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

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    44. In Stafford v United Kingdom, (Application no 46295/99), 28 May 2002, the Grand Chamber of the ECHR reviewed developments which in its view led to the conclusion that (p 20, para 78) -

    "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 (see mutatis mutandis, the Incal v Turkey judgment of 9 June 1998, Reports 1998-IV).

Referring to the Wynne judgment the court observed (p 21, para 79):

    "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."

The decision in Stafford has recently been reinforced by a Chamber of the ECHR in Benjamin and Wilson v United Kingdom (Application no 28212/95). The applicants were discretionary life sentence prisoners who were detained in a mental hospital. The case concerned the applicants' right to a review of their detention in hospital as required by article 5.4 of the Convention. The power to order release lay with the Secretary of State who asserted that he adopted a practice of following the recommendation of the mental health review tribunal. The court ruled (p 9, para 36):

    "although both parties appear to agree that the Secretary of State, following entry into force of the Human Rights Act 1998, would not be able lawfully to depart from the Tribunal's recommendation, this does not alter the fact that the decision to release would be taken by a member of the executive and not by the Tribunal. This is not a matter of form but impinges on the fundamental principle of separation of powers and detracts from a necessary guarantee against the possibility of abuse (see, mutatis mutandis, Stafford v United Kingdom, [GC] no 46295/99, 28 May 2002, ECHR 2002- . . ., § 78)."

In other words, a member of the executive may not play any part in such a decision.

III. A Ministerial Statement.

    45. Following the decision in Stafford the following statement was made in the House of Commons on behalf of the Home Secretary on 17 October 2002, (Hansard (HC Debates), cols 915W-916W, written answer):

    "As an interim measure, the Home Secretary has decided to change the administrative arrangements for the review and release of mandatory life sentence prisoners. These administrative arrangements will apply to all such prisoners whose next Parole Board review begins on or after 1 January 2003. The changes will mean that in most instances these prisoners' cases will be heard initially, as now, by the Parole Board on the papers which will make a provisional recommendation. If prisoners wish to make representations about provisional recommendations it will then be open to them to request an oral hearing before the Parole Board at which they may have legal representation. They will normally receive full disclosure of all material relevant to the question of whether they should be released. They will also be able to examine and cross-examine witnesses. Similarly, the Secretary of State may also require an oral hearing of the Board in cases where he believes further examination of the evidence is required.

    If, at the end of the review process, the Parole Board favours the release of a mandatory life sentence prisoner once the minimum period has been served the Home Secretary will normally accept such a recommendation.


    The Stafford judgment affects only the process by which the decision is made on whether to release mandatory life sentence prisoners. It does not relate to the period of detention which such prisoners must serve to satisfy the requirements of retribution and deterrence, or Parole Board reviews that take place before the end of that period. There will usually be no change to the dates set for Parole Board reviews of prisoners who have served that period. Those prisoners serving whole life tariffs do not have their cases referred to the Parole Board."

It will be observed that in part at least the Home Secretary has already given effect to the Stafford judgment.

IV. The Proceedings Below.

    46. The appellant, and another mandatory life sentence prisoner, challenged decisions of the Home Secretary fixing tariffs in their cases. These cases were heard and determined before the decisions of the ECHR in Stafford and Benjamin. The Divisional Court unanimously dismissed the application: [2001] EWHC Admin 181. Two members of the Court (Sullivan and Penry-Davey JJ) reached their decisions with reluctance but felt constrained by the then extant Wynne decision to reach this result. The Court of Appeal dismissed an appeal. Again, the Wynne decision was decisive. Simon Brown and Buxton LJJ were highly critical of that decision and dismissed the appeal with great reluctance: R (Anderson) v Secretary of State for the Home Department [2002] 2 WLR 1143. The appellant (Anderson), but not Taylor, now appeals to the House of Lords.

V. A Cautionary Note.

    47. This appeal raises the question whether the period of imprisonment to be served by a mandatory life sentence prisoner as punishment should be determined by the executive or the judiciary. It does not concern the question how individual cases should be approached. On the hypothesis, however, that the appeal in Anderson succeeds, it is important to guard against misunderstanding in one respect. If the role of the executive in setting the tariff should cease it does not follow that life imprisonment for murder may never, even in the worst cases imaginable, literally mean detention for life. In the Divisional Court in R v Secretary of State for the Home Department, Ex p Hindley [1998] QB 751, 769, Lord Bingham of Cornhill CJ observed that he could "see no reason, in principle, why a crime or crimes, if sufficiently heinous, should not be regarded as deserving lifelong incarceration for purposes of pure punishment." On appeal to the House of Lords, and with the agreement of Lord Browne-Wilkinson, Lord Nicholls of Birkenhead, and Lord Hutton, I expressed myself in similar terms: R v Secretary of State for the Home Department, Ex p Hindley [2001] 1 AC 410, 416H. The following passage is part of the ratio of that case (at p 417H):

    "The last submission is that the policy of imposing whole life tariffs is inconsistent with the notion of a tariff which requires expression in a term of years. This is an appeal to legal logic. But there is nothing logically inconsistent with the concept of a tariff by saying that there are cases where the crimes are so wicked that even if the prisoner is detained until he or she dies it will not exhaust the requirements of retribution and deterrence."

In Stafford the ECHR observed "that a whole life tariff may, in exceptional cases, be imposed where justified by the gravity of the particular offence": p 21, para 79. If in future the judiciary and the Parole Board are given the sole responsibility for the system there may still be cases where the requirements of retribution and deterrence will require life long detention.

VI. The Issues on the Appeal.

    48. It is manifest, and conceded by the Home Secretary, that if the fixing of tariff is appropriately to be classified as a judicial function under article 6(1), it follows that the existing system is in breach of article 6(1) since the Home Secretary, as a member of the executive, is undoubtedly not independent within the meaning of article 6(1). There are therefore two principal issues, namely:

(1)  Whether the fixing of the tariff is to be classified as a "determination of … [a] criminal charge" within the meaning of article 6(1);

(2)  If so, what the appropriate remedy under the Human Rights Act is.

VII. Is Tariff Fixing A Judicial Function?

    49. The language of article 6(1) is general. It simply provides that the determination of a criminal charge must be made by an independent tribunal. Its purpose is however not in doubt. First only a court or an independent tribunal may decide on the guilt or otherwise of an accused person. The executive have no role to play in the determination of guilt. Secondly, only a court or independent tribunal may decide on the punishment of a convicted person. Again, the executive have no role to play in the determination of punishment.

    50. One can readily accept that it is sometimes difficult to categorise a particular function as judicial or non-judicial. The Australian experience, admittedly in a federal system, is instructive. It is recognised that there are functions which, by their very nature, may be exercised only by courts and, on the other hand, there are other functions which by their very nature are inappropriate for such exercise. Between these functions there lies a "borderland" in which functions may be exercised either by the executive or the courts: Allan N Hall, "Judicial Power, The Duality of Functions and the Administrative Appeals Tribunal" (1994) 22 Federal Law Review 13, 21; see also Enid Campbell, "The Choice Between Judicial and Administrative Tribunals and The Separation of Powers" (1981) 12 Federal Review 24. In R v Trade Practices Tribunal, Ex p Tasmanian Breweries Pty Ltd (1970) 123 CLR 361, 394 Windeyer J explained the difficulty of defining the judicial function as follows:

    "The concept seems to me to defy, perhaps it were better to say transcend, purely abstract conceptual analysis. It inevitably attracts consideration of predominant characteristics and also invites comparison with the historic functions and processes of courts of law."

Nevertheless it has long been settled in Australia that the power to determine responsibility for a crime, and punishment for its commission, is a function which belongs exclusively to the courts: G.F.K Santow, "Mandatory Sentencing: A Matter For The High Court?" (2000) 74 Australian LJ 298, 300 and footnotes 17 and 18. It has been said that "the selection of punishment is an integral part of the administration of justice and, as such, cannot be committed to the hands of the executive": Deaton v Attorney-General and Revenue Commissioners [1963] IR 170, 183; see also In re Tracey (1989) 166 CLR 518, 580; Chu Kheng Lim v Minister for Immigration, Local Government and Ethnic Affairs (1992) 176 CLR 1, 27; Nicholas v The Queen (1998) 193 CLR 173, 186-187, per Brennan CJ. The underlying idea, based on the rule of law, is a characteristic feature of democracies. It is the context in which article 6(1) should be construed.

    51. The power of the Home Secretary in England and Wales to decide on the tariff to be served by mandatory life sentence prisoners is a striking anomaly in our legal system. It is true that Parliament has the power to punish contemnors by imprisonment. This power derives from the medieval concept of Parliament being, amongst other things, a court of justice: see Erskine May: Treatise On The Law, Privileges, Proceedings and Usages of Parliament, 22nd ed (1997), p 131 et seq. Subject to this qualification, there is in our system of law no exception to the proposition that a decision to punish an offender by ordering him to serve a period of imprisonment may only be made by a court of law: Blackstone's Commentaries on the Laws of England, 2001, vol. 1, republished by Cavendish Publishing Ltd, para 137. It is a decision which may only be made by the courts. Historically, this has been the position in our legal system since at least 1688. And this idea is a principal feature of the rule of law on which our unwritten constitution is based. It was overridden by Parliament by virtue of section 29 of the 1997 Act. Now the duty to decide on the compatibility of that statutory provision with article 6(1) has been placed by Parliament on the courts under the Human Rights Act.

    52. One then asks how a decision of the Home Secretary on the tariff should be classified. Counsel for the Home Secretary submits that the mandatory life sentence is imposed as punishment, which covers the whole of the offender's life subject only to the discretionary power of the Home Secretary to release him. He argues that the setting of a tariff by the Home Secretary is "an administrative procedure" relating to the implementation of the sentence. He contends that it is not the imposition of a sentence for the purposes of article 6(1). This argument sits uneasily, as the ECHR pointed out in Stafford (pp 9-10, para 45), with a description of a mandatory life sentence given by counsel for the Home Secretary in the Court of Appeal in R (Lichniak and Pyrah) v Secretary of State for the Home Department [2002] QB 296. He submitted that the purpose was:

    "to punish the offender by subjecting him to an indeterminate sentence under which he will only be released when he has served the tariff part of his sentence, and when it is considered safe to release him . . . That is not merely the effect of the sentence, it is the sentence."

    The persuasiveness of the advocacy of counsel for the Home Secretary cannot hide the fragility of the argument presented. Under the existing practice the views of the trial judge and Lord Chief Justice on tariff have no effect on the term to be served. On the other hand, the tariff fixed by the Home Secretary has, subject to article 6(1), definitive legal consequences. It is conclusive as to the minimum period to be served before the question of release in the light of considerations of risk can be considered. For example, when the Home Secretary rejected in the case of the appellant the judicial advice of a tariff of 15 years and fixed a tariff of 20 years he took a dispositive decision as to the level of punishment by way of imprisonment, which is required, and notified the prisoner accordingly. A decision fixing the tariff in an individual case is unquestionably a decision about the level of punishment which is appropriate. Mellifluous words cannot hide this reality.

    53. Counsel for the Home Secretary relied on statements in House of Lords decisions over the last 9 years. One must keep in the forefront of one's mind that these cases were decided at a time when article 6(1) was not part of domestic law. Primary legislation entrusted the decision as to the release of mandatory life sentence prisoners to the Home Secretary. This factor shaped the debates. Thus in the last of those cases, Hindley [2001] 1 AC 410, the House declined to hear argument on article 6(1) which was due to become part of our law on 2 October 2000. On the other hand, in Doody [1994] 1 AC 531 and Venables and Thompson [1998] AC 407 (by a majority decision) it was held that the Home Secretary's decision on the tariff to be applied was closely analogous to an ordinary sentencing exercise. These decisions were important since in Doody they led to fairness requirements being imposed on the Home Secretary's role and in Venables and Thompson to the restraint that the Home Secretary, who had yielded to public clamour about sentencing, must attempt to act like a judge. In both cases the House of Lords concluded that legal consequences flow from the categorisation of the Home Secretary's function as akin to that of a sentencing judge. The decision in R v Secretary of State for the Home Department, Ex p Pierson [1998] AC 539 is an important stepping stone in the evolution of this branch of the law. But it yields no clear ratio decidendi. The decision of the House of Lords in R v Secretary of State for the Home Department, Ex p Stafford [1999] 2 AC 38 was again predicated on the existing law and practice. It is, however, noteworthy that the House, at p 51, unanimously endorsed an observation by the Court of Appeal to the following effect [1998] 1 WLR 503, 518:

    "The imposition of what is in effect a substantial term of imprisonment by the exercise of executive discretion, without trial, lies uneasily with ordinary concepts of the rule of law."

On balance the logical force to be derived from the earlier dicta in House of Lords in favour of the Home Secretary's present position is minimal.

    54. In any event, the dicta in the House of Lords have been overtaken by the comprehensive and closely reasoned decision of the ECHR in Stafford, which is reinforced by the decision of the ECHR in Benjamin. Counsel for the Home Secretary submitted that there have been no relevant changes in domestic law and practice which justified the decision in Stafford. He argued that the ECHR misunderstood the effect of a mandatory life sentence. He said that the reasoning in Wynne remains intact. I would reject these arguments. The decision of the ECHR is, if I may say so, a coherent and inescapable one. The ECHR rightly attached importance to the similarities between the position of discretionary life sentences, detention during Her Majesty's Pleasure, and mandatory life sentences. With evident approval the ECHR quoted, at p 11, para 46, from the judgment of Simon Brown LJ in the Court of Appeal [2002] 2 WLR 1143, 1161:

    "In all three cases the exercise is in substance the fixing of a sentence, determining the length of the first stage of an indeterminate sentence - that part of it which (subject only to the need for continuing review in Her Majesty's pleasure cases) must be served in custody before any question of release can arise."

The ECHR carefully took account of criticisms of the reasoning in Wynne in the judgments in the Court of Appeal in Anderson. The conclusion that the reasoning in Wynne is no longer supportable was inevitable. Moreover, the effective elimination by legislation in Scotland and Northern Ireland of the role of the executive in mandatory life sentence cases was regarded as important. And the ECHR was rightly influenced by the evolution and strengthening of the principle of separation of powers between the executive and judiciary which underlies article 6(1).

    55. I would therefore reject the criticisms directed at the Stafford decision.

    56. It follows that section 29 of the 1997 Act and the Home Secretary's practice in setting the tariff is incompatible with article 6(1).

    57. Once this position has been reached the question arises what the impact is on the Home Secretary's remaining powers. In the Court of Appeal Simon Brown LJ answered this question as follows [2002] 2 WLR 1143, 1154, para 33:

    "If, therefore, the claimants succeed in these challenges, it seems inescapably to follow that not merely would the Secretary of State lose his present power to override the judges with regard to the penal tariff; also he would lose his present power to reject the Parole Board's recommendation for release on licence in the post-tariff period."

I too regard these conclusions as unavoidable.

VIII. The Remedy.

    58. The question of what remedy is appropriate must be considered under the framework of the Human Rights Act 1998. So far as material the relevant provisions are the following. Section 6 of the Human Rights Act 1998 states:

    "(1)  It is unlawful for a public authority to act in a way which is incompatible with a Convention right.

    (2)  Subsection (1) does not apply to an act if -

    (a) as the result of one or more provisions of primary legislation, the authority could not have acted differently; or

    (b) in the case of one or more provisions of, or made under, primary legislation which cannot be read or given effect in a way which is compatible with the Convention rights, the authority was acting so as to give effect to or enforce those provisions."

Section 1(1) of the 1998 Act defines "the Convention rights" as including article 6 of the European Convention on Human Rights. Section 3(1) of the 1998 Act states:

    "So far as it is possible to do so, primary legislation and subordinate legislation must be read and given effect in a way which is compatible with the Convention rights."

Section 4 so far as material provides:

    "(1) Subsection (2) applies in any proceedings in which a court determines whether a provision of primary legislation is compatible with a Convention right.

    (2) If the court is satisfied that the provision is incompatible with a Convention right, it may make a declaration of that incompatibility.

    (3)     - (5) . . .

    (6)    A declaration under this section ('a declaration of incompatibility') -

    (a) does not affect the validity, continuing operation or enforcement of the provision in respect of which it is given; and

      (b) is not binding on the parties to the proceedings in which it is made."

In this way Parliamentary sovereignty was preserved.

    59. Counsel for the appellant invited the House to use the interpretative obligation under section 3 to read into section 29 alleged Convention rights, viz to provide that the tariff set by the Home Secretary may not exceed the judicial recommendation. It is impossible to follow this course. It would not be interpretation but interpolation inconsistent with the plain legislative intent to entrust the decision to the Home Secretary, who was intended to be free to follow or reject judicial advice. Section 3(1) is not available where the suggested interpretation is contrary to express statutory words or is by implication necessarily contradicted by the statute: In re S (Minors) (Care Order: Implementation of Care Plan) [2002] 2 WLR 720, 731-732, para 41 per Lord Nicholls of Birkenhead. It is therefore impossible to imply the suggested words into the statute or to secure the same result by a process of construction.

    60. It follows that there must be a declaration of incompatibility. Counsel for the Home Secretary submitted the following draft declaration to the House:

    "Section 29 of the Crime (Sentences) Act 1997 is incompatible with a Convention right (that is the right under Article 6 of the European Convention on Human Rights to have a sentence imposed by an independent and impartial tribunal) in that the Secretary of State for the Home Department is acting so as to give effect to section 29 when he himself decides on the minimum period which must be served by a mandatory life sentence prisoner before he is considered for release on life licence."

Counsel for the appellant accepted, on the hypothesis that his argument on interpretation was rejected, that such a declaration would be appropriate. I am content to make a declaration in these terms.

IX. Conclusion.

    61. For the reasons given by Lord Bingham of Cornhill and Lord Hutton, as well as the reasons I have given, I would make the order which Lord Bingham proposes.

LORD HUTTON

My Lords,

    62. There is much public interest in the length of time which a person convicted of murder should serve in prison and in the parts which the Home Secretary and the judiciary should play in deciding on the duration of that period, and the public interest is particularly intense in respect of very heinous murders which give rise to great public anger and concern. It is therefore important to observe that under the system which has operated in the past, whereby the Home Secretary decides when a prisoner sentenced to life imprisonment for murder will be released, the vast majority of convicted murderers are released from prison by the Home Secretary after a period of years and, in many cases, long before the end of their lives. It is only in very exceptional cases that a murderer is so wicked and evil or remains such a danger to the public that there are grounds for deciding that he or she should never be released and should remain in prison until death. Therefore, as Lord Mustill stated in R v Secretary of State for the Home Department, Ex p Doody [1994] 1 AC 531, 549H, in the great majority of cases when a judge sentences a person to imprisonment for life, the sentence does not mean what it says. Everyone who has any knowledge of the penal system knows that most convicted murderers will be released from prison before, and perhaps long before, the end of their lives.

    63. In considering the issue of the release of prisoners convicted of murder it is also relevant to observe that in enacting the Human Rights Act 1998 Parliament has provided, in effect, that the rights given by the European Convention on Human Rights ("the Convention") are to be incorporated into the domestic law of the United Kingdom. But Parliament has also made it clear in that Act that it remains supreme and that if a statute cannot be read so as to be compatible with the Convention, a court has no power to override or set aside the statute. All that the court may do, pursuant to section 4 of the 1998 Act, is to declare that the statute is incompatible with the Convention. It will then be for Parliament itself to decide whether it will amend the statute so that it will be compatible with the Convention. Therefore if a court declares that an Act is incompatible with the Convention, there is no question of the court being in conflict with Parliament or of seeking or purporting to override the will of Parliament. The court is doing what Parliament has instructed it to do in section 4 of the 1998 Act.

    64. The facts in this appeal and the proceedings in the Queen's Bench Divisional Court and the Court of Appeal have been fully set out in the opinion of my noble and learned friend Lord Bingham of Cornhill. Lord Bingham has, in addition, described the system which has evolved whereby the trial judge and the Lord Chief Justice each makes a recommendation to the Home Secretary as to the length of time which a convicted murderer should serve in prison in order to satisfy the requirements of retribution and deterrence (which has been termed "the tariff"), and how the Parole Board then considers whether the prisoner should remain in prison after he has served the tariff period in order to protect the public from risk or whether it should recommend his release. But under the provisions of section 29 of the Crime (Sentences) Act 1997 the power to decide on the length of the tariff and when a prisoner should be released is vested in the Home Secretary. Section 29 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 one to whom section 28 above applies.

    (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."

 
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