Judgments - Regina v Lichniak (Appellant)(On Appeal From The Court of Appeal (Criminal Division))
Regina v. Pyrah (Appellant) (On Appeal from the Court of Appeal (Criminal Divison)) (Consolidated Appeals)

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    29. Therefore the Commission and the Court have recognised that when a child or young person is convicted of murder and sentenced to detention during Her Majesty's pleasure the convicted person is not detained indefinitely, but rather is only detained for the tariff period sufficient to satisfy the requirements of retribution and deterrence in the circumstances of the particular case, and that he will only continue to be detained after the expiration of the tariff period if it is necessary to do so in order to protect the public. Such a sentence is very similar to a mandatory sentence of life imprisonment imposed for murder in that the time spent in detention will consist of a period for punishment and on the expiration of that period the prisoner will be released unless it is necessary to continue to detain him in order to protect the public. Therefore I consider that the reasoning of the European Commission and the European Court in V v United Kingdom applies also to the cases of Lichniak and Pyrah and leads to the conclusion that the life sentences imposed on them were neither arbitrary nor disproportionate.

    30. Although the appellant Lichniak was released on licence after she had served the tariff period and it appears very probable that the appellant Pyrah will be released on licence when he has served the tariff period so that the point is not of direct relevance to their cases, it is appropriate to observe that the European Court has held in Stafford v United Kingdom that after the expiration of the tariff period the decision whether to continue the detention of a mandatory life prisoner in order to protect the public from risk must be taken by a judicial tribunal, the Court stating, in para 87 of its judgment:

    "After the expiry of the tariff, continued detention depends on elements of dangerousness and risk associated with the objectives of the original sentence of murder. These elements may change with the course of time, and thus new issues of lawfulness arise requiring determination by a body satisfying the requirements of Article 5 (4). It can no longer be maintained that the original trial and appeal proceedings satisfied, once and for all, issues of compatibility of subsequent detention of mandatory life prisoners with the provisions of Article 5 (1) of the Convention."

    31. By a statement made on 17 October 2002 consequent on the Stafford judgment the Home Secretary has said that, as an interim measure, where the Parole Board favours the release of a mandatory life sentence prisoner who has served the tariff period he will normally accept such a recommendation: see Hansard (HC Debates), cols 915W - 916W, written answer. However it appears from the recent judgment of the European Court delivered on 26 September 2002 in Benjamin and Wilson v United Kingdom (Application no. 28212/95) that in order to comply with the requirements of Article 5(4) the decision to release after the mandatory life sentence prisoner has served the tariff period must be taken by an independent body with judicial procedures and safeguards rather than by the Home Secretary even if, in practice, he accepts the recommendation of the Parole Board to release.

    32. Although the opinion of the European Commission and the judgment of the European Court in V v United Kingdom appear to present a considerable obstacle to his submissions, Mr Fitzgerald advanced three particular reasons in support of his argument that the sentences of life imprisonment in these two cases were arbitrary. He submitted that when a life sentence is imposed on a convicted murderer the prisoner will not know whether he will be released at the end of the tariff period or whether he will continue to be imprisoned because the view is taken that his release would constitute a danger to the public. Furthermore Mr Fitzgerald submitted that at the end of the tariff period the onus will rest on the prisoner to satisfy the Parole Board that he would not be a danger to the public if he were released. Therefore he argued that it was arbitrary in cases such as those of the two appellants to sentence the prisoner to an indefinite sentence which might not end at the termination of the tariff period where (as was the position in these two cases) the trial judge, with his detailed knowledge of the facts of the case, considered that the prisoner would not be a risk to the public in the future.

    33. Mr Fitzgerald also submitted that the law should give the convicted person the opportunity at his trial to satisfy the trial judge that he would not be a risk in the future and to obtain a formal ruling from him to this effect which would determine that he should be released at the end of the tariff period for retribution and deterrence. He argued that to impose a life sentence on a prisoner who the judge considered would not be a risk to the public in the future was to impose an arbitrary punishment.

    34. In support of this submission Mr Fitzgerald relied on the judgment of the Court of Appeal in R v Offen [2001] 1 WLR 253 where consideration was given to section 2 of the Crime (Sentences) Act 1997 which required a court to impose a life sentence on a person convicted of a serious offence (as defined in section 2(5)) when he had previously been convicted of another serious offence, unless the court considered that there were exceptional circumstances related to either of the offences or to the offender which justified it in not doing so. The Court of Appeal held that there might well be a breach of Article 3 and Article 5 of the Convention if an offender was sentenced to life imprisonment under section 2 where he did not constitute a significant risk to the public, as a life sentence in such circumstances might well be arbitrary and disproportionate: see pages 276 D-F and 277 A-B.

    35. I am unable to accept the submissions advanced by Mr Fitzgerald. In my opinion it is not arbitrary to postpone to the end of the tariff period the decision whether a person who has committed a murder would be a danger to the public if released, rather than decide this at the time of his trial. It will not infrequently be the case that the behaviour of a prisoner during the time he is serving the tariff period, and his behaviour on home leave, will give clear indications whether or not he would be a danger to others if released on licence. Moreover I think it probable that the appellant Lichniak would have been reasonably confident that she would be released after the tariff period and that the appellant Pyrah can be reasonably confident of his release after he has served the tariff period. There is bound to be some uncertainty in respect of some prisoners as to whether they will be released at the end of the tariff period, and the degree of uncertainty will clearly vary depending on the circumstances of the murder and the background and personality of the prisoner, but I do not consider that such uncertainty can constitute treatment of such severity as to come within the ambit of inhuman punishment forbidden by Article 3 or can make the sentence of life imprisonment an arbitrary one.

    36. I further consider that the judgment of the Court of Appeal in R v Offen does not assist the appellants. The appellants are persons who have killed another person with intent to kill or cause really serious harm. The appellant Lichniak stabbed her victim with a large carving knife and the appellant Pyrah kicked the head of his victim with a kick like a rugby penalty kick. The nature of a murder, as in these two cases, is often such as to justify careful consideration being given, at the end of the tariff period, to the question whether it would be safe to release the prisoner. The judgment in R v Offen is distinguishable because the Court of Appeal were considering cases much less serious than murder, and in the case of Offen itself the offender had committed two robberies with a toy gun.

    37. Mr Fitzgerald advanced a further submission that the imposition of a life sentence was arbitrary because, if it were decided that a prisoner presented no risk to the public and he were released on licence, he was liable to recall to prison for the remainder of his life. I do not consider that there is substance in this submission. Section 32 of the 1997 Act gives protection against the arbitrary exercise of the power by providing that a prisoner who is recalled can make representations which are considered by the Parole Board, and if the Board directs or recommends his release the Home Secretary must give effect to that direction or recommendation. Moreover, as the European Commission stated in para 118 of its opinion in V v United Kingdom:

    "The Commission does not find that the fact that release is subject to potential recall, which would be subject to similar procedural guarantees, discloses any element of inhuman or degrading treatment or punishment."

    38. Accordingly for the reasons which I have given, and also for the reasons given by Lord Bingham, I would dismiss these appeals.

LORD HOBHOUSE OF WOODBOROUGH My Lords,

    39. For the reasons given by my noble and learned friends Lord Bingham of Cornhill and Lord Hutton, I too would dismiss these appeals.

LORD SCOTT OF FOSCOTE

My Lords,

    40. For the reasons given by my noble and learned friends Lord Bingham of Cornhill and Lord Hutton, I too would dismiss the appeals.

LORD RODGER OF EARLSFERRY

My Lords,

    

 
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