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|Judgments - Regina v. Secretary of State for the Home Department, Ex Parte Pierson (A.P.)
Lord Steyn Lord Hope of Craighead
LORD GOFF OF CHIEVELEY
There is before your Lordships an appeal by John David Pierson, who is a convicted murderer. He committed a double murder of a terrible kind. In the early hours of 19 September 1984 at his family's home, a small farmhouse in North Wales where he lived with his mother and father, he killed both his parents by shooting them more than once at close range with a 12 bore shotgun which was kept in the house. The appellant himself called the police. At first he made admissions consistent with his guilt; but at his trial he said that he had no memory of the events in question. On 8 July 1985, he was convicted of both murders. Why he killed his parents was totally unexplained. The judge imposed the mandatory sentence of life imprisonment. In accordance with the usual practice, he wrote in confidence to the Home Secretary, describing the crimes as horrifying but also mystifying. He expressed the opinion that, failing some dramatic development or discovery, retribution and deterrence in the appellant's case would require a substantially longer than average period of custody to be served.
The present appeal is concerned with the period of time which the appellant is required to spend in prison to meet the requirements of retribution and deterrence, before the possibility of his release on licence can be considered. The statutory regime in force at the time of his conviction and sentence was contained in the Criminal Justice Act 1967. It was this Act which brought the Parole Board into being. Under section 61(1) of the Act, the Secretary of State might, if recommended to do so by the Parole Board, release on licence a person serving a sentence of imprisonment for life, but could not do so except after consultation with the Lord Chief Justice together with the trial judge, if available. However, it lay in the discretion of the Secretary of State whether or not to refer a case to the Parole Board (section 59(3)), and whether or not to accept the recommendation of the Parole Board, when given (section 60(1)). Nowadays, the position is governed by the Criminal Justice Act 1991 which, in section 35(2) and (3), contains provisions to the same effect applicable in the case of prisoners subject to mandatory life sentences.
However, for present purposes more important, successive Secretaries of State have issued statements setting out the policy which is to be applied in connection with their statutory power to release convicted prisoners on licence. Since these policy statements lie at the heart of the present appeal, I shall have to refer to them in some detail.
(1) Policy Statement of 30 November 1983
The first in the series of policy statements was made by Mr. Leon Brittan on 30 November 1983. This was primarily concerned to address public concern about the increase in violent crime, and about the gap which existed between sentences passed on criminals and the time actually served by them in prison. But for present purposes the most important feature of the statement was that, in the case of prisoners serving a life sentence, a distinction was to be drawn between a period which the prisoner would have to serve to meet the requirements of retribution and deterrence (which has come to be known as "the penal element"), and any remaining period which he is required to serve before he is released (now known as "the risk element"). The former period was to be fixed by the Secretary of State following consultation with the Lord Chief Justice and the trial judge (if available). To outward appearances, what was fixed was the date of the first reference of the case to a Local Review Committee. The first review normally took place three years before the expiry of the period of the penal element. This gave sufficient time for release if the Parole Board recommended it, having considered the question of risk; though the ultimate discretion whether to release remained with the Secretary of State. Moreover, although at that time the length of the penal element so fixed was not communicated to the prisoner, the date for his first reference to a Local Review Committee was communicated to him; and from that he could infer that the penal element in his sentence would expire three years later.
In addition the Secretary of State established certain procedures to ensure that he could consider any special circumstances or exceptional progress which might justify changing the review date, i.e. which might justify a reduction of the penal element. But he stressed that, except where a prisoner has committed an offence for which he has received a further custodial sentence, the first formal review date would not be put back, i.e. the penal element in his sentence would not be increased.
In re Findlay  1 A.C. 318
In another part of that Policy Statement, the Home Secretary decided to adopt a new policy of refusing in all but the most exceptional cases to release on licence prisoners serving sentences of over five years for offences of violence or drug trafficking. In In re Findlay  1 A.C. 318, four prisoners in those categories brought proceedings for judicial review in which they challenged the lawfulness of the new policy, on the ground that they had suffered loss of expectation of parole. The applications, which came before your Lordships' House on appeal, were dismissed. Lord Scarman delivered the only speech, with which the other members of the Appellate Committee agreed. He stated (at pp. 332-333) that the Secretary of State, in considering the early release of a prisoner, had to take into account not only the element of risk to the public, on which he had the benefit of advice from the Parole Board, but also deterrence, retribution and public confidence in the system. He said:
Furthermore, with regard to the prisoners' claim that they had suffered a loss of expectation of parole, Lord Scarman had this to say (at p. 338):
(2) Policy Statement of 1 March 1985
In a brief Statement on this date, Mr. Leon Brittan amended his policy with respect to those cases where the penal element was fixed at longer than 20 years, so that for these prisoners the first formal review date should nevertheless take place at an earlier date than three years before the expiry of the penal element, normally after 17 years in custody.
(3) Policy Statement of 23 July 1987
A third Policy Statement was made by Mr. Douglas Hurd on 23 July 1987, in response to the decision of a Divisional Court in Regina v. The Home Secretary, Ex parte Handscomb (1987) 86 Cr.App.R. 59. In that case, which was concerned with the application of the earlier Policy Statement to prisoners serving discretionary life sentences, the court, while upholding the lawfulness of the policy, was critical of two aspects, viz. the lapse of time before the penal element was fixed, and the fact that, in fixing the penal element for discretionary life prisoners, account was taken of other factors besides the judicial view on the requirements of retribution and deterrence which, in these cases, could be ascertained by reference to the determinate sentence which would have been passed if the prisoner had not, for reasons of risk, been sentenced to imprisonment for life. The Secretary of State accepted the force of both criticisms, and made appropriate amendments to his policy. He also decided that the first formal review date (and so the penal element) for mandatory life prisoners should likewise be fixed as soon as practicable after conviction and sentence. Apart from this amendment, the Secretary of State made it clear that the Policy as applied to mandatory life prisoners continued in force as before.
(4) Policy Statement of 27 July 1993
This statement was made by Mr. Michael Howard on 27 July 1993, to give effect to the decision of your Lordships' House in Regina v. The Home Secretary, Ex parte Doody  1 A.C. 531. In that case, applications for judicial review were made by four prisoners serving mandatory life sentences. Among them was the appellant in the appeal now before your Lordships. They asked for orders quashing the decisions of the Secretary of State fixing the penal element in their sentences. Their principal submission was that the Secretary of State was bound to adopt judicial advice in respect of the penal element in the case of mandatory life prisoners, as he had done in the case of discretionary life prisoners. That submission was rejected by your Lordships' House, but complaints by the applicants about the procedure adopted by the Secretary of State were upheld. It was held that he must give a mandatory life prisoner the opportunity to make written representations as to the penal element in his sentence; and that, before a prisoner made such representations, he should be informed of the period recommended by the judiciary, and any other opinion expressed by the judiciary relevant to the Secretary of State's decision on the point. Since that procedure had not been followed, the penal elements determined in the case of the four applicants, including the present appellant, were quashed.
The greater part of the Statement of 27 July 1993 was taken up with giving effect to this decision. The Statement began with the words: "The current procedures governing the release of persons convicted of murder and sentenced to mandatory life imprisonment are described in statements made in 1983 and 1987 . . ." However, having set out the arrangements made to give effect to decision in Ex parte Doody, the Secretary of State made a number of observations of a more general character. These began with the following paragraph:
In a later passage he explained that, before any such prisoner was released, he would reconsider the penal element served by him in order to decide whether it was adequate. The clear implication in the passage was that, if at that time he concluded that it was not adequate, he might then increase it.
These passages in the Policy Statement of 27 July 1993 were strongly relied upon by the Secretary of State in the present appeal. I shall have to consider them in some detail at a later stage; but before I do so, I must return to the narrative of events in the present case.
Narrative of events
In January 1988, the trial judge and the Lord Chief Justice were consulted by the Home Secretary about the appropriate penal element to satisfy the requirements of retribution and deterrence in the appellant's case. They both recommended 15 years. The Lord Chief Justice commented that "This is one of those mysterious cases which defy categorization. Fifteen years seems appropriate unless some fresh factor comes to light." In accordance with the prevailing practice, the appellant was informed neither of the judges' views, nor of the Home Secretary's decision. But he was told of the first review date fixed in his case, from which he could deduce that the Home Secretary had fixed the penal element at 20 years.
As already recorded, the appellant was one of the successful applicants in Ex parte Doody. On 27 August 1993, just a month after his Policy Statement giving effect to that decision, the Home Secretary wrote to the appellant informing him of the substance of the judicial recommendations made about the penal element in his case, and of the decision made by the Home Secretary, so that he might make representations about it. The letter contained the following passage:
By a letter dated 9 November 1993, the appellant's solicitor submitted representations to the Home Secretary. He pointed out (inter alia) that (1) it had never been alleged that the appellant's actions were premeditated, and (2) the offences were in practice instantaneous and part of a single incident which took place suddenly in a short space of time.
On 6 May 1994, the Home Secretary wrote to the appellant setting out his new decision in the light of the appellant's representations. His conclusion was as follows:
The application for judicial review
It is of that decision that the appellant has sought judicial review. I should say at once that, although it has been contended on behalf of the Secretary of State that, since the period of 20 years remained unchanged, there was no increase in the penal element involved in the decision, that cannot be correct. The true position is that, since the period of 20 years was originally fixed on the basis of matters, in particular premeditation, which constituted aggravating characteristics which were taken into account in error, the maintenance of the same period in the later decision constituted in substance an increase in the period. It is on that basis that the present appeal falls to be considered.
The application for judicial review came first before Turner J. He found in favour of the applicant, and quashed the decision of the Secretary of State to maintain the penal element in the applicant's sentence at 20 years. He considered that only exceptional circumstances could justify an increase in the penal element. There was no explanation of how the Secretary of State arrived at the same period of 20 years despite the absence of two factors, agreed to be aggravating, which affected the first decision to choose a period which was substantially in excess of that recommended by the judges.
The Court of Appeal, however, allowed the Secretary of State's appeal from that decision. The central passage in the reasoning of the Court of Appeal is to be found in the judgment of Sir Thomas Bingham M.R. in  3 W.L.R. 547 at pp. 559G-560A, when considering the submission of Mr. Fitzgerald Q.C., for the applicant, that the Secretary of State had no power to increase a penal term in the absence of an exceptional circumstance (such as a new fact), and no such circumstance existed in the present case. The Master of the Rolls said:
Before the Appellate Committee, Mr. Fitzgerald Q.C. advanced three main submissions on behalf of the applicant. First, the Secretary of State was only entitled to increase the penal element in a mandatory life prisoner's sentence in exceptional circumstances, and none existed here. In this submission, Mr. Fitzgerald was really seeking to uphold the decision of Turner J. at first instance. Second, as his main point, the exercise of fixing the penal element in a mandatory life prisoner's sentence was sufficiently akin to a sentencing exercise to attract the basic principle that a penalty once fixed should not be increased by the same sentencing authority. This he called the principle of non-aggravation of penalties. Third, the Secretary of State acted unfairly in failing to notify the appellant of his intention to treat his predecessor's penal element as inadequate, so providing the appellant with an opportunity to make representations on the point before the decision was made.
The relevance of the earlier Policy Statements
I intend, however, to return to the four Policy Statements (which I shall refer to as Statements 1-4), the text of which I have already set out, and to consider first the relevance to the present case of Statements 1 and 2.
In Statements 1 and 2, both Mr. Brittan and Mr. Hurd spoke of the first review date, which depended on the identification of the penal element in the sentence, as being fixed by the Secretary of State. This appears clearly in the antepenultimate paragraph of Statement 2, in which Mr. Hurd stated that he had "decided that the date of the first formal review of the cases of prisoners serving mandatory life sentences should . . . be fixed as soon as practicable after conviction and sentence." It is plain that both intended that the penal element itself should thereby be fixed.
In the last paragraph of Statement 1, Mr. Brittan expressly stated, in relation to life sentence prisoners, that procedures put in place by him would "ensure that I can consider any special circumstances or exceptional progress which might justify changing the review date." By that he meant advancing that date. But, he continued, "except where a prisoner has committed an offence for which he has received a further custodial sentence, first formal review date will not be put back." This constituted a clear statement that, apart from the exceptional circumstance specified by him, the penal element, once fixed, would not be increased.
In Statement 2, Mr. Hurd did not depart from Statement 1 except where he was establishing new principles in relation to discretionary life sentences to accommodate the criticisms expressed in Handscomb. Indeed, he made it clear that the policy as applied to mandatory life prisoners remained in force as before. It follows that Mr. Brittan's statement that the penal element would not be increased was still applicable to them.