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You are here: BAILII >> Databases >> United Kingdom House of Lords Decisions >> R v Secretary of State for the Home Department, ex p. Doody [1993] UKHL 8 (24 June 1993)
URL: http://www.bailii.org/uk/cases/UKHL/1993/8.html
Cite as: [1994] 1 AC 531, [1993] UKHL 8, [1994] AC 531, [1993] 3 WLR 154

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JISCBAILII_CASE_CONSTITUTIONAL

    Parliamentary Archives,
    HL/PO/JU/18/253

    Regina v. Secretary of State for the Home Department (Original
    Appellant and Cross-respondent) ex parte Doody (A.P.)

    (Original Respondent and Cross-appellant)

    Regina v. Secretary of State for the Home Department (Original
    Appellant and Cross-respondent) ex parte Pierson (A.P.)

    (Original Respondent and Cross-appellant)

    Regina v. Secretary of State for the Home Department (Original
    Appellant and Cross-respondent) ex parte Smart (A.P.)

    (Original Respondent and Cross-appellant)

    Regina v. Secretary of State for the Home Department (Original
    Appellant and Cross-respondent) ex parte Pegg (A.P.)
    (Original Respondent and Cross-appellant)
    (Conjoined Appeals)


    JUDGMENT


    Die Jovis 24° Junii 1993

    Upon Report from the Appellate Committee to whom was
    referred the Cause Regina against Secretary of State for the Home
    Department ex parte Doody, Regina against Secretary of State for
    the Home Department ex parte Pierson, Regina against Secretary
    of State for the Home Department ex parte Smart and Regina
    against Secretary of State for the Home Department ex parte Pegg
    et e contra. That the Committee had heard Counsel as well on
    Wednesday the 10th as on Thursday the 11th, Monday the 15th,
    Tuesday the 16th and Wednesday the 17th days of March last upon
    the Petitions and Appeals of the Secretary of State for the Home
    Department of Queen Anne's Gate, London SW1H 9AT, praying that
    the matter of the Orders set forth in the Schedules thereto,
    namely Orders of Her Majesty's Court of Appeal of the 6th day of
    May 1992, might be reviewed before Her Majesty the Queen in Her
    Court of Parliament and that the said Orders might be reversed,
    varied or altered or that the Petitioner might have such other
    relief in the premises as to Her Majesty the Queen in Her Court
    of Parliament might seem meet; as upon the case of Stephen Doody,
    John David Pierson, Elfed Wayne Smart and Kenneth Pegg lodged in
    answer to the said Appeals; as also upon the Petitions and Cross-
    appeals of Stephen Doody, currently detained at Her Majesty's
    Prison Swaleside, Isle of Sheppey, Kent, John David Pierson,
    currently detained at Her Majesty's Prison Garth, Moss Lane,
    Ulnes, Walton, Leyland PR5 2UE, Elfed Wayne Smart, currently
    detained at Her Majesty's Prison Dartmoor, Princetown, Yelverton,
    Devon and Kenneth Pegg, currently detained at Her Majesty's
    Prison Ashwell, Oakham, Leicestershire, praying that the matter
    of the Orders set forth in the Schedules thereto, namely Orders
    of Her Majesty's Court of Appeal of the 6th day of May 1992,
    might be reviewed before Her Majesty the Queen in Her Court of
    Parliament and that the said Orders might be reversed, varied or
    altered or that the Petitioners might have such other relief in
    the premises as to Her Majesty the Queen in Her Court of
    Parliament might seem meet; as upon the case of the Secretary of

    Judgment: 24 June 1993

    HOUSE OF LORDS


    REGINA
    v.

    SECRETARY OF STATE

    FOR THE HOME DEPARTMENT

    (ORIGINAL APPELLANT AND CROSS-RESPONDENTS)

    EX PARTE SMART (A.P.)
    (ORIGINAL RESPONDENT AND CROSS-APPELLANT)

    REGINA
    v.

    SECRETARY OF STATE

    FOR THE HOME DEPARTMENT,

    (ORIGINAL APPELLANT AND CROSS-RESPONDENTS)

    EX PARTE PEGG (A.P.)
    (ORIGINAL RESPONDENT AND CROSS-APPELLANT)

    REGINA

    v.

    SECRETARY OF STATE

    FOR THE HOME DEPARTMENT,

    (ORIGINAL APPELLANT AND CROSS-RESPONDENTS)

    EX PARTE DOODY (A.P.)
    (ORIGINAL RESPONDENT AND CROSS-APPELLANT)

    REGINA

    v.

    SECRETARY OF STATE

    FOR THE HOME DEPARTMENT,

    (ORIGINAL APPELLANT AND CROSS-RESPONDENTS)

    EX PARTE PERSON (A.P.)
    (ORIGINAL RESPONDENT AND CROSS-APPELLANT)

    (CONJOINED APPEALS)


    Lord Keith of Kinkel
    Lord Lane
    Lord Templeman
    Lord Browne-Wilkinson
    Lord Mustill


    LORD KEITH OF KINKEL

    My Lords,

    For the reasons given in the speech to be delivered by my noble and
    learned friend Lord Mustill, which I have read in draft and with which I
    agree, I would dismiss the appeal, and the cross-apppeal save as to issue 3
    which I would allow and make the declarations he proposes.

    LORD LANE

    My Lords,

    I have had the advantage of reading in draft the speech prepared by my
    noble and learned friend Lord Mustill. I agree with his reasoning and
    conclusions. I would accordingly dismiss the appeal and cross-appeal, save
    that I would allow the cross-appeal on issue 3 as defined by Lord Mustill and
    make the declarations which he proposes.

    LORD TEMPLEMAN

    My Lords,

    For the reasons given by my noble and learned friend Lord Mustill I
    would dismiss the appeal and cross-appeal, save that I would allow the cross-
    appeal on issue 3 defined by Lord Mustill and make the declarations he
    proposes.

    LORD BROWNE-WILKINSON

    My Lords,

    For the reasons given by my noble and learned friend Lord Mustill I
    would dismiss the appeal and dismiss the cross-appeal save as to issue 3 which
    I would allow and make the declarations which are proposed by Lord Mustill.

    LORD MUSTILL

    My Lords,

    The sentencing of a convicted murderer according to English law is a
    unique formality. Although it is a very grave occasion it is a formality in this
    sense, that the task of the judge is entirely mechanical. Once a verdict of
    guilty is returned the outcome is pre-ordained. No matter what the opinion
    of the judge on the moral quality of the act, no matter what circumstances
    there may be of mitigation or aggravation, there is only one course for him
    to take, namely to pass a sentence of life imprisonment.

    - 2 -

    This purely formal character of the sentencing process is unique in
    more than one respect. Thus, whilst it is true that there are other,
    comparatively unimportant, offences where a particular sentence, or
    component of a sentence, is prescribed by law there is in practice no other
    offence besides murder for which a custodial sentence is mandatory. This
    singularity is not to be accounted for by the fact that the crime has resulted
    in the death of the victim, since although the offence of manslaughter carries
    a maximum penalty of life imprisonment the sentence is discretionary and the
    maximum is rarely imposed; and other offences in which the death of the
    victim is an element are subject to maximum fixed terms. Nor can the
    uniqueness of the mandatory sentence of murder be ascribed to the uniquely
    wicked quality of the intent which accompanies the fatal act, since as every
    law student knows, although many who speak in public on the subject appear
    to overlook, it is possible to commit murder without intending to kill, and
    many of those convicted of murder have intended to do no more than commit
    grievous bodily harm. In truth the mandatory life sentence for murder is
    symbolic.


    The sentence of life imprisonment is also unique in that the words
    which the judge is required to pronounce do not mean what they say. Whilst
    in a very small minority of cases the prisoner is in the event confined for the
    rest of his natural life, this is not the usual or the intended effect of a sentence
    of life imprisonment, as a judge faced with a hard case will take pains to
    explain to the offender before sentence is passed. But although everyone
    knows what the words do not mean, nobody knows what they do mean, since
    the duration of the prisoner's detention depends on a series of
    recommendations to, and executive decisions by, the Home Secretary, some
    made at an early stage and others much later, none of which can be accurately
    forecast at the time when the offender is sent to prison.

    There is, however, another form of life sentence, of which the
    philosophy, statutory framework and executive practice are quite different
    even though the words pronounced by the judge are the same. This is the
    discretionary life sentence. The imposition of this sentence is severely
    constrained by section 2(1) of the Criminal Justice Act, 1991, read with
    section 1(2), and by decisions of the Court of Appeal (Criminal Division),
    notably Reg. v. Hodgson (1967) 52 Cr. App. R. 113 and Reg. v. Wilkinson
    (1983) 5 Cr. App. R. (S) 105. Where the criteria so established are satisfied
    the judge has a choice between two very different procedures. He may decide
    to focus on the offence, passing a sentence appropriate to its gravity by the
    familiar process of identifying the range of sentences established through
    decisions of the Court of Appeal as being in general apposite to an offence of
    the kind in question, and then placing the individual offence within (or
    exceptionally outside) the range by reference to circumstances of mitigation
    or aggravation. The judge may however think it right to adopt a different
    approach, and to concentrate on the offender rather than the offence,
    imposing a sentence of life imprisonment to reflect his appraisal that even a
    long fixed term of years may not adequately protect the public against the risk

    - 3 -

    that when the term has been served the prisoner will continue to be a danger
    to the public. Such a sentence ensures that the prisoner will be kept in
    custody until it is thought safe to release him.

    The discretionary life sentence may thus be regarded as the sum of two
    sentences, to be served consecutively. First, a determinate number of years
    appropriate to the nature and gravity of the offence. This is often called the
    "tariff" element of the sentence. For my part, although I recognise that this
    is not inappropriate in the context of a discretionary life sentence, I consider
    that for reasons which I will later develop it is illogical and misleading when
    the usage is transferred to a mandatory sentence. I therefore prefer to avoid
    this terminology and will instead call the first component of the life sentence
    the "penal element". The second component is an indeterminate period,
    which the offender begins to serve when the penal element is exhausted. I
    will call this the "risk element".

    In the past there was no need for the sentencer to give separate
    attention to these two components. Having once decided that a determinate
    sentence at the general level suggested by the nature of the offence would not
    adequately reflect the degree of risk, he would proceed directly to the
    imposition of a life sentence, and would have no reason to identify with
    precision, or to publish, the fixed term which he would have passed if he had
    chosen the alternative course. As will appear, the law and practice have more
    recently developed in a way which attaches great importance to the composite
    nature of the discretionary life sentence, and now requires that in the great
    majority of cases the judge will quantify and announce the penal element and
    will thereby fix directly the minimum period in custody which the offender
    must serve, before the question whether it is safe to release him becomes
    decisive. Although it is a comparative novelty this regime conforms very well
    with the rationale of the discretionary life sentence and, as it appears to me,
    is fair, practical in operation and easy to comprehend.

    The same cannot I believe be said of the situation created by the
    ministerial decision, some ten years ago, to import the concept of a penal
    element into the theory and practice governing the release on licence of
    prisoners serving mandatory life sentences for murder. I must develop this
    later. For the present it is sufficient to state that the current practice,
    established by executive changes of policy rather than by Act of Parliament,
    now requires the division of the sentence into penal and risk elements, and
    entails that the ascertainment by the Home Secretary of the penal element
    fixes, at one remove, the minimum period for which the convicted murderer
    will be detained. It is to this element that the present appeal is directed.

    The respondents to the appeal, S. Doody, J.D.Pierson, E.W. Smart
    and K. Pegg were each convicted of murder and sentenced to life
    imprisonment on various occasions between 1985 and 1987. It is possible to
    deduce from the dates fixed by the Secretary of State for the Home
    Department for the first review of their cases by the Parole Board (and in the

    -4-

    case of Pierson from correspondence with the Home Office) that the penal
    elements of these life sentences fixed by Secretary of State were respectively
    15 years; not more than 20 years; 12 years; and 11 years. So much each
    prisoner knows, but what he does not know is why the particular term was
    selected, and he is now trying to find out: partly from an obvious human
    desire to be told the reason for a decision so gravely affecting his future, and
    partly because he hopes that once the information is obtained he may be able
    to point out errors of fact or reasoning and thereby persuade the Secretary of
    State to change his mind, or if he fails in this to challenge the decision in the
    courts. Since the Secretary of State has declined to furnish the information
    the respondents have set out to obtain it by applications for judicial review.
    The relief claimed is not the same in each case, but the applications have
    sufficient in common to enable the parties to identify six issues for decision.
    In the Court of Appeal the respondents succeeded on the first two issues, on
    which the Secretary of State now appeals. The respondents failed, and cross-
    appeal, on the remaining four issues. As the argument developed it came to
    appear that the issues as agreed were not entirely in focus, but they form a
    useful framework for decision and I will set them out. First however it is
    essential to describe, not only the current law and practice, but also the steps
    by which they reached their present form.

    I HISTORY

    A. Chronology.

    1. Until the enactment of the Homicide Act 1957 the mandatory sentence
    for murder was death. This was mitigated by an executive power to commute
    the sentence to one of penal servitude (later imprisonment) for life, which in
    turn was subject to an executive power to release the prisoner on licence.
    There was a long-established practice whereby the trial judge wrote privately
    to the Home Secretary drawing attention to any features of the case which he
    considered relevant to the anxious decision on whether or not to commute.

    2. When the Act of 1957 created the category of non-capital murder it
    prescribed a mandatory sentence of imprisonment for life. Eight years later,
    at the time when the abolition of the death penalty for murder was before
    Parliament it was proposed that the previous mandatory sentences of death and
    life imprisonment should be replaced by a discretionary sentence of life
    imprisonment, but Parliament did not agree and a sentence of life
    imprisonment was made mandatory for all murders: Murder (Abolition of
    Death Penalty) Act 1965, section 1(1). At the same time two statutory
    concessions were made to those who feared excessive leniency by the
    Executive in the treatment of convicted murderers. First, by section 1(2) the
    trial judge was given power to recommend to the Home Secretary the
    minimum period which should elapse before the release of the prisoner under
    the statutory power to release on licence which had been created by the Prison
    Act 1952. Second, it was stipulated that no person convicted of murder would
    be released on licence unless the Home Secretary had previously consulted the
    Lord Chief Justice and the trial judge, if available: section 2.

    -5-

    3. Two years later, the Parole Board was created by the Criminal Justice Act
    1967. As part of the new scheme the provision for consultation with the Lord
    Chief Justice and the trial judge was repealed and replaced by a similar
    requirement, on this occasion made applicable to discretionary as well as
    mandatory life sentences, and coupled with a condition that the Home
    Secretary should not release the prisoner unless he was recommended to do
    so by the Parole Board. In practice the advice of the Parole Board was not
    obtained (in the absence of exceptional mitigating circumstances) until the
    Board conducted a first review of the prisoner's sentence after seven years of
    custody; and the opinion of the Lord Chief Justice and the trial judge (whom
    I will hereafter call "the judges") was not at this stage sought unless a
    recommendation by the Board for release was seriously in prospect.

    1. Because it was found that in the majority of cases a first review after
      seven years was too early to set a release date, a new procedure was devised
      in 1973 whereby a joint working group of the Parole Board and the Home
      Office scrutinised the case of each life prisoner after the first three years in
      order to recommend a date of the first review by the Parole Board. We see
      here the origins of the crucial practical distinction between setting a date for
      release and setting a date of the first consideration of release. Throughout this
      period trial judges continued to write privately to the Home Secretary
      expressing their opinions on the offence and the offender, although the
      practice of making recommendations as to minimum sentence, permitted by
      section 1(2) of the Act of 1965 steadily diminished.

    2. So matters continued until 1983, when in response to pressure of
      public opinion the Home Secretary (Mr. Leon Brittan) announced a series of
      radical changes in the existing policies relating to the release of prisoners on
      parole and licence (49 HC (5th Series) 505-508 :written answer). These
      included the creation of a completely new philosophy and practice for the
      release of life prisoners on licence, some aspects of which had been discussed
      with the Lord Chief Justice, and which had been foreshadowed in a speech to
      the Conservative Party conference. This practice was to have the following
      features:

    (i) The joint Home Office/Parole Board committee, which
    had been established to recommend the date for the first review
    by the Parole Board was disbanded.

    (ii) Instead, the Home Secretary would himself, after
    consulting the judges "on the requirements of retribution and
    deterrence", fix the date for the first review.

    (iii) The review would normally take place three years
    before the expiry of the "period necessary to meet the
    requirements of retribution and deterrence". This would give
    sufficient time for preparations for release, if the Parole Board
    were to recommend it.

    -6-

    (iv) Subject to exceptional circumstances the first review
    would in fact take place on the date so fixed.

    (v) Meanwhile the progress of the prisoner would be kept
    under regular review by the Home Office.

    (vi) The consultation with the judges required by section 61
    of the Criminal Justice Act 1967 would take place when release
    was an actual possibility.

    (vii) In the case of certain types of murder the prisoner
    would not normally be released until 20 years or even longer
    had been served.

    Equally important were the changes in philosophy underlying the new
    practice. The first was tacit, but obvious. Whereas at the outset the power of
    the trial judge to recommend a minimum term, and the duty of the Home
    Secretary to consult the judges before release had been a protection against a
    foreseen risk of excessive leniency by the Executive, the new regime was
    intended to forestall excessive leniency by the judges, or the Parole Board, or
    both. The second change in philosophy was made explicit in the following
    passage from the Home Secretary's announcement:

    "These new procedures will separate consideration of the
    requirements of retribution and deterrence from consideration
    of risk to the public, which always has been, and will continue
    to be, the pre-eminent factor determining release. . . . They
    will enable the prison and other staff responsible for
    considering and reporting on life sentence cases, the local
    review committees and the Parole Board, to concentrate on
    risk. The judiciary will properly advise on retribution and
    deterrence. But the ultimate discretion whether to release will
    remain with me."

    Thenceforth the separation between risk to the public and the penal element,
    applied to mandatory and discretionary life sentences alike (480 HL (5th
    Series) 904: written answer) was firmly embedded in the theory and practice
    of the release of life prisoners. The advice of the judges, previously expressed
    in the round by reference to all the features of the offence and the offender
    which the judges considered to be relevant, was now to be confined to the
    penal element.

    6. This regime was soon modified. In the first place, special provision
    was made for prisoners, the penal element of whose sentences exceeded 20
    years. Here, the first Parole Board review was to take place, not three years
    before the expiry of the penal element, but after 17 years in custody. The
    second modification was prompted by the decisions of the Divisional Court in
    Reg. v. Secretary of State for the Home Department, Ex parte Handscomb

    - 7 -

    (1987) 86 Cr. App. R. 59, to the effect that the Home Secretary was acting
    unlawfully by delaying until three years after sentencing his consultation with
    the judiciary for the purpose of fixing the first review date, and also that he
    was bound to set the first review date strictly in accordance with the penal
    element recommended by the judges. In response to this decision the Home
    Secretary (Mr. Douglas Hurd), in agreement with the Lord Chief Justice,
    decided (120 H.C. (5th Series) 347-349: written answer) that in future the trial
    judge's view on the penal element of a discretionary life sentence should be
    obtained (through the Lord Chief Justice) as soon as practicable after the
    imposition of sentence, and that the first Parole Board review would be fixed
    in accordance with the judicial view. As regards mandatory life sentences the
    practice would also be changed so as to eliminate the waiting period of three
    years, but the Home Secretary went on to add:

    "In cases 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. I shall ensure that the
    timing of the first formal review in such cases is fixed in
    accordance with my overall policy for ensuring that the time
    served by prisoners serving life sentences for the worst
    offences of violence fully reflects public concern about violent
    crime."

    1. The next development was the judgment of the European Court of
      Human Rights in Thynne, Wilson and Gunnel v. United Kingdom (1990) 13
      E.H.R.R. 666, concerning discretionary life sentences. Here, the court
      recognised the theoretical distinction between mandatory and discretionary
      sentences, and went on to hold (inter alia) that in the case of a discretionary
      sentence once the penal element had been served the prisoner was entitled to
      "judicial control" of his continued detention.

    2. Just as it had reacted to criticisms in Handscomb the Government
      responded to Thynne, Wilson and Gunnell with a modification of the existing
      practice governing discretionary life sentences, which was subsequently
      embodied in section 34 of the Criminal Justice Act 1991. The gist of the new
      statutory regime is that the judge has power to make an order specifying the
      penal element of the sentence and at the same time to order that section 34
      shall apply to the prisoner as soon as he has served that element. Where the
      section does apply the Home Secretary, if he has not already done so of his
      own accord, can be required by the prisoner to refer his case to the Parole
      Board once the penal element has expired. The Board then considers whether
      it is any longer necessary for the protection of the public that the prisoner
      should be confined, and if it is answers in the negative it has power to direct

    - 8 -

    the prisoner's release, whereupon is the duty of the Home Secretary to release
    him. This section came into force on 1 October 1992 (after the decision of
    the Court of Appeal in the present case), and the Lord Chief Justice has
    subsequently directed that save in the very exceptional case the judge should
    make an order under section 34: Practice Direction of 8 February 1993:
    Practice Direction (Crime: Life Sentences) [1993] 1 W.L.R. 223. The trial
    judge will also, as in the past, make a written report to the Home Secretary,
    through the Lord Chief Justice.

    9. At the time when the Criminal Justice Bill was under consideration it
    was proposed in the House of Lords that similar provision should be made in
    the case of mandatory life sentences, but this view was rejected. The Minister
    of State (Mrs. Angela Rumbold) stated:

    "Mandatory life sentence cases, however, raise quite different
    issues and the Government do not agree that it is appropriate
    to extend a similar procedure to these cases. In a discretionary
    case, the decision on release is based purely on whether the
    offender continues to be a risk to the public. The presumption
    is that once the period that is appropriate to punishment has
    passed, the prisoner should be released if it is safe to do so.
    The nature of the mandatory sentence is different. The element
    of risk is not the decisive factor in handing down a life
    sentence. According to the judicial process, the offender has
    committed a crime of such gravity that he forfeits his liberty to
    the state for the rest of his days - if necessary, he can be
    detained for life without the necessity for subsequent judicial
    intervention. The presumption is, therefore, that the offender
    should remain in custody until and unless the Home Secretary
    concludes that the public interest would be better served by the
    prisoner's release than by his continued detention. In
    exercising his continued discretion in that respect, the Home
    Secretary must take account, not just of the question of risk,
    but of how society as a whole would view the prisoner's
    release at that juncture. The Home Secretary takes account of
    the judicial recommendation, but the final decision is his."

    (195 HC (Fifth Series) 309)

    10. Reflecting this policy, the Criminal Justice Act 1991 provides
    differently in section 35 for mandatory life prisoners from the new regime
    established by section 34 for discretionary life prisoners. Under section 35
    the discretion to refer the case to the Parole Board is left with the Home
    Secretary. It is only if (a) the Home Secretary has chosen to refer, (b) the
    Parole Board has recommended release, and (c) the Home Secretary has
    consulted the judges, that he has power to release the prisoner; but this is not
    a power which he is bound to exercise. The existing practice whereby the

    - 9 -

    Home Secretary fixes the date of first review by reference to the penal
    element, after consultation with the judges, remains in place.

    11. Most recently, there have been important developments in the practice
    governing the review by the Parole Board. It appears that by the time the
    Minister of State made her announcement on 16 July 1991 the Government
    had already decided that a discretionary life prisoner should be entitled to full
    disclosure of the materials to be placed before the Board. Indeed, before this
    practice was put into effect it was held by the Court of Appeal in Reg. v.
    Parole Board, Ex parte Wilson
    [19921 Q.B. 740 that this is what the law
    required. Subsequently, on 16 December 1992 the Home Secretary has
    announced that the practice for mandatory life prisoners will be brought into
    line with these changes, so that the prisoner will now be provided in advance
    with all papers to be considered by the Parole Board for the review of his case
    (subject to public interest immunity), and afterwards with the reasons for the
    Parole Board recommendations and ministerial decisions regarding release.
    (216 HC (5th Series) 218-219: written answer).

    2. The current law and practice.

    My Lords, I believe that this summary has shown how, in contrast
    with the position as regards discretionary life sentences, the theory and the
    practice for convicted murderers are out of tune. The theory - and it is the
    only theory which can justify the retention of the mandatory life sentence -
    was restated by Mrs. Rumbold less than two years ago. It posits that murder
    is an offence so grave that the proper "tariff" sentence is invariably detention
    for life, although as a measure of leniency it may be mitigated by release on
    licence. Yet the practice established by Mr. Brittan in 1983 and still in force
    founds on the proposition that there is concealed within the life term a fixed
    period of years, apt to reflect not only the requirements of deterrence, but also
    the moral quality of the individual act ("retribution"). These two philosophies
    of sentencing are inconsistent. Either may be defensible, but they cannot both
    be applied at the same time.

    I make this point, not to argue for one regime rather than another, nor
    to suggest that each of them is unsatisfactory. This is a question for
    Parliament and we must take the law as it stands. The importance of the
    inconsistency for present purposes is that the choice of the theory goes a long
    way towards determining the requirements of fairness with which the practice
    should conform. The judgment of Shaw L.J. in Payne v. Lord Harris of
    Greenwich
    [1981] 1 W.L.R. 754, a case on the right of a mandatory life
    prisoner to know the Parole Board's reasons for declining to recommend his
    release, illustrates this well. In a crucial passage, concerned with the grant
    of parole in general but particularly germane in the present context, the Lord
    Justice stated, at p. 763, that:

    "A person sentenced to imprisonment could not expect to be released
    before the expiry of his sentence. Since the introduction of parole he

    - 10 -

    may hope that part of his sentence may be served outside prison. If his
    offence was of a heinous kind, even that hope will be a frail one."

    If the matter is approached in this way the Home Secretary can be regarded
    as exercising a very broad general discretion, in which all the relevant factors
    are weighed together when deciding whether the public interest permits
    release, in very much the same way as the discretion had been exercised
    before the Parole Board came on the scene; and from this it is not a long step
    to hold that since the prisoner is essentially in mercy there was no ground to
    ascribe to him the rights which fairness might otherwise demand. This
    reasoning is however much weakened now 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.

    For this reason I believe it impossible to proceed any distance towards
    determining the present appeal without deciding which of the two competing
    philosophies is to form the starting-point. As it seems to me, the only
    possible choice is the regime installed by Mr. Brittan, as later modified. This
    is the regime by which successive Home Secretaries have chosen to exercise
    the wide powers conferred by Parliament, and the arguments have throughout
    assumed that the regime is firmly in place, and that the task of the courts is
    to decide what the elements of fairness demand as to the working-out of that
    regime, in the light of the sentencing philosophy which is expressed to
    underlie it. This being so I think it essential not to cloud the discussion by
    introducing the inconsistent theory enunciated by the Minister of State, and I
    shall leave this entirely out of account.

    In this long introduction I have anticipated much of what needs to be
    said about the six individual issues identified by the parties. For reasons
    which I will shortly explain, it is convenient to deal with these in a different
    order from that chosen by the parties, but I will first set them out.

    II. THE ISSUES

    1. Is a prisoner serving a life sentence entitled to make written
      representations before his tariff is set by the Secretary of State?

    2. Is the Secretary of State required to tell the prisoner what period the
      Judiciary have recommended he should serve for the purposes of retribution
      and deterrence, and of any other opinion expressed or reasons given by the
      Judiciary which are or may be relevant to the Secretary of State's decision as
      to the appropriate period to be served for these purposes?

    - 11 -

    1. If a prisoner is to be told the judicial view of his tariff, is the Secretary
      of State obliged to give reasons for departing from it if he does so?

    2. Is the Secretary of State obliged to adopt the judicial view of the period
      to be served for retribution and deterrence by a prisoner serving a mandatory
      life sentence?

    3. Is the Secretary of State obliged to make the decision on the period
      which a life sentence prisoner should serve for the purposes of retribution and
      deterrence personally, or may this task be performed by a Minister of State
      of the Home Office on his behalf?

    4. In relation to Mr. Pegg only, did the Secretary of State fail to take into
      account the contents of his Petition dated 24 January 1989.

    II. ISSUE 4: THE EFFECT OF THE JUDGES' ADVICE

    Although the fourth of these questions arises under the cross-appeals,
    logically it comes first. All the judges of the Divisional Court and the Court
    of Appeal have returned a negative answer, and I have no doubt that they are
    right.

    Under the current practice the opinion of the trial judge on the penal
    element plays a very different part in the two regimes. For the discretionary
    sentence an order under section 34 is decisive. The opinion of the Lord
    Chief Justice is not required, and the Home Secretary has no choice but to
    initiate a Parole Board review once the term fixed by the judge has expired.
    With a mandatory sentence the trial judge and the Lord Chief Justice are no
    more than advisers. Not only have successive Ministers made it plain to
    Parliament that they regard themselves as free to depart from the advice but
    they have put their words into practice, for statistics furnished to the Select
    Committee on Murder and Life Imprisonment showed that during specimen
    periods of six months between 1984 and 1988 the Home Secretary fixed the
    penal element at a longer term than recommended by the trial judge in
    between 30 and 60 per cent of the cases. The respondents maintain that this
    practice is unlawful. They put their argument in two ways.

    First, they assert that the judges are uniquely skilled and experienced
    in matching punishment to the needs of retribution and deterrence, and in the
    establishment and operation of tariffs for particular types of offence. This
    being so, the Home Secretary who ex hypothesi is less well equipped cannot
    sensibly reject the advice of the judges, so that any fixing of the penal element
    otherwise in an accordance with their opinions (or, presumably, of the Lord
    Chief Justice if the judges differ) must necessarily be irrational. In support,
    the respondents rely on the decision of the Divisional Court in Handscomb,
    86 Cr. App. Rep. 59. In the judgments now under appeal much attention was
    given to identifying the ratio decidendi of this case, in the light of
    pronouncements by the Divisional Court and by Lloyd L.J. in Reg. v.

    - 12 -

    Secretary of State for the Home Department, Ex parte Walsh The Times, 18th
    December 1991. I believe that your Lordships are free to pass by this dispute
    and to tackle the question afresh. So doing, I would reject the respondents'
    argument on two grounds. In the first place, I question the proposition that
    the judges are specially qualified to assess the penal element of a mandatory
    life sentence: I emphasise mandatory, because there are grounds for saying
    that in fixing the penal element of the discretionary sentence (with which
    Hands comb was concerned) the judge is simply pronouncing the tariff sentence
    which he would have imposed but for the element of risk, and that this is the
    kind of function in which the judiciary has unrivalled experience. But the
    position as to mandatory sentences is very different. Until Mr. Brittan
    completely changed the rules in 1983 the idea of a separate determinate penal
    element co-existing with the life sentence would have been meaningless. It
    is true that for the past ten years the judges have been asked to advise upon
    it, and it may be that some consistent judicial practice now exists.
    Nevertheless, it is the Home Secretary who decides, and who has developed
    (with his predecessors) his own ministerial ideas on what the public interest
    demands. I can see no reason why the anomalous task of fixing a "tariff"
    penal element for an offence in respect of which the true tariff sentence is life
    imprisonment is one for which the Home Secretary and his junior ministers,
    informed by his officials about the existing departmental practice, are any less
    experienced and capable than are the judges.

    In any event, however, even if the respondents' argument is correct so
    far, it must in my opinion fail because Parliament has not by statute conferred
    on the judges any role, even as advisors, at the time when the penal element
    of a mandatory sentence is fixed. But for the fact that the Home Secretary
    decided, when formulating the new scheme, to retain in a modified shape the
    existing practice of inviting the opinion of the judges, they would never enter
    the picture at all. The Secretary of State is compelled, or at least entitled, to
    have regard to broader considerations of a public character than those which
    apply to an ordinary sentencing function. It is he, and not the judges, who is
    entrusted with the task of deciding upon the prisoner's release, and it is he
    who has decided, within the general powers conferred upon him by the
    statute, to divide his task into two stages. It is not, and could not be,
    suggested that he acted unlawfully in this respect and I can see no ground
    whatever for suggesting that by doing so he deprived himself entirely of his
    discretion at the first stage, and delivered it into the hands of the judges. If
    the decision in Handscomb is to a contrary effect, then with due respect to a
    very experienced court, I must disagree.

    The respondents' second argument is an appeal to symmetry.
    Mandatory and discretionary sentences are now each divided into the two
    elements. Under both regimes the judges play a part in fixing the penal
    element, and the Parole Board in fixing the risk element. At the stage of the
    Parole Board Review the practice as to the disclosure of materials and reasons
    is now the same under the two regimes. Given that the post-Handscomb
    practice, embodied in section 34 of the Act of 1991, now gives a direct effect

    - 13 -

    to the trial judge's opinion, it is irrational (so the argument runs) for the
    Home Secretary not to have brought into alignment the two methods of fixing
    the penal element.

    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.

    III ISSUES 1, 2 AND 3
    REPRESENTATIONS BY THE PRISONER:

    THE JUDGE'S TARIFF:
    THE HOME SECRETARY'S REASONS

    I take these issues together, partly because they lie at the heart of the
    appeal, and partly because if they are considered individually attention may
    be distracted from the real point of the case. Naturally enough, in the light
    of Handscomb, the judicial opinion on the penal element has loomed large in
    these proceedings, for if the court were to adopt in relation to mandatory life
    sentences the same approach as in Handscomb the prisoner would achieve a
    large part of what he seeks. But once it is concluded that the judicial opinion
    is not conclusive, and that it is the decision of the Secretary of State that
    matters, the opinion of the judges becomes no more than a component of the
    entire body of material in the light of which that decision is made.

    Thus, although it is tempting to approach the question of disclosure and
    reasons as if it were the judges' opinions to which the applications for judicial
    review are directed this is mistaken. It is the decision of the Home Secretary
    which vitally affects the future of the prisoner, and it is the openness of this
    decision which is essentially in dispute. Although the shape of the arguments
    presented in the courts below led those courts to begin the inquiry with the
    judges' opinions, and hence to progress to the reasons for those opinions, and
    finally to a consideration of whether the reasons of the Home Secretary for
    departing from the judges' opinions should be disclosed, I prefer to go directly
    to the opposite end of the process to consider the prisoner's rights in relation
    to the decision by the Home Secretary. I emphasise once again that the court
    is not being asked to review and could not with any hope of success be asked
    to review this scheme in its entirety, the more so since the judges have
    themselves being playing an important part in it for the past ten years. Nor
    of course is it the task of the court to say how it would choose to operate the
    scheme if given a free hand. The only issue is whether the way in which the
    scheme is administered falls below the minimum standard of fairness.

    - 14 -

    What does fairness require in the present case? My Lords, I think it
    unnecessary to refer by name or to quote from, any of the often-cited
    authorities in which the courts have explained what is essentially an intuitive
    judgment. They are far too well known. From them, I derive that: - 1.
    Where an Act of Parliament confers an administrative power there is a
    presumption that it will be exercised in a manner which is fair in all the
    circumstances. 2. The standards of fairness are not immutable. They may
    change with the passage of time, both in the general and in their application
    to decisions of a particular type. 3. The principles of fairness are not to be
    applied by rote identically in every situation. What fairness demands is
    dependent on the context of the decision, and this is to be taken into account
    in all its aspects. 4. An essential feature of the context is the statute which
    creates the discretion, as regards both its language and the shape of the legal
    and administrative system within which the decision is taken. 5. Fairness
    will very often require that a person who may be adversely affected by the
    decision will have an opportunity to make representations on his own behalf
    either before the decision is taken with a view to producing a favourable
    result; or after it is taken, with a view to procuring its modification; or both.
    6. Since the person affected usually cannot make worthwhile representations
    without knowing what factors may weigh against his interests fairness will
    very often require that he is informed of the gist of the case which he has to
    answer.

    My Lords, the Secretary of State properly accepts that whatever the
    position may have been in the past these principles apply in their generality
    to prisoners, including persons serving life sentences for murder, although
    their particular situation and the particular statutory regime under which they
    are detained may require the principles to be applied in a special way.
    Conversely, the respondents acknowledge that it is not enough for them to
    persuade the court that some procedure other than the one adopted by the
    decision-maker would be better or more fair. Rather, they must show that the
    procedure is actually unfair. The court must constantly bear in mind that it
    is to the decision maker, not the court, that Parliament has entrusted not only
    the making of the decision but also the choice as to how the decision is made.

    I return to the three issues, and to my suggestion that they concentrate
    attention too much on the judges' opinion on the penal element at the expense
    of the Home Secretary's decision upon it. The third issue illustrates this well,
    for the premise of the respondent's argument is that the decision of the Home
    Secretary which attracts the demands of fairness and which is potentially the
    subject of review is a decision to depart from the opinion of the judges. This
    is not so. The decision is simply to fix the penal element. On occasions this
    will involve a divergence from the judges; on others, not. In each case the
    requirements of fairness and rationality will be the same. So also are the
    familiar requirements that the decision-maker should take into account all
    relevant considerations, amongst which are the opinions of the judges; that
    he should not take into account irrelevant considerations; and that his decision
    should be rational. A departure from the opinion of the judges may be

    - 15 -

    relevant as tending to show either that the Home Secretary has failed to take
    their opinion into account, or that the discrepancy is so wide as to suggest that
    the decision may have been irrational - although of course the court would not
    make the mistake of assuming that the judges were necessarily "right", and
    that accordingly the Home Secretary must necessarily be "wrong", and so
    wrong that the court can properly interfere.

    Accordingly, I prefer to begin by looking at the question in the round,
    and inquiring what requirements of fairness, germane to the present appeal,
    attach to the Home Secretary's fixing of the penal element. As general
    background to this task, I find in the more recent cases on judicial review a
    perceptible trend towards an insistence on greater openness, or if one prefers
    the contemporary jargon "transparency", in the making of administrative
    decisions. This tendency has been accompanied by an increasing recognition,
    both in the requirements of statute (c.f. section 1(4) of the Act of 1991) and
    in the decisions of the Criminal Division of the Court of Appeal, that a
    convicted offender should be aware what the court has in mind for his
    disposal. Whilst the current law and practice concerning discretionary life
    sentences conform entirely with this trend, the regime for mandatory life
    prisoners conspicuously does not. Should this distinction be maintained in its
    entirety? Contending on behalf of the Secretary of State that matters should
    be left as they are, Mr. Pannick first points to the creation by Parliament of
    express statutory rights, similar to those which might otherwise have come
    into existence through an implied obligation of fairness, and maintains that
    these leave no room to imply any further rights. Thus, the prisoner was
    entitled under section 59 of the Act of 1967 (now obsolete and repealed) to
    make representations to the Parole Board in relation to his release on parole,
    either orally through the medium of an interview with a member of the local
    Review Board or in writing. Furthermore, in relation to his recall from
    licence the prisoner is still enabled to make representations and to know the
    reasons for the revocation of his licence: see section 39(3) of the Act of
    1991, re-enacting provisions of the Act of 1967.

    The logic of this argument appears to demand that the prisoner's right
    to make representations is excluded in all cases except those just mentioned,
    an extravagant proposition for which the Secretary of State does not contend.
    But in any event I find it impossible to accept that these limited and
    fragmentary statutory rights demonstrate a Parliamentary intention to exclude
    all other aspects of fair treatment, the more so since the provisions originate
    in an Act passed 16 years before the formal separation of the penal and risk
    elements, and the ascription to the former of such a decisive influence on the
    future of the prisoner.

    A similar argument is advanced on the broader ground that since
    Parliament has by section 34 established a regime which assures discretionary
    life prisoners of important rights, whilst leaving untouched the Home
    Secretary's much more general powers in relation to mandatory prisoners, no
    new rights in this field should be created by judicial implication. The

    - 16 -

    Secretary of State calls up the decision of the House of Lords in In re Findley
    [1985] A.C. 318, which was concerned with another aspect of Mr Brittan's
    change in policy, to emphasise how careful the courts must be not to impose
    on a statutory general discretion constraints which Parliament has chosen not
    to create. Whilst I bear this warning carefully in mind, I cannot accept the
    argument. Even in relation to discretionary life prisoners, section 34 does not
    exhaust the rights stemming from the general principle of fairness: as witness
    Reg. v. Parole Board, Ex parte Wilson, [1992] Q.B. 740 the reasoning of
    which I adopt in full.

    One further argument for the Secretary of State must be mentioned:
    namely that since the prisoner already knows all the circumstances of his
    offence, in the light of which the trial judge made his recommendation on the
    penal element, he can deduce without the need for any more information both
    the factual basis of the Secretary of State's decision, and the intellectual
    reasons why the penal element was fixed at a particular term of years.
    Although something akin to this argument has found favour in other cases, I
    am quite unable to accept it here. The prisoner does indeed know what
    primary materials were before the court, but he does not know what the judge
    and the Home Secretary made of them, nor does he know what other
    materials, not brought out at the trial, may have formed an element in the
    decision. That the choice of the penal element is not self evident appears
    quite clearly from the number of occasions on which the Home Secretary's
    appraisal differs from that of the judges. Either there is something in the
    material before the Home Secretary which was not known to the judges, or
    the Home Secretary approaches his task in a way which is different from that
    adopted by the judiciary when passing sentence. In either event, the missing
    factor is hidden from view, and the prisoner can do no more than guess what
    it might be.

    My Lords, thus to reject the arguments advanced by the Secretary of
    State does not in itself mean that the respondents are entitled to succeed on the
    first three issues: it merely leaves the ground clear to consider what fairness
    demands. Starting with the first issue, we encounter no problems. It would
    be impossible nowadays to imagine that a prisoner has no right to address to
    the Home Secretary reasons why the penal term should be fixed at a lower
    rather than a higher level, and it is now accepted that the prisoner does have
    this right. Indeed, the Secretary of State has gone further, by very properly
    undertaking through counsel that a statement of this effect will be included in
    the next edition of "Life Sentence: Your Questions Answered", the excellent
    booklet issued to persons serving life sentences. The only issue is whether the
    court should make a declaration to this effect. The Secretary of State may be
    technically right in saying that the point has never been in dispute, and is
    therefore inapt for a formal ruling. But this controversy is arid. I am unable
    to understand what objection the Secretary of State could have to the grant of
    relief, so long as it is made clear (as I have just made clear) that he has not
    unworthily argued against an obvious right. In a rapidly-developing area of
    the law I think it useful for each new area to be formally marked-out, even if

    - 17-

    in the event it proves uncontroversial. I would therefore uphold the decision
    of the Court of Appeal on the first issue.

    My Lords, I consider that the second and third issues are both aspects
    of the same question, and that the focus of both is too narrow. The central
    question is whether the prisoner is entitled to know what materials the
    Secretary of State will found upon when making his decision and (after the
    event) how that decision was arrived at. The opinion of the judges and the
    reasons for the opinion are important, not because they have any direct effect
    but because they form part of the corpus of material on which the Home
    Secretary bases his decision. Similarly, if there is a divergence between the
    opinion of the judges and the decision of the Secretary of State, the reasons
    for this divergence are no more than part of the entire reasons which led the
    Home Secretary to fix a particular term as the penal. element.

    Approaching the matter in this way, it must be asked whether the
    prisoner is entitled to be informed of that part of the material before the Home
    Secretary which consists of the judges' opinion and their reasons for it. It has
    frequently been stated that the right to make representations is of little value
    unless the maker has knowledge in advance of the considerations which,
    unless effectively challenged, will or may lead to an adverse decision. The
    opinion of the Privy Council in Kanda v. Government of Malaya [1962] A.C.
    322, 337 is often quoted to this effect. This proposition of common sense
    will in many instances require an explicit disclosure of the substance of the
    matters on which the decision-maker intends to proceed. Whether such a duty
    exists, how far it goes and how it should be performed depend so entirely on
    the circumstances of the individual case that I prefer not to reason from any
    general proposition on the subject. Rather, I would simply ask whether a life
    prisoner whose future depends vitally on the decision of the Home Secretary
    as to the penal element and who has a right to make representations upon it
    should know what factors the Home Secretary will take into account. In my
    view he does possess this right, for without it there is a risk that some
    supposed fact which he could controvert, some opinion which he could
    challenge, some policy which he could argue against, might wrongly go
    unanswered.

    In the present instance, the opinion of the judges (or opinions, if the
    Lord Chief Justice differs from the charge judge) are weighed in the balance
    when the Secretary of State makes his decision. Beyond the fact that the
    opinion is not invariably decisive (as witness the statistics previously cited)
    there is no means of knowing how it figures in the Home Secretary's
    reasoning. That it does so figure is quite plain from the statements by
    successive ministers from which I have quoted. This being so, I think it
    clear that the prisoner needs to know the substance of the judge's advice,
    comprising not only the term of years which they recommended as the penal
    element, but also their reasons: for the prisoner cannot rationalise his
    objections to the penal element without knowing how it was rationalised by the
    judges themselves.

    - 18 -

    This does not mean that the document(s) in which the judges state their
    opinion need be disclosed in their entirety. Those parts of the judges'
    opinions which are concerned with matters other than the penal element (for
    example any observation by the judges on risk) need not be disclosed in any
    form, and even in respect of the relevant material the requirement is only that
    the prisoner shall learn the gist of what the judges have said. This will not
    necessarily involve verbatim quotation from the advice, although this may
    often be convenient. If the Home Secretary's duty is approached in this way
    I doubt whether the fact that in the past the advice has been given in
    documents intended to be confidential will often prove to be troublesome; and
    in the few cases where problems do arise it may well be that, upon request,
    the judges are prepared to waive the confidentiality of the documents.

    In these circumstances I agree with the Court of Appeal on the second
    as well as the first of the issues. I do, however, have the misfortune to differ
    on the third.

    I accept without hesitation, and mention it only to avoid
    misunderstanding, that the law does not at present recognise a general duty to
    give reasons for an administrative decision. Nevertheless, it is equally
    beyond question that such a duty may in appropriate circumstances be implied,
    and I agree with the analyses by the Court of Appeal in Reg. v. Civil Service
    Appeal Board, Ex parte Cunningham
    [1991] 4 All E.R. 310 of the factors
    which will often be material to such an implication.

    Turning to the present dispute I doubt the wisdom of discussing the
    problem in the contemporary vocabulary of "prisoner's rights", given that as
    a result of his own act the position of the prisoner is so forcibly distanced
    from that of the ordinary citizen, nor is it very helpful to say that the Home
    Secretary should out of simple humanity provide reasons for the prisoner,
    since any society which operates a penal system is bound to treat some of its
    citizens in a way which would, in the general, be thought inhumane. I prefer
    simply to assert that within the inevitable constraints imposed by the statutory
    framework, the general shape of the administrative regime which ministers
    have lawfully built around it, and the imperatives of the public interest, the
    Secretary of State ought to implement the scheme as fairly as he can. The
    giving of reasons may be inconvenient, but I can see no ground at all why it
    should be against the public interest: indeed, rather the reverse. This being
    so, I would ask simply: Is refusal to give reasons fair? I would answer
    without hesitation that it is not. As soon as the jury returns its verdict the
    offender knows that he will be locked up for a very long time. For just how
    long immediately becomes the most important thing in the prisoner's life.
    When looking at statistics it is easy to fall into the way of thinking that there
    is not really very much difference between one extremely long sentence and
    another: and there may not be, in percentage terms. But the percentage
    reflects a difference of a year or years: a long time for anybody, and longer
    still for a prisoner. Where a defendant is convicted of, say, several armed
    robberies he knows that he faces a stiff sentence: he can be advised by

    - 19 -

    reference to a public tariff of the range of sentences he must expect; he hears
    counsel address the judge on the relationship between his offences and the
    tariff; he will often hear the judge give an indication during exchanges with
    counsel of how his mind is working; and when sentence is pronounced he will
    always be told the reasons for it. So also when a discretionary life sentence
    is imposed, coupled with an order under section 34. Contrast this with the
    position of the prisoner sentenced for murder. He never sees the Home
    Secretary; he has no dialogue with him: he cannot fathom how his mind is
    working. There is no true tariff, or at least no tariff exposed to public view
    which might give the prisoner an idea of what to expect. The announcement
    of his first review date arrives out of thin air, wholly without explanation.
    The distant oracle has spoken, and that is that.

    My Lords, I am not aware that there still exists anywhere else in the
    penal system a procedure remotely resembling this. The beginnings of an
    explanation for its unique character might perhaps be found if the executive
    had still been putting into practice the theory that the tariff sentence for
    murder is confinement for life, subject only to a wholly discretionary release
    on licence: although even in such a case I doubt whether in the modern
    climate of administrative law such an entirely secret process could be justified.
    As I hope to have shown, however, this is no longer the practice, and can
    hardly be sustained any longer as the theory. I therefore simply ask, is it fair
    that the mandatory life prisoner should be wholly deprived of the information
    which all other prisoners receive as a matter of course. I am clearly of the
    opinion that it is not.

    My Lords, I can moreover arrive at the same conclusion by a different
    and more familiar route, of which Ex parte Cunningham, [1991] 4 All E.R.
    310 provides a recent example. It is not, as I understand it, questioned that
    the decision of the Home Secretary on the penal element is susceptible to
    judicial review. To mount an effective attack on the decision, given no more
    material than the facts of the offence and the length of the penal element, the
    prisoner has virtually no means of ascertaining whether this is an instance
    where the decision-making process has gone astray. I think it important that
    there should be an effective means of detecting the kind of error which would
    entitle the court to intervene, and in practice I regard it as necessary for this
    purpose that the reasoning of the Home Secretary should be disclosed. If
    there is any difference between the penal element recommended by the judges
    and actually imposed by the Home Secretary, this reasoning is bound to
    include, either explicitly or implicitly, a reason why the Home Secretary has
    taken a different view. Accordingly, I consider that the respondents are
    entitled to an affirmative answer on the third issue.

    It remains to comment briefly on the decision of the Court of Appeal
    in Payne v. Lord Harris of Greenwich [1981] 1 W.L.R. 754, on the duties of
    disclosure in relation to the recommendations of the Parole Board. In
    practical terms this is obsolete, having been overtaken by the changes in law
    and practice of recent years. The decision is also distinguishable, since it

    - 20 -

    was not, and could not have been, concerned with the penal element.
    Nevertheless, the reasoning remains intact. With proper respect, I would
    depart from it for three reasons. First, and most important, because the case
    was decided before the Home Secretary created a wholly new explanation of
    the life sentence. The traditional theory, exemplified in the passage already
    quoted from the judgment of Shaw L.J., no longer corresponds with the
    practice. Second, because even in such a short time as 13 years the
    perception of society's obligation towards persons serving prison sentences has
    perceptibly changed. Finally, because of the continuing momentum in
    administrative law towards openness of decision-making. Sound as it may
    well have been at the time, the reasoning of Payne v. Lord Harris of
    Greenwich
    cannot be sustained today.

    Before leaving this question, I wish to make it absolutely clear that if
    your Lordships are in agreement with this conclusion this will not be a signal
    for a flood of successful applications for judicial review. I repeat for the last
    time that Parliament has left the discretion on release with the Home
    Secretary, and that he has done nothing to yield it up. So long as this remains
    the case, prisoners should not deceive themselves into believing that they can
    obtain leave to move for judicial review simply by pointing to a difference
    between the opinion of the judges and the decision of the Home Secretary.
    Only if it can be shown that the decision may have been arrived at through a
    faulty process, in one of the ways now so familiar to practitioners of judicial
    review, will they have any serious prospect of persuading the court to grant
    relief.

    IV. ISSUE 5: DISCRETION

    On this I have little to add to the judgment of Staughton L.J., the
    reasoning of which I adopt. That the question whether statutory discretion
    is capable of delegation, and if so to what degree, principally depends upon
    the interpretation of the statute is beyond question. Whether there is another
    constraint as regards the degree of delegation, in the shape of a possible
    exposure to attack on the ground of irrationality, as suggested by the Court of
    Appeal in Reg. v. Secretary of State for the Home Department, Ex parte
    Oladehinde [1991] 1 A C 254
    need not be examined here, since it is obvious
    that if delegation is possible at all, the power to fix the penal element can
    properly be entrusted to a junior minister. On the question whether the
    statute contemplates that the Home Secretary, with all his multifarious public
    duties, is required to exercise his particular discretion personally in every
    case, I agree with the reasons given by Staughton L.J., and wish to add
    nothing.

    There is one further point. The statutory powers and the
    administrative regime contemplate that the Lord Chief Justice as well as the
    Home Secretary has a part to play. It may safely be assumed that in the past
    the Lord Chief Justice has always considered that he is obliged to act in
    person. It might be asked why the position of the Home Secretary should be

    - 21 -

    different. In my judgment this argument is out of place. Throughout the
    statute book there are innumerable instances where powers are conferred on
    a minister, and where it is perfectly obvious that Parliament contemplated a
    delegation. By contrast, there are very few instances in which a statute, or
    delegated legislation, refers to the Lord Chief Justice and in these instances
    it is equally obvious that the office-holder alone is to act. The two terms are
    therefore drawn from quite different vocabularies, and I find nothing
    inconsistent in holding that the one office-holder may delegate, whereas the
    other may not.

    V. ISSUE 6: MR PEGG'S SPECIAL QUESTION

    Mr Pegg pursues through counsel an appeal advanced on very narrow
    grounds particular to his own case. It involves no question of general
    principle and is therefore inapt for decision by this House. I will only say
    that on the material presently before the House I can see no ground for
    holding either that the Home Secretary misdirected himself as to the nature
    and purpose of the representations made to him on behalf of Mr Pegg, or that
    his decision not to accede to them was irrational. Whether when Mr Pegg
    obtains the reasons for the Home Secretary's decision in fixing and
    maintaining the tariff at the level which he did he may appear to have some
    ground for complaint which might call for the intervention of the court is not
    a matter on which your Lordships can at present express any opinion.

    My Lords, as will have appeared I have adopted an approach to the
    problems of this case rather wider than the issues identified for argument, and
    set out above, would suggest. Logically, this should lead to declarations
    expressed in equally broad terms. The respondents have not however sought
    relief in such terms, and I suggest it would be inappropriate for your
    Lordships now to make orders which have never been claimed. Accordingly,
    I propose that your Lordships should simply uphold the two declarations
    already made by the Court of Appeal and add a third, to reflect the decision
    in favour of the appellants on the third issue. This will result in an order in
    the following form:

    IT IS DECLARED that:

    1. The Secretary of State is required to afford to a prisoner
      serving a mandatory life sentence the opportunity to submit in
      writing representations as to the period he should serve for the
      purposes of retribution and deterrence before the Secretary of
      State sets the date of the first review of the prisoner's sentence.

    2. Before giving the prisoner the opportunity to make such
      representations, the Secretary of State is required to inform him
      of the period recommended by the judiciary as the period he
      should serve for the purposes of retribution and deterrence, and
      of any other opinion expressed by the judiciary which is

    - 22 -

    relevant to the Secretary of States decision as to the appropriate
    period to be served for these purposes.

    3. The Secretary of State is obliged to give reasons for departing
    from the period recommended by the judiciary as the period
    which he should serve for the purposes of retribution and
    deterrence.

    It is however imperative that these declarations should be read in the
    context of the reasons for them which I have endeavoured to express.

    - 23 -


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