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England and Wales Court of Appeal (Civil Division) Decisions
You are here: BAILII >> Databases >> England and Wales Court of Appeal (Civil Division) Decisions >> Nejad, R (on the application of) v Secretary of State for Home Department  EWCA Civ 33 (03 February 2004)
Cite as:  EWCA Civ 33
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COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION (ADMINISTRATIVE COURT)
(Mr Justice Henriques)
London, WC2A 2LL
B e f o r e :
LORD JUSTICE KEENE
LORD JUSTICE SCOTT BAKER
| THE QUEEN
(on the application of Fowzi Bedavi Nejad)
|- and -
|THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Smith Bernal Wordwave Limited, 190 Fleet Street
London EC4A 2AG
Tel No: 020 7421 4040, Fax No: 020 7831 8838
Official Shorthand Writers to the Court)
Ms Eleanor Grey (instructed by The Treasury Solicitor) for the Respondent
Crown Copyright ©
Lord Justice Simon Brown:
"Nejad gave evidence through an interpreter. His plea to manslaughter was accepted before he had been cross-examined. I thus had no opportunity for making any opinion as to the reliability of his evidence about the precise part he played during the occupation. Nevertheless, he was a terrorist and actively participated in most of the events that happened. For the purpose of general deterrence, the period of detention for such a person, in my opinion, ought not to be less than 20 years."
"I would put the minimum at 25 years rather than 20."
"I consider that if the material which is now available had been available to my predecessor, he would have selected a tariff of 22 years or less, and a tariff of 22 years in my view does also fully reflect now the period required for retribution and deterrence in this case."
"The Secretary of State has reconsidered the relevant part (tariff) of your life sentence which was certified in 1992 as 25 years under Section 34 of the Criminal Justice act 1991, in accordance with the recommendation made by the Lord Chief Justice.
In considering whether to re-certify your tariff, the Secretary of State has carefully considered the nature of your offences; the detailed representations made by solicitors on your behalf on 7 March 2002; the views of the judiciary in 1985, and the recommendation for a reduction in tariff to 22 years, made by the Lord Chief Justice, Lord Woolf, on 24 April 2002.
The Secretary of State notes the very serious nature of your offences (namely conspiracy to murder, two counts of manslaughter, false imprisonment and possession of firearms with intent to endanger life) and the circumstances in which they were committed.
There is no independent evidence to show that you did not voluntarily join the armed conspiracy which led to the deaths of two innocent victims, or that you at any time attempted to remove yourself from active involvement in the taking and holding of the hostages, which led to two deaths.
The Secretary of State is not persuaded in these circumstances that the representations made provide sufficient grounds for taking a different view from that taken by Lord Lane, that the appropriate period to be served in custody for the punishment of your offences should be 25 years. Accordingly, the Secretary of State has decided not to re-certify your tariff, such that the 1992 certification of 25 years is maintained."
"9(1) This paragraph applies where, in the case of an existing life prisoner, the Secretary of State certifies his opinion that, if -
(a) section 34 of this Act had been in force at the time when he was sentenced; and
(b) the reference in subsection 1(a) of that section to a violent or sexual offence the sentence for which is not fixed by law were a reference to any offence the sentence for which is not so fixed,
the court by which he was sentenced would have ordered that that section should apply to him as soon as he had served a part of his sentence specified in the certificate."
"Mr Pannick says that Parliament cannot be supposed to have required the Secretary of State to form an opinion as to what determinate sentence would have been passed by the sentencing court if a discretionary life sentence had not been imposed. For one thing, there is no right answer to that question. All one can say with certainty is that the sentence would have been within a certain range. And for another the best people to answer that question would be the judiciary. But paragraph 9 does not entrust the decision to the judiciary. It requires the opinion of the Secretary of State."
"Only in cases in which for some reason no tariff had yet been fixed, or in which there was some doubt as to whether the judges had applied the correct criteria, or some relevant new circumstances had emerged, would the Secretary of State need to look any further. Thus the Secretary of State was the appropriate person to entrust with what in most cases would be the virtually administrative task of certifying the tariff periods already on the books. There was no need for Parliament to require the judges to fix them all over again. Only in those cases in which the existing advice was for one reason or another inadequate, would the obvious first step be for the Secretary of State to consult the judiciary again, in accordance with existing practice. Having done so, he would then have the best material on which to advise. All of this fits in perfectly well with the object of the exercise being to determine what tariff would have been fixed at the trial if section 34 had been in force."
"It is true that the Secretary of State cannot be expected to be expert in the range of determinate sentences current at the time of sentence. But he can ask for advice from the Lord Chief Justice, as he did in the case of the Dowd group and eventually in the appellant's case."
"The Divisional Court was correct in my judgement to hold that, if the Secretary of State's construction of paragraph 9(1) was right, he was not bound as a matter of law to accept the tariff set by Lord Taylor. If this was itself out of line with comparable determinate sentences passed at the time he might have good reason to depart from it. Nor need he accept the tariff in a comparable case if it could be said to be too lenient adopting the same criterion. But in my view it was Wednesbury unreasonable of the Secretary of State in this case to reject the opinion of Lord Taylor. It cannot be said that 20 years is out of line or too lenient when compared with determinate sentences passed at the relevant time and it cannot be said that the sentences in Dowd were too lenient adopting the same criterion."
Lord Justice Keene:
Lord Justice Scott Baker:
Lord Justice Keene:
Lord Justice Scott Baker