Judgment - Regina v. Secretary of State for the Home Department, Ex Parte Pierson (A.P.)  continued

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    Turning back to the circumstances of the present case, it was easy to conclude that the legislation authorises the policy of fixing a tariff. The wide statutory discretion of the Home Secretary justified that conclusion. But a general power to increase tariffs lawfully fixed is qualitatively in a different category. It contemplates a power unheard of in our criminal justice system until the 1993 policy statement of the Home Secretary. Such a power is not essential to the efficient working of the system: without a power to increase tariffs the system worked satisfactorily between 1983 and 1993. But I do not rest my judgment on this point. The critical factor is that a general power to increase tariffs duly fixed is in disharmony with the deep rooted principle of not retrospectively increasing lawfully pronounced sentences. In the absence of contrary indications it must be presumed that Parliament entrusted the wide power to make decisions on the release of mandatory life sentence prisoners on the supposition that the Home Secretary would not act contrary to such a fundamental principle of our law. There are no contrary indications. Certainly, there is not a shred of evidence that Parliament would have been prepared to vest a general power in the Home Secretary to increase retrospectively tariffs duly fixed. The evidence is to the contrary. When Parliament enacted section 35(2) of the Criminal Justice Act 1991--the foundation of the Home Secretary's present power--Parliament knew that since 1983 successive Home Secretaries had adopted a policy of fixing in each case a tariff period, following which risk is considered. Parliament also knew that it was the practice that a tariff, once fixed, would not be increased. That was clear from the assurance in the 1983 policy statement that "except where a prisoner has committed an offence for which he has received a further custodial sentence, the formal review date will not be put back." What Parliament did not know in 1991 was that in 1993 a new Home Secretary would assert a general power to increase the punishment of prisoners convicted of murder whenever he considered it right to do so. It would be wrong to assume that Parliament would have been prepared to give to the Home Secretary such an unprecedented power, alien to the principles of our law.

    Counsel for the Home Secretary then approached the matter from a different angle. He said that the only possible complaint a mandatory life sentence prisoner could have about the increase of his tariff would be on the basis of the infringement of his legitimate expectations. But, he said, this doctrine has no substantive effect: it merely gives protection against procedural unfairness. This is a controversial question. Counsel is not necessarily right: see de Smith, Woolf and Jowell, op. cit., 13-029-13-030 at pp. 570-574; P.P. Craig, Substantive Legitimate Expectations in Domestic and Community Law (1996) C.L.J. 289. This issue was only briefly mentioned in argument. It is unnecessary to express a view on it. I will assume that counsel for the Home Secretary's proposition about the doctrine of legitimate expectations is correct. But counsel addressed the wrong target. The correct analysis of this case is in terms of the rule of law. The rule of law in its wider sense has procedural and substantive effect. While Dicey's description of the rule of law is nowadays regarded as neither exhaustive nor entirely accurate even for his own time, there is much of enduring value in the work of this great lawyer. Dicey's famous third meaning of the rule of law is apposite. He said (op.cit., at p. 203):

     "The 'rule of law,' lastly, may be used as a formula for expressing the fact that with us the law of constitution, the rules which in foreign countries naturally form part of a constitutional code, are not the source but the consequence of the rights of individuals, as defined and enforced by the courts; that, in short, the principles of private law have with us been by the action of the courts and Parliament so extended as to determine the position of the Crown and its servants; thus the constitution is the result of the ordinary law of the land."

This was the pivot of Dicey's discussion of rights to personal freedom, to freedom of association and of public meeting: at pp. 206-283. It is clear therefore that in the relevant sense Dicey regarded the rule of law as having both procedural and substantive effect. In a valuable essay Professor Jeffrey Jowell has re-examined Dicey's theme: The Rule of Law Today, in The Changing Constitution, by Jowell and Oliver, 3rd ed., pp. 74-77. Relying on striking modern illustrations Professor Jowell concluded that the rule of law has substantive content: see Hall & Co. Ltd v. Shoreham-by-Sea U.D.C. [1964] 1 All E.R. 1; Congreve v. Home Office [1976] Q.B. 629; and Wheeler v. Leicester City Council [1985] A.C. 1054, per Lord Templeman with whom Lord Bridge of Harwich, Lord Brightman and Lord Griffiths agreed. Wade, Administrative Law, 7th ed. 24 et seq; and de Smith and Brazier, Constitutional Law, 7th ed. 18, are to the same effect. Unless there is the clearest provision to the contrary, Parliament must be presumed not to legislate contrary to the rule of law. And the rule of law enforces minimum standards of fairness, both substantive and procedural. I therefore approach the problem in the present case on this basis.

    It is true that the principle of legality only has prima facie force. But in enacting section 35(2) of the Act of 1991, with its very wide power to release prisoners, Parliament left untouched the fundamental principle that a sentence lawfully passed should not retrospectively be increased. Parliament must therefore be presumed to have enacted legislation wide enough to enable the Home Secretary to make decisions on punishment on the basis that he would observe the normal constraint governing that function. Instead the Home Secretary has asserted a general power to increase tariffs duly fixed. Parliament did not confer such a power on the Home Secretary.

    It follows that the Home Secretary did not have the power to increase a tariff lawfully fixed. But counsel for the Home Secretary argued that in his policy statement of 27 July 1993 the Home Secretary expressly reserved the power to increase the tariff. He emphasised that this supplemental provision is part and parcel of one policy statement. The Home Secretary was entitled to continue a policy of fixing tariffs but he was not entitled to introduce a power to increase tariffs. The only question is whether the entire policy is unlawful or only the reservation of the power to increase tariffs. This resolves itself into a question of remedies. It was suggested that severance would involve "a re-writing" of the policy statement. This is a familiar argument in cases where the circumstances arguably justify a court in saying that the unlawfulness of part of a statement does not infect the whole. The principles of severability in public law are well settled: see de Smith, Woolf and Jowell: Judicial Review of Administrative Action, 5th ed., (1995), at par 6-101-102 pp. 355-356; Wade, op. cit., at pp. 329-331. Sometimes severance is not possible, e.g. a licence granted subject to an important but unlawful condition. Sometimes severance is possible, e.g. where a bye-law contains several distinct and independent powers one of which is unlawful. Always the context will be determinative. In the present case the power to increase the tariff is notionally severable and distinct from the power to fix a tariff. Indeed between 1983 and 1993 no power to increase tariffs was even asserted. On the contrary, the 1983 policy statement made clear that there would be no increase to a tariff duly fixed. It is an obvious case for severance of the good from the bad. To describe this result as a rewriting of the policy statement is to raise an objection to the concept of severance. That is an argument for the blunt remedy of total unlawfulness or total lawfulness. The domain of public law is practical affairs. Sometimes severance is the only sensible course.

    It was agreed before your Lordships' House that the Home Secretary's decision letter of 6 May 1994 did communicate a decision to Mr. Pierson to increase the tariff in his case. That decision was in my judgment unlawful and ought to be quashed. My conclusion is based on the proposition that the Home Secretary has no general power to increase a tariff fixed and communicated. That leaves unaffected the question whether in exceptional or special circumstances arising from the facts of a particular case the Home Secretary may have such a power, e.g. where quite plainly the judge and the Home Secretary have been misled. Such qualifications were not explored in argument. I express no view on it.

    It is with hesitation that I differ from the Court of Appeal. But I note that the result was one which caused the Court of Appeal considerable anxiety. Moreover, it seems to me that before your Lordships' House the arguments on the principal question became substantially more refined.

    My Lords, I would allow the appeal and quash the decision of the Home Secretary.



LORD HOPE OF CRAIGHEAD


My Lords,

     My Lords, there is only one sentence which can be imposed for murder, and that is a mandatory sentence of life imprisonment. Once the prisoner has been sentenced his release on licence is at the discretion of the Home Secretary. This means that it is for the Home Secretary alone to decide whether the prisoner should be released from custody and, if so, what is to be his release date. A court of law has no part to play in this process. So far as the court is concerned, the matter is over once the sentence of life imprisonment has been imposed as punishment for the crime. The prisoner has no right to be released, nor even to have his case referred for a recommendation as to release by the Parole Board, as these are matters solely for the Home Secretary. No amount of criticism whether of decisions made or actions taken by him in the administration of the life sentence can alter the fact that, as the release of the prisoner is at the discretion of the Home Secretary, it cannot be the subject of direction by the court.

    It might be thought then that it would be pointless to bring such decisions or actions under judicial review, because nothing which the court might say would have any practical effect on the length of time which the life prisoner had to spend in custody. Indeed, as a general rule, the court will be very slow to interfere in these matters, as they are best left to the Home Secretary. But the decision which is under challenge in this case is one which has a special significance as it affects the date for the first review of the appellant's case by the Parole Board. This is a necessary stage in his progress to being released on licence by the Home Secretary. There is therefore at least some prospect that a finding that the decision was unlawful, if made, will have an effect on his release date. That is a sufficient reason for reviewing that decision judicially because, even although the applicant has no right to be released on licence, he does have a right to have his case for release dealt with in a manner which is within the powers which have been given to the Home Secretary by Parliament.

    The principal question which has been raised in this case is one of substance, not one of procedure. Mr. Fitzgerald Q.C. renewed before your Lordships his argument to the Court of Appeal that the Home Secretary had dealt with the appellant's case in a manner which was procedurally unfair, in that his failure to notify him of his intention to treat his predecessor's tariff as inadequate had deprived him of an opportunity to make effective representations before the decision was made. But the Court of Appeal held that it did not appear that in practical terms there had been any significant unfairness in this case and that, as it was not disputed that the Home Secretary was willing to consider any further representations made on the appellant's behalf, no useful purpose would be served by making an order by way of judicial review on this ground. I am in full agreement with the decision of the Court of Appeal on this point, so I would reject the argument based on procedural unfairness. It seems to me that the real issue in this appeal is one of substance, namely whether the decision in question was one which the Home Secretary had no power to make.

    Mr. Fitzgerald Q.C., in opening the appeal, summarised his argument on the issue of substance in this way. He said that what the Home Secretary was doing in this case was exercising a sentencing function, and that any person who exercises a sentencing function must abide by the rules. His argument was that the decision was irrational, and that in any event that there were no exceptional circumstances in this case to justify what the Home Secretary had done. Mr. Pannick Q.C., on the other hand, maintained that the Home Secretary took his decision in the exercise of a discretion which had been given to him by Parliament. As to where the balance lies between these two arguments, there is no doubt that if the Home Secretary was acting within the true limits of that discretion, his decision cannot be corrected by the court, however much the court may disagree with it. But if he has acted unlawfully and, as Lord Upjohn said in Padfield v. Minister of Agriculture, Fisheries and Food [1968] A.C. 997, 1058G, has thereby overstepped the true limits of his discretion, the court has jurisdiction to interfere. The boundaries for the discussion are well settled, and I do not think that it is necessary to examine the authorities. The proper application to the facts of these principles is the main difficulty in this appeal, as the Home Secretary is entitled to say that it is not for the court to confine the broad discretion which has been given to him by Parliament.

The Facts

    The facts of the case have been set out fully by my noble and learned friend Lord Goff, and I need to mention here only the principal details. The appellant was convicted on 8 July 1985 of his father and mother by shooting them with a 12-bore shotgun. He was sentenced to two concurrent terms of life imprisonment. In 1988, in accordance with the policy which was current at that time, the then Home Secretary consulted the trial judge and the Lord Chief Justice in order to determine the length of the penal element in his life sentence. The judges recommended that he serve fifteen years, but the Home Secretary decided that this was insufficient and he fixed the penal element at twenty years. The appellant was not told at that time what the judges had recommended nor what the Home Secretary had decided, because it was not then the practice for this information to be released to the life prisoner. No issue arises in this case about the decision which was taken at that stage or about the fact that the applicant was not then aware of it. These were the subject of the proceedings for judicial review which culminated in the appeal to your Lordships' House in Regina v. Secretary of State for the Home Department, Ex parte Doody [1994] 1.A.C. 531, in which the appellant was one of the applicants. His application was successful and the decision which the Home Secretary had taken in his case in 1988 was quashed. It is the decision which has replaced it which is under challenge in the further application which is now before this House on appeal.

    On 27 August 1993 Mr. I.A. Newton of the Life Sentence Review Section in the Home Office wrote to the appellant in order to inform him of the substance of the judicial recommendations, together with the Home Secretary's decision on the appropriate period to be served by him in order to satisfy the requirements of retribution and deterrence. He told him that the judges had recommended fifteen years, and then said:

     "The Secretary of State carefully considered the facts of the case and the judicial comments. He took into account the judge's comment as to your age and previous character, and felt that the period recommended by the judiciary would have been appropriate had this been a single premeditated offence. Because this was a double murder, however, he felt that a longer period was necessary and therefore decided to set the period at 20 years."

    In response to Mr. Newton's assurance that the Home Secretary was willing to consider any representations in connection with the matters set out in his letter, the appellant's solicitors replied by letter dated 9 November 1993 setting out the representations which their client wished to make. Among the points which they drew to the Home Secretary's attention was the fact that no allegation had ever been made against him, still less evidence produced, that what he did was in any way premeditated. In the reply on behalf of the Home Secretary which the Home Office sent to the solicitors dated 6 May 1994 it was stated:

     "The Secretary of State accepts your argument that it would be wrong to proceed on the basis that the murders were premeditated. He also accepts that the two murders were part of a single incident which took place during a short period of time.

     However, the Secretary of State, having carefully considered all the points made by you, and having carefully considered the judicial advice, does not believe that a period of 15 years is sufficient to meet the requirements of retribution and deterrence. Mr. Pierson killed his parents with a shotgun in the middle of the night, when at least one of them was asleep. In the view of the Secretary of State, a period of 20 years is appropriate to meet the requirements of retribution and deterrence for these crimes of murder."

In the Court of Appeal it was pointed out that the term which the Home Secretary had fixed in 1988 was twenty years and it was submitted on his behalf that, as the term fixed in 1994 was also twenty years, there had been no increase in the term as a result of the decision which he had taken on 6 May 1994. But, as Sir Thomas Bingham M.R. said at p. 560B, the court must have regard to the substance of the matter. He went on, in a passage which in my opinion provides the complete answer to this point, to say this at p. 560C-D:

     "The applicant's penal term was originally fixed at a period five years longer than the term recommended by the judges (which was already said by the trial judge to be substantially longer that the average period of custody for murder) because the Home Secretary considered the case to have serious aggravating features. It is now accepted that the Home Secretary was wrong to think that the case had those serious aggravating features. But the penal term remains the same. In substance that amounts to an increase in the penal term. It is as if a defendant punished with particular severity because he had committed an offence twice received the same sentence even when it is shown that he only committed the offence once. To receive the same punishment for a lesser crime is in our view the same in principle as receiving a heavier punishment for the same crime."

    The decision of 6 May 1994 can be said therefore to have had these characteristics. First, it amounted in substance to an increase in the minimum period which had been originally fixed in 1988 by the previous Home Secretary, the basis for which was set out in the letter of 27 August 1993 by which that decision was communicated to the appellant for the first time. Second, its sole purpose was to give effect to the view which the Home Secretary in 1994 had formed about the minimum period which the appellant should serve in custody to meet the requirements of retribution and deterrence for the murders which he had committed. There is no indication in the letter of 6 May 1994 that the Home Secretary took into account any other considerations which might be described as considerations of policy. He was stating what he considered to be the appropriate penal term which the applicant was to serve in custody as punishment for his crime.

The Legislation

    Prior to the abolition of capital punishment for murder by the Murder (Abolition of Death Penalty) Act 1965 and the substitution of a mandatory sentence of life imprisonment, the release on licence of prisoners serving a sentence of life imprisonment was entirely at the discretion of the Home Secretary: see the Prison Act 1952, section 27. The Act of 1965 introduced two changes to this system as regards persons who had been convicted of murder. First, section 1(2) gave power to the Court, at the same time as pronouncing the life sentence, to declare the period which it recommended to the Secretary of State as the minimum period which in its view should elapse before the Secretary of State ordered the release of the prisoner on licence under section 27 of the Act of 1952. This was to be no more than a recommendation, as the decision as to whether or not to release, and if so when, remained vested in the Home Secretary. But it was implicit in the formality of the procedure that the Secretary of State would, in the ordinary case at least, feel bound to allow the minimum period to elapse before ordering the prisoner to be released on life licence. And second, section 2 of the Act of 1965 placed a restriction on the Secretary of State's power to release under section 27 of the Act of 1952 by providing that no person convicted of murder was to be released by him on licence under that section unless he had, prior to such release, consulted the Lord Chief Justice together with the trial judge if available. Then, when provision was made by section 59 of the Criminal Justice Act 1967 for establishing the Parole Board, a further restriction was placed the Secretary of State's power to release on licence persons who were serving sentences of life imprisonment. Section 27 of the Prison Act 1952 and section 2 of the Murder (Abolition of Death Penalty) Act 1965 were both repealed. They were replaced by the following provision in section 61(1) of the Act of 1967, which was to apply generally to all persons sentenced to life imprisonment and not just to those who had been sentenced to the mandatory sentence for murder:

     "The Secretary of State may, if recommended to do so by the Parole Board, release on licence a person serving a sentence of imprisonment for life or a person detained under section 53 of the Children and Young Persons Act 1933 (young offenders convicted of grave crimes), but shall not do so in the case of a person sentenced to imprisonment for life or to detention during Her Majesty's pleasure or for life except after consultation with the Lord Chief Justice of England together with the trial judge if available."

    That is the system which is now set out in section 35(2) and section 35(3) of the Criminal Justice Act 1991. There are only two statutory restrictions on the exercise of the power to release on life licence by the Home Secretary. The first is that the prisoner may not be released by him until a recommendation to this effect has been made by the Parole Board. The second is that the power may not be exercised until the Home Secretary has consulted with the Lord Chief Justice together with the trial judge if available. But the timing of any recommendation for release by the Parole Board remains subject to control in the exercise of his discretion by the Home Secretary, because section 35(3) provides that the Parole Board shall not make a recommendation under section 35(2) until he has referred the particular case, or the class of case to which it belongs, to the Board for its advice. So also does the timing of his consultation under section 35(2) with the judiciary. Thus, as Lord Mustill remarked in Regina v. Secretary of State for the Home Department, Ex parte Doody [1994] 1 A.C. 531, 550B, the duration of the detention of the life prisoner depends on a series of recommendations to, and executive decisions by, the Home Secretary--some made at an early stage and others much later, none of which can be accurately forecast at the time of sentencing by the trial judge. Until 1983, when the first of an important series of statements of policy was made by the Home Secretary, the statutory restrictions remained the only ways in which the Home Secretary was constrained in any given case about the choice of the release date.

 
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