76.Whole life orders are the most severe sentences that can be handed down by the criminal courts. They are reserved for the most heinous murders and to offenders aged over 21. Other life sentences require a prisoner to serve a minimum term, after which they may be released after assessment by the Parole Board (but only if their imprisonment is no longer necessary to protect the public). Once released, a life prisoner remains subject to recall for the rest of their lives. Under a whole life order there is no minimum term set by the judge. An offender sentenced to a whole life order will spend their entire life in prison and, as the government website confirms, is “never considered for release.” The only possibility of being released before death is the Secretary of State’s power to release a prisoner subject to a whole life order in exceptional circumstances on compassionate grounds (where the prisoner is terminally ill, incapacitated, paralysed or suffering from a severe stroke and where continued imprisonment would reduce life expectancy).
77.The ECHR compatibility of whole life orders for offenders aged over 21 has been confirmed by the Grand Chamber of the European Court of Human Rights (ECtHR), after dialogue between domestic courts and Strasbourg. In 2013 in the case of Vinter v United Kingdom, the Grand Chamber found that whole life orders were incompatible with the prohibition on inhuman and degrading treatment (Article 3 ECHR.) This was because the Court recognised “clear support in European and international law for the principle that all prisoners, including those serving life sentences, be offered the possibility of rehabilitation and the prospect of release if that rehabilitation is achieved.” Thus the whole life order was not compliant with Article 3 because it did not allow for any meaningful review to establish whether the prisoner had been rehabilitated to such an extent that there was no longer justification for continued imprisonment on legitimate penological grounds (such as punishment, deterrence, public protection and rehabilitation).
78.A few years later, in Hutchinson v UK, the ECtHR reconsidered the position and concluded, in agreement with the domestic Court of Appeal, that in fact whole life orders did not violate Article 3. This was because the possibility of release on compassionate grounds–if read compatibly with Article 3 ECHR, as required by the HRA–extended to the possibility of a prisoner showing such exceptional rehabilitation that imprisonment was no longer justified on penological grounds. The Secretary of State’s power has, however, never been exercised in this way.
79.The Bill proposes extending whole life orders, in exceptional cases, to offenders aged 18 to 20 at the time of the offence. While these offenders are not children, we were referred in evidence to recognition by the Lord Chief Justice and the Court of Appeal that reaching the age of 18 does not represent “a cliff edge” for the purposes of sentencing - “[f]ull maturity and all the attributes of adulthood are not magically conferred on young people on their 18th birthdays.” We also note that in 2018 the Justice Committee similarly concluded:
“In our view there is a strong case for a distinct approach to the treatment of young adults in the criminal justice system. Young adults are still developing neurologically up to the age of 25 and have a high prevalence of atypical brain development… Dealing effectively with young adults while the brain is still developing is crucial for them in making successful transitions to a crime-free adulthood. They typically commit a high volume of crimes and have high rates of re-offending and breach, yet they are the most likely age group to stop offending as they ‘grow out of crime’.”
80.Dr Janes explained to us that life sentences prevent offenders who continue to pose a risk being released, but with a whole life order: “You take away from a young adult the right to hope and the right to change.” We also note that removing the chance of eventual release removes the greatest incentive for reform and rehabilitation.
81.Only the most serious offenders, who have committed appalling crimes, will ever face the prospect of a whole life order. Nevertheless, removing from a 20, 19 or even 18-year-old offender the possibility that reform and rehabilitation might one day result in a chance of freedom would violate the prohibition on inhuman or degrading treatment under Article 3 ECHR. The current system, relying on the Secretary of State to interpret ‘exceptional circumstances’ and ‘compassionate grounds’ compatibly with Article 3 offers only the tiniest possibility of release and incentive to reform.
82.While the ECtHR has concluded that whole life orders for offenders aged 21 and over do not violate Article 3 ECHR, we are concerned about the implications of extending these sentences to offenders aged 18 to 20. The courts and the Justice Committee have accepted that turning 18 is not a cliff-edge. Young offenders aged between 18 and 20 are still maturing and have significant potential to change. Extending to this age group a sentence that makes the prospect of ever being released vanishingly unlikely comes perilously close to the Article 3 threshold. It also runs counter to positive recent recognition of the need to treat young adult offenders as a category distinct from older offenders. The minimum age for imposing a whole life order, even in exceptional circumstances, should not be dropped below 21.
99 Gov.UK, s, [last accessed 26 August 2021]
100 See section 30, and Prison Service Order 4700
103 See  EWCA Crim 185 at para 5
104 Justice Select Committee, Seventh Report of Session 2016–17, The Treatment of Young Adults in the Criminal Justice System, HC 169, at para 24. See also Justice Select Committee, Eighth Report of Session 2017–19, Young Adults in the Criminal Justice System, HC 419