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Session 2002 - 03
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Judgments - Regina v Secretary of State for the Home Department (Respondent) Ex Parte Anderson (Fc) (Appellant)


Lord Bingham of Cornhill Lord Nicholls of Birkenhead Lord Steyn Lord Hutton Lord Hobhouse of Woodborough Lord Scott of Foscote Lord Rodger of Earlsferry [2001] EWCA Civ 1698










[2002] UKHL 46


My Lords,

    1. This appeal concerns the sentencing, punishment and detention of adults convicted of murder in England and Wales and, in particular, the power now exercised by the Home Secretary to decide how long they should spend in prison for purposes of punishment. The question arises, as one of law not policy, whether that is a power which, compatibly with the European Convention on Human Rights ("the convention"), the Home Secretary may properly exercise, and the answer must turn on how, on a proper legal analysis, exercise of that power is properly to be regarded. This opinion is concerned only with adults convicted of murder in England and Wales (whom I shall call "convicted murderers") save where express reference is made to other classes of offender or other jurisdictions.

    2. I preface this opinion by recording three propositions, none of which is controversial. First, a convicted murderer is a person who has taken a life or lives with the intention either of doing so or of causing serious physical injury. Contrary to widespread public belief, such a person need not have intended to kill and may have intended not to kill. It is enough that he intended to cause serious physical injury if death resulted. Secondly, the crime of murder so defined embraces acts of widely varying culpability, including horrific and brutally sadistic conduct at one end of the spectrum and "almost venial, if objectively immoral" conduct at the other: R v Howe [1987] AC 417, 433G, per Lord Hailsham of St Marylebone LC; Ong Ah Chuan v Public Prosecutor [1981] AC 648, 674 per Lord Diplock; Report of the Royal Commission on Capital Punishment 1949-53 (1953, Cmd 8932, p 6, para 21); House of Lords Select Committee on Murder and Life Imprisonment (1989, HL Paper 78-I, p 13 para 27); Report of the Committee on the Penalty for Homicide chaired by Lord Lane (Prison Reform Trust, 1993, p 21). Thirdly, judges have never in modern times enjoyed any discretion in passing sentence on a convicted murderer. Until 1957 the sentence was one of death. Under the Homicide Act 1957 death continued to be the sentence mandatorily passed on those convicted of capital or multiple murders (sections 5 and 6), while other convicted murderers were mandatorily sentenced to imprisonment for life (sections 7 and 9(1)). By the Murder (Abolition of Death Penalty) Act 1965 it was provided that convicted murderers should be sentenced to imprisonment for life (section 1(1)).

    3. For the past century at least there has been some divergence between the sentence passed and the sentence carried out, perhaps because of the inclusive definition of murder and the broad range of conduct it covers. Statistics published by the Royal Commission on Capital Punishment show that of murderers convicted and sentenced to death between 1900 and 1949 (when no defence of diminished responsibility was available) 91% of women and 39% of men were reprieved (Report, p 326). Of those reprieved, twice as many served terms of imprisonment of under 5 years (in some cases terms of less than a year) as served terms of over 15 years (Report, pp 316-317). Since 1965 only a small minority of convicted murderers have spent the remainder of their lives in prison: that minority has included some whose crimes have been held to be so heinous as to merit lifelong imprisonment; it has also included some who have served such terms of imprisonment as their crimes have been held to merit for purposes of punishment but whom it has not been thought safe to release.

    4. So long as courts were required to pass sentence of death on convicted murderers or convicted capital murderers, it was natural to regard those reprieved as saving their lives at the price of forfeiting their liberty to the state for life (although the terms of imprisonment to which capital sentences were commuted were on occasion very short indeed: the death sentences passed on the defendants in R v Dudley and Stephens (1884) 14 QBD 273 were commuted to sentences of 6 months' imprisonment). It was also natural to regard release, if ordered, as an act of executive indulgence. It seems clear that a similar view was taken of the mandatory life sentence passed on all convicted murderers following effective abolition of the death penalty in 1965.

    5. Section 61(1) of the Criminal Justice Act 1967 conferred a discretion on the Home Secretary to release on licence a convicted murderer serving a sentence of life imprisonment if recommended to do so by the newly created Parole Board. In a written answer given in the House of Commons on 30 November 1983 the then Home Secretary (Mr Leon Brittan QC) made a statement concerning his exercise of this discretion (Hansard (HC Debates), 30 November 1983, cols 505-507). In this he made two announcements relevant for present purposes: first, that he would continue to look to the judiciary for advice on the time to be served to satisfy the requirements of retribution and deterrence and to the Parole Board for advice on risk; and secondly, that the new procedures he was announcing would separate consideration of the requirements of retribution and deterrence from consideration of risk to the public. Over the years since 1983 the procedures then introduced have been clarified, refined and formalised.

    6. A power to release convicted murderers was again conferred on the Home Secretary by section 35(2) and (3) of the Criminal Justice Act 1991, and is now conferred (in terms substantially identical to those of the 1991 Act) in section 29 of the Crime (Sentences) Act 1997, which provides

    "(1)  If recommended to do so by the Parole Board, the Secretary of State may, after consultation with the Lord Chief Justice together with the trial judge if available, release on licence a life prisoner who is not [a discretionary life prisoner].

    (2) The Parole Board shall not make a recommendation under subsection (1) above unless the Secretary of State has referred the particular case, or the class of case to which that case belongs, to the Board for its advice."

This section, no doubt deliberately, gives little indication of the procedures which in practice follow imposition of a mandatory life sentence on a convicted murderer, although for some years now those procedures have been well understood and routinely followed in practice.

    7. The first stage is directed to deciding how long the convicted murderer should remain in prison as punishment for the murder or murders he has committed. This is what Mr Brittan meant when he referred to "retribution and deterrence", although deterrence should be understood as meaning general deterrence; deterrence of the particular convicted murderer is embraced in the notion of retribution. In determining the appropriate measure of punishment in a particular case all the traditional factors may, and should so far as appropriate, be taken into account: pure retribution, expiation, expression of the moral outrage of society, maintenance of public confidence in the administration of justice, deterrence, the interests of victims, rehabilitation and so on. The term of imprisonment appropriate in a particular case is subject to no minimum, and no maximum; it may in a case of sufficient gravity extend to the whole life of the convicted murderer (R v Secretary of State for the Home Department, Ex p Hindley [1998] QB 751 at 769; [2001] 1 AC 410 at 416).

    8. In the first instance, advice on the appropriate punitive term of imprisonment, which has become known as "the tariff", is given by the trial judge, who will have a detailed knowledge of the facts of the case and of the offender and, if the charge was contested, will have had an opportunity to assess the conduct of the convicted murderer, albeit in the artificial context of a criminal trial. The trial judge, in giving his advice, will review the factors which in his expert judgment go to mitigate and aggravate the offence and will approach his task in very much the same way as if he were sentencing a defendant other than a convicted murderer. The trial judge's advice is passed to the Lord Chief Justice of the day, who does not enjoy the trial judge's immediacy of exposure to the facts of the case or the offender but who does, through the frequency with which he is consulted, obtain an overall view denied to any individual trial judge and who thus has the opportunity to give advice reflecting some uniformity of approach to classes of case and particular considerations. As is plain from the language I have used, the role of the trial judge and the Lord Chief Justice is that of advisers or makers of recommendations. The power of decision rests with the Home Secretary (or a junior Home Office minister) who, having received the written advice of officials in his department, will decide how long the particular convicted murderer should remain in prison to meet the requirements of retribution and general deterrence. In recent years the Home Secretary has set a period in line with the judicial recommendations in a large majority of cases, but in a small minority of cases the period set has been either longer or shorter than the judges have recommended. This is the process, colloquially known as "fixing the tariff", with which this appeal is centrally concerned, and I shall return to it.

    9. This procedure was followed in the case of the appellant, Mr Anthony Anderson. In September 1986 the appellant murdered a 60 year old man in obviously poor health who had allowed the appellant into his house. Once in the house the appellant punched and kicked the victim who suffered a cardiac arrest and died. The appellant stole some of the victim's property. In May 1987 the appellant murdered a 35 year old homosexual who had invited the appellant back to his house after a chance meeting. The appellant attacked and kicked his victim, who died from his injuries, and stole his property. The appellant denied both murders but was convicted before Kenneth Jones J and a jury at the Central Criminal Court. The trial judge considered that the appellant had deliberately picked on vulnerable victims and recommended that he serve a minimum term of 15 years for both murders. The Lord Chief Justice made the same recommendation. The Home Secretary set the term at 20 years. The appellant sought judicial review of the Home Secretary's decision to increase the judicially recommended tariff, but was unsuccessful in the Queen's Bench Divisional Court (Rose LJ, Sullivan and Penry-Davey JJ) on 22 February 2001 ([2001] EWHC Admin 181) and his appeal against this decision was rejected by the Court of Appeal (Lord Woolf CJ, Simon Brown and Buxton LJJ) on 13 November 2001 ([2002] 2 WLR 1143; [2001] EWCA Civ 1698). He now appeals to the House.

    10. It is necessary to allude to two further features of the mandatory life sentence imposed on convicted murderers, each of them very important. Both are safeguards directed towards securing the protection of the public. The first safeguard becomes operative when (as happens sooner or later in all but a few cases) the convicted murderer approaches the end of his punitive or tariff term. His case will then be referred to the Parole Board which will consider whether it is necessary for the protection of the public that the convicted murderer should continue to be confined. If the board concludes that it is necessary, the Home Secretary has no power under section 29 to release that convicted murderer. If the board recommends that the convicted murderer be released on licence the Home Secretary may (after consultation with the Lord Chief Justice) order his release, and will ordinarily do so, although the statute does not even then oblige him to do so.

    11. In a written answer given on 27 July 1993 (Hansard (HC Debates), 27 July 1993, cols 861-864) the then Home Secretary (Mr Michael Howard QC), referring to the release of convicted murderers, stated:

    "Accordingly, before any such prisoner is released on licence, I will consider not only (a) whether the period served by the prisoner is adequate to satisfy the requirements of retribution and deterrence and (b) whether it is safe to release the prisoner, but also (c) the public acceptability of early release. This means that I will exercise my discretion to release only if I am satisfied that to do so will not threaten the maintenance of public confidence in the system of criminal justice".

In a written answer on 10 November 1997 (Hansard (HC Debates), 10 November 1997, cols 419-420) the Home Secretary (Mr Jack Straw) addressing the same subject, stated:

    "I take the opportunity to confirm that my approach on the release of adults convicted of murder once tariff has expired will reflect the policy set out in the answer given 27 July 1993. In particular, the release of such a person will continue to depend not only on the expiry of tariff and on my being satisfied that the level of risk of his committing further imprisonable offences presented by his release is acceptably low, but also on the need to maintain public confidence in the system of criminal justice . . ."

As already indicated, the need to maintain public confidence in the administration of criminal justice is a matter of which account is routinely taken when deciding how long a convicted murderer should remain in prison, as it is in the case of other serious offences. No issue arises in this appeal on Mr Howard's head (c) (the public acceptability of early release) upon which, the House was told, reliance has never in practice been placed. One must however question whether it could ever be lawful to continue to detain a convicted murderer who had served the punitive term judged necessary to meet the requirements of retribution and general deterrence and whose release was not judged by the Parole Board to present any significant risk of danger to the public.

    12. The mandatory life sentence imposed on a convicted murderer provides a second safeguard applicable after he has served his tariff term and after he has been released by the Home Secretary on the recommendation of the Parole Board following consultation with the Lord Chief Justice. His release is not unconditional but is subject to a licence which, unless revoked, endures for the remainder of his life. But his licence may be revoked and he may be recalled to prison if his continued release is thought to threaten the safety of the public: section 32 of the Crime (Sentences) Act 1997 entrusts the final decision on revocation and recall to the Parole Board.

    13. I return to the fixing of the convicted murderer's tariff term by the Home Secretary, described in paragraph 8 above. The true nature of that procedure must be judged as one of substance, not of form or description. It is what happens in practice that matters: Van Droogenbroeck v Belgium (1982) 4 EHRR 443 at 456, para 38. What happens in practice is that, having taken advice from the trial judge, the Lord Chief Justice and departmental officials, the Home Secretary assesses the term of imprisonment which the convicted murderer should serve as punishment for his crime or crimes. That decision defines the period to be served before release on licence is considered. This is a classical sentencing function. It is what, in the case of other crimes, judges and magistrates do every day. In arguing on behalf of the Home Secretary that his fixing of a convicted murderer's tariff was not a sentencing function, Mr David Pannick QC drew attention to two options open to the Home Secretary but not, as was rightly said, to a sentencing judge. He may shorten the convicted murderer's tariff term if he makes exceptional progress in prison. He may increase the convicted murderer's tariff term if fresh facts come to light, not known when the tariff term was fixed and revealing his conduct as graver than previously appreciated. There are obvious difficulties about this latter course if the length of the tariff term has already been disclosed to the convicted murderer (as in R v Secretary of State for the Home Department, Ex p Pierson [1998] AC 539) and if the fresh facts are not admitted, but it may be accepted for present purposes that these differences exist. They are however minor differences and do not begin to outweigh the very striking similarities between the fixing of a tariff term and the imposition of an ordinary custodial sentence.

    14. The Home Secretary also relied on a more general argument concerning the nature of the mandatory life sentence. A convicted murderer, it was said, had committed a crime of such gravity that he forfeited his life to the state, giving rise to a presumption that he would remain in prison until and unless the Home Secretary concluded that the public interest would be better served by the convicted murderer's release than by his continued detention. In fixing the tariff the Home Secretary was administering a sentence already imposed, not imposing a sentence. This view of the mandatory life sentence was advanced by the Minister of State (Mrs Angela Rumbold) on 16 July 1991 (Hansard (HC Debates), 16 July 1991, cols 309-310), and was endorsed by Mr Howard in his written answer of 27 July 1993 already referred to. In R v Secretary of State for the Home Department, Ex p Doody [1994] 1 AC 531, however, the House (in an opinion of Lord Mustill, with the concurrence of Lord Keith of Kinkel, Lord Lane, Lord Templeman and Lord Browne-Wilkinson) recognised this theory of the sentence as inconsistent with the practice followed since the statement of Mr Brittan in 1983 and left it entirely out of account in resolving the issues in the case (page 557).

    15. Since 1983 the Home Secretary's role in the administration of life sentences has been the subject of repeated challenges, both in our domestic courts and before the European Commission and the European Court of Human Rights. Some of these challenges have concerned defendants sentenced to imprisonment for life in the exercise of the sentencing judge's discretion for offences other than murder: R v Secretary of State for the Home Department, Ex p Handscomb (1987) 86 Cr App R 59; Weeks v United Kingdom (1987) 10 EHRR 293; Thynne, Wilson and Gunnell v United Kingdom (1990) 13 EHRR 666. Such sentences are now governed by section 28 of the Crime (Sentences) Act 1997: in short, the sentencing judge decides how long a defendant shall serve in prison for punitive purposes; on expiry of that period, the defendant may require the Home Secretary to refer his case to the Parole Board; if the board is satisfied that it is no longer necessary for the protection of the public that the defendant should be confined, the Home Secretary must release him on licence. Some of the challenges have concerned youthful murderers sentenced to be detained during Her Majesty's Pleasure: Hussain v United Kingdom; Singh v United Kingdom (1996) 22 EHRR 1; R v Secretary of State for the Home Department, Ex p Venables and Thompson [1998] AC 407; V v United Kingdom (1999) 30 EHRR 121. The third of these cases held that the Home Secretary had acted in breach of article 6(1) of the convention in setting the applicant's tariff, since this was a sentencing exercise which was required to be carried out by an independent and impartial tribunal and the Home Secretary, as a member of the executive, was not an independent and impartial tribunal. Some of the challenges have concerned convicted murderers serving (or recalled to serve) mandatory life sentences: In re Findlay [1985] AC 318; R v Secretary of State for the Home Department, Ex p Doody [1994] 1 AC 531; Wynne v United Kingdom (1994) 19 EHRR 333; R v Secretary of State for the Home Department, Ex p Pierson [1998] AC 539; Raja v United Kingdom (Application No 39047/97, 20 May 1998); R v Secretary of State for the Home Department, Ex p Stafford [1999] 2 AC 38; R v Secretary of State for the Home Department, Ex p Hindley [1998] QB 751; [2000] QB 152; [2001] 1 AC 410; Stafford v United Kingdom (Application No 46295/99, 28 May 2002). Among these cases are those most directly germane to the present appeal.

    16. In Doody the House accepted (at p 558) that mandatory life sentences were "very different" from discretionary life sentences and regarded the fixing of a convicted murderer's tariff as appropriately carried out by the Home Secretary and his junior ministers. Not surprisingly, the European Court relied heavily on this authoritative ruling in Wynne, holding that as a convicted murderer Wynne was not entitled to the protection which would have been appropriate had he been a discretionary life prisoner. The application in Raja was rejected by the European Commission as manifestly ill-founded on the ground that tariff-fixing was an administrative procedure governing the implementation, not the determination, of the sentence, with the result that article 6(1) of the convention did not apply to it. This decision reflected Strasbourg jurisprudence as it then stood. The House of Lords' decision in Stafford, rejecting an appeal for symmetry between the treatment of convicted murderers and discretionary life sentence prisoners in reliance on Doody ([1994] 1 AC 531 at 559) and Wynne ((1994) 19 EHRR 333), regarded the dichotomy as embedded in our domestic law by primary legislation ([1999] 2 AC 38 at 49-50). In Hindley the House of Lords understood the sentence of life imprisonment to authorise the detention of the person sentenced for an indeterminate period brought to an end by the death of the prisoner or the Home Secretary's decision (if and when made) to release him ([2001] 1 AC 410 at 416).

    17. There was material in these judgments to support the Home Secretary's view of the mandatory life sentence as involving the forfeiture of the convicted murderer's life to the state and his view of his own role as involving not the imposition of a sentence but the administrative implementation of a sentence already passed. But these views were inconsistent with the steadily growing recognition of the tariff-fixing exercise as involving the imposition of a sentence and with the procedures followed in the fixing of the tariff. In the present case, both Sullivan and Penry-Davey JJ in the Queen's Bench Divisional Court would, if unconstrained by authority, have held that the fixing of a tariff amounts to the imposition of a sentence and is accordingly governed by article 6(1) of the convention: [2001] EWHC Admin 181, paras 42, 48-49, 54. Similar views were expressed in the Court of Appeal by Simon Brown and Buxton LJJ: [2002] 2 WLR 1143, paras 57, 82. The stage was thus set for reconsideration by the European Court of its own case law on mandatory life sentences, particularly its decision in Wynne (1994) 19 EHRR 333. This task it undertook in a careful and comprehensive way in Stafford v United Kingdom (Application No 46295/99, 28 May 2002), expressing its conclusions in paragraphs 78-80 of the judgment:

    "78 The above developments demonstrate an evolving analysis, in terms of the right to liberty and its underlying values, of the role of the Secretary of State concerning life sentences. The abolition of the death penalty in 1965 and the conferring on the Secretary of State of the power to release convicted murderers represented, at that time, a major and progressive reform. However, with the wider recognition of the need to develop and apply, in relation to mandatory life prisoners, judicial procedures reflecting standards of independence, fairness and openness, the continuing role of the Secretary of State in fixing the tariff and in deciding on a prisoner's release following its expiry, has become increasingly difficult to reconcile with the notion of separation of powers between the executive and the judiciary, a notion which has assumed growing importance in the case-law of the Court (mutatis mutandis, the Incal v Turkey judgment of 9 June 1998, Reports 1998-IV).

    79 The Court considers that it may now be regarded as established in domestic law that there is no distinction between mandatory life prisoners, discretionary life prisoners and juvenile murderers as regards the nature of tariff-fixing. It is a sentencing exercise. The mandatory life sentence does not impose imprisonment for life as a punishment. The tariff, which reflects the individual circumstances of the offence and the offender, represents the element of punishment. The Court concludes that the finding in Wynne that the mandatory life sentence constituted punishment for life can no longer be regarded as reflecting the real position in the domestic criminal justice system of the mandatory life prisoner. This conclusion is reinforced by the fact that a whole life tariff may, in exceptional cases, be imposed where justified by the gravity of the particular offence. It is correct that the Court in its more recent judgments in T and V, citing the Wynne judgment as authority, reiterated that an adult mandatory life sentence constituted punishment for life (T v the United Kingdom, cited above, § 109, and V v the United Kingdom, cited above, § 110). In doing so it had, however, merely sought to draw attention to the difference between such a life sentence and a sentence to detention during Her Majesty's pleasure, which was the category of sentence under review in the cases concerned. The purpose of the statement had therefore been to distinguish previous case-law rather than to confirm an analysis deriving from that case-law.

    80 The Government maintained that the mandatory life sentence was nonetheless an indeterminate sentence which was not based on any individual characteristic of the offender, such as youth and dangerousness and therefore there was no question of any change in the relevant circumstances of the offender that might raise lawfulness issues concerning the basis for his continued detention. However, the Court is not convinced by this argument. Once the punishment element of the sentence (as reflected in the tariff) has been satisfied, the grounds for the continued detention, as in discretionary life and juvenile murderer cases, must be considerations of risk and dangerousness. Reference has been made by Secretaries of State to a third element - public acceptability of release - yet this has never in fact been relied upon. As Lord Justice Simon Brown forcefully commented in the case of Anderson and Taylor (see paragraph 46), it is not apparent how public confidence in the system of criminal justice could legitimately require the continued incarceration of a prisoner who had served the term required for punishment for the offence and was no longer a risk to the public. It may also be noted that recent reforms in Scotland and Northern Ireland equate the position of mandatory life prisoners in those jurisdictions to that of discretionary life prisoners in England and Wales in respect of whom continued detention after expiry of tariff is solely based on assessment of risk of harm to the public from future violent or sexual offending."