Human rights – Penology and Criminology – Inhuman or degrading treatment or punishment – Life imprisonment

R v David Francis Bieber (AKA Coleman): CA (Crim Div) (Lord Chief Justice Lord Phillips of Worth Matravers, Mr Justice Pitchford, Mrs Justice Dobbs): 23 July 2008

The appellant (B) appealed against his sentence of life imprisonment with an order that the early release provisions should not apply.

B had been stopped in his car by police officers on routine patrol. Three officers approached the patrol car to assist taking B to the police station. B produced a handgun and fired five rounds of ammunition within eight seconds. All three police officers were hit. B then stood over one of the wounded officers (P) and shot him through the head, killing him. B was convicted of one count of murder, two counts of attempted murder and two counts of possession of a firearm and ammunition with intent to endanger life. B appealed against his whole life sentence on the basis that the facts of the instant case did not justify the imposition of a whole life order and that a whole life order infringed his rights under article 3 of the European Convention on Human Rights 1950 and should not have been imposed.

Held: (1) The instant court was able to advance the propositions, based on the decision in Kafkaris v Cyprus (unreported) 12 February 2008, that: (a) the imposition of a sentence of life imprisonment would not invoke a violation of article 3 if the sentence was reducible; (b) the fact that the offender might be detained for the whole of his life did not involve a violation of article 3; (c) the imposition of a life sentence that was irreducible might raise an issue under article 3, Kafkaris applied. The court in Kafkaris considered that an irreducible life sentence raised an issue under article 3 in circumstances where it might result in an offender being detained beyond the term that was justified by the legitimate objects of imprisonment. No issue under ­article 3 appeared to arise provided that there was, in law and in practice, a possibility of the offender being released. Where a crime attracted a mandatory and irreducible life ­sentence regardless of the particular circumstances of the crime, an issue would arise in relation to article 3. It was the consequent detention rather than the sentence that was capable of violating article 3. While under English law the offence of murder attracted a mandatory life sentence, this was not normally an irreducible sentence. Where a whole life term was specified that was because the judge considered that the offence was so serious that the offender must remain in prison for the rest of his days. The Strasbourg court had not ruled that an irreducible life sentence, deliberately imposed by a judge in such circumstances, would result in detention that violated article 3.

(2) The secretary of state had a ­limited power to release a life prisoner under section 30 of the Crime (Sentences) Act 1997. If the continued imprisonment of a prisoner was held to amount to inhuman or degrading treatment there was 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 him. For those reasons, applying the approach of the Strasbourg court in Kafkaris, a whole life term should not be ­considered as a sentence that was irreducible. Any article 3 challenge where a whole life term had been imposed should therefore be made, not at the time of the imposition of the sentence, but at the stage when the prisoner contended that, having regard to all the material circumstances, including the time he had served and the progress made in prison, any further detention would constitute degrading or inhuman ­treatment. B’s challenge under article 3 failed.

(3) B’s case fell within the 30-year starting point for two reasons. The murder was of a police officer in the course of his duty and involved a firearm. Added to that was the effect of the associated offences of ­attempting to murder two other police officers by shooting. Those factors ­justified a substantial increment above the 30-year starting point. The factor that led the judge to impose a whole life sentence was that B had executed P in cold blood. The 30-year starting point already assumed that the offender had an intention to kill. The facts of the instant case, horrifying as they were, did not justify the ­imposition of a whole life tariff. The seriousness of the offence was to a significant extent reflected by the starting point of 30 years. To this should be added a further seven years to reflect the aggravating features, making a total minimum term to be served of 37 years before consideration was given to B’s release on licence.

Appeal allowed.

ADH Trollope QC, RZ Bright for the appellant; R Smith QC, J Simor (for the respondent).