|Judgment - Regina v. Secretary of State for the Home Department, Ex Parte Pierson (A.P.) continued|
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I can find no general principle of non-aggravation of penalties. Your Lordships were not referred to any cases outside the field of sentencing in the criminal courts which make any reference to any such principle. There is no doubt that in sentencing in the criminal courts the law leans against any increase in a sentence once passed: Reg. v. Newsome  2 Q.B. 711; Reg. v. Menocal  A.C. 958. But the law has always accepted, and still does, that in some circumstances a sentence can be increased. A sentence passed at an Assize or a sitting of Quarter Sessions could be increased until the end of the Assize or the sitting. On the abolition of those courts, the Courts Act 1971 section 11 provided that the Crown Court can vary or rescind the sentence within 28 days after it has been passed. Again, section 36 of the Criminal Justice Act 1988 enables the Court of Appeal to consider unduly lenient sentences and, if thought fit, to increase them. It is therefore clear that, while the law leans against any increase in penalty once imposed, there is no general principle that such an increase is contrary to law. In my judgment, therefore, there is no absolute principle against aggravation of penalties and therefore no ground for limiting the general words of section 35 so as to preclude the Home Secretary from adopting the 1993 policy under which the tariff period can be increased.
Does this case fall within the 1993 Policy?
My noble and learned friend, Lord Goff of Chieveley is of the view that the 1993 policy (being the only statement of policy which envisages an increase in a tariff once fixed) does not apply to this case and that, in consequence, the Secretary of State could not lawfully increase the tariff.
That view is based on a detailed and careful construction of the 1993 Policy Statement. It concentrates on the fact that the passage containing the power to increase the penalty only relates to increases in a tariff fixed "at the beginning of a mandatory life sentence" by Mr. Howard or his successors. The present case does not involve an increase of such a tariff period since the tariff period was fixed by Mr. Hurd in 1988. Accordingly, there is no tariff period to which the 1993 right to increase the tariff can apply. Therefore, the applicant's case does not fall within the 1993 policy but falls to be dealt with under the old policy which contained no power to increase the tariff. Therefore Mr. Howard's decision to increase the tariff period was unlawful.
If your Lordships were construing a statute or a contract the construction proposed would be persuasive. But in my judgment it is not right to adopt such a technical approach to statements made by a minister in Parliament relating to policy matters. If judicial review of executive action is to preserve its legitimacy and utility, it is essential that statements of administrative policy should not be construed as though settled by parliamentary counsel but should be given effect to for what they are, viz., administrative announcements setting out in layman's language and in broad terms the policies which are to be followed. Approached in that light, I cannot regard the 1993 Policy Statement as intended to draw any distinction between tariffs set at the beginning of a sentence and tariffs set at a later date. The Policy Statement was making it clear that tariffs were to be capable of being increased.
For these reasons, much though I personally dislike the effective increase in the tariff of this applicant, I can find no ground on which such increase can be held to be unlawful. I would therefore dismiss the appeal.
LORD LLOYD OF BERWICK
On 8 July 1985 the appellant was convicted of murdering his mother and father. In June 1988 he was informed that his first formal review date had been set for 2001, from which he could deduce that his tariff period--that is to say the minimum period of imprisonment necessary to meet the requirements of retribution and deterrence--was 20 years. He applied for judicial review of the Home Secretary's decision on the grounds, inter alia, that he had not been told the period of imprisonment recommended by the judiciary, and had not been given an opportunity to make written representations before his tariff was set. The application succeeded, and on 24 June 1993 the Home Secretary's decision was quashed: see Regina v. Home Secretary, Ex parte Doody  1 A.C. 531.
On 27 July 1993 the Home Secretary made a statement in the House of Commons in which he outlined his proposals for giving effect to the decision of the House in Doody. On 27 August 1993 he wrote to the appellant informing him for the first time that the judge had recommended 15 years, and the Lord Chief Justice had agreed. The Home Secretary said that he would have regarded 15 years as appropriate, if it had been "a single premeditated offence." But as it was a double murder he had set the period at 20 years. On 9 November 1993 the appellant's solicitors made written representations, pointing out that it had never before been suggested that the offences were "premeditated". On 6 May 1994 the Home Secretary replied, accepting that he had been wrong to regard the offences as premeditated, and further accepting that the two murders were part of a single incident which took place during a short period. Nevertheless he maintained his view that 20 years was the appropriate tariff. The question before the House is whether the Home Secretary's decision should be quashed again. The appellant's complaint is that it was unlawful for the Home Secretary to increase his tariff.
In the Court of Appeal Mr. Pannick argued, inter alia, that since the tariff set in 1994 was the same as the tariff set in 1988, there had been no increase in the punitive element in the sentence. Arithmetically this is correct. But the Court of Appeal, rightly in my view, looked at the substance of the matter. Since the tariff remained the same, despite the absence of the two aggravating features, there was in reality an increase in the punishment. As the Court of Appeal pointed out at  3 W.L.R. 547 at p. 560:
Before your Lordships Mr. Pannick did not repeat that particular argument. Instead he sought to meet the appellant's case head on. He submitted that by section 35 of the Criminal Justice Act 1991 Parliament had conferred on the Secretary of State the broadest possible discretion as to the release on licence of a person serving a mandatory life sentence, and that it was not for the courts to cut down that discretion by attaching non-statutory conditions. This was the argument which succeeded in the Court of Appeal. Accordingly it was open to the Home Secretary, if he wished, to defer the appellant's release date by increasing the tariff, provided always he acted rationally, and in a way which was procedurally fair. Thus the main issues at the hearing before your Lordships were as follows:
(1) Is there, as Mr. Fitzgerald submitted, a fundamental principle of justice (which he called "the principle of non-aggravation") that a sentence once imposed may not be increased?
(2) If so, does that principle apply to the tariff set by the Home Secretary in the case of a mandatory life prisoner?
It is important to notice at the outset that the increase of which Mr. Fitzgerald complains is not the increase from 15 years recommended by the judiciary to the minimum of 20 years set by the Home Secretary, but the notional (but real) increase from 20 years for two premeditated offences to 20 years for what was in effect a single unpremeditated offence.
In support of his argument Mr. Fitzgerald traced the development of the mandatory life sentence since the abolition of capital punishment in 1965, through the statement made by the then Home Secretary, Mr. Leon Brittan, in 1983, in which he announced that for certain categories of murder the minimum tariff would be 20 years, and the subsequent unsuccessful attack on that policy in In re Findlay  A.C. 318. Since I have gone over the same ground very recently in my speech in Regina v. Secretary of State for the Home Department, Ex parte Venables and Thompson, I do not repeat it here. Instead I can go straight to the two main issues which I have identified.
Is there a fundamental principle of justice or the common law that a sentence once imposed ought never to be increased? Mr. Fitzgerald says there is. He relies on section 47(2) of the Supreme Court Act 1981 under which a sentence imposed by the Crown Court may be varied or rescinded within 28 days, but not thereafter. He referred also to the proviso to section 11(3) of the Criminal Appeal Act 1968, which prohibits the Court of Appeal in an appeal against sentence from dealing with the appellant more severely than he was dealt with in the court below. Mr. Fitzgerald argued that his principle of non-aggravation rests on the need for certainty and finality in the punishment of offenders. A prisoner is entitled to know where he stands.
To increase a man's punishment after his sentence has been pronounced would strike most of us as being, in a general sense, unfair. But even so, Mr. Fitzgerald's principle of non-aggravation can hardly be regarded as a rule of universal justice. For if the principle is that a sentence ought never to be increased, then Parliament itself made an exception to the rule in 1988, when it allowed over-lenient sentences to be increased on appeal: see section 36 of the Criminal Justice Act 1988.
Mr. Fitzgerald explained this apparent exception to his universal rule on the ground that his rule applies only to judges at first instance. There is nothing to prevent a sentence being increased in the Court of Appeal. But from the offender's point of view it is all one. If the offender's sentence can be increased without injustice by a procedure of which he is likely to have been wholly unaware, and which may not even have been available as a procedure (if my reading of section 35 of the Act of 1988 and the rules made thereunder is correct) at the time his sentence was pronounced, is there anything so very strange or unreasonable about a tariff pronounced by one Home Secretary being increased by another?
Like my noble and learned friend Lord Browne-Wilkinson, I can find no general principle of non-aggravation of penalties in the common law. Indeed, the statutory provision in section 47(2) of the Supreme Court Act 1981 on which Mr. Fitzgerald relies, seems, if anything, to undermine his principle.
This brings me to the second, and to my mind decisive, issue in the appeal. Assuming for the sake of argument that there is a general principle that the sentence of a court, once pronounced, ought not to be increased, is the Home Secretary performing a sentencing function at all when he sets the tariff for a prisoner serving a mandatory life sentence?
Before answering that question I can dispose of two alternative submissions advanced by Mr. Fitzgerald. Conscious perhaps that the rigid application of his principle of non-aggravation might not carry conviction, he advanced two alternative submissions. The first was that the tariff might be increased if subsequent development showed that the gravity of the crime was greater than had been supposed. Secondly, the tariff might be increased if it could be shown that it was disproportionately low in comparison to other comparable offences at the time the tariff was set. Whatever merit these alternative arguments might have, they are wholly inconsistent with the proposition that the setting of the tariff is equivalent to, or something very like, an ordinary sentencing function.
I return to Mr. Fitzgerald's main point. I say at once that to my mind the setting of the tariff, that is to say the minimum period which the offender is to serve for retribution and deterrence before his case comes up for formal review by the parole board, is about as far from an orthodox sentencing function as can well be imagined. When a court pronounces a determinate sentence of 20 years, the sentence is not a minimum sentence, subject to review from time to time. The court does not say, as Mr. Howard said in his 1993 statement:
It is a fixed sentence, subject only to certain statutory provisions for early release set out in Part II of the Criminal Justice Act 1991.
Exactly the same applies when a court pronounces a mandatory life sentence. The only difference is that the sentence is fixed by law, and not by the court. It is a sentence of imprisonment for life, subject only to the Home Secretary's discretion to release on licence under section 35(2) of the Act of 1991. The discretion thus granted by Parliament is unfettered. Successive Home Secretaries have said that in exercising their discretion to release they will take account of factors other than the punishment of the offender, such as the need to maintain public confidence in the system of justice. In Findlay and again in Doody, the House held that the Home Secretary was fully entitled to take such other matters into account. I quote from Lord Scarman's speech in Findlay at p. 333:
If then the sentence in the case of mandatory life imprisonment is a sentence decreed by Parliament and pronounced by the court, and if the discretion to release granted by Parliament to the Home Secretary is a continuing discretion which lasts until the prisoner is actually released, in what sense can it be said that his decision to release is the exercise of a sentencing function? The answer, of course, is that it is not a sentencing function at all. It is the very opposite of a sentencing function. It only began to seem like a sentencing function when, following the decision of the Divisional Court in Regina v. Secretary of State for the Home Department, Ex parte Handscomb (1987) 86 Crim.App.R. 59, the Home Secretary began setting the date for the first formal review as soon as possible after conviction instead of waiting for three years. The reasons for the change were explained by Lord Woolf M.R. in Venables. In the case of a mandatory life sentence, it is desirable that a prisoner should have some idea of the earliest date when his case is to be referred to the parole board as soon as his sentence has been imposed. I agree with that view. Waiting serves no purpose. But it does not convert the period before the earliest review date into a sentence of imprisonment distinct from the sentence already passed by the court. As Mr. Howard made clear over and over again in his 1993 policy statement, the date so set is the minimum period necessary for retribution and deterrence, not the maximum. In case there should be any doubt about it he said towards the end of the statement:
The contrast between the discretionary life sentence and the mandatory life sentence in this respect was clearly established by Parliament when enacting sections 34 and 35 of the Act of 1991, and was recognised and confirmed by the European Court of Human Rights in Wynne v. United Kingdom (1994) 19 E.H.R.R. 333. In the case of a discretionary life sentence it is possible to establish in advance what would have been the determinate sentence of the court but for the element of dangerousness, and consequential risk to the public. It makes sense that the court should set the "tariff" for the first part of the sentence, and for the parole board to decide thereafter how soon it is safe for the offender to be released. Thus the Home Secretary has no part to play in the case of a discretionary life sentence. But as the European Court in Wynne pointed out, the mandatory sentence is quite different. There is no determinate sentence which the court would have passed but for any element of dangerousness. For Parliament has itself fixed the sentence as one of life imprisonment for all murderers, whatever the degree of gravity of their crime. It is unfortunate that the term "life imprisonment" continues to be used for sentences which are in this respect so very different. It is particularly confusing that the term "tariff" should continue to be used without discrimination in respect of both kinds of sentence. In the case of the discretionary life sentence the tariff is a true tariff, which cannot be increased. In the case of the mandatory life sentence, it is not. It is no more than an indication of the earliest date on which the Secretary of State will consider release. As my noble and learned friend, Lord Hope of Craighead points out in his speech, all views expressed by the Home Secretary as to the timing of the ultimate release date are necessarily provisional until the moment of release. Unlike the trial judge, the Secretary of State is never functus officio.
For these reasons I find myself in complete agreement with the Court of Appeal. The setting of the tariff by the Home Secretary is not a conventional sentencing function, or anything like it. Accordingly, even if there were a general principle of justice that a sentence once imposed ought never to be increased, it would not govern the Home Secretary's continuing discretion in the case of a mandatory life sentence. He can refer a case to the parole board whenever he thinks fit, or not at all; and even when a date has been set, a prisoner can have no legitimate expectation that it will not be deferred. This was the very point decided by the House in Findlay, where it will be remembered that two of the four appellants had already been moved into open conditions in preparation for their release. The Home Secretary said of them that their release in the relatively near future would not have accorded with his view of the gravity of their offences. So they were moved back into closed conditions. Mr. Sedley Q.C., and his Junior, Mr. Fitzgerald, argued that by postponing their release for a matter of years, the Home Secretary had frustrated their legitimate expectations. But the House rejected this argument. Lord Scarman said, at p. 338:
The effect of Mr. Brittan's announcement in 1983 was to increase the period of imprisonment for many of those serving mandatory life sentences, including two of the four appellants in Findlay. There can be no doubt about that. Yet the House in Findlay declined to interfere. Mr. Fitzgerald argued boldy, as he had to, that Findlay was wrongly decided in that respect. For reasons which I have already given, I do not agree. I cannot read section 35(2) of the Act of 1991 as being subject to an implied condition that the tariff when set would never be increased.
My noble and learned friend, Lord Hope does not rule out the possibility of increasing the tariff where this is required by exceptional circumstances. But I cannot for my part reconcile that view with a positive answer to either of the questions I have identified. I would summarise my own views as follows:
(1) There is no universal principle of justice, fairness or the common law that a sentence of punishment once pronounced may never be increased;
(2) If there were such a principle it would not apply to the tariff announced by the Home Secretary in the case of a prisoner serving a mandatory life sentence, since the tariff in such a case is no more than a provisional indication of the earliest date for referring the case to the parole board.
It follows that the policy announced by Mr. Howard in 1993 was not, in my view, unlawful.
I return now to the facts of the present case. When the appellant was informed in 1988 that his first review date was to be in 2001, Mr. Douglas Hurd was Home Secretary. So far it has been assumed that the appellant could infer from his first review date that his tariff had been set at 20 years. But strictly speaking this was not so. For as Mr. Hurd made clear, the appellant would have been entitled to a formal review after 17 years even if his tariff had been fixed at more than 20 years. So there was no necessary connection between the first formal review, and his likely release date, except that it would not be before he had served at least 20 years. It was not until August 1993 that the appellant was told that 20 years was, in fact, the tariff. By then Mr. Howard had made clear in his July 1993 statement that the appellant would not necessarily be released at the expiry of the minimum period of 20 years. Does it matter then that when Mr. Brittan was Home Secretary, he had said that he would not put back the date of the first formal review except where a prisoner commits an offence for which he receives a further custodial sentence?
So far as I am aware, Mr. Fitzgerald did not base any argument on this particular passage in Mr. Brittan's statement. Subject to his principle of non-aggravation, he accepted, correctly, that Mr. Howard could change the previous policy whenever he wished, provided he did not act irrationally or in a manner which was procedurally unfair. For it is elementary that on questions of policy no Home Secretary can bind his successors.