the Grand Chamber in its present judgment should have recognised that fact and found a violation of Article 3 of the Convention. HUTCHINSON v. THE UNITED KINGDOM – JUDGMENT – 29 SEPARATE OPINIONS DISSENTING OPINION OF JUDGE PINTO DE ALBUQUERQUE Table of Contents I. Introduction (§ 1) First Part (§§ 2-25) II. The Convention law on parole (§§ 2-10) A. The acknowledgment of the right to parole in Vinter (§§ 2-6) B. The statement of the “relevant principles” on parole in Murray (§§ 7-10) III. The UK legal framework on parole for whole life sentence (§§ 11-26) A. The reaction of the Court of Appeal to Vinter (§§ 11-18) B. The duty to take into account the Convention (§§ 19-25) Second Part (§§ 26-47) IV. The State obligation in the present case (§§ 26-34) A. The position of the respondent Government (§§ 26-29) B. The position of the Grand Chamber (§§ 30-34) V. What lies ahead for the Convention system? (§§ 35-47) A. The seismic consequences of the present judgment for Europe (§§ 35-40) B. Argentoratum locutum, iudicium finitum (§§ 41-47) VI. Conclusion (§§ 48-50) I. Introduction (§ 1) 1. I beg to disagree with this judgment. I find that the McLoughlin decision1 should not be regarded as complying with the requirements of Article 3 of the European Convention on Human Rights (“the Convention”) as exposed in the Vinter and Others judgment2. The majority’s ingenious effort to reconcile the letter and spirit of Vinter and Others with McLoughlin raises not only questions of linguistic precision, logical coherence and legal certainty that were left unanswered in the present judgment, but also the fundamental issue of the compatibility of section 2 of the Human Rights Act (“the Act”), as applied in the present case by the Court of Appeal of England and Wales (“the Court of Appeal”), 1. R v. McLoughlin, R v. Newell, Court of Appeal, Criminal Division, 18 February 2014 [2014] EWCA Crim 188. 2. Vinter and Others v. the United Kingdom [GC], nos. 66069/09, 130/10 and 3896/10, ECHR 2013 (extracts). 30 HUTCHINSON v. THE UNITED KINGDOM – JUDGMENT – SEPARATE OPINIONS with the Convention. The purpose of this dissent is to reply to these questions. First Part (§§ 2-25) II. The Convention law on parole (§§ 2-10) A. The acknowledgment of the right to parole in Vinter (§§ 2-6) 2. 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. 3. 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. 4. 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 3. Ibid., §§ 124, 129 and 130. 4. Ibid., §§ 122, 129 and 130. For the sake of terminological clarity, I use the word “parole” in the same sense as the Council of Europe uses it, meaning conditional release or early release of sentenced prisoners under individualised post-release conditions; amnesties and pardons are not included in this definition, as Recommendation Rec(2003)22 of the Committee of Ministers has recognised. 5. R.v. Bieber (2009), 1 WLR 223, §§ 48 and 49. 6. The Lifer Manual was issued as Prison Service Order 4700, at Chapter 12. The official policy remained unaltered despite the judgment in Bieber. 7. Vinter and Others, cited above, § 129. 8. Ibid., § 129. HUTCHINSON v. THE UNITED KINGDOM – JUDGMENT – 33 SEPARATE OPINIONS 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. III. The UK legal framework on parole for whole life sentence (§§ 11-26) A. The reaction of the Court of Appeal to Vinter (§§ 11-18) 11. 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. 12. 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 17. Murray, cited above, § 100. 18. McLoughlin, cited above, § 29. 19. Ibid., § 30. 20. Ibid., § 11. 34 HUTCHINSON v. THE UNITED KINGDOM – JUDGMENT – SEPARATE OPINIONS “exceptional circumstances” and “compassionate grounds”, as is the usual process under the common law21. 13. 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: “I view with apprehension the attitude of judges who on a mere question of construction, when face to face with claims involving the liberty of the subject, show themselves more executive-minded than the executive. Their function is to give words their natural meaning, not perhaps in war time leaning towards liberty, but following the dictum of Pollock C.B. in Bowditch v. Balchin (1850, 5 Ex. 378), cited with approval by my noble and learned friend Lord Wright in Barnard v. Gorman (1941, 3 All E.R., at p. 55), ‘in a case in which the liberty of the subject is concerned, we “cannot go beyond the natural construction of the Statute.’”24 14. 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 21. See paragraph 23 of the Chamber judgment in connection with paragraphs 25-36 in McLoughlin. 22. This is the expression used in McLoughlin, cited above, § 37. 23. See the Oxford dictionary’s definition of compassion as “the sympathetic pity and concern for the sufferings or misfortunes of others”, based on the Latin compassio, or suffer with. 24. Liversidge v Anderson [1941] UKHL 1. 25. Vinter and Others, cited above, § 126. 26. Vinter and Others, cited above, § 128. 27. Among many other authorities, Engel and Others v. the Netherlands, 8 June 1976, § 58, Series A no. 22; Amuur v. France, judgment of 25 June 1996, Reports 1996-III, p. 848, § 42; and Assanidze v. Georgia [GC], no. 71503/01, § 139, ECHR 2004‑II. HUTCHINSON v. THE UNITED KINGDOM – JUDGMENT – 35 SEPARATE OPINIONS 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. 15. 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. 16. 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. 17. 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” 28. Vinter and Others, cited above, § 119. 29. In practice, nothing changed after Vinter. This is confirmed on the ground (see van Zyl Smit and Appleton, “The Paradox of Reform: Life Imprisonment in England and Wales”, in van Zyl Smit and Appleton (eds.), Life Imprisonment and Human Rights, Oxford, 2016, p. 228). 30. McLoughlin, cited above, § 31. 38 HUTCHINSON v. THE UNITED KINGDOM – JUDGMENT – SEPARATE OPINIONS 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. 23. 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: “The mere fact the language under consideration is inconsistent with a Convention-compliant meaning does not of itself make a Convention-compliant interpretation under section 3 impossible. Section 3 enables language to be interpreted restrictively or expansively. But section 3 goes further than this. It is also apt to require a court to read in words which change the meaning of the enacted legislation, so as to make it Convention-compliant. In other words, the intention of Parliament in enacting section 3 was that, to an extent bounded only by what is ‘possible’, a court can modify the meaning, and hence the effect, of primary and secondary legislation.” 44 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. 24. 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 42. Lord Neuberger in P and Q v. Surrey County Council (2014) UKSC 19, § 62. 43. Ghaidan v. Godin-Mendoza [2004] UKHL 30. 44. Lord Nicholls in Ghaidan, cited above, § 32. 45. Lady Hale, “What’s the point of human rights?”, Warwick Law Lecture 2013, 28 November 2013: “But statements from Lord Nicholls, Lord Steyn and Lord Roger also gave a very broad meaning to what was ‘possible’ – as long as an interpretation was not contrary to the scheme or essential principles of interpretation, words could be read in or read out, or their meaning elaborated, so as both to be consistent with the Convention rights and go with the grain of the legislation, even though it was not what was meant at the time.” 46. Lord Kerr, “The UK Supreme Court: The Modest Underworker of Strasbourg?”, Clifford Chance Lecture 2012, 25 January 2012: “even if a case can be made that in the HUTCHINSON v. THE UNITED KINGDOM – JUDGMENT – 39 SEPARATE OPINIONS 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 the absence of some special circumstances it seems to me that the court should follow any clear and constant jurisprudence of the European Court of Human Rights.”47 In R v Horncastle, Lord Philips went a step further: “There will, however, be rare occasions where the domestic court has concerns as to whether a decision of the Strasbourg court sufficiently appreciates or accommodates particular aspects of our domestic process. In such circumstances, it is open to the domestic court to decline to follow the Strasbourg decision, giving reasons for adopting this course”.48 The following year, Lord Neuberger summarised in Manchester City Council v Pinnock this apparently settled view in the following terms: “This court is not bound to follow every decision of the European court. Not only would it be impractical to do so: it would sometimes be inappropriate, as it would destroy the ability of the court to engage in the constructive dialogue with the European court which is of value to the development of Convention law: see eg R v Horncastle [2010] 2 AC 373. Of course, we should usually follow a clear and constant line of decisions by the European court: R (Ullah) v Special Adjudicator [2004] 2 AC 323. But we are not actually bound to do so or (in theory, at least) to follow a decision of the Grand Chamber. As Lord Mance pointed out in Doherty v Birmingham City Council [2009] AC 367, para 126, section 2 of the 1998 Act requires our courts to ‘take into account’ European court decisions, not necessarily to follow them. Where, however, there is a clear and constant line of decisions whose effect is not inconsistent with some fundamental substantive or procedural aspect of our law, and whose reasoning does not appear to overlook or misunderstand some argument or point of principle, we consider that it would be wrong for this court not to follow that line.”49 25. 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: past we were excessively deferential to Strasbourg, there are recently clear and vigorous signals that we are no longer.” 47. Lord Slynn in R (Alconbury Developments Ltd) v. Secretary of State for the Environment, Transport and the Regions UKHL 23, § 26. The passage was reproduced by Lord Bingham in the famous paragraph 20 of Ulhah. 48. Lord Philips in R v Horncastle and others (Appellants) (on appeal from the Court of Appeal Criminal Division) [2009] UKSC 14, § 11. 49. Lord Neuberger in Manchester City Council v Pinnock [2010] UKSC 45, § 48. 50. R (on the Application of Chester) v. Secretary of State for Justice (2013) UKSC 63, § 27. 51. Hirst v. the United Kingdom (GC), no. 74025/01, 6 October 2005. 40 HUTCHINSON v. THE UNITED KINGDOM – JUDGMENT – SEPARATE OPINIONS “It would have then to involve some truly fundamental principle of our law or some most egregious oversight or misunderstanding before it could be appropriate for the Court to contemplate an outright refusal to follow Strasbourg authority at the Grand Chamber level.” Lord Sumption made much the same point when he wrote: “In the ordinary use of language, to “take into account” a decision of the European Court of Human Rights means no more than to consider it, which is consistent with rejecting it as wrong. However, this is not an approach that a United Kingdom court can adopt, save in altogether exceptional cases... A decision of the European Court of Human Rights is more than an opinion about the meaning of the Convention. It is an adjudication by the tribunal which the United Kingdom has by treaty agreed should give definitive rulings on the subject. The courts are therefore bound to treat them as authoritative expositions of the Convention which the Convention intends them to be, unless it is apparent that it misunderstood or overlooked some significant feature of English law or practice which may, when properly explained, lead to the decision being revised by the Strasbourg Court.”53 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) IV. The State obligation in the present case (§§ 26-34) A. The position of the respondent Government (§§ 26-29) 26. 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 52. Scoppola v. Italy (no. 3) (GC), no. 126/05, 22 May 2012. 53. R (on the Application of Chester) v. Secretary of State for Justice (2013) UKSC 63, § 121. 54. Also referring to “exceptional circumstances” for refusal to follow the Court’s clear jurisprudence, see Lord Dyson, Lecture at the Hertfordshire University, cited above. 55. McLoughlin, cited above, § 30, pointing to the Court’s alleged misunderstanding of an important feature of national law. HUTCHINSON v. THE UNITED KINGDOM – JUDGMENT – 43 SEPARATE OPINIONS 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. 31. 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. 32. 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 64. See paragraph 44 of the judgment. 65. See paragraph 43 of the judgment. 66. See paragraphs 51 and 52 of the judgment. 67. See paragraphs 67 and 69 of the judgment. 68. See paragraph 55 of the judgment. 44 HUTCHINSON v. THE UNITED KINGDOM – JUDGMENT – SEPARATE OPINIONS 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: “I am satisfied your offending is exceptionally high and satisfies the criteria for a whole life term and that the Transitional Provisions do not require me to impose a minimum term. Were I to impose a minimum term it would be of such length that you would in all probability never be released. I sentence you to Life Imprisonment and direct there will be a whole life order”; the Sentencing Remarks of Mr Justice Wilkie, in R v Thomas Mair, Central Criminal Court, 23 November 2016: “I have considered this anxiously but have concluded that this offence, as I have described it, is of such a high level of exceptional seriousness that it can only properly be marked by a whole life sentence. That is the sentence which I pass. You will, therefore, only be released, if ever, by the Secretary of State exercising executive clemency on humanitarian grounds to permit you to die at home. Whether or not that occurs will be a matter for the holder of that office at the time”; and the Sentencing Remarks of Mr Justice Openshaw, in R v Stephen Port, Central Criminal Court, 25 November 2016: “The sentence therefore upon the counts of murder is a sentence of life imprisonment; I decline to set a minimum term; the result is a whole life sentence and the defendant will die in prison.” 33. 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 69. “Types of prison sentences (…) Whole life term. A whole life term means there’s no minimum term set by the judge, and the person’s never considered for release.” (https://www.gov.uk/types-of-prison-sentence/life-sentences, Last updated: 23 September 2016). I consulted the site on 24 November 2016. 70. “Whole life order: For the most serious cases, an offender may be sentenced to a life sentence with a whole life order. This means that their crime was so serious that they will never be released from prison” (https://www.sentencingcouncil.org.uk/about- sentencing/types-of-sentence/life-sentences/, referring to the situation as of 30 June 2016, with 59 offenders serving a whole life sentence). I consulted the site on 24 November 2016. 71. Although specifically asked why, if the intention is to follow Vinter and Others, the Lifer Manual has not been amended, no reply was given by the respondent Government. HUTCHINSON v. THE UNITED KINGDOM – JUDGMENT – 45 SEPARATE OPINIONS 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. 34. 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. V. What lies ahead for the Convention system? (§§ 35-47) A. The seismic consequences of the present judgment for Europe (§§ 35-40) 35. 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 72. The sentence in § 63 of the judgment reads: “The exercise of the section 30 power will … be guided by all of the relevant case-law of this Court”. 73. Al-Khawaja and Tahery v. the United Kingdom [GC], nos. 26766/05 and 22228/06, § 147, 15 December 2011. 74. Horncastle and Others v. the United Kingdom, no. 4184/10, 16 December 2014. 75. See the joint partly dissenting and partly concurring opinion of judges Sajó and Karakaş in Al-Khawaja and Tahery, cited above. 76. Contrast National Union of Rail, Maritime and Transport Workers v. the United Kingdom, no. 1045/10, ECHR 2014-II, with Demir and Baykara [GC], no. 34503/97, ECHR 2008-V. 77. Contrast Animal Defenders International v. the United Kingdom [GC], no. 48876/08, ECHR 2013-II, with VgT Verein gegen Tierfabriken v. Switzerland, no. 24699/94, ECHR 2001‑VI. 48 HUTCHINSON v. THE UNITED KINGDOM – JUDGMENT – SEPARATE OPINIONS international courts such as the Strasbourg court: they are easy targets, particularly because they tend, like all courts, not to answer back.”84 Lord Mance confirms this assessment: “I have heard it said that, when the Strasbourg court disagrees with a decision taken in France, the blame is France is directed at the French decision-maker, whereas, in the United Kingdom, it would be directed at the Strasbourg court.”85 Lord Moses is of the same view: “Criticism of our judges has been diverted onto foreign judges in an international court... It was hoped that by increasing the power of judges to construe and apply the Convention in solving domestic challenges to the actions of public authorities, the power of the judges in Strasbourg would be reduced. What a paradox, that the attempts to diminish the force of Strasbourg influence should thereafter have merely strengthened vociferous complaint as to the invasive growth of what is condemned as alien jurisprudence!”86 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. 39. 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: “[W]hen we joined, indeed, took the lead in the negotiation of the European Convention, it was not because we thought it would affect our own law, but because we thought it right to set an example for others and to help to ensure that all the Member States respected those basic human rights which were not culturally determined but reflected our common humanity”89. 84. The then Deputy Registrar of the Court, Michael O’Boyle, “The Future of the European Court of Human Rights”, in German Law Journal, 12 (2011), 10: 1862-77. 85. Lord Mance, “Destruction or metamorphosis of the legal order?”, World Policy Conference, Monaco, 14 December 2013. 86. Lord Moses, “Hitting the Balls out of the Court: are Judges Stepping Over the Line?”, Creaney Memorial Lecture, 26 February 2014. 87. See The Guardian, 5 March 2013: “Senior judge warns over deportation of terror suspects to torture states”. 88. To shore up this argument one example suffices. Following the McCann v. the United Kingdom judgment, the media reported: “Ministers said they would ignore it and were not ruling out the ultimate sanction of a withdrawal from the court’s jurisdiction. ‘Every possible option is being kept open, including walking away,’ said one insider.” “Downing Street said the ruling in the so-called Death on the Rock case ‘defied common sense’. Deputy Prime Minister Michael Heseltine branded it ‘ludicrous’”. See the Daily Mail, 28 September 1995. 89. Lord Hoffmann, “Human Rights and the House of Lords”, (1999) MLR 159, p. 166. HUTCHINSON v. THE UNITED KINGDOM – JUDGMENT – 49 SEPARATE OPINIONS 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 40. 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. B. Argentoratum locutum, iudicium finitum (§§ 41-47) 41. 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 90. Lord Hoffmann, “The Universality of Human Rights”, Judicial Studies Board Annual Lecture, 19 March 2009. 91. John Milton, Selected Prose, New and Revised edition, ed. Patrides, Columbia, 1985, p. 120. 92. Among others, associating both doctrines, Bernhardt, Thoughts on the interpretation of Human-Rights Treaties, in Matscher and Petzhold (eds.), Protecting Human Rights: the European Dimension. Studies in Honour of Gérard Wiarda, Carl Heymanns, 1988, p. 71. 50 HUTCHINSON v. THE UNITED KINGDOM – JUDGMENT – SEPARATE OPINIONS 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. 42. 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 93. Lord Hoffmann in Re G (Adoption: Unmarried Couple) 2008 UKHL 38, § 31; Lord Brown in Rabone and Another v. Pennine Care NHS Trust (2012) UKSC 2, §§ 111 and 112; and Lord Hodge in Moohan and Another v. The Lord Advocate (2014) UKSC 67, § 13. 94. Lord Brown in R (Al-Skeini and others) v. Secretary of State of Defence, cited above, § 107. 95. As named by Lord Kerr, dissenting in Ambrose v. Harris (Procurator Fiscal, Oban) (2011) UKSC 43, § 126; but see Lord Hope, § 20: “It is not for this court to expand the scope of the Convention rights further than the jurisprudence of the Strasbourg court justifies.” Lord Irvine approved this opinion in his lecture “A British Interpretation of Convention Rights”, at the UCL’s Judicial Institute, 14 December 2011. For a response, see Lord Sales, “Strasbourg Jurisprudence and the Human Rights Act: A Response to Lord Irvine”, in Public Law, Issue, 2, 2012, pp. 253-267. 96. Lord Brown in R (Al-Skeini and others) v. Secretary of State of Defence, cited above, § 106. 97. Also in this direction, Lady Hale, Warwick Law Lecture 2013, cited above, and President Bratza, “The relationship between the UK courts and Strasbourg”, (2011) EHRR 505, p. 512. 98. Lord Kerr, Clifford Chance Lecture, cited above. 99. The White Paper, Rights Brought Home: The Human Rights Bill, 1997, Cm 3782, § 2.5. HUTCHINSON v. THE UNITED KINGDOM – JUDGMENT – 53 SEPARATE OPINIONS 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. 46. 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. 47. 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 109. Loizidou v. Turkey (preliminary objections), 23 March 1995, § 75, Series A no. 310, and the Court’s Opinion on the Reform of the control system of the ECHR, 4 September 1992, para. I (5). See my opinion in Fabris v. France [GC], no. 16574/08, 7 February 2013, and the opinion of Judges Pinto de Albuquerque and Dedov in Baka v. Hungary [GC], no. 20261/12, 23 June 2016. 110. Lady Hale, “Common law and Interpretation: the limits of interpretation”, 2011 EHRLR, p. 538. 111. Among many authorities, United Communist Party of Turkey and Others v. Turkey, 30 January 1998, § 29, Reports of Judgments and Decisions 1998 I, and more recently, Anchugov and Gladkov v. Russia, no. 11157/04 and 15162/05, § 50, 4 July 2013. 112. See Seidjic and Finci v. Bosnia [GC], no. 27996/06 and no. 34836/06, for a case of conflict between constitutional provisions on the composition of highest political bodies of the State and the European standards, and more recently Baka v. Hungary [GC], cited above, on a case of conflict between constitutional provisions on the composition of the Supreme Court of Hungary and the Convention. 113. McNair, The Law of Treaties, 2nd edition, Oxford, 1961, p. 465. 54 HUTCHINSON v. THE UNITED KINGDOM – JUDGMENT – SEPARATE OPINIONS 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. VI. Conclusion (§§ 48-50) 48. The “great benefits to the law and to a great many people” brought about by the Human Rights Act are unquestionable115. As much as the substantive developments that the Court beget in a country in which “the idea that the citizen might have rights which he could assert against the State itself was unknown to us.”116 But McLoughlin illustrates the potential weakness of the Human Rights Act model, when a domestic court does not take full account of the Strasbourg case-law. The Court of Appeal did not cure the defects of the domestic law following Vinter and Others. 49. If McLoughlin represents as much as can be achieved judicially to respond to Vinter and Others, then, as already admitted in the proposal of the United Kingdom Parliament’s Joint Committee on Human Rights, amending legislation is required. As Lord Nicholls once stated, “Nor can Parliament have intended that section 3 should require courts to make decisions for which they are not equipped. There may be several ways of making provision Convention-compliant, and the choice may involve issues calling for legislative deliberation”117. 50. In any event, in the case of the present applicant the violation of Article 3 crystallised on 6 October 2008 when the Court of Appeal dismissed his appeal, confirming the High Court’s finding that there was no reason to depart from the Secretary of State’s decision to impose the whole life term. At least since then he has been deprived of his Article 3 right to parole. SEPARATE OPINION OF JUDGE SAJÓ To my regret I could not follow the majority, for the reasons expressed in the separate opinion of Judge Paulo Pinto de Albuquerque. Even assuming 114. The words are from the Preamble to the Convention. 115. See Lady Hale, in The Guardian, 14 March 2013, “Judges would regret Human Rights Act repeal, warns Lady Hale”. 116. Lady Hale, Warwick Law Lecture 2013, cited above. 117. Lord Nicholls in Ghaidan, cited above, § 33. Lord Neuberger was even more incisive: “The fact remains though that when Strasbourg speaks, it is ultimately for Parliament to consider what action needs to be taken.” (“Who are the Masters now?”, cited above, § 67). HUTCHINSON v. THE UNITED KINGDOM – JUDGMENT – 55 SEPARATE OPINIONS that “compassionate grounds” may mean anything a judge finds reasonable in the United Kingdom, it certainly cannot provide the specific guidance to the prisoner that was stipulated in Murray v. the Netherlands ([GC], no. 10511/10, § 100, ECHR 2016) a mere six months ago.