October 30, 2020

Mandatory life sentences must end says HRC

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Human RightsFrom the Cayman Islands Human Rights Commission Report: “WHOLE-LIFE SENTENCES” – NOT COMPLETE

The Impact of Human Rights and the Need for a New Model

MESSAGE FROM THE HUMAN RIGHTS COMMISSION

Human rights are the essential rights and freedoms that belong to all individuals regardless of their nationality and citizenship, age, gender, or social status. These rights are considered fundamental to maintaining a fair and just society. Fundamentally, human rights are about the balance of rights, freedoms, and responsibilities; treating individuals fairly, with dignity and respect – while still safeguarding the rights of the wider community.

All across the world, many countries are learning to ‘take human rights home’ by introducing constitutions or human rights laws and commissions to safeguard the rights of their citizens. The Cayman Islands has sought to do this by the inclusion of Part 1 in the Cayman Islands Constitution Order 2009 – the Bill of Rights, Freedoms and Responsibilities (BoR).

The BoR is the cornerstone of democracy for the Cayman Islands. It embeds protection for fundamental rights, tailors to local needs and values, includes extra rights in other treaties like the International Covenant on Civil and Political Rights as well as the Universal Declaration on Human Rights; details standards in service, and promotes a culture for the respect of rights.

The Human Rights Commission (HRC) was established under section 116 of the 2009 Constitution as an independent body and has a number of constitutional mandates, including promoting understanding and observance of human rights in the Cayman Islands and providing advice to persons who consider that their rights or freedoms have been infringed. In line with those mandates the Commission receives and considers complaints from members of the public.

Several such complaints have been received over the life of the Commission that relate to alleged breaches of human rights due to the complainant having been sentenced to the mandatory punishment for a murder conviction – life imprisonment without the possibility of release or parole, otherwise known as a whole life sentence. Such complaints remind us that the question of how societies should respond to their most serious crimes, if not with the death penalty, is perhaps the oldest and most sensitive issue underpinning the topic of crime control.

With the introduction of the BoR and that key question in mind, the HRC sought to produce this report in order to provide the people of the Cayman Islands with the information necessary to have constructive dialogue during the search to an answer that is appropriate to the situation in our islands.

LOCAL BACKGROUND

After discussions between the British Government and Governors of five British dependent territories the Cayman Islands abolished the death penalty for those convicted of murder in 1991. Persons sentenced to death prior to 1991 had their sentences commuted to life sentences. Today, the Penal Code (2013 Revision) s.182 makes it clear that: any person convicted of murder shall be sentenced to imprisonment for life.  Trial judges, therefore, have no discretion to hand down any other sentence to persons convicted of murder.

In 2006, the Cayman Islands Human Rights Committee (now defunct) published a report, The Lifers Case, detailing the Committee’s position in relation to international human rights standards, treaties, and obligations of the Cayman Islands.   In its report, the Committee recommended that Cayman’s legislators examine developments in the U.K. legal regime including the tariff system (minimum terms) to ensure Cayman’s compliance with United Nations human rights obligations as it relates to mandatory life sentences.

In response to that report in 2006, the Honourable Attorney General indicated that the (then) administration would work toward reviewing the relevant laws  underpinning  mandatory  life sentences for all murder convictions, and drew attention to the fact that jurisdictions across the world were at various stages in the process of moving away from the use of mandatory life sentences that do not include a review mechanism. The Attorney General further stated that “there’s a social element, there’s a political element, and there’s a wider issue of how the  perception [of] a government would be dealing with the people who have committed the most heinous crimes.”

Seemingly, there appeared to be an acceptance in 2006 that all murders do not weigh the same in the scales of human wickedness; yet we discover in present-day that all murders continue to be equal before the law wherein judges have no option other than to impose mandatory life sentences (whole life – no release) for any person convicted of murder regardless of the circumstances surrounding the crime.

As early as 2010, the Human Rights Commission stated that the blanket mandatory whole life sentence for murder would conflict with the Government’s BoR positive obligation to ensure that no person is subjected to torture or inhuman or degrading treatment or punishment.  The Commission, therefore, reiterated the Human Rights Committee’s recommendation from four years earlier in stating that legislation will need to be changed in order to establish tariffs that empower judges to proportionately respond to the circumstances of each particular murder conviction when handing down a sentence.

As reported in the media, following the implementation of the Cayman Islands Constitution at the end of 2009, a number of laws have needed to be changed and, according to the Attorney General, the Government working to amend them to meet the requirements of country’s highest law4. Naturally, the Human Rights Commission anticipates that any such review process would have considered reforming the Penal Code’s legal framework and sentencing guidelines in relation to mandatory whole life sentencing for murder convictions. As the BoR is now a legitimate mechanism of local human rights protection, the reality exists that prisoners sentenced under section 182 of the Penal Code (2007 Revision) – Any person convicted of murder shall be sentenced to imprisonment for life5  – may, if compelled to do so, challenge its constitutionality.

Without that review, the only mechanism that exists for ‘lifers’ to be released from prison is s.39 of the Constitution Order (2009), which entrenches the Powers of Pardon granted to the Governor, after having taken advice from the Advisory Committee on the Prerogative of Mercy (s.40).

CAYMAN ISLANDS CONSTITUTION ORDER (2009)

Over recent years, however, a number of international developments have placed limitations on the introduction and blanket use of ‘Life without Parole’ as an alternative to the death penalty. Locally, the implementation of Part One of the Cayman Islands Constitution Order – the Bill of Rights, Freedoms and Responsibilities (BoR) has highlighted the need to review the current legislation which governs the handing down of whole life sentences for murder convictions. The relevant sections of the BoR to this topic are as follows:

Torture or Inhuman Treatment

3. No person shall be subjected to torture or inhuman or degrading treatment or punishment.

Powers of Pardon

39. (1) The Governor may, in Her Majesty’s name and on Her Majesty’s behalf—

a.         grant to any person concerned in or convicted of any offence against any law in force in the Cayman Islands a pardon, either free or subject to lawful conditions;

b.   grant to any person a respite, either indefinite or for a specified period, from the execution of any sentence passed on that person for such an offence;

c.          substitute a less severe form of punishment for that imposed by any sentence for such

an offence; or

d.   remit the whole or any part of any sentence passed for such an offence or any penalty or forfeiture otherwise due to Her Majesty on account of such an offence.

(2) In the exercise of his or her powers under this section the Governor shall consult the Committee established by section 40, but he or she shall decide whether to exercise any of those powers in any case in his or her discretion, whether the members of the Committee concur in his or her decision or otherwise.

Advisory Committee on the Prerogative of Mercy

40. (1) There shall be in and for the Cayman Islands an Advisory Committee on the Prerogative of Mercy, which shall consist of the Attorney General, the Chief     Medical   Officer   and four other members, of which two shall be appointed by the Governor acting after consultation with the Premier and two shall be appointed by the Governor acting after consultation with the Leader of the Opposition.

(2) The Committee shall not be summoned except by the authority of the Governor, acting in his or her discretion; and the Governor shall preside at all meetings of the Committee.

(3) No business shall be transacted at any meeting of the Committee unless there are at least three members present, of whom one shall be the Attorney General.

(4) The office as a member of the Committee of any member appointed by the Governor under subsection (1) shall become vacant if the Governor, acting after consultation with the Premier and the Leader of the Opposition, revokes his or her appointment as a member of the Committee.

(5) Subject to subsection (3), the Committee shall not be disqualified for the transaction of business by reason of any vacancy in its membership, and the validity of the transaction of any business by the Committee shall not be affected by reason only of the fact that some person who was not entitled to do so took part in the proceedings.

(6) Subject to this section the Committee may regulate its own proceedings.

Due to the relatively small size of the Cayman Islands jurisdiction, local jurisprudence has not been developed to an extensive degree with respect to human rights. For this reason, it is rational to expect that influential decisions of the English courts would be regularly relied upon by Grand Court judges in the Cayman Islands. Traditionally, this has been the case in other areas of law wherein such decisions have been regarded as highly persuasive by the Cayman courts where they deal with common law principles (or statutes where the relevant Cayman Islands statute has the same or similar wording).   The significance here is twofold – (1) the European Convention on Human Rights is much the same as the Cayman Islands BoR, with a few exceptions, and (2) UK courts take account of rulings by the European Court of Human Rights on matters related to human rights. Notably, a declaration of incompatibility by our Grand Court would not affect the continuation in force and operation of the legislation or section(s) in question.   Rather, in the event of a declaration of incompatibility, the Legislature – which remains independent of the Judiciary, shall decide how to remedy the incompatibility.

BRIEF HISTORY OF THE UK MODEL

The formal setting of punitive periods for lifers, within life sentences, was introduced in 1983 by the then Home Secretary, Leon Brittan. Under those arrangements, Home Office Ministers set a minimum period of imprisonment – known as the ‘tariff’ – to satisfy the requirements of retribution and deterrence and to specify that period which had to be served in full before a lifer’s release could be considered by the Parole Board. However, this period did not provide an automatic release date, as lifers could be detained beyond the tariff expiry date, for as long as necessary, on grounds of his or her risk to the community. Therefore, life sentences normally contain a ‘punitive’ period, represented by the tariff length and a ‘preventative’ period during which an individual’s release on licence is dependent on an assessment of his or her risk.

Over the years, the Ministerial power to set punitive periods has gradually passed to the courts and is announced by the trial judge in open court. As a result, judges can now set a minimum term for all life sentence prisoners to reflect the appropriate punitive period to be served from the date of sentence. Under the Criminal Justice Act 2003, the trial judges became responsible for setting the minimum term for adult mandatory lifers. Transitional arrangements in the 2003 Act allowed those adult mandatory lifers whose tariffs had either been set previously by Ministers, or had not been set when the relevant provisions of the Act came into force on 18 December 2003, to apply to have the minimum term set or re-set by a High Court judge.

Recently, the path was paved for further changes to the UK’s life imprisonment sentencing regime. On 9 July 2013, UK prisoner Jeremy Bamber and two other prisoners successfully won an appeal to the European Court of Human Rights. The court concluded that whole life imprisonment (with no chance of parole) was in contravention of Article 3 of the European Convention on Human Rights – the right not to be subjected to torture, and inhuman or degrading treatment or punishment. The court ruled there was ambiguity in the UK law on the tariffs – or minimum prison terms – concerning whole life sentences. Specifically, the court found that “there is a lack of clarity as to the current law concerning the prospect of release of life prisoners” in the UK, under section 30 of the Crime (Sentences) Act 1997.9 Given this lack of clarity and the absence of a dedicated review mechanism for whole life orders, the court was not persuaded that, at the present time, the applicant’s life sentences were compatible with Article 3. The Grand Chamber of the European Court on Human Rights voted overwhelmingly in favour of the decision by 16-1, wherein it was determined that whole life orders must contain a review at some stage; however, the court has left it to the national authorities to determine the structure of such reviews In the UK there are 49 instances of prisoners serving whole life sentences without the requirement for any such review.

Of utmost importance with respect to the impact of the Grand Chamber’s ruling in the Jeremy Bamber case is that the decision “does not mean that the applicants in the present case must be released in the near future and it offers no guarantee that they will ever be released.” The ruling indicated, “the balance between justifications for detention is not necessarily static and may shift in the course of the sentence. What may be the primary justification for detention at the start of the sentence may not be so after a lengthy period into the service of the sentence.” In essence therefore the ruling indicates that prisoners sentenced to life in prison should have the possibility of arguing at some point, even if after a lengthy period in prison, that their detention is no longer necessary in the interests of punishment, deterrence and protection of the public and that their release would be justified on grounds of rehabilitation.

DERIVING A MINIMUM TERM

While it is not the intention of the HRC to suggest starting points or minimum terms as it relates to life sentences for murder in the Cayman Islands, the following is a list of varying circumstances, as detailed in the UK Criminal Justice Act 2003 (Schedule 21) that demonstrate categorical differences that can lead to starting point groupings:

 the murder of two or more persons where each murder involved a substantial degree of

premeditation, the abduction of the victim prior to the killing, or sexual or sadistic conduct;

 the murder of two or more persons (other than circumstance above);

 the murder of a child following abduction or involving sexual or sadistic motivation;

 murder committed for the purpose of advancing a political, religious, racial or ideological cause;

 murder by an offender who has previously been convicted of murder.

 murder of a law enforcement officer in the course of his duty;

 murder involving the use of a firearm or explosive;

 murder for gain (e.g. a contract killing or murder during the course of a theft, burglary, or robbery);

 murder intended to obstruct the course of justice (e.g. murder of a witness);

 murder involving sexual or sadistic conduct;

 murder motivated by race, religion, nationality, sexual orientation, disability, or transgender identity;

LIFE SENTENCES IN THE EU CONTRACTING STATES

According to a comparative study23 the majority of European countries do not have irreducible life sentences. These countries either have no life sentences at all or have a statutory provision requiring that all individuals who are sentenced to life imprisonment must be considered for release after having served a fixed period.

The study concluded that only the Netherlands and England and Wales have irreducible life sentences.

LIFE SENTENCES AROUND THE WORLD

A number of European countries have abolished all forms of indefinite imprisonment, thus setting out clearly the maximum time that an individual can be imprisoned without the opportunity to apply for parole.

The only country in Asia to have abolished all forms of indefinite imprisonment is the Chinese dependency (Special Administrative Region) and former Portuguese colony of Macau.

Three African countries, the Republic of the Congo, Mozambique, and Cape Verde have abolished life imprisonment.

In South and Central America, Honduras, Nicaragua, El Salvador, Costa Rica, Venezuela, Colombia, Uruguay, Bolivia, Ecuador, and the Dominican Republic have all abolished life imprisonment.

In the United States, a 2009 report by the Sentencing Project suggested that life imprisonment without parole should be abolished, a suggestion that was met with opposition from law enforcement officials.

CONCLUDING REMARKS

On the surface, ‘life without parole’ as a sentence for murder seems to be an attractive and logical punishment under the modern coercive crime-control principles of general deterrence and incapacitation. Yet, there is increasing evidence to doubt the efficacy of using such principles of distributive punishment. The HRC is of the view that moral claims about a penal system’s punishment can be reduced to two propositions: (1) punishment should be imposed because defendants deserve it, and (2) punishment should be imposed because it makes society safer.26

The HRC is concerned that a lack of willingness by the Legislature to grapple with this serious and sensitive issue will lead to the Cayman Islands being forced to adopt system from another jurisdiction; foregoing the opportunity to tailor a system to the unique circumstances of our jurisdiction.  The HRC therefore encourages a proactive approach to this exercise and as such the HRC has reached out to the past and current Government in an effort to bring attention to the fact that the Cayman Islands is at a point in time whereby, although limited, a window of opportunity is still available to find an appropriate balance and construct a human-rights-compliant life sentence tariff system that protects the rights and freedoms of the community while protecting the inherent dignity of the individual in accordance with the BoR..

The HRC reminds the public that the concept of introducing a minimum tariff for lifers will serve to satisfy the (1) requirements of retribution and deterrence, and (2) human rights requirements by providing those sentenced with a minimum period which must be served in full before a ‘lifer” is given the opportunity to apply and be considered for release on parole. Further, it should be noted that this opportunity is just that – an opportunity – not an automatic release date as the system would allow for a ‘lifer to be detained beyond the tariff expiry date, if it was reasonably justifiable in a democratic society. A regime such as this one would go beyond our current regime so as to not compromise principles of universal human rights and inherent human dignity, ignore the capacity for redemption and rehabilitation, or deny individuals of the opportunity to be considered for release.

Perhaps the strongest objection to mandatory whole-life sentencing is that it is a blunt sentencing tool, which applies the same sentence to all offenders who have committed the same crime without due regard to the principle of proportionality; a necessary consideration in human rights law. The Cayman Islands can ill-afford, as a jurisdiction party to the European Convention on Human Rights, and a country with a Bill of Rights built on the aforementioned convention, to ignore the reality that our system of whole life sentencing is by all indications violating persons’ fundamental human rights. In other words, it is apparent that when the defendant’s continued imprisonment can no longer be justified under any legitimate penal rationales, there is a violation of an individual’s right not to be subjected to torture, inhuman and degrading treatment or punishment as provided for in Section 3 of the Constitution Order (2009) and Article 3 of the European Convention on Human Rights.

The HRC hopes that the preceding report, and the accompanying appendices, has shed light on the increasing overlap between punishment and human rights concerns and that the most appropriate response is to progressively reform our existing mandatory whole life sentencing system with the support of evidence-led policies and legislation that facilitate human rights compliance.

The complete HRC Report can be downloaded at:

http://www.humanrightscommission.ky/pls/portal/docs/PAGE/HRTHOME/FOI/DOCLIBRARY/TOPICS/HUMAN%20RIGHTS%20COMMISSION%20REPORT%20ON%20WHOLE%20LIFE%20SENTENCES_13%2011%2013.PDF

 

 

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