SCOTLAND may have escaped the latest ECHR decision but creeping encroachment casts a long shadow, writes Bill Jamieson
ON A narrow interpretation Scotland could be said to have little to fear from the European Court of Human Rights (ECHR) ruling that whole-of-life sentences are a breach of human rights. It only applies to England and Wales. In Scotland, there is no provision for a whole-life tariff.
And are we not in any case a more liberal and progressive people, and generally more supportive of the workings of the ECHR? It is England that has the problem. Its objection to the ECHR can be seen to spring from its wider Euro-scepticism and the “law ‘n’ order” element that has been a highly vocal part of the Conservative vote.
So, it’s not our problem, is it? However, you do not need to be a paid-up member of the League of Union Loyalists to be troubled about this latest ruling. Indeed, there will be many SNP supporters who are watching the growing encroachment of the Strasbourg court with some trepidation.
What are the limits – if any – on the writ of the ECHR? How wide and how deep does its jurisdiction run? And how far does that other fundamental principle – the right of people to determine their own laws in their own countries – have to be ceded before a widespread public frustration and rejection kick in?
And it is for this reason that the ever expanding writ of the ECHR should be of considerable concern to us here. Scotland has always prided itself on its separate and distinctive legal system. It is one of the defining characteristics of our difference and distinction. We guard it with pride and would resist encroachment from London. Why should the prospect of encroachment from Strasbourg be treated any differently?
That the Scottish legal system does not have a whole-of-life sentencing capacity may be fortuitous in this instance. But it does not provide us with any guarantee of future encroachment in other areas. And that encroachment we may well find disagreeable and indeed profoundly offensive. We are swift to uphold our right to a separate system of jurisprudence reflective of local conditions and preferences. By the same token we would be sensitive and respectful of the right of other countries to have differences in their legal approach and application, particularly when those differences have been overwhelmingly endorsed in an act of parliament enjoying wide cross-party support.
So, consider the broader picture of the ruling this week that the life sentences given to murderer Jeremy Bamber and two other killers breached their human rights. The judges ruled by 16 to one there had to be a review of the sentence and while stipulating this did not mean “any prospect of imminent release” did endorse release as a possibility.
Whole-of-life sentencing in England and Wales is not some barbaric hangover from mediaeval times. It was adopted by a substantial majority in the UK parliament as recently as 2003 in response to particularly heinous and brutal slayings. And the resort to whole-of-life sentencing is specifically limited to those, fortunately very few, instances where a convicted criminal has not only taken someone’s life in exceptionally barbaric and heinous circumstances, but has done so intentionally. The loss of life has been no unintended consequence or sudden impulse. Whole-of-life sentencing also has regard to the protection of citizens from attack by dangerous criminals who are liable to re-offend on release – a particularly important consideration given recent instances of savage re-offending.
Consider the cases of the three whose appeal the ECHR has now upheld. Bamber was found guilty in 1986 of murdering his wealthy adoptive parents June and Neville. He also slayed his sister Sheila Caffell and her twin sons, Daniel and Nicholas, aged six. The bodies of all five of his victims were riddled with bullets. The motive was the prospect of inheriting a £435,000 family fortune. He claimed that his sister had carried out the massacre, a claim police were minded to consider until his ex-girlfriend told them he had discussed having his parents murdered by a contract killer. The trial judge described him as “evil, almost beyond belief”. A court of appeal rejected his case.
A second murderer, Douglas Vintner, admitted killing his wife in 2008 after having served a sentence for a previous murder. The third appellant, Peter Moore, murdered four men in the space of four months in 1995. The ECHR has now ruled that their sentences are a breach of their human rights and their treatment “inhuman and degrading”. One might consider this a far more apt summary of the treatment the murderers meted out to their victims, who are in no position to launch appeals to the ECHR.
Apologists for the Strasbourg court argue that there has to be an alternative to “prison for life”. But in fact there was one for a very long period: the death sentence. When that was abolished, a life sentence in prison was seen by abolitionists to be altogether more humane.
There are currently 49 murderers facing whole-life sentences who could be affected by this ruling. They include Peter Sutcliffe, the Yorkshire Ripper, Ian Brady, the Moors murderer, Levi Bellfield, the killer of Milly Dowler and Dale Cregan who shot dead two unarmed police officers in Manchester.
All have enjoyed right of appeal against their sentences. But there is one party that has no such right. This is the UK government, which cannot appeal this ruling by the ECHR.
By ruling as it has, the ECHR, says Martin Howe QC, a member of the government’s Commission on a Bill of Rights, “has restricted the legitimate right of states to take their own decisions in accordance with their own democratic processes, about the balance that their laws should strike between different interests”.
The creeping jurisdiction of the ECHR seems beyond question or challenge, as indeed is the consistency of its rulings, bearing in mind a previous ruling that states can lock up dangerous killers forever.
The ECHR, Howe adds, has moved well away from its original purposes and “rather than imposing minimum standards has put a straitjacket on the judgements of democratic governments on difficult issues where there are legitimate differences of view”. And this coming on top of the legal farrago over the deportation of the radical cleric Abu Qatada, may well further inflame public opinion to the point where withdrawal from the European Convention on Human Rights becomes a significant vote-catcher in the next UK general election.
That danger was well highlighted by former Labour Home Secretary David Blunkett speaking this week. “Whatever the technical justification the Strasbourg court may have”, he warned, “it is the right of the British parliament to determine the sentence of those who have committed such crimes. To do otherwise can only lead to disillusionment, mistrust of, and a dangerous alienation from, our democracy itself.” It is a warning as applicable to the Scottish Parliament as to the UK.
An unchecked ECHR risks bringing into public disrespect the founding principles which were once universally supported, and why its latest ruling is very much an issue for us all.