|Judgments - Regina v Secretary of State for the Home Department (Respondent) Ex Parte Anderson (Fc) (Appellant)
65. Therefore the Home Secretary has power to disregard the recommendations of the trial judge and the Lord Chief Justice and to decide himself on the length of the tariff. This has happened in the present case. The trial judge and the Lord Chief Justice recommended a tariff of 15 years as the period which the appellant should serve to meet the requirements of retribution and deterrence, but the Home Secretary fixed the tariff at 20 years.
66. The appellant challenges the decision of the Home Secretary on the ground that a member of the executive, a government minister, should not decide the length of the period which he should serve in prison for the purposes of retribution and deterrence. He submits that for the Home Secretary, and not a judge or a judicial body, to decide on the length of the tariff period is to violate his rights under Article 6(1) of the Convention which provides:
67. Two matters are clear and are not in dispute. One is that "the determination of . any criminal charge" against a person includes the fixing of the term of imprisonment which he will serve after he has been convicted of the charge: see Engel v Netherlands (1976) 1 EHRR 647, paras 82 and 83. The other is that the Home Secretary, being a member of the executive, is not "an independent and impartial tribunal established by law".
68. The argument of Mr Fitzgerald QC on behalf of the appellant can be summarised as follows:
69. In his reply to Mr Fitzgerald's argument Mr Pannick QC, for the Home Secretary, relied on the express provisions of section 1(1) of the Murder (Abolition of Death Penalty) Act 1965 which provides:
Mr Pannick submitted that the sentence of imprisonment for life made mandatory by section 1(1) of the 1965 Act is the punishment for the murder committed by the defendant, it is the sole sentencing exercise and the setting of the tariff is not a sentencing exercise but an administrative procedure carried out for the implementation of the punishment and therefore does not constitute a breach of Article 6(1).
70. Before turning to consider the judgments of the European Court in which similar arguments have been considered, it is relevant to refer to the speech of Lord Mustill (in which the other members of the House concurred) in R v Secretary of State for the Home Department, Ex p Doody  1 AC 531. In that case, which was heard before the enactment of the Human Rights Act 1998, Lord Mustill recognised the force of the argument that the fixing of the tariff element (which he described as "the penal element") was a sentencing exercise and he stated, at p 557A:
However Lord Mustill declined to hold that the practice whereby the Home Secretary fixed the tariff period was unlawful and, in considering the difference between a mandatory life sentence and a discretionary life sentence for a serious crime (other than murder) such as rape, he stated, at p 559D:
71. In Wynne v United Kingdom (1994) 19 EHRR 333 the European Court considered a complaint by a prisoner that there had been a breach of Article 5(4) of the Convention which provides:
In that case the prisoner had received a mandatory life sentence for murder and after his release on licence he killed another person and was convicted of manslaughter and received a discretionary life sentence. His licence was also revoked so that he was detained in prison pursuant to both life sentences. The Court referred in para 33 of its judgment to its judgment in Thynne, Wilson and Gunnell v United Kingdom (1990) 13 EHRR 666 where it had drawn a clear distinction between a discretionary life sentence which was considered to have a protective purpose and a mandatory life sentence which was viewed as essentially punitive in nature and stated, at paras 35 and 36:
72. However in Stafford v United Kingdom (Application no 46295/99), (28 May 2002) when considering allegations of breaches of Articles 5(1) and 5(4) of the Convention, the Court departed from its judgment in Wynne and held that the mandatory life sentence does not impose imprisonment for life as a punishment and that the fixing of the tariff by the Secretary of State was a sentencing exercise. The Court stated, at para 79 of its judgment:
73. Under section 2(1) of the Human Rights Act 1998 a United Kingdom court is required to take a decision of the European Court into account, but it is not obliged to follow it. Mr Pannick submitted that the House should not follow the judgment of the European Court in Stafford but rather should follow the judgment in Wynne. He submitted that the Court in Stafford had misunderstood the law in England and that there was, in truth, no development whereby the English courts had moved away from the position taken by the House of Lords in Doody and that, notwithstanding that the fixing of the penal element was looking much more like an orthodox sentencing exercise, the English courts still recognised that section 1(1) of the 1965 Act required them to hold that the entire life sentence was the punishment imposed for the crime of murder.
74. I am unable to accept that submission and I consider that the European Court was right to hold in Stafford that the mandatory life sentence pronounced by a judge when a defendant is convicted of murder does not impose imprisonment for life as a punishment and that the fixing of the tariff for punishment and deterrence is a sentencing exercise. I would so hold for the following reasons.
75. First, in considering whether there has been a violation of a convention right the European Court looks at the substance of the action which has been taken and not at its formal categorisation in domestic law, it looks behind appearances at the realities of the situation: see Welch v United Kingdom (1995) 20 EHRR 247, para 34. Viewing the issue in this way it is clear that the reality is that when the Home Secretary fixes the tariff he is deciding the punishment which the murderer should receive for his crime.
76. Secondly, I consider the European Court was right to observe in paragraph 78 of its judgment that, whilst the abolition of the death penalty in 1965 and the giving of power to the Home Secretary to release a convicted murderer sentenced to life imprisonment was a major and progressive reform at the time, the Home Secretary's continuing role in fixing the tariff has become increasingly difficult to reconcile with the concept of the separation of powers between the executive and the judiciary, which is an essential element of a democracy.
77. Thirdly, the correctness of the view that the fixing of the tariff is a sentencing exercise which should be carried out by a judge or judicial tribunal and not an administrative exercise to be carried out by a government minister is shown by the recent legislation in Scotland and Northern Ireland which provides that a judge will fix the tariff element of the sentence where a defendant is convicted of murder. Thus Article 5 of The Life Sentences (Northern Ireland) Order 2001 (SI 2001/2564 (NI 2)) under the heading "Determination of tariffs" provides:
Article 6 of the Order provides that it shall be the duty of the Secretary of State to release a life prisoner on licence as soon as he has served the tariff element of his sentence and the Life Sentence Review Commissioners have directed his release. Part I of the Convention Rights (Compliance) (Scotland) Act 2001 contains similar provisions relating to life sentence prisoners and the long title of the Scottish Act states that it is an Act "to amend certain enactments relating to the sentencing and release of life prisoners which are or may be incompatible with the European Convention on Human Rights". This legislation in Scotland and Northern Ireland shows the manner in which similar changes could be made in England.
78. Therefore I am of opinion that this House should follow the judgment of the European Court in Stafford and hold that the fixing of the tariff by the Home Secretary is a sentencing exercise so that the performance of that function by him constituted a breach of the appellant's rights under Article 6(1) of the Convention. It is relevant to observe that all three members of the Court of Appeal, who delivered their judgments  2 WLR 1143 before the European Court gave judgment in Stafford, would also have held that the fixing of the tariff is a sentencing exercise (see per Lord Woolf CJ at p 1149 G-H, Simon Brown LJ at p 1161 B-C, and Buxton LJ at p 1163 A-B) if they had not considered that they should follow the earlier jurisprudence of the European Court in cases such as Wynne v United Kingdom.
79. The question then arises as to the relief to which the appellant is entitled. Section 3 of the Human Rights Act 1998 provides:
Section 4 provides:
80. It is clear from the wording of section 29 of the Crime (Sentences) Act 1997 that Parliament intended that the decisions as to the length of the tariff period and as to when a prisoner serving a mandatory life sentence should be released from prison were to be taken by the Home Secretary and not by the judiciary or by the Parole Board. The Home Secretary is not obliged to accept the recommendation of the judiciary as to tariff. The Parole Board may recommend to the Home Secretary that a life prisoner should be released on licence, but it cannot make such a recommendation unless the Home Secretary has referred the particular case to it. Moreover even if it makes such a recommendation the Home Secretary is not obliged to accept it; Parliament has given him the power to decide that the prisoner should not be released.
81. Therefore having regard to the clear provisions of section 29, I do not consider that it is possible, pursuant to section 3 of the 1998 Act, to interpret section 29 so as to take away from the Home Secretary the power to decide on the length of the tariff period and to give it to the judiciary. For this House to do so would be for it to engage in the amendment of a statute and not in its interpretation, and section 3 does not permit the House to engage in the amendment of legislation: see per my noble and learned friend Lord Nicholls of Birkenhead in In re S (Minors) (Care Order: Implementation of Care Plan)  2 WLR 720, para 39.
82. Section 6 of the Human Rights Act provides:
Mr Fitzgerald submitted that the House should not make a declaration of incompatibility but rather should make a declaration that in accordance with his duty under section 6(1) of the 1998 Act not to act incompatibly with the appellant's rights under Article 6(1), the Home Secretary must not fix as his tariff a term of years longer than that recommended by the judiciary. I am satisfied that this submission must be rejected because in forming his own view whether to accept the recommendation of the judiciary as to tariff or to fix a longer tariff period and when to refer a case to the Parole Board, the Home Secretary is acting in accordance with the intention of Parliament expressed in section 29. In deciding for himself when to release a prisoner the Home Secretary is, for the purposes of section 6(2)(b) "acting so as to give effect to" section 29.
83. Therefore I consider that the House should make a declaration of incompatibility pursuant to section 4(2) of the 1998 Act in the terms proposed by Lord Bingham.
84. Accordingly for the reasons which I have given, and also for the reasons given by Lord Bingham and Lord Steyn, I would allow the appeal and make the declaration of incompatibility.LORD HOBHOUSE OF WOODBOROUGH My Lords,
85. For the reasons given by my noble and learned friends Lord Bingham of Cornhill and Lord Hutton, I too would make the declaration proposed.
LORD SCOTT OF FOSCOTE
86. I have had the opportunity of reading in advance the opinions of my noble and learned friends Lord Bingham of Cornhill, Lord Steyn and Lord Hutton and for the reasons they give, with which I agree, I would make the order proposed by Lord Bingham.
LORD RODGER OF EARLSFERRY
87. I have had the privilege of reading the speeches of my noble and learned friends Lord Bingham of Cornhill, Lord Steyn and Lord Hutton in draft. For the reasons they give I too would allow the appeal and make the declaration which Lord Bingham proposes.
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