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||Neutral Citation Number:  EWCA Civ 1698
||Case No: C/2001/0577
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM QUEENS BENCH DIVISION
||Royal Courts of Justice
London, WC2A 2LL
Tuesday 13 November 2001
B e f o r e :
THE LORD CHIEF JUSTICE OF ENGLAND AND WALES
THE RT. HON. LORD JUSTICE SIMON BROWN
THE RT. HON. LORD JUSTICE RICHARD BUXTON
|| THE QUEEN
(on the application of)
||- and -
||JOHN HOPE TAYLOR
||- v -
||SECRETARY OF STATE FOR THE HOME DEPARTMENT
(Transcript of the Handed Down Judgment of
Smith Bernal Reporting Limited, 190 Fleet Street
London EC4A 2AG
Tel No: 020 7421 4040, Fax No: 020 7831 8838
Official Shorthand Writers to the Court)
MR E FITZGERALD QC, MISS P KAUFMANN
(instructed by Irwin Mitchell, Sheffield S1 2EL appeared on behalf of the Appellant, Anderson
MR E FITZGERALD QC, MISS S HATFIELD
(instructed by Peter Ievins, Peterborough PE3 9RH appeared on behalf of the Appellant, Taylor
MR D PANNICK QC and MR M SHAW
(instructed by the Treasury Solicitor) appeared on behalf of the Respondent
HTML VERSION OF JUDGMENT
Crown Copyright ©
LORD WOOLF CJ:
- This appeal raises a single issue. It is whether, as the Home Secretary is a member of the executive, he is entitled to fix the minimum period of imprisonment to be served by a mandatory life prisoner to meet the requirements of retribution and deterrence ("the tariff") or whether his performing this role breaches article 6 of the European Convention on Human Rights.
- The appeal is by two appellants who on separate occasions were sentenced to a mandatory life sentence having been convicted of murder. One of the appellants is Anthony Anderson. He was convicted in 1988 of 2 separate murders. He had kicked his victims to death in the course of theft. Both the trial judge and the Lord Chief Justice had recommended a tariff of 15 years. The Home Secretary has on three different occasions fixed the tariff at 20 years. The other appellant, John Hope Taylor was convicted of murder in 1989. He strangled a woman whose neck he had previously broken. In his case, the Lord Chief Justice and the trial judge had recommended a tariff of 16 years. The Home Secretary in 1994 had recommended a tariff of 30 years, but in March 2000 that was reduced to 22 years.
- After the coming into force of the Human Rights Act, 1998 the appellants applied for judicial review. On the 22 February 2001, the Divisional Court (Lord Justice Rose, Vice President, Mr Justice Sullivan and Mr Justice Penry-Davey) dismissed the applications which were heard together. This was the latest decision in a series of cases, in our courts and in the European Court of Human Rights ("ECtHR"), which have considered the Home Secretary's role in relation to the fixing of tariffs. There are four different situations where it is necessary to fix tariffs for prisoners. There is the situation considered on this appeal involving a mandatory life sentence for murder; there is the situation where a Court imposes a discretionary life sentence, there are the cases where a life sentence is automatic and there is a situation where a Court sentences an offender who has committed murder at a time when he was under the age of 18 to a mandatory sentence of detention during Her Majesty's pleasure.
THE HISTORY OF TARIFFS
- The legislative framework and the development of the policies under which successive Home Secretaries have fixed the tariffs of prisoners in all three situations can be summarised shortly because it is already set out in the different decisions of the House of Lords to which it will be necessary to refer. The starting point is the Murder (Abolition of Death Penalty) Act 1965. Section 1 (1) of that Act states:
"No person shall suffer death for murder, and a person convicted on murder shall.... be sentenced to imprisonment for life"
- Even when the 1965 Act was passed it was appreciated that it would only be rarely that a prisoner would actually remain in prison for the rest of his life. Instead he would be released on parole when it was considered appropriate for this to happen. Section 29 (1) of the Crime (Sentences) Act 1997, replacing earlier legislation to the same effect, provided:
"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"
(Section 28 does not apply to those sentenced to a mandatory life sentence.)
- The involvement of the Parole Board on the question of release of a prisoner on licence raised the practical problem as to when the Parole Board should become involved. Over the years the practice of the Home Office changed as to this and there have been successive statements by Home Secretaries as to the practice they intended to follow. However, in relation to mandatory life sentences there has never been any question of the Home Secretary of the day not retaining a discretion as to when the Parole Board should become involved and as to when a prisoner was released on licence. One statement was made by Mr Leon Brittan on the 30 November 1983. In it he stated:
"At present I look to the judiciary for advice on the time to be served to satisfy the requirements of retribution of and deterrence and to the parole board for advice on risk. I shall continue to do so."
- The case of R v Secretary of State for the Home Department, ex p. Handscomb (1988) 86 CR.App R. 59 criticised the way in which the Home Secretary exercised his discretion in cases involving prisoners serving a discretionary life sentence and the then Home Secretary, Mr Douglas Hurd, in a written answer to a parliamentary question on the 23 of July 1987 announced the new practice which was to be followed. He stated that the view of the judiciary in relation to discretionary life sentences would be sought as to "the determinate sentence that would have been passed but for the element of mental instability and /or public risk which led the judge to pass a life sentence". He added:
"In case of prisoners serving life sentences for murder, where the sentence is not at the discretion of the Court, the question of the notional equivalent determinate sentence does not arise. I shall continue to take into account the view of the judiciary on the requirements of retribution and deterrence in such cases as a factor amongst others (including the need to maintain public confidence in the system of justice) to be weighed in the balance in setting the first review date."
So at this stage, the use of tariffs in both the case of discretionary and mandatory life sentences was clearly established. So was the distinction between the two stages of life sentences: the initial period for punishment and deterrence and the subsequent period governed by risk. In the case of a mandatory sentence, however, the Home Secretary was reserving the right to take into account other factors such as the public confidence in the criminal justice system.
- It is now necessary to refer to a significant decision of the ECtHR. It is the case of Thynne, Wilson and Gunnell v UK (1990) 13 EHRR 666. The three applicants in that case had received discretionary life sentences. Their tariff periods had expired. Relying on article 5 (4) of the ECHR, they complained of the lack of regular judicial scrutiny of the lawfulness of their detention. The ECtHR upheld the complaint. Although the Court acknowledged that the dividing line may be difficult to draw the Court considered there was a distinction between mandatory and discretionary life sentences. (See paragraphs 73 and 74). After the expiry of the tariff period in the case of discretionary life prisoners questions could arise as to the lawfulness of their continued detention. The Court reserved the question and as to what would be the position prior to the expiry of the tariff period.
- In response to this decision a new statutory regime was introduced for discretionary life prisoners but not mandatory life prisoners. The result was that the trial judge now fixes the tariff when he imposes a discretionary life sentence and his decision is subject to appeal. After the tariff has expired the prisoner can, if this has not already happened, require his case to be referred to the Parole Board and the Home Secretary releases the prisoner if this is what the Parole Board decides should happen. The relevant statutory provisions were contained in section 34 of the Criminal Justice Act 1991. That section contains different provisions to those contained in section 35 which deals with mandatory life prisoners. In relation to mandatory life prisoners, the Home Secretary retained his discretion.
- The next step which is important is the decision of the House of Lords in the case of Doody  1 AC 531 and Lord Mustill's speech in that case. The case established that the Home Secretary was required to exercise his discretion fairly when fixing the tariff. Accordingly, the prisoner was entitled to know the recommendations as to tariff of the judiciary and the prisoner was entitled to make representations to the Home Secretary. If the Home Secretary did not adopt the judicial view as to tariff he was required to give reasons for not doing so. The significance of Doody to the present case is that Lord Mustill rejected the argument that the Home Secretary was not entitled, in the case of a mandatory life sentence prisoner, to fix the tariff at a higher figure than that recommended by the judiciary. He accepted that the Home Secretary was entitled to have regard to broader considerations of a public character than those which apply to an ordinary sentencing function (see p 559 B). Lord Mustill added:
"The discretionary and mandatory life sentences having in the past grown apart, may now be converging. Nevertheless, on the statutory framework, the underlying theory and the current practice there remains a substantial gap between them."
Lord Mustill considered that if there was to be a further assimilation this was a task for Parliament. Lord Mustill did, however, as Mr Fitzgerald contends, recognise the reality of a mandatory life sentence: that a lifelong punitive element was not either the normal or intended usual consequence of that sentence.
- Following Doody, the then Home Secretary, Mr Howard, made a further policy statement on the 27July 1993. He gave effect to the requirements of fairness as explained in Doody. He however made it clear that in relation to mandatory life prisoners and those prisoners detained during Her Majesty's pleasure the Home Secretary retained a wide discretion as to when prisoners should be released on licence.
- The approach of the Home Secretary assimilating the positions of a mandatory life prisoner and a prisoner detained during Her Majesty's pleasure came under scrutiny in the House of Lords in R v Thompson and Venables  AC 407. The majority of the House of Lords decided that a sentence of detention during Her Majesty's pleasure (which was the sentence the court was directly concerned with) was not properly to be equated with a mandatory sentence of life imprisonment. The Home Secretary in fixing a tariff in respect of the period of detention to be served by an offender by way of punishment and deterrence who was being so detained, was performing a function comparable to that of a sentencing judge. But as Lord Browne- Wilkinson stated (at p 498) :
"in relation to a person sentenced to be detained during Her Majesty's pleasure the Secretary of State is not dealing with a sentence of the same kind as the mandatory life sentence imposed on an adult murderer, the duration of which is determined by the sentence of the court and is for life. In cases of detention during Her Majesty's pleasure the duty of the Secretary of State is to decide how long the detention is to last, not to determine whether or not to release prematurely a person on whom the sentence of the court is life imprisonment."
- The case of Thompson and Venables was also considered by the ECtHR in V v United Kingdom  30 EHRR 121. The ECtHR considered the role of the Home Secretary in fixing the tariff in connection with those detained during Her Majesty's pleasure in relation to article 6 (1) of the Convention, which requires the determination of any criminal charge to be by an independent and impartial tribunal at a public hearing. The Court concluded that there was a breach of the article. The issue was whether the fixing of the tariff amounted to a sentencing exercise. The Court came to the conclusion that the fixing of the tariff did amount to a sentencing exercise. It followed that there was a breach of article 6 (1) (see paragraphs 109 and 111). At paragraph 110 Court said:
"In contrast to the mandatory life sentence imposed on adults convicted of murder, which constitutes punishment for life, the sentence of detention during Her Majesty's pleasure is open-ended. As previously mentioned, a period of detention, "the tariff", is served to satisfy the requirements of retribution and deterrence, and thereafter it is legitimate to continue to detain the offender only if this appears to be necessary for the protection of the public. Where a juvenile sentenced to detention during Her Majesty's pleasure is not perceived to be dangerous, therefore, the tariff represents the maximum period of detention which he can be required to serve". (Emphasis added)
- The result was that as in the case of offenders sentenced to a discretionary life sentence, the Home Secretary was no longer entitled to fix a tariff in relation to prisoners sentenced to be detained during Her Majesty's pleasure. It was only in relation to mandatory life prisoners that the Home Secretary could lawfully fix the tariff. Again Parliament passed legislation to give effect to the decision of ECtHR. By section 60 of the Criminal Justice and Court Services Act 2000 an additional section, section 82 A, was inserted into the Powers of Criminal Courts (Sentencing) Act 2000 which established that the position as to offenders sentenced to be detained during Her Majesty's pleasure was broadly the same as that of prisoners who were sentenced to a discretionary life sentence.
- It is to challenge the Home Secretary's remaining powers, which only relate to mandatory life sentences, that these proceedings are brought.
THE ARGUMENT FOR THE APPELLANTS
- The first step in Mr Fitzgerald's argument is that the tariff fixing exercise in the case of a mandatory life prisoner is either a sentencing exercise or is so closely analogous to a sentencing exercise that any difference is of no significance. As to the categorisation exercise, as a matter of domestic law I have no doubt Mr Fitzgerald is right. I did not understand Mr Pannick to argue otherwise. Indeed for reasons I will explain later he is not in a position to argue otherwise because to do so will make the mandatory life sentence itself in some cases contrary to article 3 of the Convention.
- Why the first step in Mr Fitzgerald's argument is correct was clearly explained by Sullivan J. in the court below. This was also made clear by Lord Steyn in Thompson and Venables (p 526) and again in R v Home Secretary, ex p Pierson  AC 539. Lord Steyn's words in Pierson are particularly relevant. He said:
"Counsel for the Home Secretary argued that the fixing of the tariff cannot be a sentencing exercise because the judge pronounces the only sentence, i.e. one of life imprisonment. This is far too formalistic. In public law the emphasis should be on substance rather than form. This case should also not be decided on a semantic quibble about whether the Home Secretary's function is strictly "a sentencing exercise". The undeniable fact is that in fixing a tariff in an individual case the Home Secretary is making a decision about the punishment of the convicted man."
Lord Steyn proceeds to point out that the matter is authoritatively decided by Thompson and Venables. (P 585 F.)
- The significance of article 3 in relation to the nature of the tariff in the case of a prisoner sentenced to life imprisonment for murder was made clear by the recent case of R (Lichniak) v Secretary of State for the Home Department  3WLR 933J. In that case two mandatory life prisoners challenged their sentences as being incompatible with articles 3 and 5. The gravity of cases involving murder can vary substantially. On the one hand you can have premeditated intentional killing; on the other hand you can have the use of excessive force by way of self-defence where there was no intention to kill, but an intention to inflict grievous bodily harm. In the latter case it could be argued that a life sentence, if it really meant a sentence for life, was inhuman or degrading punishment contrary to article 3. To meet this argument Mr Pannick relied on the tariff as indicating the true nature of the sentence.
- The second step in Mr Fitzgerald's argument is more difficult. It is that as the fixing of the tariff in the case of a mandatory life sentence is part of the sentencing exercise, or so close to it that it is indistinguishable from it, the logic of the decisions of the ECtHR should apply not only to discretionary life sentence prisoners but mandatory life sentence prisoners as well and therefore requires a judicial determination and not a determination by the Home Secretary. Before the Human Rights Act came into force such an argument would be doomed to failure because of the decisions to which I have already referred and the case of R v The Home Secretary ex parte Stafford  2 AC 38. Like Pierson, Stafford also involved a prisoner who had been sentenced to a mandatory life sentence. However, Stafford involved a prisoner who had been released on licence. Referring to Mr Fitzgerald's argument on behalf of Stafford, Lord Steyn said:
"Counsel for the applicant placed two other matters before the House. He pointed out that as a class discretionary life sentence prisoners are more dangerous than mandatory life sentence prisoners. That is so. He said that it is anomalous that the system affecting the former category is judicialised but not the system in respect of the latter category. That in my view is not an overstatement. Under the influence of the judgments of the European Court of Human Rights, Parliament has judicialised the system applicable to offenders sentenced to discretionary life sentences and to detention during Her Majesty's pleasure. But Parliament has deliberately refrained from judicialising the system applicable to mandatory life sentence prisoners. Counsel's argument is in reality an appeal for a more rational system. The appeal to symmetry was rejected by the House of Lords in Doody.... and in Wynne v United Kingdom (1994) 19 E.H. R. R. 333 the European Court of Human Rights held that the post-tariff phase of the detention of a mandatory life sentence prisoner does not attract the safeguards of article 5 (4) of the [ECHR]. As matters stand at present the duality is embedded into our law by primary legislation."
- Now that the ECtHR is part of our domestic law, Mr Fitzgerald argues that the position is different. However, in order to succeed in this argument Mr Fitzgerald has to explain the decisions of the ECtHR involving the fixing of tariffs. These decisions and in particular Wynne v United Kingdom  19 EHRR 333 make it clear that "the duality is embedded" in the jurisprudence of the ECtHR as clearly as it is embedded in our law. Mr Fitzgerald submits that the explanation for this is that the ECtHR was under a misapprehension as to the true position on the English law of the tariff fixing process. He contends that the ECtHR has been misled by the myth, now exposed, that a life sentence means a sentence for life; the true position being that, if this is possible at all, it is only in a very small minority of cases it may mean life. I am afraid that I find it impossible to accept that the ECtHR was under such a misapprehension. Rightly or wrongly the ECtHR did consider that there was a material difference between a mandatory and discretionary life sentence. They had the benefit of Mr Fitzgerald's arguments on behalf of the applicants and I am confident he would have ensured that the ECtHR was not under any such misapprehension.
- That this is the position is in fact made clear by the ECtHR's decision in the Venables case. In determining what should be the position in relation to offenders sentenced to be detained during Her Majesty's pleasure, the Court stated that it appreciated that the position of such offenders was similar to mandatory life prisoners in that their sentence was also mandatory, but recognised that the sentence also had features of a discretionary life sentence as well. The court therefore decided that its decision should depend upon whether a sentence of detention during Her Majesty's pleasure was closer to a mandatory life sentence or a discretionary life sentence. The Court decided it was more analogous to the position of a discretionary life sentence, with the result that the Home Secretary was not entitled to set the tariff.
- Under section 2 of the Human Rights Act we are required to have regard to, but not compelled to follow the decisions of the ECtHR. The Stafford case has been the subject of an application to the ECtHR and should be decided by the ECtHR in about a year's time. Despite the fact that the ECtHR's decision is likely to authoritatively decide this issue finally, Mr Fitzgerald argues that it should be decided by the courts here, as the issue is particularly suited for determination by the courts whose citizens are involved.
- Under section 6 of the Human Rights Act, we cannot act in a manner which is incompatible with the Convention. In addition the ECtHR is entitled to have the benefit of the views of our courts on the effects which the Convention has on our law. On the other hand, here we are faced with a situation where Parliament has deliberately chosen not to interfere with the Home Secretary's discretion as to the length of the tariff in the case of mandatory life sentences, though it has done so in the case of other life sentences. The non-interference is despite the fact that Parliament must have been well aware of the criticisms of this role being performed by a member of the executive. In addition there is already considerable judicial input into the tariff fixing process in the form of the recommendations which the judges make, which, in the case of the great majority of prisoners, the Home Secretary adopts. There is also supervision of the process by judicial review. The recommendations of the judiciary and judicial review provide considerable protection for the majority of mandatory life prisoners. While the time may well come when the developments in the jurisprudence of the ECtHR require us to come to a different decision, that stage has not been reached. Until it is reached I do not consider we should interfere with the clearly expressed views of the democratically elected Parliament as those views, up to now, are consistent with the approach adopted by the ECtHR.
- The law is not always logical and it has been the approach of both Parliament and the courts in this jurisdiction and so far of the ECtHR to give a particular status to life sentence for murder. From an historical perspective, connected with the abolition of capital punishment, the attitude of Parliament is understandable. It could also well be the case that this is an area where the ECtHR considered it right to show deference to the attitude so clearly adopted by Parliament. If this was the position of the ECtHR, it is an approach with which we should not differ.
- The final matter to which I should refer is the relationship between article 6 and article 5 which was mentioned in argument. I accept that article 5 can apply to the period both before and after the expiry of the tariff. I would however be resistant to a suggestion that article 6 should ever be applied to the post tariff period. Unlike article 5, article 6 requires a public hearing. The important role of the parole board is not one which could be performed satisfactorily in public. In my judgment a public hearing is not required for determining whether an offender sentenced to a sentence of life imprisonment or to be detained during Her Majesty's pleasure should be released on licence.
I would dismiss the appeal.
LORD JUSTICE SIMON BROWN:
- The fundamental issue raised upon these appeals is whether the tariff-setting exercise in respect of those sentenced to mandatory life imprisonment itself amounts to the fixing of a sentence so as to engage Article 6(1) of ECHR. If so, it necessarily follows that the tariff must be set by the judges and cannot be increased (although it can always be reduced) by the Secretary of State. That is not how matters stand at present. In 6% of the 1080 new tariffs set during the last 4˝ years, the Secretary of State's tariff exceeded the highest of those recommended by the judiciary. In the two cases before us the judicial tariffs were increased respectively by five years and six years. The appellants ask us to declare that in future the Secretary of State must not fix tariffs longer than those recommended by the judiciary.
- The framework within which the Secretary of State operates at present can be simply told. S.29 of the Crime (Sentences) Act 1997 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 [mandatory] 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 … to the Board for its advice."
- It is common ground that, since a statement made by the Home Secretary to Parliament in 1983, a mandatory life sentence has had two elements: the penal or tariff element for retribution and deterrence, and the post-tariff or preventative period based on dangerousness.
- Following the Divisional Court's decision in R v Secretary of State for the Home Department ex parte Handscomb  86 CAR 59 (although strictly it applied only to discretionary life prisoners) the Secretary of State in all life sentence cases began to obtain the judge's recommendation upon tariff as soon as practicable after sentence was passed.
- What is now sought in these proceedings is not a declaration that s.29 of the 1997 Act is incompatible with the Convention but rather a declaration that the Secretary of State has not been acting compatibly with the appellants' rights under Article 6(1) and must accordingly henceforth exercise his discretion under the section so as not to exceed the tariff recommended by the judiciary. The first sentence of Article 6(1) provides so far as material:
"In the determination … of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law."
- Whilst, however, the responsibility for tariff-setting as between the Secretary of State and the judiciary is, as stated, the particular focus of these appeals, it is necessary, not least so as to understand the surrounding case law, to put this issue into its wider context. Scarcely less central to the argument than Article 6(1) is Article 5(4) of the Convention:
"Everyone who is deprived of his liberty by arrest or detention shall be entitled to take proceedings by which the lawfulness of his detention shall be decided speedily by a court and his release ordered if the detention is not lawful."
- By the same token that the application of Article 6 to tariff-setting in indeterminate sentence cases is recognised to depend on whether that exercise amounts to the fixing of a sentence – see paragraphs 107, 109 and 111 of the ECtHR's judgment in V v United Kingdom (1999) 30 EHRR 121, 185-186 – so too the lawfulness of the prisoner's continuing detention in the post-tariff period under Article 5(4) is recognised to depend upon essentially the same consideration: whether the passing of a mandatory life sentence of itself is to be regarded as justifying lifelong punitive detention. The critical question in both cases is whether the initial imposition of the sentence constitutes the sole sentencing exercise, the remainder of the process (whether fixing the tariff or determining the date of release in the post-tariff period) amounting merely to administrative procedures governing the implementation of the sentence.
- If, therefore, the appellants 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. Indeed, the consequences would go wider still. Not only would Article 6 require the judges as "an independent and impartial tribunal" to fix the tariff, but the prisoner would also be "entitled to a fair and public hearing" of this process. Similarly, not only would the decision on release have to be taken by the Parole Board as "a court", but that process too would arguably attract certain further safeguards.
- With these thoughts in mind I turn next to summarise how the ECtHR has dealt with the three different types of indeterminate sentence: mandatory life sentences, discretionary life sentences and detention during Her Majesty's pleasure. It is convenient to note the cases chronologically.
(1) Thynne, Wilson and Gunnell v United Kingdom (1991) 13 EHRR 666
- These were discretionary life sentence cases considered solely under Article 5(4) and decided specifically in relation to the post-tariff period. Paragraph 74 of the court's judgment expresses "the Court's view … that the objectives of the discretionary life sentence … are distinct from the punitive purposes of the mandatory life sentence … ". Paragraph 78 states the court's conclusion that "since it is clear that the punitive period of the three applicants' life sentences has expired … the applicants were entitled to subsequent judicial control as guaranteed by Article 5(4)."
(2) Wynne v United Kingdom (1994) 19 EHRR 333
- Wynne was a mandatory life prisoner. His case too was considered and decided solely under Article 5(4). He, however, lost. The critical parts of the court's judgment are these:
"33. The court recalls its judgment in Thynne, Wilson and Gunnell v United Kingdom where it held that discretionary life prisoners were entitled under Article 5(4) to take proceedings to have the lawfulness of their continued detention decided by a court at reasonable intervals and have the lawfulness of any re-detention determined by a court. This view was taken because of the very nature of the discretionary life sentence which, unlike the mandatory life sentence, was imposed not because of the inherent gravity of the offence but because of the presence of factors which were susceptible to change with the passage of time, namely mental instability and dangerousness. A clear distinction was drawn between the discretionary life sentence which was considered to have a protective purpose and a mandatory life sentence which was viewed as essentially punitive in nature.
35. … the mandatory sentence belongs to a different category from the discretionary sentence in the sense that it is imposed automatically as the punishment for the offence of murder irrespective of considerations pertaining to the dangerousness of the offender. That mandatory life prisoners do not actually spend the rest of their lives in prison and that a notional tariff period is also established in such cases – facts of which the court was fully aware in Thynne, Wilson and Gunnell – does not alter this essential distinction between the two types of sentence. …
36. … the court sees no cogent reasons to depart from the finding in the Thynne, Wilson and Gunnell case that, as regards mandatory life sentences, the guarantee of Article 5(4) was satisfied by the original trial and appeal proceedings and confers no additional right to challenge the lawfulness of continuing detention or re-detention following revocation of the life sentence."
(3) Hussain v United Kingdom (1996) 22 EHRR 1
- Hussain was detained during Her Majesty's pleasure. His case, just like the other two, was considered solely under Article 5(4). The court, whilst noting that his sentence was mandatory and, under United Kingdom law, treated identically to a mandatory life sentence, stated in paragraph 50:
"… the central issue in the present case is whether detention during Her Majesty's pleasure, given its nature and purpose, should be assimilated, under the case law on the Convention, to a mandatory sentence of life imprisonment or rather to a discretionary sentence of life imprisonment. In dealing with this issue the court must therefore decide whether the substance of the sentence of detention under s.53 is more closely related to that [of a discretionary life sentence or of a mandatory life sentence]"
- In paragraph 53 the court recalled that the sentence was passed because of the applicant's young age and continued:
"In the case of young persons convicted of serious crimes, the corresponding sentence undoubtedly contains a punitive element and accordingly a tariff is set to reflect the requirements of retribution and deterrence. However an indeterminate term of detention for a convicted young person, which may be as long as that person's life, can only be justified by considerations based on the need to protect the public. These considerations, centred on an assessment of the young offender's character and mental state and of his or her resulting dangerousness to society, must of necessity take into account any developments in the young offender's personality and attitude as he or she grows older. A failure to have regard to the changes that inevitably occur with maturation would mean that young persons detained under s.53 would be treated as having forfeited their liberty for the rest of their lives, a situation which … might give rise to questions under Article 3 of the Convention."
- Accordingly the court concluded that such a sentence is "more comparable to a discretionary life sentence."
- Although, following Thynne, Wilson and Gunnell, Parliament by the Criminal Justice Act 1991 had introduced a new regime for discretionary life prisoners which, in their cases, plainly satisfied the requirements of Article 6 as well as those of Article 5(4), after Hussain the same course was not followed for Her Majesty's pleasure cases. Rather, s.28 of the Crime (Sentences) Act 1997, merely transferred from the Home Secretary to the Parole Board the decision as to when such detainees should be released. That is why there is a fourth case in this series.
(4) V v United Kingdom (1999) 30 EHRR 121
- This Her Majesty's pleasure case was the first in the series specifically addressed to the tariff-fixing process and Article 6. Despite Hussain, the Government was contending that Article 6 was not applicable because, upon being convicted of murder, the applicant was automatically subject to the indeterminate sentence so that "the fixing of the tariff was merely an aspect of the administration of the sentence already imposed by the court" (paragraph 108). That argument was rejected:
"110. In contrast to the mandatory life sentence imposed on adults convicted of murder which constitutes punishment for life, the sentence of detention during Her Majesty's pleasure is open-ended. As previously mentioned, a period of detention, 'the tariff', is served to satisfy the requirements of retribution and deterrence, and thereafter it is legitimate to continue to detain the offender only if this appears to be necessary for the protection of the public. Where a juvenile sentenced to detention during Her Majesty's pleasure is not perceived to be dangerous, therefore, the tariff represents the maximum period of detention which he can be required to serve."
- The court then turned to consider, and uphold, a complaint under Article 5(4) and these parts of the judgment too seem to me of some importance:
"119. The court recalls that where a national court, after convicting a person of a criminal offence, imposes a fixed sentence of imprisonment for the purposes of punishment, the supervision required by Article 5(4) is incorporated in that court decision. [There is a foot-noted reference to Wynne] This is not the case, however, in respect of any ensuing period of detention in which new issues affecting the lawfulness of the detention may arise. [Here a foot-noted reference to Thynne, Wilson and Gunnell] Thus, in the Hussain judgment, the court decided in respect of a young offender detained during Her Majesty's pleasure that, after the expiry of the tariff period, Article 5(4) required that he should be able periodically to challenge the continuing legality of his detention since its only justification could be dangerousness, a characteristic subject to change. In the Hussain case the court was not called upon to consider the position under Article 5(4) prior to the expiry of the tariff.
120. The court has already determined that the failure to have the applicant's tariff set by an independent tribunal within the meaning of Article 6(1) gives rise to a violation of that provision. Accordingly, given that the sentence of detention during Her Majesty's pleasure is indeterminate and the tariff was initially set by the Home Secretary rather than the sentencing judge, it cannot be said that the supervision required by Article 5(4) was incorporated in the trial court's sentence.
122. It follows that the applicant has been deprived, since his conviction in November 1993, of the opportunity to have the lawfulness of his detention reviewed by a judicial body in accordance with Article 5(4)."
- Following V, I may note, the fixing of the tariff in Her Majesty's pleasure cases is now governed by the s.82A of the Powers of Criminal Courts (Sentencing) Act 2000.
- These, then, are the four critical Strasbourg decisions in play. It is essentially these that Mr Fitzgerald QC for the appellants must confront. Before turning to his argument, however, I should briefly note two others. First, Raja (application 39047/97), in which the Commission, in May 1998, declared inadmissible precisely the same Article 6 complaint by a mandatory life sentence prisoner as is now advanced before us. The Commission said:
"While Article 6(1) clearly applies to the sentencing part of the determination of a criminal charge, the Commission considers that, where life imprisonment is imposed in respect of murder, the sentencing is carried out by the trial judge after the accused has been convicted. Life imprisonment for murder is a mandatory sentence automatically imposed by law with regard to the severity of the offence irrespective of considerations of the dangerousness of the offender … It is in a distinct category from discretionary life sentences and sentences of detention during Her Majesty's pleasure which are indeterminate and whose character and purpose are identifiably different being justified primarily by considerations of the offender's character, mental state or age and their resulting dangerousness, which factors may change over time … The tariff-fixing procedure in respect of mandatory life prisoners therefore must be regarded as an administrative procedure governing the implementation of the sentence and not as part of the determination of the sentence itself."
- Secondly, Stafford (application 46295/99) in which the Court, in May 2001, declared admissible complaints by a mandatory life sentence prisoner under Article 5(1) and, more relevantly for present purposes, under Article 5(4). The court's decision includes this:
"The applicant submits that it is obsolete under domestic law to regard a mandatory life prisoner as having forfeited his liberty for life. On analysis, the parole exercise can no longer be regarded as a matter of leniency to a post-tariff prisoner. In recent cases (Ex parte Doody, Ex parte Venables and Thompson and Ex parte Pierson), the House of Lords has moved to a recognition of the clear similarity of the exercise of fixing a tariff to a sentencing exercise which Buxton LJ noted in the present case was incompatible with the notion that a mandatory lifer was 'in mercy until there is an exercise in his favour of an inscrutable executive discretion'."
- In short, it seems clear that at some point next year the ECtHR (a Grand Chamber, we are told) will be seised of the very same argument that we are now asked to decide on these appeals. The fact that it arises there in the context of an Article 5(4) complaint cannot, I conclude, for the reasons already given, affect the position. Nor, I think, could the court avoid the Article 5(4) complaint by deciding the Article 5(1) complaint in the appellants' favour – although it should equally be noted that the Article 5(4) answer is unlikely to determine the Article 5(1) complaint: even if the lawfulness of a mandatory life prisoner's continued detention must be decided by the Parole Board, it does not follow that the Parole Board cannot have regard, as the Secretary of State does, to the risk of dishonesty offences.
- Against that background Mr Fitzgerald's argument can now be briefly stated. It comes really to this. To describe a mandatory life sentence as "essentially punitive in nature" (Wynne para 33), "imposed automatically as the punishment for the offence of murder" (Wynne para 35), "punishment for life" (V para 110), "a fixed sentence of imprisonment for the purposes of punishment" (V para 119), is essentially to mis-characterise it and to elevate form over substance. Sullivan J put it admirably in the court below:
"48. … Once it is recognised that the sentence of life imprisonment for murder authorises, but does not require life long punitive detention, and is imposed regardless of the facts of the particular case and the circumstances of the individual offender, it follows that there will be a need for a further, tariff fixing stage.
49. If one looks at substance rather than form, the punishment is made to fit the crime (and the criminal) at the latter stage. The purely formal pronouncement of sentence of life imprisonment by the trial judge is merely the start of the sentencing process not the end. That this is the reality is well understood by Parliament, the public and prisoners."
- Mr Fitzgerald submits, indeed, that on a proper analysis of the domestic jurisprudence, this reality is shown to be no less well understood by the House of Lords. Amongst the very many passages he seeks to rely on in their Lordships' speeches in, most notably, Ex parte Doody  1 AC 531, Ex parte Venables and Thompson  AC 407, Ex parte Pierson  Ac 539, Ex parte Stafford  2 AC 38, and Ex parte Hindley  AC 410 (all, save Venables and Thompson, mandatory life sentence cases), is this from Lord Steyn's speech in Pierson at p 585 d-f:
"Counsel for the Home Secretary argued that the fixing of the tariff cannot be a sentencing exercise because the judge pronounces the only sentence, i.e. one of life imprisonment. This is far too formalistic. In public law the emphasis should be on substance rather than form. This case should also not be decided on a semantic quibble about whether the Home Secretary's function is strictly 'a sentencing exercise.' The undeniable fact is that in fixing a tariff in an individual case the Home Secretary is making a decision about the punishment of the convicted man. In any event, a majority holding in [Venables] concludes the matter. Lord Goff of Chieveley, at p 490 held that the Home Secretary is 'exercising a function which is closely analogous to a sentencing function with the effect that, when so doing, he is under a duty to act within the same constraints as a judge will act when he is exercising the same function.' Lord Hope of Craighead, at p 85 G-H, agreed. So did I, at pp 74 H – 75C. This point is therefore settled by the binding authority of a decision of the House."
- Mr Fitzgerald further submits that a number of the actual decisions taken by the House of Lords in these mandatory life cases are really only explicable on the basis that the indeterminate sentence "is at a very early stage formally broken down into penal and risk elements. The prisoner no longer has to hope for mercy but instead knows that once he has served the 'tariff' the penal consequences of his crime have been exhausted." (per Lord Mustill in Doody at pp.556H-557A) "The theory that the tariff sentence for murder is confinement for life, subject only to a wholly discretionary release on licence … is no longer the practice, and can hardly be sustained any longer as the theory." (per Lord Mustill in Doody at p565E-F). It was on that basis that Doody introduced a number of natural justice safeguards with regard to the tariff-setting procedure. Similarly Pierson decided that the Home Secretary has no general power to increase the tariff, and Venables (in this regard making no distinction between Her Majesty's pleasure cases and mandatory life cases) decided that the Home Secretary cannot have regard to "public clamour."
- Mr Fitzgerald relies too on the way the Crown put its case to the Court of Appeal Criminal Division (sitting also as a Divisional Court) in R (Lichniak) v Secretary of State for the Home Department  3 WLR 933 in which two mandatory life prisoners challenged their sentences as incompatible with Articles 3 and 5 of the Convention. To escape the complaint under Article 3 that the applicants were being subjected to "inhuman or degrading … punishment", Mr Pannick contended that the punishment is not that the offender must stay in prison for the rest of his life but rather that he will be detained until, having taken account of tariff and risk, he is released on life licence. His argument is set out in paragraph 46 of the court's judgment thus:
"… how can it be said that in the case of an adult a mandatory sentence of life imprisonment is arbitrary? Its purpose, he submits, is 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, and even then for the rest of his life he will be liable to be recalled. That is not merely the effect of the sentence, it is the sentence."
- There, submits Mr Fitzgerald, one sees the reality given expression and, he argues, it is irreconcilable with the notion of a lifelong punitive sentence such as has formed the essential basis for distinguishing mandatory life sentences throughout the ECtHR's jurisprudence.
- Mr Pannick in response acknowledges that tariff-setting in mandatory life cases is indeed, as Lord Goff put it in Venables, "closely analogous to a sentencing function," but he submits that there are nonetheless material differences between the various kinds of indeterminate sentence which explain and justify the distinction made in Strasbourg.
- I understand him to rely upon three differences in particular. First, he points to the very different circumstances in which the three types of indeterminate sentence are imposed: Her Majesty's pleasure detention solely because of the offender's age: discretionary life imprisonment because the offender's personal circumstances point to dangerousness and (usually) mental instability; mandatory life imprisonment because of the intrinsic gravity of the offence of murder – see particularly paragraph 33 of Wynne and paragraph 199 of V. Only the mandatory life sentence is imposed without regard to the offender's individual characteristics; that is what makes it unique.
- Secondly he argues that when, post-tariff, the question of releasing a mandatory life prisoner arises, the Secretary of State is not bound to observe only the tariff period and risk; he is "entitled to have regard to broader considerations of a public character than those which apply to an ordinary sentencing function" – per Lord Mustill in Doody at p.559B, reiterated by Lord Steyn in Stafford at p.48B.
- Thirdly Mr Pannick relies on a passage in Lord Steyn's speech in Hindley at p.418F-H, holding it permissible for the Secretary of State to have increased the tariff for that mandatory life prisoner to take account of facts previously unknown to him (her involvement in earlier murders to which she only confessed in 1987) which aggravated the circumstances of the murders for which she had been convicted. There is no scope, Mr Pannick points out, for increasing a discretionary life prisoner's tariff.
- Let me address these three arguments in turn. I accept, of course, that the mandatory life sentence is unique. But not all the offences for which it is imposed can be regarded as uniquely grave. Rather the spectrum is a wide one with multiple sadistic murders at one end and mercy killings at the other. Lifelong punitive detention will be appropriate only exceptionally. As for "broader considerations of a public character", it is difficult to understand quite what these are. Regard must not be had to "public clamour" – see Venables. There is, of course, "the need to maintain public confidence in the system of criminal justice" (see the Home Secretary's statement to Parliament on 10 November 1997). To my mind, however, this can and should be catered to in the fixing of the tariff. The retributive element of the tariff should reflect the public's moral outrage at an offence. Surely the maintenance of public confidence in the system cannot require longer incarceration than that which properly reflects society's entitlement to vengeance. Sometimes, I recognise, that will require a whole life tariff. But why should not the judges determine that? The third and last point, as to retrospectively increasing the tariff, is a narrow one. The same problem could presumably arise in a discretionary life sentence case. In truth, however, it begs rather than answers the question whether the initial fixing of the tariff is properly to be regarded as an exercise in sentencing.
- In short, I find none of Mr Pannick's arguments convincing. Neither singly nor cumulatively do they seem to me to provide a principled basis for treating tariff-fixing in mandatory life cases differently from the similar exercise required for discretionary life prisoners and Her Majesty's pleasure detainees. 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.
- Before moving to my conclusion I should say a word or two more about the body of House of Lords cases which touch upon these appeals. I can do so very shortly, principally because all the cases pre-date the coming into full force of the Human Rights Act 1998 on 2 October 2000. Indeed, Mr Fitzgerald tell us, in the last of them, Hindley, the House of Lords expressly declined to hear argument based on Article 6(1) on the footing that this would be more appropriately considered once the Act came into force. Although, therefore, Doody resolved in the Home Secretary's favour the very question now at issue – as to whether he or the judges should finally determine the penal element of a mandatory life sentence – it did so without directly addressing the Article 6 argument which is the very foundation of these appeals. Similarly, although Lord Steyn noted in Stafford, at pp.49F-50A, having referred to Doody and to Wynne, that "the duality [between the mandatory life sentence and the discretionary life sentence] is embedded in our law by primary legislation", that was merely to recognise the constitutional impossibility under domestic law of overturning the statute, and to assume (rather than decide) the correctness of the ECtHR's approach in Wynne. All that said, it is only right to note that nothing stated in any of the House of Lords' cases appears to cast the least doubt on the correctness of the approach adopted throughout by Strasbourg. The deep misgivings I have expressed about the cogency of the reasoning by which mandatory life sentences are singled out for exclusion from protection under Articles 5(4) and 6 find no echo in any of their Lordships' speeches. The best that Mr Fitzgerald has been able to do is point to a series of dicta exposing as myth the suggestion that actual detention for life is the true tariff sentence imposed in mandatory life cases.
- What, then, should this court now do, seised as we are of an appeal directly invoking s.6 (1) of the Human Rights Act and being of the clear view, as certainly I am, that the existing mandatory life sentence regime breaches Article 6(1) (and for that matter Article 5(4)) of the Convention? How, in particular, should we give effect to s.2(1) of the Human Rights Act:
"A court … in determining a question which has arisen in connection with a Convention right must take into account any judgment of the European Court of Human Rights, and any opinion or decision of the European Commission of Human Rights."
- This to my mind is much the most difficult question in the case.
- Mr Pannick invites us to show due reticence and draws our attention to Lord Slynn's speech in R(Alconbury Limited) v Environment Secretary  2 WLR 1389, 1399:
"In the absence of some special circumstances it seems to me that the court should follow any clear and constant jurisprudence of the European Court of Human Rights. If it does not do so there is at least a possibility that the case will go to that court, which is likely in the ordinary case to follow its own constant jurisprudence."
- Here, Mr Pannick points out, the Strasbourg jurisprudence is indeed clear and constant and, moreover, the ECtHR will itself have the opportunity to reconsider the position next year when it comes to hear Stafford. Now is no time for the domestic courts to rule inconsistently with that jurisprudence.
- Mr Fitzgerald urges the contrary. He submits that since the whole development of the case law depends upon a correct analysis of the nature and reality of a mandatory life sentence in domestic law, it is the domestic courts which are best placed to determine what the exact nature of the sentence is. He further submits that there is no sufficient reason why this important issue should remain unresolved for up to a further year, or perhaps even longer given at least the possibility that the ECtHR in Stafford will decide only the Article 5(1) complaint and not that (logically critical to these appeals) under Article 5(4).
- On this part of the case, although not without considerable hesitation, I have come to prefer Mr Pannick's argument. Whilst in one sense it is true to say that the domestic courts are best placed to analyse the nature and reality of a mandatory life sentence, there is absolutely no reason to doubt that the Strasbourg court itself is fully aware of the facts. That this is so is apparent from innumerable passages in the various judgments and, indeed, given Mr Fitzgerald's continuous involvement throughout the development of the jurisprudence, it could hardly be otherwise.
- In the end there are two factors which have persuaded me to regard the Strasbourg case law as for the present determinative. First, that whatever advantage we might enjoy through our domestic knowledge and experience of the mandatory life sentence regime could perhaps be thought balanced (or even conceivably outweighed) by the ECtHR's deeper appreciation of the true ambit and reach of Articles 5(4) and 6(1) of the Convention. It is, after all, not the characterisation of the mandatory life sentence in abstract, but rather its characterisation in the context of the application of these two Articles, which lies at the heart of this case.
- The second factor which weighs with me is that of comity. True, this court is not bound by ECtHR judgments, any more than that court is bound by them. Where, however, as here, the ECtHR itself is proposing to re-examine a particular line of cases, it would seem somewhat presumptuous for us, in effect, to pre-empt its decision. For my part, I shall be surprised if the present regime for implementing mandatory life sentences survives the ECtHR's re-examination of the issue in Stafford. The final decision, however, I am persuaded should be theirs. I would accordingly dismiss these appeals.
LORD JUSTICE BUXTON:
- For reasons that I will demonstrate, my own view is that the tariff-setting process by the Secretary of State in the case of a mandatory life prisoner is a sentencing exercise, and thus should be subject to the constraints of article 6. I do not, however, find myself able to act on that view by granting the relief sought by the applicants. That is because the current jurisprudence of the ECtHR does not so analyse the tariff-setting exercise, and I do not think that this court should substitute its view of the meaning and reach of the Convention for that of the Convention court. I further consider that in any event the step urged on us by the applicants is not open to this court in view of the attitude to the ECtHR' jurisprudence on this point that was adopted by the House of Lords in Stafford  2 AC 38. I shall develop these points in turn.
The Mandatory Life-Sentence and the Tariff
- The applicants invited us to undertake an extensive historical investigation of the origins and nature of the mandatory life sentence. That exercise was quite unnecessary for their purposes, because the conclusions to which it would have led are authoritatively set out in the speech delivered by Lord Mustill, with the concurrence of the whole House, in Doody  1 AC 531. Lord Mustill convincingly demonstrated,  1 AC at p556H, that
"the indeterminate sentence is at a very early stage formally broken down into penal and risk elements. The prisoner no longer has to hope for mercy but instead knows that once he has served the 'tariff' the penal consequences of his crime have been exhausted. Even if the Home Secretary still retains his controlling discretion as regards the assessment of culpability the fixing of the penal element begins to look much more like an orthodox sentencing exercise, and less like a general power exercised completely at large"
- In reaching that conclusion, Lord Mustill disposed of two other rationalisations or explanations of the mandatory life sentence. The first, which I will call the "mercy" theory, was that a person convicted of murder forfeited the rest of his life to the state, and was only to be released as an act of grace or mercy. That was the approach argued for by the then Minister of State in 1991, set out by Lord Mustill at  AC p 555B, and decisively rejected by him. The second, which I will call the "unique crime" theory, is that the mandatory life sentence is to be regarded as a single sentence, imposed once and for all at the trial, because all mandatory life sentences are imposed in cases of murder, a uniformly unique crime that demands a uniformly unique sentence. It will no doubt be recalled that this was one of the arguments frequently deployed to justify the unique punishment of death, however little there was in fact uniformity amongst the cases of those who were hanged, or alternatively in the event not hanged, for committing murder. Lord Mustill,  1AC at p 549G, rejected this theory as factually unsound and concluded:
"In truth the mandatory life sentence for murder is symbolic."
- The view thus taken by the House of Lords of the reality of the Secretary of State's tariff-setting function caused it to determine, on English administrative law grounds, that a mandatory life sentence prisoner should have an opportunity to make representations to the Secretary of State in the light of knowledge of the judiciary's recommendations, and should be told the Secretary of State's reasons for departing from those recommendations.
- For reasons that will emerge later in this judgment, it is important to note that the applicants in Doody also sought more extensive relief than that just mentioned. It was argued (see  AC at p 545A-C) that there was no relevant distinction between mandatory and discretionary life sentences. It was therefore Wednesbury unreasonable for the Secretary of State not to adopt in the case of mandatory sentences the rule that had been imposed in the case of discretionary life sentences by section 34 of the Criminal Justice Act 1991 that he was bound by the recommendation of the judiciary as to the "tariff" period. Lord Mustill,  1 AC at p559C described this argument as "an appeal to symmetry", and rejected it:
"Whilst there is an important grain of truth in this argument, I believe it to be over-stated. The discretionary and mandatory life sentences, having in the past grown apart, may now be converging. Nevertheless, on the statutory framework, the underlying theory and the current practice there remains a substantial gap between them. It may be-I express no opinion-that the time is approaching when the effect of the two types of life sentence should be further assimilated. But this is a task for Parliament, and I think it quite impossible for the courts to introduce a fundamental change in the relationship between the convicted murderer and the state, through the medium of judicial review."
The Application of Article 6
- Against this background, the argument in relation to article 6 can be shortly stated. Sentencing is a function that, like all other aspects of a criminal trial, must be conducted by a body independent of the executive. The ECtHR held in V v United Kingdom (1999) 30 EHRR 121  that the fixing of the tariff in an HMP case "amounts to a sentencing exercise", and concluded from that, at paragraph 114, that
"The Court notes that Article 6(1) guarantees, inter alia, 'a fair …hearing…by an independent and impartial tribunal…' 'Independent' in this context means independent of the parties to the case and also of the executive. The Home Secretary, who set the applicant's tariff, was clearly not independent of the executive, and it follows that there has been a violation of Article 6(1)."
Mr Pannick conceded that the tariff-setting exercise in a mandatory life sentence case was analogous to a sentencing exercise. Either that formulation, or the opinion of the House of Lords in Doody that tariff-setting "begins to look much more like an orthodox sentencing exercise," should in my estimation suffice to attract the jurisprudence of article 6 to which the ECtHR referred in V. That, however, has not been the view of the ECtHR itself, and I must therefore now turn to the jurisprudence of that Court.
The Jurisprudence of the European Court of Human Rights
- The ECtHR held in Thynne, Wilson and Gunnell v UK (1990) 13 EHRR 666 that decisions as to the treatment of discretionary life sentence prisoners during the post-tariff period had to be subject to judicial control, under article 5(4). The Court, at paragraph 74, rejected an argument on the part of the Secretary of State that judicial control was provided, as in the case of mandatory life sentences, by the original imposition of the sentence. The Court said:
"the objectives of the discretionary life sentence…are distinct from the punitive purposes of the mandatory life sentence and have been so described by the courts in the relevant cases."
- In Wynne v UK (1994) 19 EHRR 333 a mandatory life sentence prisoner argued that the application of article 5(4) to discretionary life sentences in Thynne should as a matter of logic be extended to the post-tariff period of a mandatory sentence. That was because, as the Court set out the argument in paragraph 31 of its judgment, the distinction made by the Court in Thynne between the two types of life sentence was no longer valid because it was based on the false assumption that a mandatory sentence had as its object the punishment of a murderer for life. The Court rejected this argument. In paragraph 35 of its judgment it set out the effect of Doody, as already described, and continued:
"However, the fact remains that the mandatory sentence belongs to a different category from the discretionary sentence in the sense that it is imposed automatically as the punishment for the offence of murder irrespective of considerations pertaining to the dangerousness of the offender. That mandatory life prisoners do not actually spend the rest of their lives in prison and that a notional tariff period is also established in such cases-facts of which the court was fully aware in Thynne, Wilson and Gunnell-does not alter this essential distinction between the two types of life sentence. As observed by the House of Lords in R v Secretary of State, ex parte Doody, while the two types of life sentence may now be converging there remains nonetheless, on the statutory framework, the underlying theory and the current practice, a substantial gap between them….. Against the above background, the Court sees no cogent reasons to depart from the finding in the Thynne, Wilson and Gunnell case that, as regards mandatory life sentences, the guarantee of Article 5(4) was satisfied by the original trial and appeal proceedings."
- Two observations may be made at this stage about this formulation. First, it appears to analyse the mandatory life sentence in terms of a combination of the "mercy" and "unique crime" rationalisations, both of which, as indicated in paragraph 69 above, have been rejected by the House of Lords. Second, however, the Court expressly follows the House of Lords in rejecting the "appeal to symmetry" (see paragraph 71 above).
- In V, already referred to, the ECtHR had to consider the application of article 6 to the case of an HMP prisoner. The Court said, 30 EHRR 121 -:
"The Court must determine whether the tariff-setting procedure in respect of young offenders detained during Her Majesty's pleasure amounts to the fixing of a sentence and falls within the scope of Article 6(1).  In contrast to the mandatory life sentence imposed on adults convicted of murder which constitutes punishment for life, the sentence of detention during Her Majesty's pleasure is open-ended. As previously mentioned, a period of detention, 'the tariff', is served to satisfy the requirements of retribution and deterrence, and thereafter it is legitimate to continue to detain the [HMP] offender only if this appears to be necessary for the protection of the public."
By a footnote the Court expressly contrasted this analysis with that in paragraph 35 of its judgment in Wynne, already cited.
- It is to be noted that the Court expressly distinguished the case of an HMP prisoner from that of an adult mandatory life prisoner. In so doing, it specifically maintained the view that it had previously expressed as to the particular nature of the latter case. It was, however, only able to rationalise that particular nature as "punishment for life": which is an appeal to the "mercy" rationalisation referred to in paragraph 69 above.
- The Court then considered the position in relation to article 5(4), and again distinguished the case of a mandatory life prisoner. It said, at paragraph 119 of its judgment:
"The Court recalls that where a national court, after convicting a person of a criminal offence, imposes a fixed sentence of imprisonment for the purposes of punishment, the supervision required by Article 5(4) is incorporated in the court decision."
It will be noted that this explanation is identical to that adopted in paragraph 36 of the judgment in Wynne, quoted in paragraph 74 above. That reasoning was entirely deliberate, as the ECtHR' footnote reference to Wynne in V confirms.
- In summary, therefore, the ECtHR held in Wynne, and confirmed in V, that because of the particular nature of the mandatory life sentence the requirements of article 6 were satisfied and exhausted by the original court order imposing the sentence. Subsequently to those decisions, the Commission has on three occasions found to be manifestly ill-founded complaints, effectively identical to that made in the present case, that article 6 prohibited the fixing of the tariff by the Secretary of State. For instance, in Application 39047/97, Raja v UK, the Commission followed the ECtHR in holding that the mandatory life sentence "is in a distinct category from discretionary life sentences and sentences of detention during [HMP] which are indeterminate and whose character and purpose are identifiably different".
The Applicants' Submissions on the Jurisprudence of the European Court of Human Rights
- The applicants made two different submissions in relation to this jurisprudence, as encapsulated in particular in Wynne. First, Mr Fitzgerald did not shrink from submitting that Wynne was simply wrongly decided, with the result that this court was not only free, but obliged, to determine the applicability of article 6 unconstrained by Wynne. Second, that in any event Wynne was distinguishable from the present case.
- As to the first of these submissions, like Sullivan and Penry-Davey JJ in the Divisional Court, I have great difficulty in supporting the reasoning of the ECtHR. It is based on seeing the necessary judicial protection required by article 6, as well as by article 5(4), as provided by the original judicial decision. But, as the House of Lords observed in Doody, the judge's contribution is entirely formalistic: the real sentencing process takes place before the Secretary of State, which is why English law principles require him to receive submissions from the prisoner. It is also based on a view of the nature of the mandatory life sentence, as punishment for life, which is equally rejected in Doody.
- The reasoning of the ECtHR is therefore based on factual or analytical premises as to the nature of the law of the contracting state concerned that have been rejected by the highest court of that state. As I have already indicated, left to myself, and basing myself on the view of that highest court that the Secretary of State's function approaches that of a sentencer, I would find compelling the argument that that view necessarily entailed that the jurisprudence of article 6, referred to in paragraph 72 above, applied in this case.
- Whether it follows that the ECtHR' judgment in Wynne was "wrong", or should not be applied by this court, is quite another matter, which I explore later in this judgment.
- I found much less persuasive the argument that the jurisprudence of Wynne can be distinguished, or shown not to apply to the present case. The argument had two strands. First, the decisions of the ECtHR had been about, or principally about, the applicability of article 5(4); different considerations could apply in relation to article 6. Second, the decisions had been about the "post-tariff" stage, where considerations of dangerousness, as opposed to punishment, legitimately entered the equation.
- As to the first of these contentions, whilst Wynne was complicated by the concurrent existence in that case of mandatory and discretionary life sentences, the Court made distinct holdings about the position in relation to mandatory life sentences, as the citation in paragraph 74 above demonstrates. There is no doubt at all that the ECtHR was deliberately directing its mind to the nature of the mandatory sentence. That was also the position in V where, as the citation in paragraph 76 above demonstrates, the Court specifically relied on Wynne in an article 6 case.
- As to the second argument raised to distinguish the European Court's jurisprudence from the present case, reliance on the fact that the cases related to the post-tariff period misunderstands the basis on which the European Court placed mandatory life prisoners in a different category from discretionary and HMP prisoners. As the citations in paragraph 78 above demonstrate, the Court saw all Convention issues in relation to the mandatory sentence, at whatever stage of its working-out, as having been decided by the original "judicial" decision to impose the sentence, and by the nature of that sentence as one of imprisonment for life. It was for that reason, and not because of some perceived difference between the tariff and post-tariff stages, that article 6 did not apply at the latter stage. For the Court, there was no jurisprudential distinction between the two stages, and thus decisions in this respect in relation to a post-tariff question are equally authoritative in relation to the tariff stage.
This Court and the European Court of Human Rights
- In these applications we are urged to follow our own perceptions of the nature of the mandatory life sentence and thus of the application of article 6, for instance as set out in paragraphs 81 and 82 above, and hold that article 6 does indeed apply in this case, despite the view to the contrary of the ECtHR. There are in my view strong reasons why we should not take that course. Those reasons are based both on general considerations as to the relationship between the courts of this jurisdiction and the court at Strasbourg; and issues more particular to this case. I review these in turn.
- The issue of principle will not be illuminated by seeking to give further meaning to section 2 of the Human Rights Act. We will take the Court's jurisprudence into account whether we determine the case in accordance with it; or on the other hand decline, on a reasoned basis, to apply that jurisprudence. Rather, we must confront more general issues of comity to which adherence to an international system such as that of the Convention gives rise.
- The Convention is a broadly stated international treaty, applying to a wide range of countries. Not only is it the objective of the Convention to bring its benefits to all of those countries, but also fairness between the citizens of those different countries requires that its terms have a uniform and accessible meaning throughout the member countries. The principal machinery for achieving that end is to be found in the Court, and in the interpretative rulings that it gives. There may well be many cases facing a national court where the jurisprudence of the ECtHR is unclear, or on the particular point in issue non-existent. Then the national court has to do the best that it can. But that is not this case. Here, there is clear and consistent jurisprudence of the Strasbourg Court. If we are to say that that jurisprudence is wrong, we will be creating in England and Wales a different set of Convention rules from those that apply in other countries who are signatories to the Convention. That will be a clear departure from international comity within the Convention, and a step that should only be taken in extreme circumstances.
- I appreciate that the United Kingdom appears to be the only country that enjoys mandatory penalties for murder, at least in the form that they take under the Murder (Abolition of Death Penalty) Act 1965; so it could be said that if we act as urged we will in practice do no damage to international comity. There are three objections to that approach. First, the issue of comity is one of principle. It is precisely not for a national court to select the issues on which it will act on the principle and the issues as to which it will not so act. Second, although the unique nature of the mandatory penalty seems clear enough, the national court should be slow in concluding that the jurisprudence of the ECtHR does not impact on any other part of the laws of the forty-one states that have ratified the Convention: about which laws this court knows nothing. Third, we can only say what the Convention means in England and Wales. Unless there is a decision in the same terms by the courts of Scotland and Northern Ireland, murderers in those parts of the United Kingdom will continue to be dealt with under the Convention as it is understood in Strasbourg. That is perhaps a local, but nonetheless a pressing, example of the dangers of deviating from an international norm.
- The second and different reason why we should exercise restraint is that where an international court has the specific task of interpreting an international instrument it brings to that task a range of knowledge and principle that a national court cannot aspire to. I of course recognise that the relationship between the national court and, on the one hand, the ECtHR and, on the other hand, the European Court of Justice is very different, in terms both of domestic and of international law. However, I would venture to refer to the observations as to the proper modesty of the national court in the face of international experience that fell from Bingham J, as he then was, in Samex  3 CMLR 194 at para 31. I am not prepared to hold that such considerations should be set aside just because it appears to an English lawyer that the issue in this case is wholly contained within the understanding and categorisation of an English legal institution, the mandatory life sentence.
- I fully accept that the foregoing considerations of principle are not absolute. It may be appropriate, or necessary, to depart from them in a particular case. But the present is, very clearly, not that case. The conclusions of the ECtHR may appear surprising, and to depart from the now current English understanding of the nature of the mandatory life sentence. But those conclusions were not arrived at by accident or in ignorance, or for lack of instruction. As the Court was at pains to point out in Wynne, in the passage set out in paragraph 74 above, it was well aware of what had been said in Doody. The very argument based on Doody that is put to us was put to that Court, and was rejected by it. And by the same token, the Court was specifically urged, as we are, to abandon the position that it had taken in Thynne and to adopt the appeal to symmetry that failed in Doody (see paragraph 71 above): on the ground, equally urged before us, that in Thynne it had misunderstood the nature of the life sentence.
- All of those submissions failed. I do not doubt that they were advanced before the ECtHR in as much detail, and with as much determination, as they were advanced before us. That is a very unpromising background indeed against which to ask a national court to say that the Strasbourg Court nonetheless went wrong. I am not prepared to take that step in this case.
- I am further fortified in that view by the very serious doubts that I entertain as to whether, as a matter of orthodox English precedent, the present argument is in any event open to the applicants. In R (Bright) v CCC  1 WLR at p 682D the Divisional Court held, per Judge LJ, that where a question of interpretation of the Convention has been determined within the English system of precedent by an English court, it is not open to a lower English court to revisit the question through its own interpretation of primary Convention material. That rule was approved by this court in Kaya v Haringey BC  EWCA (Civ) 677, at paragraphs 36-37 of its judgment. The rule unavoidably forces on us consideration of the implications of the speeches in the House of Lords in Ex parte Stafford  2 AC 38.
- The issue in that case was as to the post-tariff discretion of the Secretary of State in mandatory life sentence cases. As part of his argument counsel for the applicant reverted to the appeal to symmetry (see paragraph 71 above), but now in the context of the Convention, rather than simply of English administrative law. He appreciated that in order to make that submission good he had to undermine Wynne which, in a Convention context, denied the equivalence of the mandatory with the discretionary life sentence on which the appeal to symmetry is based. He therefore argued, as was argued before us, that Wynne had been wrongly decided:
"The distinction made by the European Court of Human Rights in Wynne v United Kingdom (1994) 19 EHRR 333 between mandatory and discretionary life prisoners is not supported by Ex parte Venables and Ex parte Pierson ":  2 AC at p 41H.
- Lord Steyn, for the House, dealt with that argument as follows,  2 AC at p 49G:
"Parliament has deliberately refrained from judicialising the system applicable to mandatory life sentence prisoners. Counsel's argument is in reality an appeal for a more rational system. The appeal to symmetry was rejected by the House of Lords in Doody  1 AC 531, 559D. And in Wynne v United Kingdom (1994) 19 EHRR 333 the European Court of Human Rights held that the post-tariff phase of the detention of a mandatory life sentence prisoner does not attract the safeguards of article 5(4) of the [Convention]. As matters stand at present the duality is embedded into our law by primary legislation"
- Mr Fitzgerald argued that Lord Steyn was deliberately confining himself to the post-tariff issues that arose in Stafford itself. Nothing that he had said impacted on the issue of determination of the tariff. I would find that contention more convincing if the argument had been put in Stafford in different terms. But as we have seen, the House was invited to conclude that Wynne was wrongly decided. The House declined so to find: indeed, as Lord Steyn's observations show, Wynne was regarded as the basis of the distinction between mandatory and discretionary life prisoners. And, as I have demonstrated in paragraphs 84-85 above, Wynne is equally authoritative on that point in respect of the tariff as in respect of the post-tariff period.
- I am, I think, prepared to accept that, on a narrow view of the definition of ratio, the House of Lords' observations about Wynne can be said to be obiter, however much the contrary of them was regarded by counsel as a necessary step in his argument in Stafford. That Wynne was unsuccessfully attacked in the House of Lords on the very grounds advanced before us does however provide a further and very cogent reason why I am not prepared to take the step sought by the present applicants.
- The appeal to symmetry failed on Convention grounds in Stafford, as it had failed on English law grounds in Doody. The criticism of Thynne in terms of misunderstanding of the nature of the mandatory life sentence failed before the ECtHR in Wynne. The criticism of Wynne was broadly that the same ground failed in the House of Lords in Stafford. The criticism that the ECtHR had not taken proper account of the realities of English law, as set out in Doody, failed in Wynne. And the arguments that Wynne applies only to the post-tariff stage, and only to complaints under article 5(4), are destroyed by V, and by the Commission cases that followed it. I do not find anything in the submissions before us that has not been considered and rejected by the highest courts both in this jurisdiction and under the Convention, in most respects on more than one occasion. For that reason alone, and quite apart from the other considerations set out in this judgment, I find myself compelled to dismiss these appeals.
Order: Appeal dismissed, leave to appeal refused.
(Order does not form part of the approved judgment)
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