Vinter, R (on the application of) v Secretary of State for the Home Department & Ors

A court considering permission for judicial review is bound by a relevant Court of Appeal decision unless there is a proper basis for distinguishing it or departing from it. The domestic whole-life sentence regime was not arguable as incompatible with Article 3 because the Secretary of State’s power to release a prisoner on compassionate grounds must be exercised compatibly with Article 3 under section 6 of the Human Rights Act 1998. A fixed minimum term, even one unlikely to expire during the prisoner’s lifetime, is materially different from a whole-life sentence where automatic Parole Board review is available. A speculative pending decision of the Grand Chamber did not justify a stay or referral to the Supreme Court.

Two linked applications concerned permission to apply for judicial review and stays of proceedings. Mr Vinter, serving a whole-life sentence, argued that section 269(4) of the Criminal Justice Act 2003 was incompatible with Article 3 because the domestic regime lacked a compliant review mechanism. Mr Du, sentenced to a 40-year minimum term at the age of 55, argued that the practical impossibility of release during his lifetime made his sentence equivalent to a whole-life sentence.

The court considered the effect of R v McLaughlin and subsequent European Court of Human Rights decisions. The central issues were whether the claims were arguable, whether proceedings should await Hutchinson v United Kingdom, and whether a fixed minimum term attracted the same Article 3 requirements as a whole-life sentence.

1. Vinter application. The court refused permission and refused a stay. It was bound by the Court of Appeal’s decision in R v McLaughlin, which had been convened to respond to the Grand Chamber’s judgment in Vinter v United Kingdom. On the proper understanding of domestic law, the regime was compatible with Article 3.
2. The critical feature was that the Secretary of State had a duty under section 6 of the Human Rights Act 1998 to exercise the release power in section 30 of the Crime (Sentences) Act 1997 compatibly with Article 3. The court therefore rejected the submission that the present claim was arguable on the current state of the law.
3. The court declined to proceed on the basis that the Grand Chamber might reach a different decision in Hutchinson v United Kingdom. Nor was this an appropriate case for referral to the Supreme Court. The circumstances in R (Leech) v Secretary of State for Justice were materially different.
4. Du application. The court also refused permission and refused a stay. A 40-year minimum term was distinguishable from a whole-life sentence because the claimant would be automatically considered for release by the Parole Board at the expiry of the minimum term and, if not released, at least every two years thereafter.
5. The court accepted the distinction drawn in Minh Quang Pham v United States of America and the conclusion in Harkins and Edwards v United Kingdom that the Article 3 reducibility requirement applied to whole-life sentences rather than fixed minimum-term sentences. Even if Article 3 applied, the section 30 review mechanism fulfilled its requirements. Both applications for permission and for a stay were refused. The costs orders relating to the acknowledgements of service were confirmed.

First-instance linked applications for permission to apply for judicial review and stays. The judgment records earlier refusals of permission on the papers by Mr Justice Blake and refusals of stays by Mrs Justice Thirlwall, with no appeal from those decisions.