Tariff periods for people convicted
77. Similar issues potentially arise in relation
to clauses 254 and 262 of, and Schedule 17 to, the Bill. These
provisions, introduced on Report in the House of Commons, contain
the Government's response to several recent decisions of the House
of Lords and the European Court of Human Rights on the fixing
of the minimum term of imprisonment to be served before a person
sentenced to life imprisonment for murder may be considered for
release on licence.
78. The new provisions are designed to remove
two incompatibilities between section 29 of the Crime (Sentences)
Act 1997, under which the Secretary of State is ultimately responsible
for setting the minimum period to be served by a mandatory life
sentence prisoner before being eligible for release, with ECHR
Article 5.4 (the right to have the lawfulness of detention decided
speedily by a court and his release ordered if the detention is
not lawful) and Article 6 (right to a fair hearing by an independent
tribunal in the determination of a criminal charge).
79. The European Court of Human Rights held in
Stafford v. United Kingdom
that the Secretary of State's role in determining the release
date for a life sentence prisoner violated the right under ECHR
Article 5.4 to have the lawfulness of detention decided speedily
by a court and his release ordered if the detention is not lawful.
Next, a seven-judge Appellate Committee of the House of Lords
held in R. (Anderson) v. Secretary of State for the Home Department
that the role of the Secretary of State in fixing the minimum
term to be served by a mandatory life prisoner was an aspect of
the determination of a criminal charge. In substance, it was part
of the process of setting the sentence, and so was part of the
trial for the purpose of Article 6. The Secretary of State is
not independent of (indeed, is an integral part of) the executive,
so there had been a breach of the right to a fair hearing by an
independent tribunal in the determination of the criminal charge
under ECHR Article 6.1. The House of Lords decided that it should
not try to interpret section 29 of the 1997 Act in a manner compatible
with Article 6.1, because the section represented a clear legislative
choice to make the Secretary of State responsible for setting
the minimum term to be served. Their Lordships therefore made
a declaration of incompatibility.
80. We welcome the Government's willingness to
address the incompatibilities. In dealing with them, the Government
is keen to limit the discretion of judges in setting minimum terms
and to make Parliament responsible for setting the guiding principles.
81. The scheme of the amendments therefore incorporates
'starting points' for judges when deciding what term of imprisonment
is appropriate for the purposes of punishment and deterrence,
taking into account the seriousness of the offence or offences
and the time already spent in custody. When making these assessments,
the court would be required to have regard to scheduled general
principles and other sentencing guidelines not incompatible with
them. The Secretary of State would be empowered to amend the scheduled
principles by order. A court would have to state in open court
the reasons for its decision, the scheduled principles on which
it relied, and its reasons for any departure from the starting
point provided by those principles.
82. The principles to be followed are set out
in Schedule 17 to the Bill. The Schedule specifies three starting
points for deciding on the minimum term of imprisonment: a full-life
term for cases of exceptionally high seriousness; thirty years
for particularly serious cases not falling into the first category;
and fifteen years for other cases. Paragraphs 4 to 6 of the Schedule
set out the criteria for deciding the class of murder into which
a case falls. The minimum term could then be adjusted to take
account of aggravating and mitigating factors, a number of which
are specified in paragraphs 9 to 11 of the Schedule.
83. The provisions would remove the role of the
Secretary of State in setting minimum terms of imprisonment, and
with it the cause of the incompatibilities between the current
law and ECHR Articles 5.4 and 6.1. We welcome this.
84. At the same time, the provisions give rise
to two new human rights questions.
would the scheduled principles, and the requirement that the court
should justify any departure from them, fetter the judicial discretion
to such an extent that the judges would be prevented from exercising
their independent sentencing function in the light of the facts
of each case and the circumstances of each offender? If the scheduled
principles have that effect, they might constitute a threat to
the right to a fair hearing in the determination of a criminal
charge, leading to a new violation of Article 6.1.
would the principles operate in an arbitrary or discriminatory
way? If so, the detention pursuant to the principles might not
be justifiable under ECHR Article 5.1(a). Such a detention must
be 'lawful' and 'in accordance with a procedure prescribed by
law'. The European Court of Human Rights has held that a detention
under Article 5 is lawful only if it is not be arbitrary. If the
scheduled principles operate in a discriminatory way, it could
also breach Article 14 taken together with Articles 5.1 and 6.1.
87. These questions must be approached in the
light of a number of factors. First, the purpose of Articles
5.1 and 6.1 is to give effect to the principles of non-arbitrariness,
due process, and the separation of powers, which form important
aspects of the Rule of Law as it applies to the criminal process.
Secondly, courts in the United Kingdom have consistently
held that it is a cardinal principle of sentencing that the sentence
should be properly related both to the seriousness and circumstances
of the offence and to the circumstances of the offender. There
is a risk that fixing a very long minimum sentence without regard
to the particular circumstances of the offence and of the offender
might amount to inhuman or degrading punishment.
the English courts have a duty under section 3 of the Human Rights
Act 1998 to read and give effect to legislation in a manner compatible
with Convention rights so far as it is possible to do so. They
will not use section 3 to fly in the face of a decision of Parliament
expressed in clear terms in a statute,
but they have held that a statutory duty to impose a life sentence
for a second serious offence save in exceptional circumstances
allows them to take account of the fact that an offender would
not represent a serious continuing threat to the public as an
89. Would the scheduled principles operate so
as to deprive the defendant of the benefit of a fair hearing by
an independent tribunal? The process of fixing the minimum term
involves several steps. First, the court would select a starting
point, taking account of the factors set out in paragraphs 4-6
of the proposed new Schedule but, save in one respect, not being
bound by them. Cases in the categories described in those paragraphs
are said 'normally' to fall within one or other of the groups
for a whole life, 30 year or 15 year starting point. Subject to
what is said in the following paragraphs, nothing in the scheduled
principles would compel a court to select one starting
point rather than another, or to use either whole life or 30 years
as a starting point, or to assign a case to one category of seriousness
rather than another. However, it seems to us that courts are unlikely
to move far from the starting points set out in the Schedule,
particularly as they would in any case be able to adjust the minimum
term in the light of mitigating or aggravating factors.
90. Potential arbitrariness.
In a case not classified as being of exceptionally high or particularly
high seriousness, the appropriate starting point is specified
in paragraph 6 as 15 years. As well as applying to adult offenders
whose offences are not regarded as being of particularly high
seriousness, this applies to juveniles however serious their crimes
are thought to be. This is an arbitrary choice.
91. If the effect were to impose a mandatory
minimum term of imprisonment regardless of the circumstances of
the offender, this might lead to a degree of arbitrariness which
would deprive the sentence of the quality of lawfulness necessary
to be justifiable under Article 5.1. It would also be likely to
deprive the offender of the benefit of a fair hearing, because
he or she would have no opportunity to try to persuade an independent
tribunal to impose a shorter minimum term. For the same reason,
it might amount to inhuman or degrading punishment: the court
would be unable to take account of the humanity or inhumanity
of imposing such a sentence.
This is a particularly severe risk when dealing with juvenile
92. In addition, a risk of arbitrariness is inherent
in the scheduled principles themselves. For example, murder to
advance a political, religious or ideological cause would normally
fall within the most serious category of cases, while murder for
gain would fall within a less serious category. Yet advancing
a political, religious or ideological cause is a sufficiently
valuable purpose to attract the protection of Convention rights
under ECHR Articles 9 and 10, while the pursuit of gain might
be thought to have less redeeming social value.
Then again, the murder of a police or prison officer would be
treated as more serious than that of a parking warden, security
guard or judge; and murder using a firearm would be regarded as
more serious than murder by knife or poison. The reason for these
distinctions is not immediately obvious.
93. However, the choice of starting point would
not lead mechanically to the selection of a minimum term. There
is a second stage in the process, in which the court adjusts the
minimum term to take account of mitigating or aggravating factors.
The lists of those factors in paragraphs 9 and 10 of the proposed
new Schedule are not expressed to be exhaustive, so other factors
may be thrown into the balance if relevant in individual cases.
The weight given to any of these factors is a matter for the judgment
of the sentencing court. In principle, it should therefore be
possible for the court to individualize the minimum period of
imprisonment to the circumstances of the offence and of the offender.
In performing its functions, the court would no doubt be mindful
of its responsibilities to act compatibly with Convention rights,
as a public authority within the meaning of section 6 of the Human
Rights Act 1998.
94. On the face of it, therefore, it should be
possible for courts to preserve their independence of the executive
and the legislature and to set a minimum period of imprisonment
which takes account of all the circumstances of the offence and
all the circumstances of the offender. Such an approach would
be compatible with Convention rights. If that is to be achieved,
courts would have to feel free to use the entire range of possible
periods of imprisonment, discounting heavily for mitigating factors
and not increasing penalties too much for aggravating factors.
However, the Home Secretary has let it be known that he anticipates
that the statutory starting points would produce higher minimum
sentences in some cases than are currently imposed by him on advice
from the judges.
If this policy is given parliamentary approval, judges might be
reluctant to use the latitude allowed to them by the proposed
amendments to make substantial allowances for mitigating factors.
In addition, there is a possibility that the duty to explain the
reasons for any departure from the statutory starting point would
tend to inhibit a court's willingness to make use of the full
range of possible minimum terms.
95. When the Minister gave evidence to us, we
asked him about the intended effect of these provisions on the
level of minimum terms for murder. He said that there might well
be cases where a higher minimum term would be imposed than the
Secretary of State would currently impose on the basis of advice
from the judges. For example, more whole-life tariffs might be
set, because of the express recognition that such a term would
be the appropriate starting point for the most serious murders.
However, he stressed that the judges would always have the final
say, in the exercise of their discretion after taking account
of the guiding principles.
Asked about the likely effect on terms served by battered women
who kill their abusers, he made it clear that the flexibility
allowed to judges would allow them to reflect the special circumstances
as at present. The Government did not intend to increasing the
terms served by such offenders.
96. In the light of this,
we do not consider that the provisions relating to tariffs for
people convicted of murder give rise to a significant risk of
violating Convention rights.
Extension of maximum period of detention
without charge in terrorism cases
97. At present, a person detained on suspicion
of terrorist offences under the Terrorism Act 2000 may be held
without charge for up to two days. A Senior District Judge (Chief
Magistrate) or specially designated District Judge (Magistrates'
Court) may authorise extended detention in certain circumstances,
as long as the total period of detention without charge does not
exceed seven days. The decision will be made at a hearing at which
the detainee will be entitled to legal representation. This regime
is laid down in paragraphs 21, 24 and 29 of Schedule 8 to the
Terrorism Act 2000.
98. The legislation was a response to earlier
decisions of the European Court of Human Rights. In Brogan
v. United Kingdom
the Court had held that detention without charge for up to seven
days without judicial authorisation, under the Prevention of Terrorism
(Temporary Provisions) Act 1984, violated the right to be brought
promptly before a judge or other judicial officer under ECHR Article
5.3. The United Kingdom was initially unwilling to give up the
seven-day detention period or to introduce judicial control during
it. Accordingly the United Kingdom gave notice of derogation from
Article 5.3 to allow it to maintain the provisions. In Brannigan
and McBride v. United Kingdom
the Court held that the derogation was justifiable under ECHR
Article 15. It was accordingly included as a 'designated derogation'
in Schedule 3 to the Human Rights Act 1998. However, when drafting
the Terrorism Act 2000 it was decided to introduce judicial control
over the period of detention, without lengthening the period of
detention without charge beyond seven days. This was done in Schedule
8 to the Bill, and the United Kingdom was able to withdraw its
derogation in respect of Article 5.4 and to amend Schedule 3 to
the Human Rights Act 1998 accordingly.
99. Clause 284 of the Bill would amend Schedule
8 to the 2000 Act to allow a judicial officer to extend a warrant
of further detention under the Schedule, granted initially for
a period ending not more than seven days after the 'relevant time'
(the detainee's arrest or the start of the person's examination),
so long as the total period of detention without charge ends not
more than 14 days from the 'relevant time'.
100. This has a number of human rights implications.
Detention interferes with the right to liberty of the person under
ECHR Article 5.1, and requires to be justified under the provisions
of that Article. Detention will usually be lawful under Article
5.1(c), 'the lawful ... detention of a person effected for the
purpose of bringing him before the competent legal authority on
reasonable suspicion of having committed an offence or when it
is reasonably considered necessary to prevent his committing an
offence or fleeing after having done so'. The procedure must be
'prescribed by law' and the detention must be 'lawful'. This imports
a requirement that it must not be arbitrary or disproportionate:
there must be arrangements to ensure that there are sufficient
grounds for detaining the person and that the detention is proportionate
both in the period of detention and the conditions of detention.
101. Generally, the conditions laid down for
authorising extended detention satisfy these requirements, and
would continue to do so if the proposed amendment were to be introduced.
Extended detention may be authorised only if two necessity conditions
are met: (i) that there are reasonable grounds for believing that
further detention is necessary in order to obtain relevant evidence
in relation to terrorism, either by questioning the detainee or
by detaining him or her in order to preserve evidence; and (ii)
that the judge is satisfied that the investigation is being conducted
diligently and expeditiously, so that the detainee is not being
held longer than necessary.
102. Even if the maximum period of detention
without charge is extended to fourteen days, it should still be
possible for the Chief District Judge or designated District Judge
to ensure that the necessity conditions are complied with. The
detainee's legal representative will be able to make both written
and oral submissions to the judge, although the detainee may himself
be excluded from all or part of the hearing if necessary, for
example on national security grounds).
However, we have considered two matters.
at the legislative level, we have examined whether there are adequate
grounds for thinking that it is necessary to extend a time limit
last set after careful policy and parliamentary consideration
less than three years ago. The Home Secretary, in a recent letter
to our Chair, explained
the need for the extension of the time limit as follows:
'There has been a marked development in the sophistication
of terrorist technology overall since 9/11. Examples of the issues
this has highlighted include the fact that multiple arrests are
occurring more frequently and when a "cell" is arrested,
each member needs to be interviewed and each interview cross-referenced
.... Some have been released on police bail prior to their significance
being fully explored, due to time constraints.'
He went on to say that it is also taking longer to
retrieve and analyse samples of material for radiological examination
because of health and safety requirements, and the need to examine
the hard drives of computers after searches of premises is time
consuming. Further delays may occur because of the use of false
104. The Home Secretary drew attention to the
safeguards contained in Schedule 8 to the 2000 Act, and to the
fact that an extension of detention beyond seven days could be
authorised only if the full seven days' detention has already
been authorised and that seems to be insufficient in the particular
case. Finally, he said, the power would be used only complex cases.
'Such cases are relatively infrequent and the power would therefore
only be invoked where the compelling circumstances of the [case]
we have considered whether there are sufficient safeguards against
abuse of the power, particularly in cases where evidence said
to support the application for a further warrant of detention
is withheld from the detainee and his or her legal advisers. There
is power to withhold such evidence in certain circumstances,
going well beyond circumstances in which national security is
likely to be affected by disclosure. Unlike the position in proceedings
before the Special Immigration Appeal Tribunal, there is no provision
to appoint a special advocate to make submissions on undisclosed
material to protect the detainee's interests in the absence of
the detainee and his or her legal representative. This might make
it hard to ensure that the procedure is fair enough to be 'lawful'
within the meaning of ECHR Article 5.1. We
draw the potential for a lack of fairness in the decision-making
system, and the risk of a violation of Article 5.1, to the attention
of each House.
37 Data Protection Act 1998, s. 29 Back
Ibid., Sch. 3 Back
Ibid., s. 7 Back
See Appendix 5 Back
 EWCA Civ 1275,  1 WLR 3223, CA Back
Q. 71 Back
See Appendix 5 Back
Q. 79 Back
Q. 80 Back
See Appendix 5 Back
See Appendix 5 Back
Draft Agreement on Mutual Legal Assistance, Art. 9.2(b). House
of Lords European Union Committee, Sub-Committee E (Law and Institutions),
took evidence from Bob Ainsworth MP on 4 June 2003 in relation
to this text. Back
HL Bill 69-EN, para. 646 Back
QQ. 86-88 Back
Q. 89 Back
See Appendix 5 Back
Q. 91 Back
QQ. 92-93 Back
Q. 94 Back
See Appendix 5 Back
(1991) 14 EHRR 83, Eur. Ct. HR, at para. 35 of the judgment Back
Yagci and Sargan v. Turkey
(1995) 20 EHRR 505, Eur. Ct. HR, at para. 52 of the judgment;
I. A. v. France, Eur. Ct. HR, RJD 1998-VII, at para. 104
of the judgment; Richard Clayton and Hugh Tomlinson, The Law
of Human Rights (Oxford: Oxford University Press, 2000), vol.
1, pp. 501-504, paras. 10.138-10.144 Back
QQ. 95-96, 98 Back
New paras. 2A(1) and 6(1) of Sch. 1 to the Bail Act 1976, as substituted
by cl. 14(1) and cl. 15(1) of the Bill Back
QQ. 99-101 Back
Reyes v. R.  UKPC 11,
 2 AC 235,  2 WLR 1034, PC Back
 1 WLR 253,  2 All ER 154, CA Back
Q. 115 Back
HL Bill 69-EN, para. 580 Back
Q. 115 Back
(2002) 35 EHRR 1121, Eur. Ct. HR Back
 UKHL 46,  3 WLR 1800,  4 All ER 1089, HL Back
See Reyes v. R.  UKPC 11,  2 AC 235, 
2 WLR 1034, PC, a death penalty case Back
See e.g. R. (Anderson) v. Secretary of State for the Home Department
 UKHL 46,  3 WLR 1800,  4 All ER 1089, HL Back
R. v. Offen  1 WLR
253,  2 All ER 154, CA Back
See para. 50 above Back
The real object of this seems to be to treat terrorist murders
as falling into a particularly serious category, but it is not
clear why this is justified as compared (for example) with coldly
calculated murder for gain Back
See Appendix 3 Back
Q. 117 Back
QQ. 118-120 Back
Eur. Ct. HR, Series A, No. 145, (1988) 11 EHRR 117 Back
Eur. Ct. HR, Series A, No. 258-B, Judgment of 26 May 1993 Back
This would be the effect of Terrorism Act 2000, Sch. 8, para.
29(3) as amended by the proposed new clause in the Bill and para.
29(3A) and (3B) as inserted by the proposed new clause Back
Terrorism Act 2000, Sch. 8, para. 32 Back
ibid., paras. 8, 31, 33 Back
See Appendix 4 Back
Terrorism Act 2000, Sch. 8, para. 34(2), (3): (a) where there
are reasonable grounds for believing that the detainee has committed
and benefited from offences (other than drug trafficking offences)
in respect of which a confiscation order might be made, and disclosing
the information would hinder the recovery of the value of the
benefit; or (b) where there are reasonable grounds for believing
that disclosure would have the consequence of (i) interference
with or harm to evidence of a terrorist offence, (ii) hindering
the recovery of property obtained as a result of a terrorist offence,
(iii) hindering recovery of property in the possession or under
the control of the detainee at the time of the arrest, and intended
for use for terrorist purposes, such property being liable to
forfeiture under s. 23 of the Act, (iv) alerting a person suspected
of terrorism, making his apprehension, prosecution or conviction
more difficult, (v) alerting a person so that it would be more
difficult to prevent an act of terrorism, (vi) interfering with
the gathering of information about the commission, preparation,
or instigation of an act of terrorism, or (vii) interference with
or physical injury to any person. Back