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The Right to Marry and Whole Life Orders

  • helenhall5
  • 9 hours ago
  • 5 min read

Dr Sophie Gallop, Senior Lecturer NLS, https://www.ntu.ac.uk/staff-profiles/law/sophie-gallop



Last year Parliament enacted the Victims and Prisoners Act 2024, a statute aimed at providing greater focus on the victims of criminal conduct within the criminal justice system. One key change was a provision preventing prisoners subject to a whole life order from marrying or entering into a civil partnership (see sections 75 and 76 which amend The Marriage Act 1949 and the Civil Partnership Act 2004). The changes to the law were precipitated by an application by prisoner and serial killer Levi Bellfield to marry his girlfriend, which were opposed by the Government but could only be refused in the event of security concerns. Bellfield, alongside less than 100 other prisoners in the UK, is subject to a whole life order.


Whole life orders are the most severe form of punishment within the British criminal justice system reserved for instances where the court considers the seriousness of the murder, or combination of offences, particular high such that the perpetrator should never be released from prison. As a result, under a whole life order there is no minimum tariff and therefore no prospect of ever being released. Previously, all prisoners regardless of the length of their sentence could make a formal application to marry or form a civil partnership. The Governor of the Prison was then expected to make necessary practical arrangements to enable the marriage or registration of civil partnership, provided that this was compatible with the security of the prison. However, following the amendments introduced in August, a prisoner serving a whole life tariff will not be able to marry or form a civil partnership, unless they get the permission of the Secretary of State to do so, and this permission may only be granted when the Secretary of State is satisfied that the circumstances are exceptional. 


The Right to Marry

The right to marry is enshrined in Article 12 of the European Convention on Human Rights, which allows men and women of marriageable age the right to marry and found a family. The European Court of Human Rights (ECtHR) has found that the right to marry gives rise to personal, social, and legal consequences. However, the right to marry is not absolute, and is subject to the national laws governing the exercise of this right. On this the ECtHR has concluded that limitations on the right to marry under national law may be acceptable, nevertheless any impediments may not restrict it in such a way as to impair the very essence of the right.


The ECtHR has previously dealt with various cases involving prisoners and the right to marry. Whilst the ECtHR has found that detention itself should not prevent someone from exercising their right to marry, it has similarly noted that for serious offences a restriction on the right to marry may be justifiable on the basis of public interest considerations. However, the ECtHR has concluded that the State may not interfere with an individual’s right to marry on the grounds that the relationship was not acceptable to them, or because the relationship might offend public opinion. Importantly the ECtHR has drawn a distinction between the Right to Marry, which has very limited exceptions, compared to the Right to a Family and Private Life, which may be interfered with for purposes such as ‘the protection of health or morals’, or ‘the protection of rights and freedoms of others’.


A Future Claim before the ECtHR?

It would appear that the new Labour government may well have left itself open to a human rights claim from prisoners under a whole life tariff who have been effectively denied their Article 12 right to marry.


The ECtHR has been very unwilling to accept impediments on a prisoner’s right to marry unless the State can demonstrate that the denial was based on grounds linked to prison security or  disorder. In the case of Jaremowicz Strasbourg concluded that the denial of the marriage between two persons who had struck up a relationship whilst both were in prison was based on the ‘highly subjective opinion on what kind of relationship should not deserve solemnisation through marriage’. More generally, the European Commission on Human Rights, and later the European Court of Human Rights, have consistently held that the right to marry extends to all prisoners, including those serving a life sentence. As such a blanket ban on prisoners marrying (where day release in order to marry could only be granted to legitimise a child), and a smaller blanket ban on all prisoners serving whole life sentences from marrying, were both found to undermine the Right to Marry under the Convention.


But will such a claim ever reach Strasbourg?


It is perhaps statistically unlikely that a claim will be brought.  A person may only bring proceedings when they are themselves the victim of the unlawful act (Human Rights Act 1998 s7(1)), must have exhausted all domestic remedies and be able to demonstrate that they have suffered a ‘significant disadvantage’. As of June 2023 there were only 65 prisoners who were subject to a whole life order (including Rosemary West, Levi Bellfield, Wayne Couzens, Michael Adebolajo, and Lucy Letby). On that basis, there are very few persons who would be a direct ‘victim’ or be ‘significantly disadvantaged’ by the change in the law, with it seemingly being limited to those 65 prisoners or the individual(s) that wish to marry them.


Nonetheless, the Labour government appears to be walking a legal tightrope since commencing these provisions into law. The Right to Marry has far fewer justifiable exceptions than other comparable rights, such as the right to a family and private life, and Strasbourg has consistently reemphasised that Article 12 should be read so as to ensure that any domestic laws must ensure that a ‘person or category of persons’ are not otherwise deprived of their right to marry. On that basis, it appears that these provisions may result in renewed tensions between Strasbourg and the UK for our newly ensconced government, although perhaps, given the backlog of the cases before the European Court of Human Rights, not in the immediate future.


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