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Cite as: [1997] 3 All ER 577, [1997] UKHL 37, [1998] AC 539, [1997] 3 WLR 492

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Secretary of State for the Home Department, Ex Parte Pierson, R v. [1997] UKHL 37; [1998] AC 539; [1997] 3 All ER 577; [1997] 3 WLR 492 (24th July, 1997)

HOUSE OF LORDS

  Lord Goff of Chieveley   Lord Browne-Wilkinson   Lord Lloyd of Berwick
  Lord Steyn   Lord Hope of Craighead

OPINIONS OF THE LORDS OF APPEAL FOR JUDGMENT IN THE CAUSE

REGINA

v.

SECRETARY OF STATE FOR THE HOME DEPARTMENT, (RESPONDENT)

EX PARTE PIERSON (A.P.) (APPELLANT)

ON 24 JULY 1997



LORD GOFF OF CHIEVELEY


My Lords,

    There is before your Lordships an appeal by John David Pierson, who is a convicted murderer. He committed a double murder of a terrible kind. In the early hours of 19 September 1984 at his family's home, a small farmhouse in North Wales where he lived with his mother and father, he killed both his parents by shooting them more than once at close range with a 12 bore shotgun which was kept in the house. The appellant himself called the police. At first he made admissions consistent with his guilt; but at his trial he said that he had no memory of the events in question. On 8 July 1985, he was convicted of both murders. Why he killed his parents was totally unexplained. The judge imposed the mandatory sentence of life imprisonment. In accordance with the usual practice, he wrote in confidence to the Home Secretary, describing the crimes as horrifying but also mystifying. He expressed the opinion that, failing some dramatic development or discovery, retribution and deterrence in the appellant's case would require a substantially longer than average period of custody to be served.

    The present appeal is concerned with the period of time which the appellant is required to spend in prison to meet the requirements of retribution and deterrence, before the possibility of his release on licence can be considered. The statutory regime in force at the time of his conviction and sentence was contained in the Criminal Justice Act 1967. It was this Act which brought the Parole Board into being. Under section 61(1) of the Act, the Secretary of State might, if recommended to do so by the Parole Board, release on licence a person serving a sentence of imprisonment for life, but could not do so except after consultation with the Lord Chief Justice together with the trial judge, if available. However, it lay in the discretion of the Secretary of State whether or not to refer a case to the Parole Board (section 59(3)), and whether or not to accept the recommendation of the Parole Board, when given (section 60(1)). Nowadays, the position is governed by the Criminal Justice Act 1991 which, in section 35(2) and (3), contains provisions to the same effect applicable in the case of prisoners subject to mandatory life sentences.

    However, for present purposes more important, successive Secretaries of State have issued statements setting out the policy which is to be applied in connection with their statutory power to release convicted prisoners on licence. Since these policy statements lie at the heart of the present appeal, I shall have to refer to them in some detail.

(1) Policy Statement of 30 November 1983

    The first in the series of policy statements was made by Mr. Leon Brittan on 30 November 1983. This was primarily concerned to address public concern about the increase in violent crime, and about the gap which existed between sentences passed on criminals and the time actually served by them in prison. But for present purposes the most important feature of the statement was that, in the case of prisoners serving a life sentence, a distinction was to be drawn between a period which the prisoner would have to serve to meet the requirements of retribution and deterrence (which has come to be known as "the penal element"), and any remaining period which he is required to serve before he is released (now known as "the risk element"). The former period was to be fixed by the Secretary of State following consultation with the Lord Chief Justice and the trial judge (if available). To outward appearances, what was fixed was the date of the first reference of the case to a Local Review Committee. The first review normally took place three years before the expiry of the period of the penal element. This gave sufficient time for release if the Parole Board recommended it, having considered the question of risk; though the ultimate discretion whether to release remained with the Secretary of State. Moreover, although at that time the length of the penal element so fixed was not communicated to the prisoner, the date for his first reference to a Local Review Committee was communicated to him; and from that he could infer that the penal element in his sentence would expire three years later.

    In addition the Secretary of State established certain procedures to ensure that he could consider any special circumstances or exceptional progress which might justify changing the review date, i.e. which might justify a reduction of the penal element. But he stressed that, except where a prisoner has committed an offence for which he has received a further custodial sentence, the first formal review date would not be put back, i.e. the penal element in his sentence would not be increased.

In re Findlay [1985] 1 A.C. 318

    In another part of that Policy Statement, the Home Secretary decided to adopt a new policy of refusing in all but the most exceptional cases to release on licence prisoners serving sentences of over five years for offences of violence or drug trafficking. In In re Findlay [1985] 1 A.C. 318, four prisoners in those categories brought proceedings for judicial review in which they challenged the lawfulness of the new policy, on the ground that they had suffered loss of expectation of parole. The applications, which came before your Lordships' House on appeal, were dismissed. Lord Scarman delivered the only speech, with which the other members of the Appellate Committee agreed. He stated (at pp. 332-333) that the Secretary of State, in considering the early release of a prisoner, had to take into account not only the element of risk to the public, on which he had the benefit of advice from the Parole Board, but also deterrence, retribution and public confidence in the system. He said:

    Furthermore, with regard to the prisoners' claim that they had suffered a loss of expectation of parole, Lord Scarman had this to say (at p. 338):

(2) Policy Statement of 1 March 1985

    In a brief Statement on this date, Mr. Leon Brittan amended his policy with respect to those cases where the penal element was fixed at longer than 20 years, so that for these prisoners the first formal review date should nevertheless take place at an earlier date than three years before the expiry of the penal element, normally after 17 years in custody.

(3) Policy Statement of 23 July 1987

    A third Policy Statement was made by Mr. Douglas Hurd on 23 July 1987, in response to the decision of a Divisional Court in Regina v. The Home Secretary, Ex parte Handscomb (1987) 86 Cr.App.R. 59. In that case, which was concerned with the application of the earlier Policy Statement to prisoners serving discretionary life sentences, the court, while upholding the lawfulness of the policy, was critical of two aspects, viz. the lapse of time before the penal element was fixed, and the fact that, in fixing the penal element for discretionary life prisoners, account was taken of other factors besides the judicial view on the requirements of retribution and deterrence which, in these cases, could be ascertained by reference to the determinate sentence which would have been passed if the prisoner had not, for reasons of risk, been sentenced to imprisonment for life. The Secretary of State accepted the force of both criticisms, and made appropriate amendments to his policy. He also decided that the first formal review date (and so the penal element) for mandatory life prisoners should likewise be fixed as soon as practicable after conviction and sentence. Apart from this amendment, the Secretary of State made it clear that the Policy as applied to mandatory life prisoners continued in force as before.

(4) Policy Statement of 27 July 1993

    This statement was made by Mr. Michael Howard on 27 July 1993, to give effect to the decision of your Lordships' House in Regina v. The Home Secretary, Ex parte Doody [1994] 1 AC 531. In that case, applications for judicial review were made by four prisoners serving mandatory life sentences. Among them was the appellant in the appeal now before your Lordships. They asked for orders quashing the decisions of the Secretary of State fixing the penal element in their sentences. Their principal submission was that the Secretary of State was bound to adopt judicial advice in respect of the penal element in the case of mandatory life prisoners, as he had done in the case of discretionary life prisoners. That submission was rejected by your Lordships' House, but complaints by the applicants about the procedure adopted by the Secretary of State were upheld. It was held that he must give a mandatory life prisoner the opportunity to make written representations as to the penal element in his sentence; and that, before a prisoner made such representations, he should be informed of the period recommended by the judiciary, and any other opinion expressed by the judiciary relevant to the Secretary of State's decision on the point. Since that procedure had not been followed, the penal elements determined in the case of the four applicants, including the present appellant, were quashed.

    The greater part of the Statement of 27 July 1993 was taken up with giving effect to this decision. The Statement began with the words: "The current procedures governing the release of persons convicted of murder and sentenced to mandatory life imprisonment are described in statements made in 1983 and 1987 . . ." However, having set out the arrangements made to give effect to decision in Ex parte Doody, the Secretary of State made a number of observations of a more general character. These began with the following paragraph:

In a later passage he explained that, before any such prisoner was released, he would reconsider the penal element served by him in order to decide whether it was adequate. The clear implication in the passage was that, if at that time he concluded that it was not adequate, he might then increase it.

    These passages in the Policy Statement of 27 July 1993 were strongly relied upon by the Secretary of State in the present appeal. I shall have to consider them in some detail at a later stage; but before I do so, I must return to the narrative of events in the present case.

Narrative of events

    In January 1988, the trial judge and the Lord Chief Justice were consulted by the Home Secretary about the appropriate penal element to satisfy the requirements of retribution and deterrence in the appellant's case. They both recommended 15 years. The Lord Chief Justice commented that "This is one of those mysterious cases which defy categorization. Fifteen years seems appropriate unless some fresh factor comes to light." In accordance with the prevailing practice, the appellant was informed neither of the judges' views, nor of the Home Secretary's decision. But he was told of the first review date fixed in his case, from which he could deduce that the Home Secretary had fixed the penal element at 20 years.

    As already recorded, the appellant was one of the successful applicants in Ex parte Doody. On 27 August 1993, just a month after his Policy Statement giving effect to that decision, the Home Secretary wrote to the appellant informing him of the substance of the judicial recommendations made about the penal element in his case, and of the decision made by the Home Secretary, so that he might make representations about it. The letter contained the following passage:

    By a letter dated 9 November 1993, the appellant's solicitor submitted representations to the Home Secretary. He pointed out (inter alia) that (1) it had never been alleged that the appellant's actions were premeditated, and (2) the offences were in practice instantaneous and part of a single incident which took place suddenly in a short space of time.

    On 6 May 1994, the Home Secretary wrote to the appellant setting out his new decision in the light of the appellant's representations. His conclusion was as follows:

The application for judicial review

    It is of that decision that the appellant has sought judicial review. I should say at once that, although it has been contended on behalf of the Secretary of State that, since the period of 20 years remained unchanged, there was no increase in the penal element involved in the decision, that cannot be correct. The true position is that, since the period of 20 years was originally fixed on the basis of matters, in particular premeditation, which constituted aggravating characteristics which were taken into account in error, the maintenance of the same period in the later decision constituted in substance an increase in the period. It is on that basis that the present appeal falls to be considered.

    The application for judicial review came first before Turner J. He found in favour of the applicant, and quashed the decision of the Secretary of State to maintain the penal element in the applicant's sentence at 20 years. He considered that only exceptional circumstances could justify an increase in the penal element. There was no explanation of how the Secretary of State arrived at the same period of 20 years despite the absence of two factors, agreed to be aggravating, which affected the first decision to choose a period which was substantially in excess of that recommended by the judges.

    The Court of Appeal, however, allowed the Secretary of State's appeal from that decision. The central passage in the reasoning of the Court of Appeal is to be found in the judgment of Sir Thomas Bingham M.R. in [1996] 3 W.L.R. 547 at pp. 559G-560A, when considering the submission of Mr. Fitzgerald Q.C., for the applicant, that the Secretary of State had no power to increase a penal term in the absence of an exceptional circumstance (such as a new fact), and no such circumstance existed in the present case. The Master of the Rolls said:

    Before the Appellate Committee, Mr. Fitzgerald Q.C. advanced three main submissions on behalf of the applicant. First, the Secretary of State was only entitled to increase the penal element in a mandatory life prisoner's sentence in exceptional circumstances, and none existed here. In this submission, Mr. Fitzgerald was really seeking to uphold the decision of Turner J. at first instance. Second, as his main point, the exercise of fixing the penal element in a mandatory life prisoner's sentence was sufficiently akin to a sentencing exercise to attract the basic principle that a penalty once fixed should not be increased by the same sentencing authority. This he called the principle of non-aggravation of penalties. Third, the Secretary of State acted unfairly in failing to notify the appellant of his intention to treat his predecessor's penal element as inadequate, so providing the appellant with an opportunity to make representations on the point before the decision was made.

The relevance of the earlier Policy Statements

    I intend, however, to return to the four Policy Statements (which I shall refer to as Statements 1-4), the text of which I have already set out, and to consider first the relevance to the present case of Statements 1 and 2.

    In Statements 1 and 2, both Mr. Brittan and Mr. Hurd spoke of the first review date, which depended on the identification of the penal element in the sentence, as being fixed by the Secretary of State. This appears clearly in the antepenultimate paragraph of Statement 2, in which Mr. Hurd stated that he had "decided that the date of the first formal review of the cases of prisoners serving mandatory life sentences should . . . be fixed as soon as practicable after conviction and sentence." It is plain that both intended that the penal element itself should thereby be fixed.

    In the last paragraph of Statement 1, Mr. Brittan expressly stated, in relation to life sentence prisoners, that procedures put in place by him would "ensure that I can consider any special circumstances or exceptional progress which might justify changing the review date." By that he meant advancing that date. But, he continued, "except where a prisoner has committed an offence for which he has received a further custodial sentence, first formal review date will not be put back." This constituted a clear statement that, apart from the exceptional circumstance specified by him, the penal element, once fixed, would not be increased.

    In Statement 2, Mr. Hurd did not depart from Statement 1 except where he was establishing new principles in relation to discretionary life sentences to accommodate the criticisms expressed in Handscomb. Indeed, he made it clear that the policy as applied to mandatory life prisoners remained in force as before. It follows that Mr. Brittan's statement that the penal element would not be increased was still applicable to them.

 

    The penal element in the appellant's sentence was fixed as soon as practicable after his conviction and sentence on 8 July 1985, and so must have been fixed at the time when Mr. Hurd's Statement 2 was applicable. On the basis of that Statement the appellant would expect that the penal element so fixed would not (apart from the exceptional circumstance, which is not material in the present case) be increased. That expectation was, however, liable to be displaced in the event of a new policy being adopted by the Secretary of State which was inconsistent with it: see In re Findlay [1985] 1 A.C. 318, 338, per Lord Scarman. I turn, therefore, to consider the impact of Mr. Howard's policy statement of 27 July 1993 (Statement 4).

The impact of Mr. Howard's Policy Statement of 27 July 1993 (Statement 4)

    It is against that background that Statement 4 falls to be considered. Mr. Howard there stated that the view taken by him of a penal element at the beginning of a mandatory life sentence was only an initial view, so that the penal element so decided upon was subject to increase at a later stage. This was therefore a departure from the policy stated in Statements 1 and 2, under which the penal element once identified was regarded as fixed, and not (apart from one particular circumstance) subject to increase later. The question, therefore, arises whether Statement 4 was, on its terms, applicable to those prisoners whose penal element had been fixed under one of the earlier Policy Statements.

    In considering this question it is in my opinion important to observe that, in Statement 4, all that Mr. Howard asserted was that the view taken by him, or by a Minister acting under his authority, at the beginning of a mandatory life sentence, was an initial view of the penal element, and that it was possible for him, or a subsequent Secretary of State, to revise that view by increasing it. In its terms, therefore, the new policy did not apply to a case where the penal element had been fixed by a previous Secretary of State under the policy then applicable, in which it was stated that the penal element once fixed would not (apart from one specified circumstance) be subject to increase. I for my part can see no good reason why the policy in Statement 4 should not be applicable in accordance with its natural and ordinary meaning. It is plain that a departure in any particular case from the statement made, or maintained, in previous Policy Statements that a penal element, once fixed in that case, would not normally be increased, would engender the despair, of which the Master of the Rolls spoke, "of a prisoner serving a very long sentence of imprisonment as the date of expiry of his penal term recedes before him." I consider it appropriate, therefore, to read Statement 4 in accordance with its natural and ordinary meaning, with the consequence that it will have no retrospective effect.

    On this basis, I cannot see how Policy Statement 4 can apply to the case of the appellant. The view taken by the then Secretary of State at the beginning of the appellant's mandatory life sentence was plainly not an initial view. At that time, the penal element in his sentence was fixed and was not liable to increase, and Statement 4 did not affect that position. Indeed, as I read the situation, Mr. Michael Howard, when he reaffirmed the period of 20 years as the penal element applicable in the appellant's case despite elimination of the element of premeditation, did not appreciate that he was, in fact, increasing the appellant's penal element. He was under the impression that he had made no change, and indeed that was the primary position which was adopted on behalf of the Secretary of State in the courts below and in your Lordships' House. It was only in the alternative that Policy Statement 4 was invoked in an attempt to justify what the courts have seen to be an increase in the appellant's penal element. However, in my opinion, for the reasons I have given, Statement 4 was, for present purposes, inapplicable and so does not assist the Secretary of State.

    The Secretary of State did not claim to be entitled to depart from the policy applicable in the appellant's case. Had he done so, the question would have arisen whether the appellant could invoke the principle of legitimate expectation in the light of Lord Scarman's speech in In re Findlay [1985] 1 A.C. 318, 338. The Secretary of State claimed rather that the applicable policy was to be found in Statement 4, and that that policy entitled him to increase the appellant's penal element. However, for the reasons I have given, in reaching that conclusion the Secretary of State misconstrued Statement 4, and so erred in law. For present purposes there was nothing in Statement 4 which was effective to displace, so far as the appellant was concerned, the policy originally applied to him under Statement 2. Under the applicable policy, therefore, the appropriate course was for the Secretary of State to reduce the penal element which had originally been fixed at 20 years under the misapprehension that the appellant's crime was premeditated. It was not open to him simply to reaffirm, as he did, the period of 20 years.

Conclusion

    For these reasons, I would allow the appeal and quash the decision of the Secretary of State to refix the penal element in the appellant's mandatory life sentence at 20 years.



LORD BROWNE-WILKINSON


My Lords,

    Before turning to the circumstances of this particular case, it is necessary to explain what are the issues at stake. There appears to be a widespread public misapprehension as to the nature of the discretion of the Home Secretary to release those convicted of murder and sentenced to life imprisonment.

The tariff

    The mandatory sentence imposed by law for the crime of murder is life imprisonment: the trial judge has no discretion to impose a lighter sentence. However, Parliament has conferred on the Home Secretary a discretion to release a convicted murderer during his lifetime. This discretionary power of the Home Secretary is conferred by statute in the widest terms: Criminal Justice Act 1967, section 61; Criminal Justice Act 1991, section 35(2) and (3). Those statutory provisions make no reference to the Home Secretary fixing a tariff or minimum period which the convicted man has to serve before the Home Secretary will consider exercising his discretion to release him early.

    The tariff period is the creation of successive Home Secretaries. The convicted man cannot be released without the approval of the Parole Board. Successive Home Secretaries have adopted a policy that they will not even refer the matter to the Parole Board for its advice until a certain period has been served--the tariff period. The policy adopted spells out how that tariff period is to be fixed by the Home Secretary. Although the only sentence prescribed by law is life imprisonment, the policy involves the Home Secretary fixing a period being the period necessary, in the circumstances of the case, for the punishment of the murderer. The Home Secretary fixes the period which, in his view, is appropriate by way of punishment (i.e. retribution and deterrence) and says that he will not refer the matter to the Parole Board until just before that period has elapsed. Therefore, although the statutory discretion conferred on the Home Secretary to release the life prisoner is expressed in entirely general terms, the Home Secretary has chosen to limit the way in which he will exercise that discretion by adopting a policy under which he is required first to fix a tariff by reference to the appropriate punishment for the murder committed. The concept of a tariff period is not a statutory one. It is a self-inflicted burden imposed by the Home Secretary on himself by adopting a policy for the exercise of the statutory discretion.

    It must be emphasised that the tariff period fixed by the Home Secretary is not the period which the convicted man will serve in custody. Once the tariff period fixed by the Home Secretary has expired, the Parole Board will for the first time consider whether it will be safe to release him. If the Parole Board decides that he cannot safely be released, the Home Secretary cannot release him. If the Parole Board decides that release would involve no unacceptable risk, the Home Secretary is not bound to release him: the ultimate decision whether or not to release remains with the Home Secretary even after the tariff period has expired. Therefore, contrary to a very general misconception, the tariff period fixed by the Home Secretary is not the period of detention which the murderer will serve: it is the minimum period which has to be elapse before the Home Secretary will even consider release under his statutory discretion.

The Home Secretary's policy

    My noble and learned friend, Lord Goff of Chieveley in his speech sets out the various policies which successive Home Secretaries have adopted: I will not repeat his account of them. The crucial feature is that, down to the announcement by Mr. Howard on 27 July 1993 of his revised policy, the policy provided that the tariff, once fixed, would not be increased. Mr. Howard's revised 1993 policy stated that the fixing of the tariff period was not final but that the period could subsequently be increased either by himself or by a successor in his office.

The facts

    The tariff period for this applicant was first fixed in 1988 at a period of 20 years. At that time, the tariff policy adopted by the Home Secretary was that announced by Mr. Hurd on 23 July 1987. Under that policy the tariff period once fixed could not subsequently be increased. The decision fixing the tariff at 20 years was finally held to be unlawful by the decision of this House given on 24 June 1993 which quashed the decision: Regina v. Secretary of State for the Home Department, Ex parte Doody [1994] 1 AC 531. One month later, on 27 July 1993, Mr. Howard announced his 1993 policy which made it clear that in the future a tariff period, once fixed, could subsequently be increased. As a result of the submissions made by the applicant's solicitors to the Home Secretary, it emerged that the period of 20 years fixed in 1988 had been fixed on a mistaken assumption, viz. that the murders committed by this applicant were premeditated. Notwithstanding the removal of this factor (which must have been a material factor in fixing the period of 20 years) the Home Secretary re-fixed the tariff for this applicant at the same period of 20 years. It is, as I understand it, common ground that in effect by so doing the Home Secretary was increasing the tariff period fixed by his predecessor.

The issues

    Before your Lordships, Mr. Fitzgerald Q.C. for the applicant repeated a number of submissions he had made in the Court of Appeal, viz., (1) that the Home Secretary's decision to increase the tariff was irrational; (2) that under the 1993 Policy Statement, such an increase could only be made in exceptional circumstances where new facts had come to light; and (3) that the Home Secretary acted in breach of natural justice by failing to give the applicant notice of his intention, in effect, to increase the tariff period. On those issues, I consider that the Court of Appeal reached the right conclusion for the right reasons which I gratefully adopt.

    The main issue before your Lordships was whether the policy adopted by the Home Secretary in 1993 under which he reserved the right subsequently to increase a tariff was a lawful policy.

    There is a further point, developed in the speech of my noble and learned friend, Lord Goff of Chieveley, that whether or not the 1993 policy is lawful the decision to increase the tariff period for this applicant did not fall within the terms of the 1993 Policy Statement at all but was an unlawful application of the original tariff policy.

The lawfulness of the 1993 Policy Statement

    It was decided by this House in In re Findlay [1985] 1 A.C. 318, that Mr. Brittan as Home Secretary was entitled in 1983 to adopt the original tariff policy. Lord Scarman said, at p. 338, that the only legitimate expectation of the convicted prisoner was to have his case "examined individually in the light of whatever policy the Secretary of State sees fit to adopt provided always that the adopted policy is a lawful exercise of the discretion conferred upon him by the statute." The question in this case, therefore, is whether the discretion conferred by section 35 of the Criminal Justice Act 1991 authorised the Home Secretary to adopt the 1993 policy under which he fixes the period appropriate for punishment and, in addition, retains the right to increase the period fixed for punishment at a later date.

    The argument against the legality of reserving a right to increase the tariff period is put in two forms, one narrow and the other wider. The narrow argument is that in fixing the tariff as the period necessary to satisfy the requirements of retribution and deterrence the Home Secretary is exercising a sentencing function precisely analogous to that exercised by a judge in a court of law. Reliance is placed on the remarks of Lord Mustill in Doody (supra at p. 557) that the fixing of the tariff "begins to look much more like an orthodox sentencing exercise." Then, it is said, that subject to very circumscribed exceptions a judge cannot increase the sentence once imposed. Therefore, it is said, that if the Home Secretary chooses to adopt a policy which requires him to perform the judicial function of sentencing, he can only do so on the same basis as such function is performed by a judge and cannot seek to reserve to himself a right to increase the "sentence" (i.e. the tariff period) once he has fixed it. I do not accept this narrow formulation of the argument. It is central to the whole existing scheme regulating mandatory life sentences that, the court having passed the sentence of life imprisonment, the decision whether, and when, to release the prisoner is vested not in a judge but in a member of the executive, the Home Secretary. Once the sentence of the court has been passed, the only role conferred on the judges is the role of advising the Home Secretary. This is the deliberate choice of Parliament to which it has adhered despite strong representations that the sentencing of murderers should be within the discretion of the judiciary and not the subject of a mandatory life sentence. Parliament having decided not to confer on the judiciary the duty to fix the appropriate punishment, it would in my view be wrong to subvert that decision by requiring the Home Secretary to perform the executive function as though he were a judge.

    The processes of decision-making by the executive and judiciary are not the same. Provided that a minister acts lawfully within the ambit of the power conferred on him by Parliament, he can properly take into account matters of government policy, and of public sentiment which would be improper for a judge to have regard to. The minister is answerable to Parliament: not so the judiciary. Therefore if, as in the present case, Parliament has chosen to vest a discretion in a minister it should not be taken to require the minister to behave like a judge, even if the discretion is of a kind normally exercised by judges. I reject the reasoning "The tariff is a sentence: sentencing is a judicial function: therefore the Home Secretary is bound by the rules applicable to judges in fixing sentences."

    The wider formulation of the argument is much more persuasive. Mr. Fitzgerald Q.C. for the applicant submits that the statutory power, although expressed in general terms, should not be construed so as to authorise acts which infringe the basic rules and principles of the common law. Then he submits that there is a basic principle of the common law that once a punishment has been imposed it must not subsequently be increased. He calls this "the principle of non-aggravation of penalties." He demonstrates the existence of such a principle by reference to the court's approach to sentencing but submits that the principle extends not only to judges but is of general application. Accordingly, despite the wide words of the statute conferring the discretion to release on the Home Secretary, such words do not authorise the adoption of a policy which conflicts with the principle of non-aggravation of penalties which is a basic principle of the common law. Therefore, the 1993 policy is unlawful to the extent that it purports to authorise any increase of the tariff once it is fixed.

    I consider first whether there is any principle of construction which requires the court, in certain cases, to construe general words contained in the statute as being impliedly limited. In my judgment there is such a principle. It is well established that Parliament does not legislate in a vacuum: statutes are drafted on the basis that the ordinary rules and principles of the common law will apply to the express statutory provisions: see Cross on Statutory Interpretation 3rd ed., pp. 165-166; Bennion on Statutory Interpretation 2nd ed., p. 727; Maxwell on The Interpretation of Statutes, 12th ed., p. 116. As a result, Parliament is presumed not to have intended to change the common law unless it has clearly indicated such intention either expressly or by necessary implication: Cross (supra), p. 166; Bennion (supra), p. 718; Maxwell (supra), p. 116. This presumption has been applied in many different fields including the construction of statutory provisions conferring wide powers on the executive.

    Where wide powers of decision-making are conferred by statute, it is presumed that Parliament implicitly requires the decision to be made in accordance with the rules of natural justice: Bennion (supra), p. 737. However widely the power is expressed in the statute, it does not authorise that power to be exercised otherwise than in accordance with fair procedures. This presumption was the basis on which this House held in Doody that, in fixing the tariff of those subject to mandatory life sentences, the Home Secretary had to inform the prisoner of the gist of the trial judge's advice and give him an opportunity to make representations. Those requirements were not expressed in the statutory words but were presumed to be imported into them. Again, in Raymond v. Honey [1983] AC 1, this House had to consider whether a power conferred by section 47 of the Prison Act 1952, in absolute and general terms, to make prison rules "for the regulation and management of prisons" authorised the making of rules which impeded a prisoner's right of access to the courts. It was held that the statutory words did not authorise such a rule. Lord Wilberforce (with whom three other members of the Committee agreed) said:

Lord Bridge of Harwich, at p. 15D said:

    Reg. v. The Secretary of State for the Home Department, Ex parte Leech [1994] QB 198, was another case concerned with the rule-making power of the Secretary of State under section 47 of the Prison Act 1952. The Divisional Court held that the section on its true construction did not authorise a prison rule conferring a right to censor a prisoner's communications with his solicitors. Applying the approach laid down in Raymond v. Honey (supra) they held that section 47, despite its broad words, did not authorise such a rule because such a rule conflicted with the basic principle of our law ensuring the free flow of communication between solicitor and client.

    The same principles were applied in the recent case of Reg. v. The Lord Chancellor, Ex parte Witham [1997] 2 All ER 779. The Divisional Court held that the statutory power conferred on the Lord Chancellor to "prescribe the fees to be taken in the Supreme Court" did not authorise the setting of fees at such a level as to preclude access to the courts by would-be litigants. The general words of the statutory provision did not authorise the abrogation of such a basic "constitutional right" as the right of access to the courts. Although I must not be taken as agreeing with everything said in the judgment in that case (in particular whether basic rights can be overridden by necessary implication as opposed to express provision), I have no doubt that the decision was correct for the principle reasons relied on by Laws J. in his judgment. Such basic rights are not to be overridden by the general words of a statute since the presumption is against the impairment of such basic rights.

    From these authorities I think the following proposition is established. A power conferred by Parliament in general terms is not to be taken to authorise the doing of acts by the donee of the power which adversely affect the legal rights of the citizen or the basic principles on which the law of the United Kingdom is based unless the statute conferring the power makes it clear that such was the intention of Parliament.

    Thus far, therefore, I accept Mr. Fitzgerald's submission. Section 35(2) of the Criminal Justice Act 1991 ("the Secretary of State may . . . release on licence a life prisoner who is not a discretionary life prisoner") although absolutely general in its terms cannot be construed so as to authorise the exercise of the power, or the adoption of a policy regulating the exercise of the power, in any manner which would impair the applicant's legal rights or conflict with the basic principles of the law of the United Kingdom. In the present case there is no question of the power to release being exercised so as to impair the legal rights of the applicant. But if the 1993 policy conflicts with a basic principle of our law (that once a punishment has been fixed it cannot subsequently be increased), it will be ultra vires and, pro tanto, invalid. The question therefore is whether there is such a basic principle.

    It is at this stage that I am unable to accept Mr. Fitzgerald's submissions. For myself, I find it distasteful that a prisoner who has been told the appropriate period of punishment for his crime can then be told, possibly many years later, that such punishment has been increased. But the legality of the Home Secretary's policy (which is the only proper concern of the courts) does not depend on the preferences and perceptions of individual judges. There is no general principle yet established that the courts have any right to quash administrative decisions on the simple ground that the decision is unfair. The wide words of the statutory discretion are not to be cut down further than is necessary to conform to the generally accepted principles of the general law. Parliament having chosen to confer wide powers on the Secretary of State intends those powers to be exercised by him in accordance with his standards. If the courts seek to limit the ambit of such powers so as to accord with the individual judge's concepts of fairness they will be indirectly arrogating to the court a right to veto a decision conferred by Parliament on the Secretary of State. Only if it can be shown that a general principle of the law would be infringed by giving the statutory words their literal meaning is it legitimate for the courts to construe the statutory words as being impliedly limited.

 

    I can find no general principle of non-aggravation of penalties. Your Lordships were not referred to any cases outside the field of sentencing in the criminal courts which make any reference to any such principle. There is no doubt that in sentencing in the criminal courts the law leans against any increase in a sentence once passed: Reg. v. Newsome [1970] 2 Q.B. 711; Reg. v. Menocal [1980] A.C. 958. But the law has always accepted, and still does, that in some circumstances a sentence can be increased. A sentence passed at an Assize or a sitting of Quarter Sessions could be increased until the end of the Assize or the sitting. On the abolition of those courts, the Courts Act 1971 section 11 provided that the Crown Court can vary or rescind the sentence within 28 days after it has been passed. Again, section 36 of the Criminal Justice Act 1988 enables the Court of Appeal to consider unduly lenient sentences and, if thought fit, to increase them. It is therefore clear that, while the law leans against any increase in penalty once imposed, there is no general principle that such an increase is contrary to law. In my judgment, therefore, there is no absolute principle against aggravation of penalties and therefore no ground for limiting the general words of section 35 so as to preclude the Home Secretary from adopting the 1993 policy under which the tariff period can be increased.

Does this case fall within the 1993 Policy?

    My noble and learned friend, Lord Goff of Chieveley is of the view that the 1993 policy (being the only statement of policy which envisages an increase in a tariff once fixed) does not apply to this case and that, in consequence, the Secretary of State could not lawfully increase the tariff.

    That view is based on a detailed and careful construction of the 1993 Policy Statement. It concentrates on the fact that the passage containing the power to increase the penalty only relates to increases in a tariff fixed "at the beginning of a mandatory life sentence" by Mr. Howard or his successors. The present case does not involve an increase of such a tariff period since the tariff period was fixed by Mr. Hurd in 1988. Accordingly, there is no tariff period to which the 1993 right to increase the tariff can apply. Therefore, the applicant's case does not fall within the 1993 policy but falls to be dealt with under the old policy which contained no power to increase the tariff. Therefore Mr. Howard's decision to increase the tariff period was unlawful.

    If your Lordships were construing a statute or a contract the construction proposed would be persuasive. But in my judgment it is not right to adopt such a technical approach to statements made by a minister in Parliament relating to policy matters. If judicial review of executive action is to preserve its legitimacy and utility, it is essential that statements of administrative policy should not be construed as though settled by parliamentary counsel but should be given effect to for what they are, viz., administrative announcements setting out in layman's language and in broad terms the policies which are to be followed. Approached in that light, I cannot regard the 1993 Policy Statement as intended to draw any distinction between tariffs set at the beginning of a sentence and tariffs set at a later date. The Policy Statement was making it clear that tariffs were to be capable of being increased.

    For these reasons, much though I personally dislike the effective increase in the tariff of this applicant, I can find no ground on which such increase can be held to be unlawful. I would therefore dismiss the appeal.



LORD LLOYD OF BERWICK


My Lords,

    On 8 July 1985 the appellant was convicted of murdering his mother and father. In June 1988 he was informed that his first formal review date had been set for 2001, from which he could deduce that his tariff period--that is to say the minimum period of imprisonment necessary to meet the requirements of retribution and deterrence--was 20 years. He applied for judicial review of the Home Secretary's decision on the grounds, inter alia, that he had not been told the period of imprisonment recommended by the judiciary, and had not been given an opportunity to make written representations before his tariff was set. The application succeeded, and on 24 June 1993 the Home Secretary's decision was quashed: see Regina v. Home Secretary, Ex parte Doody [1994] 1 AC 531.

    On 27 July 1993 the Home Secretary made a statement in the House of Commons in which he outlined his proposals for giving effect to the decision of the House in Doody. On 27 August 1993 he wrote to the appellant informing him for the first time that the judge had recommended 15 years, and the Lord Chief Justice had agreed. The Home Secretary said that he would have regarded 15 years as appropriate, if it had been "a single premeditated offence." But as it was a double murder he had set the period at 20 years. On 9 November 1993 the appellant's solicitors made written representations, pointing out that it had never before been suggested that the offences were "premeditated". On 6 May 1994 the Home Secretary replied, accepting that he had been wrong to regard the offences as premeditated, and further accepting that the two murders were part of a single incident which took place during a short period. Nevertheless he maintained his view that 20 years was the appropriate tariff. The question before the House is whether the Home Secretary's decision should be quashed again. The appellant's complaint is that it was unlawful for the Home Secretary to increase his tariff.

    In the Court of Appeal Mr. Pannick argued, inter alia, that since the tariff set in 1994 was the same as the tariff set in 1988, there had been no increase in the punitive element in the sentence. Arithmetically this is correct. But the Court of Appeal, rightly in my view, looked at the substance of the matter. Since the tariff remained the same, despite the absence of the two aggravating features, there was in reality an increase in the punishment. As the Court of Appeal pointed out at [1996] 3 W.L.R. 547 at p. 560:

    Before your Lordships Mr. Pannick did not repeat that particular argument. Instead he sought to meet the appellant's case head on. He submitted that by section 35 of the Criminal Justice Act 1991 Parliament had conferred on the Secretary of State the broadest possible discretion as to the release on licence of a person serving a mandatory life sentence, and that it was not for the courts to cut down that discretion by attaching non-statutory conditions. This was the argument which succeeded in the Court of Appeal. Accordingly it was open to the Home Secretary, if he wished, to defer the appellant's release date by increasing the tariff, provided always he acted rationally, and in a way which was procedurally fair. Thus the main issues at the hearing before your Lordships were as follows:

(1) Is there, as Mr. Fitzgerald submitted, a fundamental principle of justice (which he called "the principle of non-aggravation") that a sentence once imposed may not be increased?

(2) If so, does that principle apply to the tariff set by the Home Secretary in the case of a mandatory life prisoner?

It is important to notice at the outset that the increase of which Mr. Fitzgerald complains is not the increase from 15 years recommended by the judiciary to the minimum of 20 years set by the Home Secretary, but the notional (but real) increase from 20 years for two premeditated offences to 20 years for what was in effect a single unpremeditated offence.

    In support of his argument Mr. Fitzgerald traced the development of the mandatory life sentence since the abolition of capital punishment in 1965, through the statement made by the then Home Secretary, Mr. Leon Brittan, in 1983, in which he announced that for certain categories of murder the minimum tariff would be 20 years, and the subsequent unsuccessful attack on that policy in In re Findlay [1985] A.C. 318. Since I have gone over the same ground very recently in my speech in Regina v. Secretary of State for the Home Department, Ex parte Venables and Thompson, I do not repeat it here. Instead I can go straight to the two main issues which I have identified.

    Is there a fundamental principle of justice or the common law that a sentence once imposed ought never to be increased? Mr. Fitzgerald says there is. He relies on section 47(2) of the Supreme Court Act 1981 under which a sentence imposed by the Crown Court may be varied or rescinded within 28 days, but not thereafter. He referred also to the proviso to section 11(3) of the Criminal Appeal Act 1968, which prohibits the Court of Appeal in an appeal against sentence from dealing with the appellant more severely than he was dealt with in the court below. Mr. Fitzgerald argued that his principle of non-aggravation rests on the need for certainty and finality in the punishment of offenders. A prisoner is entitled to know where he stands.

    To increase a man's punishment after his sentence has been pronounced would strike most of us as being, in a general sense, unfair. But even so, Mr. Fitzgerald's principle of non-aggravation can hardly be regarded as a rule of universal justice. For if the principle is that a sentence ought never to be increased, then Parliament itself made an exception to the rule in 1988, when it allowed over-lenient sentences to be increased on appeal: see section 36 of the Criminal Justice Act 1988.

    Mr. Fitzgerald explained this apparent exception to his universal rule on the ground that his rule applies only to judges at first instance. There is nothing to prevent a sentence being increased in the Court of Appeal. But from the offender's point of view it is all one. If the offender's sentence can be increased without injustice by a procedure of which he is likely to have been wholly unaware, and which may not even have been available as a procedure (if my reading of section 35 of the Act of 1988 and the rules made thereunder is correct) at the time his sentence was pronounced, is there anything so very strange or unreasonable about a tariff pronounced by one Home Secretary being increased by another?

    Like my noble and learned friend Lord Browne-Wilkinson, I can find no general principle of non-aggravation of penalties in the common law. Indeed, the statutory provision in section 47(2) of the Supreme Court Act 1981 on which Mr. Fitzgerald relies, seems, if anything, to undermine his principle.

    This brings me to the second, and to my mind decisive, issue in the appeal. Assuming for the sake of argument that there is a general principle that the sentence of a court, once pronounced, ought not to be increased, is the Home Secretary performing a sentencing function at all when he sets the tariff for a prisoner serving a mandatory life sentence?

    Before answering that question I can dispose of two alternative submissions advanced by Mr. Fitzgerald. Conscious perhaps that the rigid application of his principle of non-aggravation might not carry conviction, he advanced two alternative submissions. The first was that the tariff might be increased if subsequent development showed that the gravity of the crime was greater than had been supposed. Secondly, the tariff might be increased if it could be shown that it was disproportionately low in comparison to other comparable offences at the time the tariff was set. Whatever merit these alternative arguments might have, they are wholly inconsistent with the proposition that the setting of the tariff is equivalent to, or something very like, an ordinary sentencing function.

    I return to Mr. Fitzgerald's main point. I say at once that to my mind the setting of the tariff, that is to say the minimum period which the offender is to serve for retribution and deterrence before his case comes up for formal review by the parole board, is about as far from an orthodox sentencing function as can well be imagined. When a court pronounces a determinate sentence of 20 years, the sentence is not a minimum sentence, subject to review from time to time. The court does not say, as Mr. Howard said in his 1993 statement:

It is a fixed sentence, subject only to certain statutory provisions for early release set out in Part II of the Criminal Justice Act 1991.

    Exactly the same applies when a court pronounces a mandatory life sentence. The only difference is that the sentence is fixed by law, and not by the court. It is a sentence of imprisonment for life, subject only to the Home Secretary's discretion to release on licence under section 35(2) of the Act of 1991. The discretion thus granted by Parliament is unfettered. Successive Home Secretaries have said that in exercising their discretion to release they will take account of factors other than the punishment of the offender, such as the need to maintain public confidence in the system of justice. In Findlay and again in Doody, the House held that the Home Secretary was fully entitled to take such other matters into account. I quote from Lord Scarman's speech in Findlay at p. 333:

    If then the sentence in the case of mandatory life imprisonment is a sentence decreed by Parliament and pronounced by the court, and if the discretion to release granted by Parliament to the Home Secretary is a continuing discretion which lasts until the prisoner is actually released, in what sense can it be said that his decision to release is the exercise of a sentencing function? The answer, of course, is that it is not a sentencing function at all. It is the very opposite of a sentencing function. It only began to seem like a sentencing function when, following the decision of the Divisional Court in Regina v. Secretary of State for the Home Department, Ex parte Handscomb (1987) 86 Crim.App.R. 59, the Home Secretary began setting the date for the first formal review as soon as possible after conviction instead of waiting for three years. The reasons for the change were explained by Lord Woolf M.R. in Venables. In the case of a mandatory life sentence, it is desirable that a prisoner should have some idea of the earliest date when his case is to be referred to the parole board as soon as his sentence has been imposed. I agree with that view. Waiting serves no purpose. But it does not convert the period before the earliest review date into a sentence of imprisonment distinct from the sentence already passed by the court. As Mr. Howard made clear over and over again in his 1993 policy statement, the date so set is the minimum period necessary for retribution and deterrence, not the maximum. In case there should be any doubt about it he said towards the end of the statement:

    The contrast between the discretionary life sentence and the mandatory life sentence in this respect was clearly established by Parliament when enacting sections 34 and 35 of the Act of 1991, and was recognised and confirmed by the European Court of Human Rights in Wynne v. United Kingdom (1994) 19 E.H.R.R. 333. In the case of a discretionary life sentence it is possible to establish in advance what would have been the determinate sentence of the court but for the element of dangerousness, and consequential risk to the public. It makes sense that the court should set the "tariff" for the first part of the sentence, and for the parole board to decide thereafter how soon it is safe for the offender to be released. Thus the Home Secretary has no part to play in the case of a discretionary life sentence. But as the European Court in Wynne pointed out, the mandatory sentence is quite different. There is no determinate sentence which the court would have passed but for any element of dangerousness. For Parliament has itself fixed the sentence as one of life imprisonment for all murderers, whatever the degree of gravity of their crime. It is unfortunate that the term "life imprisonment" continues to be used for sentences which are in this respect so very different. It is particularly confusing that the term "tariff" should continue to be used without discrimination in respect of both kinds of sentence. In the case of the discretionary life sentence the tariff is a true tariff, which cannot be increased. In the case of the mandatory life sentence, it is not. It is no more than an indication of the earliest date on which the Secretary of State will consider release. As my noble and learned friend, Lord Hope of Craighead points out in his speech, all views expressed by the Home Secretary as to the timing of the ultimate release date are necessarily provisional until the moment of release. Unlike the trial judge, the Secretary of State is never functus officio.

    For these reasons I find myself in complete agreement with the Court of Appeal. The setting of the tariff by the Home Secretary is not a conventional sentencing function, or anything like it. Accordingly, even if there were a general principle of justice that a sentence once imposed ought never to be increased, it would not govern the Home Secretary's continuing discretion in the case of a mandatory life sentence. He can refer a case to the parole board whenever he thinks fit, or not at all; and even when a date has been set, a prisoner can have no legitimate expectation that it will not be deferred. This was the very point decided by the House in Findlay, where it will be remembered that two of the four appellants had already been moved into open conditions in preparation for their release. The Home Secretary said of them that their release in the relatively near future would not have accorded with his view of the gravity of their offences. So they were moved back into closed conditions. Mr. Sedley Q.C., and his Junior, Mr. Fitzgerald, argued that by postponing their release for a matter of years, the Home Secretary had frustrated their legitimate expectations. But the House rejected this argument. Lord Scarman said, at p. 338:

    The effect of Mr. Brittan's announcement in 1983 was to increase the period of imprisonment for many of those serving mandatory life sentences, including two of the four appellants in Findlay. There can be no doubt about that. Yet the House in Findlay declined to interfere. Mr. Fitzgerald argued boldy, as he had to, that Findlay was wrongly decided in that respect. For reasons which I have already given, I do not agree. I cannot read section 35(2) of the Act of 1991 as being subject to an implied condition that the tariff when set would never be increased.

    My noble and learned friend, Lord Hope does not rule out the possibility of increasing the tariff where this is required by exceptional circumstances. But I cannot for my part reconcile that view with a positive answer to either of the questions I have identified. I would summarise my own views as follows:

(1) There is no universal principle of justice, fairness or the common law that a sentence of punishment once pronounced may never be increased;

(2) If there were such a principle it would not apply to the tariff announced by the Home Secretary in the case of a prisoner serving a mandatory life sentence, since the tariff in such a case is no more than a provisional indication of the earliest date for referring the case to the parole board.

It follows that the policy announced by Mr. Howard in 1993 was not, in my view, unlawful.

    I return now to the facts of the present case. When the appellant was informed in 1988 that his first review date was to be in 2001, Mr. Douglas Hurd was Home Secretary. So far it has been assumed that the appellant could infer from his first review date that his tariff had been set at 20 years. But strictly speaking this was not so. For as Mr. Hurd made clear, the appellant would have been entitled to a formal review after 17 years even if his tariff had been fixed at more than 20 years. So there was no necessary connection between the first formal review, and his likely release date, except that it would not be before he had served at least 20 years. It was not until August 1993 that the appellant was told that 20 years was, in fact, the tariff. By then Mr. Howard had made clear in his July 1993 statement that the appellant would not necessarily be released at the expiry of the minimum period of 20 years. Does it matter then that when Mr. Brittan was Home Secretary, he had said that he would not put back the date of the first formal review except where a prisoner commits an offence for which he receives a further custodial sentence?

    So far as I am aware, Mr. Fitzgerald did not base any argument on this particular passage in Mr. Brittan's statement. Subject to his principle of non-aggravation, he accepted, correctly, that Mr. Howard could change the previous policy whenever he wished, provided he did not act irrationally or in a manner which was procedurally unfair. For it is elementary that on questions of policy no Home Secretary can bind his successors.

 

    But it is said that Mr. Howard did not purport to formulate a new policy in relation to those convicted and sentenced prior to July 1993. His policy changes related to the future. It would follow that the appellant was unaffected by the new policy. He was still covered by the policy, whatever it may have been, when Mr. Hurd was Home Secretary, and is therefore protected by the assurance given by Mr. Brittan in November 1983. This is the reasoning which has been accepted by my noble and learned friend, Lord Goff.

    It is unfortunate that your Lordships did not have the benefit of hearing Mr. Pannick's comments on this line of reasoning, since it was not relied on by Mr. Fitzgerald in the course of the hearing. But like my noble and learned friend, Lord Browne-Wilkinson, I do not find it persuasive.

    It is true that Mr. Howard refers to "the view . . . I take at the beginning of a mandatory life sentence . . ." and that the view taken at the beginning of the appellant's sentence was not a view taken by Mr. Howard, but by one of his predecessors. But the context shows clearly enough that Mr. Howard was taking the opportunity, as indeed he said, to emphasise existing policy in that respect, not changing policy for the future. The point is, to my mind, put beyond doubt by the opening paragraph of the statement in which Mr. Howard referred to the procedures described by Mr. Brittan and Mr. Hurd in their statements of 1983 and 1987 respectively. Under those procedures a mandatory life prisoner is informed of his first review date shortly after he has been sentenced. Mr. Howard continued:

A minimum period of detention implies a power to increase the minimum. That this is what Mr. Howard had in mind is shown by the passage I have already quoted in which he warned that minimum meant minimum and not maximum.

    I confess that I find no satisfaction in submitting a statement of ministerial policy to textual analysis. But I cannot agree that Mr. Howard has misconstrued his own statement, and thereby erred in law. The purpose of the statement is plain. It was to take account of the decision of the House in Doody. Changes were needed, and these were announced. So far as the tariff is concerned, and the minimum period to be served by a mandatory life prisoner, Mr. Howard clearly thought that he was re-stating existing policy. It ill befits a court to say that he was wrong. But right or wrong, Mr. Howard was entitled to apply his new policy (if it was a new policy) to those already serving mandatory sentences, as well as those sentenced in the future.

    I would therefore dismiss the appeal.



LORD STEYN


My Lords,

    Since 1983 successive Home Secretaries have applied a policy of fixing by way of a tariff that part of a mandatory sentence of life imprisonment for murder which must be served by a prisoner to satisfy the requirements of retribution and deterrence before the risk of releasing him can be considered. The tariff represents the punitive element of the sentence. In 1983 the source of the authority of the Home Secretary was section 61 of the Criminal Justice Act 1961; since 1991 it has been section 35(2) of the Criminal Justice Act 1991. It is common ground that the adoption of this policy was within the statutory powers of the Home Secretaries. The principal question arising on this appeal is whether the Home Secretary has a general power to increase a tariff which he or a predecessor fixed and communicated to a prisoner. The Court of Appeal answered this question in the affirmative: Regina v. Secretary of State for the Home Department, Ex parte Pierson [1996] 3 W.L.R. 547.

    It is necessary at the outset to appreciate the width of the power to increase tariffs duly fixed which the Home Secretary now asserts. Counsel argued that the Home Secretary may at any time increase a tariff previously fixed. Counsel said that the Home Secretary may increase a tariff applicable to a prisoner as often as he considers it necessary to do so. And he stated that the Home Secretary may do so across the whole spectrum of mandatory life sentence cases. Counsel said that it is irrelevant in law that a prisoner and his family may have planned their lives on the basis of the tariff communicated to the prisoner and the possibility of release after expiry of the tariff. In the Court of Appeal Sir Thomas Bingham, M.R., now the Lord Chief Justice, said that he could well understand the despair of a prisoner serving a very long term of imprisonment as the date of expiry of his penal term recedes before him but he observed that the remedy must lie elsewhere: Regina Secretary of State for the Home Department, Ex parte Pierson [1996] 3 W.L.R. 547, at p. 560. Recognizing the adverse effect of retrospective increases in the tariff on prisoners and their families, counsel for the Home Secretary said that any unfairness is a matter for Parliament. Counsel said that the only qualification to the generality of the power of the Home Secretary to increase tariffs is the need for observing the requirements of procedural fairness by inviting the comments of the prisoner before an increase is made.

    The answer to the question before the House is important. It is a difficult question. Professor Neil MacCormick observed that: ". . . there is often a need in hard cases to dig down to the level of constitutional theory in order to solve questions about private rights and public powers. . . .": see Jurisprudence and the Constitution, 1986, 36 C.L.P. 13, at p. 20. That is so in this case. The structure of the law matters. It is necessary to find the exact location of this case on the map of public law. The starting point must be an examination of the nature of the power of the Home Secretary to fix a tariff. In 1993 in Doody Lord Mustill, speaking for a unanimous House, said that the tariff: ". . . begins to look much more like an orthodox sentencing exercise"; Regina v. Home Secretary, Ex parte Doody [1994] 1 AC 531, at p. 557A. In the present case in the Court of Appeal Sir Thomas Bingham observed that "the Home Secretary's function is not an orthodox sentencing function": at p. 559C. This apparent divergence in observation is explicable. A judge performs his sentencing function in open court. The Home Secretary makes his decision on the tariff to be applied in an individual case in private and the prisoner may not see the advice on the merits of the decision prepared for the Home Secretary by his civil servants. It is an opaque system. Procedurally the Home Secretary does not perform the exercise like an orthodox sentencing exercise carried out by a judge. On the other hand, the roles of a sentencing judge and of the Home Secretary in fixing a tariff are in a purposive sense the same: each seeks to impose an appropriate term to be served by the prisoner as punishment. And, in both cases, their decisions determine the penal consequences to be inflicted on the convicted criminal: the sentence of a judge defines the term of imprisonment and the decision of the Home Secretary determines the first review date of the prisoner, which in turn determines the earliest date on which he can be released. 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 Regina v. Secretary of State for the Home Department, Ex Parte Venables [1997] 3 WLR 23 concludes the matter. Lord Goff of Chieveley 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": 41G. Lord Hope of Craighead agreed: 85G. So did I: 74H-75C. This point is therefore settled by the binding authority of a decision of the House.

    That brings me to the question whether any legal consequences flow from the characterization of the Home Secretary's function as involving a decision on punishment. It is a general principle of the common law that a lawful sentence pronounced by a judge may not retrospectively be increased. In 1971 that principle was put on a statutory basis. The position under the common law was reviewed by the House of Lords in Regina v. Menocal [1990] A.C. 598. In a speech with which three other Law Lords agreed Lord Salmon summarised the position as follows (at p. 604 F-H):

Lord Salmon added that it had always been recognised that after the termination of an assize no sentence could be altered in any way by the judge who passed it: p. 605G. The Courts Act 1971 abolished the courts of assize and created a single Crown Court. Section 11(2) of the Act of 1971 replaced the common law rule already mentioned. It provides:

In Menocal Lord Salmon explained the purpose of section 11(2) as follows:

The House of Lords held that after the lapse of the 28 day period a judge has no power to alter the sentence: per Lord Salmon, at p. 607H. Lord Salmon described this principle as "of very great importance": at p. 608A. Lord Edmund Davies concurred in a separate speech. His speech was to the same effect as that of Lord Salmon. To summarise, the position is as follows:

For the sake of completeness I refer to the procedure for referring unduly lenient sentences to the Court of Appeal. This procedure is hedged around with safeguards: see section 36 of the Criminal Justice Act 1988. The general principle of our law is therefore that a convicted criminal is entitled to know where he stands so far as his punishment is concerned. He is entitled to legal certainty about his punishment. His rights will be enforced by the courts. Under English law a convicted prisoner, in spite of his imprisonment, retains all civil rights which are not taken away expressly or by necessary implication: Raymond v. Honey [1983] AC 1, at p. 10H.

    The question must now be considered whether the Home Secretary, in making a decision on punishment, is free from the normal constraint applicable to a sentencing power. It is at this stage of the examination of the problem that it becomes necessary to consider where in the structure of public law it fits in. Parliament has not expressly authorised the Home Secretary to increase tariffs retrospectively. If Parliament had done so that would have been the end of the matter. Instead Parliament has by section 35(2) of the Criminal Justice Act 1991 entrusted the power to take decisions about the release of mandatory life sentence prisoners to the Home Secretary. The statutory power is wide enough to authorise the fixing of a tariff. But it does not follow that it is wide enough to permit a power retrospectively to increase the level of punishment.

    The wording of section 35(2) of the Act of 1991 is wide and general. It provides that "the Secretary of State may . . . release on licence a life prisoner who is not a discretionary life prisoner." There is no ambiguity in the statutory language. The presumption that in the event of ambiguity legislation is presumed not to invade common law rights is inapplicable. A broader principle applies. Parliament does not legislate in a vacuum. Parliament legislates for a European liberal democracy founded on the principles and traditions of the common law. And the courts may approach legislation on this initial assumption. But this assumption only has prima facie force. It can be displaced by a clear and specific provision to the contrary. These propositions require some explanation.

    For at least a century it has been "thought to be in the highest degree improbable that Parliament would depart from the general system of law without expressing its intention with irresistible clearness . . .": see the 4th ed. of Maxwell on the Interpretation of Statutes, (1905) at 121, and the 12th ed. of the same book, (1969), at 116. The idea is even older. In 1855 Sir John Romilly observed that ". . . the general words of the Act are not to be so construed as to alter the previous policy of the law, unless no sense or meaning can be applied to those words consistently with the intention of preserving the existing policy untouched . . .": Minet v. Leman (1855) 20 Beav. 269, at 278. This observation has been applied in decisions of high authority: National Assistance Board v. Wilkinson [1952] 2 All E.R. 255, at 259, per Lord Goddard, C.J.; Mixnam's Properties Ltd. v. Chertsey U.D.C. [1963] 2 All E.R. 787, at 798, per Diplock L.J. In his Introduction to the Study of the Law of the Constitution; 10th ed., London, (1968), Dicey explained the context in which Parliament legislates as follows (at 414):

    But it is to Sir Rupert Cross that I turn for the best modern explanation of "the spirit of legality", or what has been called the principle of legality. (The phrase "the principle of legality" I have taken from Halsbury's Laws of England, 4th ed., reissue, vol. 8(2), para. 6.) The passage appears in Cross, Statutory Interpretation, 3rd ed., at 165-166, which has been edited by Professor John Bell and Sir George Engle, Q.C., formerly First Parliamentary Counsel, but it is worth noting that the passage is in all material aspects as drafted by the author: see Cross, Statutory Interpretation, (1976), 142-143. In the 3rd ed. the passage reads as follows:

    This explanation is the intellectual justification of the often quoted proposition of Byles J. in Cooper v. Wandsworth Board of Works 1863 14 C.B.N.S. 180 that ". . . although there are no positive words in a statute requiring that a party shall be heard, yet the justice of the common law will supply the omission": see Ridge v. Baldwin [1964] AC 40, at p. 69, per Lord Reid; and Bennion, Statutory Interpretation, 2nd ed., at 726-727.

    The operation of the principle of legality can further be illustrated by reference to the decision of the House of Lords in Doody. In that case the House of Lords held that the common law principles of procedural fairness required disclosure to a prisoner of the advice to the Home Secretary of the trial judge and of the Lord Chief Justice in order to enable the prisoner to make effective representations before the Home Secretary fixed the tariff. The premise was that Parliament must be presumed to have intended that the Home Secretary would act in conformity with the common law principle of procedural fairness. And our public law is, of course, replete with other instances of the common law so supplementing statutes on the basis of the principle of legality. A recent and pertinent example is provided by the speeches of the majority in the House of Lords in Regina v. Secretary of State for the Home Department, Ex parte Venables [1997] 3 WLR 23, so far as a majority decided that in fixing a tariff the Home Secretary may not take into account public protests in aggravation of a particular tariff. That ruling depended on the proposition that the Home Secretary was in substance engaged in a decision on punishment. He was "under a duty to act within the same constraints as a judge": per Lord Goff of Chieveley, 41G. The assumption was that the Home Secretary would act in conformity with fundamental principles of our law governing the imposition of criminal punishment.

    It is to be noted that in Doody and Venables the principle of legality served to protect procedural safeguards provided by the common law. But the principle applies with equal force to protect substantive basic or fundamental rights. It is only necessary to refer to the decision of the House of Lords in Raymond v. Honey, supra. The Prison Act 1952 empowered the Home Secretary to make rules "for the regulation and management of prisons." The Home Secretary made rules which gave prison governors the power to intercept outgoing letters of prisoners. A governor intercepted and failed to send on a letter regarding legal proceedings from a prisoner to his solicitor. The prisoner sought a declaration that the governor's conduct was unlawful. The governor relied on the rules to justify his conduct. The rule-making power was wide and unambiguous and was so regarded by the House. In a speech made with the agreement of three Law Lords Lord Wilberforce referred to a prisoner's right to have unimpeded access to a court and observed that "a section concerned with the regulation and management of prisons . . . is quite insufficient to authorise hindrance or interference with so basic a right . . .": 13A. See also Regina v. Secretary of State for the Home Department, Ex parte Anderson [1984] Q.B. 778; Regina v. Secretary of State for the Home Department, Ex parte Leech [1994] QB 198.

    A corresponding principle applies in respect of basic standards and safeguards enshrined in legislation. This proposition is hardly radical. Ultimately, common law and statute law coalesce in one legal system. The point can be illustrated by reference to the decision of the House of Lords in Regina v. Cain [1985] 1 A.C. 46. In that case a trial court had made a criminal bankruptcy order in circumstances where it had no power to do so. That order could be challenged in judicial review proceedings. But the jurisdictional question arose before the House whether the order could be set aside on appeal. Section 40 of the Powers of Criminal Courts Act 1973 provides: "No appeal shall lie against the making of a criminal bankruptcy order". That appeared to rule out any appeal. But the House decided that there was a right of appeal against an order which the court had no power to make. Lord Scarman, with the agreement of the other Law Lords, said at p. 56A:

The principle of legality applied. These observations are relevant in the present case inasmuch as the common law principle that a sentence may not retrospectively be increased has been put on a statutory basis. But perhaps I have struggled unnecessarily with the point since one could simply say that the statutory enactment of the common law principle a fortiori triggers the principle of legality.

 

    Turning back to the circumstances of the present case, it was easy to conclude that the legislation authorises the policy of fixing a tariff. The wide statutory discretion of the Home Secretary justified that conclusion. But a general power to increase tariffs lawfully fixed is qualitatively in a different category. It contemplates a power unheard of in our criminal justice system until the 1993 policy statement of the Home Secretary. Such a power is not essential to the efficient working of the system: without a power to increase tariffs the system worked satisfactorily between 1983 and 1993. But I do not rest my judgment on this point. The critical factor is that a general power to increase tariffs duly fixed is in disharmony with the deep rooted principle of not retrospectively increasing lawfully pronounced sentences. In the absence of contrary indications it must be presumed that Parliament entrusted the wide power to make decisions on the release of mandatory life sentence prisoners on the supposition that the Home Secretary would not act contrary to such a fundamental principle of our law. There are no contrary indications. Certainly, there is not a shred of evidence that Parliament would have been prepared to vest a general power in the Home Secretary to increase retrospectively tariffs duly fixed. The evidence is to the contrary. When Parliament enacted section 35(2) of the Criminal Justice Act 1991--the foundation of the Home Secretary's present power--Parliament knew that since 1983 successive Home Secretaries had adopted a policy of fixing in each case a tariff period, following which risk is considered. Parliament also knew that it was the practice that a tariff, once fixed, would not be increased. That was clear from the assurance in the 1983 policy statement that "except where a prisoner has committed an offence for which he has received a further custodial sentence, the formal review date will not be put back." What Parliament did not know in 1991 was that in 1993 a new Home Secretary would assert a general power to increase the punishment of prisoners convicted of murder whenever he considered it right to do so. It would be wrong to assume that Parliament would have been prepared to give to the Home Secretary such an unprecedented power, alien to the principles of our law.

    Counsel for the Home Secretary then approached the matter from a different angle. He said that the only possible complaint a mandatory life sentence prisoner could have about the increase of his tariff would be on the basis of the infringement of his legitimate expectations. But, he said, this doctrine has no substantive effect: it merely gives protection against procedural unfairness. This is a controversial question. Counsel is not necessarily right: see de Smith, Woolf and Jowell, op. cit., 13-029-13-030 at pp. 570-574; P.P. Craig, Substantive Legitimate Expectations in Domestic and Community Law (1996) C.L.J. 289. This issue was only briefly mentioned in argument. It is unnecessary to express a view on it. I will assume that counsel for the Home Secretary's proposition about the doctrine of legitimate expectations is correct. But counsel addressed the wrong target. The correct analysis of this case is in terms of the rule of law. The rule of law in its wider sense has procedural and substantive effect. While Dicey's description of the rule of law is nowadays regarded as neither exhaustive nor entirely accurate even for his own time, there is much of enduring value in the work of this great lawyer. Dicey's famous third meaning of the rule of law is apposite. He said (op.cit., at p. 203):

This was the pivot of Dicey's discussion of rights to personal freedom, to freedom of association and of public meeting: at pp. 206-283. It is clear therefore that in the relevant sense Dicey regarded the rule of law as having both procedural and substantive effect. In a valuable essay Professor Jeffrey Jowell has re-examined Dicey's theme: The Rule of Law Today, in The Changing Constitution, by Jowell and Oliver, 3rd ed., pp. 74-77. Relying on striking modern illustrations Professor Jowell concluded that the rule of law has substantive content: see Hall & Co. Ltd v. Shoreham-by-Sea U.D.C. [1964] 1 All E.R. 1; Congreve v. Home Office [1976] Q.B. 629; and Wheeler v. Leicester City Council [1985] AC 1054, per Lord Templeman with whom Lord Bridge of Harwich, Lord Brightman and Lord Griffiths agreed. Wade, Administrative Law, 7th ed. 24 et seq; and de Smith and Brazier, Constitutional Law, 7th ed. 18, are to the same effect. Unless there is the clearest provision to the contrary, Parliament must be presumed not to legislate contrary to the rule of law. And the rule of law enforces minimum standards of fairness, both substantive and procedural. I therefore approach the problem in the present case on this basis.

    It is true that the principle of legality only has prima facie force. But in enacting section 35(2) of the Act of 1991, with its very wide power to release prisoners, Parliament left untouched the fundamental principle that a sentence lawfully passed should not retrospectively be increased. Parliament must therefore be presumed to have enacted legislation wide enough to enable the Home Secretary to make decisions on punishment on the basis that he would observe the normal constraint governing that function. Instead the Home Secretary has asserted a general power to increase tariffs duly fixed. Parliament did not confer such a power on the Home Secretary.

    It follows that the Home Secretary did not have the power to increase a tariff lawfully fixed. But counsel for the Home Secretary argued that in his policy statement of 27 July 1993 the Home Secretary expressly reserved the power to increase the tariff. He emphasised that this supplemental provision is part and parcel of one policy statement. The Home Secretary was entitled to continue a policy of fixing tariffs but he was not entitled to introduce a power to increase tariffs. The only question is whether the entire policy is unlawful or only the reservation of the power to increase tariffs. This resolves itself into a question of remedies. It was suggested that severance would involve "a re-writing" of the policy statement. This is a familiar argument in cases where the circumstances arguably justify a court in saying that the unlawfulness of part of a statement does not infect the whole. The principles of severability in public law are well settled: see de Smith, Woolf and Jowell: Judicial Review of Administrative Action, 5th ed., (1995), at par 6-101-102 pp. 355-356; Wade, op. cit., at pp. 329-331. Sometimes severance is not possible, e.g. a licence granted subject to an important but unlawful condition. Sometimes severance is possible, e.g. where a bye-law contains several distinct and independent powers one of which is unlawful. Always the context will be determinative. In the present case the power to increase the tariff is notionally severable and distinct from the power to fix a tariff. Indeed between 1983 and 1993 no power to increase tariffs was even asserted. On the contrary, the 1983 policy statement made clear that there would be no increase to a tariff duly fixed. It is an obvious case for severance of the good from the bad. To describe this result as a rewriting of the policy statement is to raise an objection to the concept of severance. That is an argument for the blunt remedy of total unlawfulness or total lawfulness. The domain of public law is practical affairs. Sometimes severance is the only sensible course.

    It was agreed before your Lordships' House that the Home Secretary's decision letter of 6 May 1994 did communicate a decision to Mr. Pierson to increase the tariff in his case. That decision was in my judgment unlawful and ought to be quashed. My conclusion is based on the proposition that the Home Secretary has no general power to increase a tariff fixed and communicated. That leaves unaffected the question whether in exceptional or special circumstances arising from the facts of a particular case the Home Secretary may have such a power, e.g. where quite plainly the judge and the Home Secretary have been misled. Such qualifications were not explored in argument. I express no view on it.

    It is with hesitation that I differ from the Court of Appeal. But I note that the result was one which caused the Court of Appeal considerable anxiety. Moreover, it seems to me that before your Lordships' House the arguments on the principal question became substantially more refined.

    My Lords, I would allow the appeal and quash the decision of the Home Secretary.



LORD HOPE OF CRAIGHEAD


My Lords,

     My Lords, there is only one sentence which can be imposed for murder, and that is a mandatory sentence of life imprisonment. Once the prisoner has been sentenced his release on licence is at the discretion of the Home Secretary. This means that it is for the Home Secretary alone to decide whether the prisoner should be released from custody and, if so, what is to be his release date. A court of law has no part to play in this process. So far as the court is concerned, the matter is over once the sentence of life imprisonment has been imposed as punishment for the crime. The prisoner has no right to be released, nor even to have his case referred for a recommendation as to release by the Parole Board, as these are matters solely for the Home Secretary. No amount of criticism whether of decisions made or actions taken by him in the administration of the life sentence can alter the fact that, as the release of the prisoner is at the discretion of the Home Secretary, it cannot be the subject of direction by the court.

    It might be thought then that it would be pointless to bring such decisions or actions under judicial review, because nothing which the court might say would have any practical effect on the length of time which the life prisoner had to spend in custody. Indeed, as a general rule, the court will be very slow to interfere in these matters, as they are best left to the Home Secretary. But the decision which is under challenge in this case is one which has a special significance as it affects the date for the first review of the appellant's case by the Parole Board. This is a necessary stage in his progress to being released on licence by the Home Secretary. There is therefore at least some prospect that a finding that the decision was unlawful, if made, will have an effect on his release date. That is a sufficient reason for reviewing that decision judicially because, even although the applicant has no right to be released on licence, he does have a right to have his case for release dealt with in a manner which is within the powers which have been given to the Home Secretary by Parliament.

    The principal question which has been raised in this case is one of substance, not one of procedure. Mr. Fitzgerald Q.C. renewed before your Lordships his argument to the Court of Appeal that the Home Secretary had dealt with the appellant's case in a manner which was procedurally unfair, in that his failure to notify him of his intention to treat his predecessor's tariff as inadequate had deprived him of an opportunity to make effective representations before the decision was made. But the Court of Appeal held that it did not appear that in practical terms there had been any significant unfairness in this case and that, as it was not disputed that the Home Secretary was willing to consider any further representations made on the appellant's behalf, no useful purpose would be served by making an order by way of judicial review on this ground. I am in full agreement with the decision of the Court of Appeal on this point, so I would reject the argument based on procedural unfairness. It seems to me that the real issue in this appeal is one of substance, namely whether the decision in question was one which the Home Secretary had no power to make.

    Mr. Fitzgerald Q.C., in opening the appeal, summarised his argument on the issue of substance in this way. He said that what the Home Secretary was doing in this case was exercising a sentencing function, and that any person who exercises a sentencing function must abide by the rules. His argument was that the decision was irrational, and that in any event that there were no exceptional circumstances in this case to justify what the Home Secretary had done. Mr. Pannick Q.C., on the other hand, maintained that the Home Secretary took his decision in the exercise of a discretion which had been given to him by Parliament. As to where the balance lies between these two arguments, there is no doubt that if the Home Secretary was acting within the true limits of that discretion, his decision cannot be corrected by the court, however much the court may disagree with it. But if he has acted unlawfully and, as Lord Upjohn said in Padfield v. Minister of Agriculture, Fisheries and Food [1968] AC 997, 1058G, has thereby overstepped the true limits of his discretion, the court has jurisdiction to interfere. The boundaries for the discussion are well settled, and I do not think that it is necessary to examine the authorities. The proper application to the facts of these principles is the main difficulty in this appeal, as the Home Secretary is entitled to say that it is not for the court to confine the broad discretion which has been given to him by Parliament.

The Facts

    The facts of the case have been set out fully by my noble and learned friend Lord Goff, and I need to mention here only the principal details. The appellant was convicted on 8 July 1985 of his father and mother by shooting them with a 12-bore shotgun. He was sentenced to two concurrent terms of life imprisonment. In 1988, in accordance with the policy which was current at that time, the then Home Secretary consulted the trial judge and the Lord Chief Justice in order to determine the length of the penal element in his life sentence. The judges recommended that he serve fifteen years, but the Home Secretary decided that this was insufficient and he fixed the penal element at twenty years. The appellant was not told at that time what the judges had recommended nor what the Home Secretary had decided, because it was not then the practice for this information to be released to the life prisoner. No issue arises in this case about the decision which was taken at that stage or about the fact that the applicant was not then aware of it. These were the subject of the proceedings for judicial review which culminated in the appeal to your Lordships' House in Regina v. Secretary of State for the Home Department, Ex parte Doody [1994] 1.A.C. 531, in which the appellant was one of the applicants. His application was successful and the decision which the Home Secretary had taken in his case in 1988 was quashed. It is the decision which has replaced it which is under challenge in the further application which is now before this House on appeal.

    On 27 August 1993 Mr. I.A. Newton of the Life Sentence Review Section in the Home Office wrote to the appellant in order to inform him of the substance of the judicial recommendations, together with the Home Secretary's decision on the appropriate period to be served by him in order to satisfy the requirements of retribution and deterrence. He told him that the judges had recommended fifteen years, and then said:

    In response to Mr. Newton's assurance that the Home Secretary was willing to consider any representations in connection with the matters set out in his letter, the appellant's solicitors replied by letter dated 9 November 1993 setting out the representations which their client wished to make. Among the points which they drew to the Home Secretary's attention was the fact that no allegation had ever been made against him, still less evidence produced, that what he did was in any way premeditated. In the reply on behalf of the Home Secretary which the Home Office sent to the solicitors dated 6 May 1994 it was stated:

In the Court of Appeal it was pointed out that the term which the Home Secretary had fixed in 1988 was twenty years and it was submitted on his behalf that, as the term fixed in 1994 was also twenty years, there had been no increase in the term as a result of the decision which he had taken on 6 May 1994. But, as Sir Thomas Bingham M.R. said at p. 560B, the court must have regard to the substance of the matter. He went on, in a passage which in my opinion provides the complete answer to this point, to say this at p. 560C-D:

    The decision of 6 May 1994 can be said therefore to have had these characteristics. First, it amounted in substance to an increase in the minimum period which had been originally fixed in 1988 by the previous Home Secretary, the basis for which was set out in the letter of 27 August 1993 by which that decision was communicated to the appellant for the first time. Second, its sole purpose was to give effect to the view which the Home Secretary in 1994 had formed about the minimum period which the appellant should serve in custody to meet the requirements of retribution and deterrence for the murders which he had committed. There is no indication in the letter of 6 May 1994 that the Home Secretary took into account any other considerations which might be described as considerations of policy. He was stating what he considered to be the appropriate penal term which the applicant was to serve in custody as punishment for his crime.

The Legislation

    Prior to the abolition of capital punishment for murder by the Murder (Abolition of Death Penalty) Act 1965 and the substitution of a mandatory sentence of life imprisonment, the release on licence of prisoners serving a sentence of life imprisonment was entirely at the discretion of the Home Secretary: see the Prison Act 1952, section 27. The Act of 1965 introduced two changes to this system as regards persons who had been convicted of murder. First, section 1(2) gave power to the Court, at the same time as pronouncing the life sentence, to declare the period which it recommended to the Secretary of State as the minimum period which in its view should elapse before the Secretary of State ordered the release of the prisoner on licence under section 27 of the Act of 1952. This was to be no more than a recommendation, as the decision as to whether or not to release, and if so when, remained vested in the Home Secretary. But it was implicit in the formality of the procedure that the Secretary of State would, in the ordinary case at least, feel bound to allow the minimum period to elapse before ordering the prisoner to be released on life licence. And second, section 2 of the Act of 1965 placed a restriction on the Secretary of State's power to release under section 27 of the Act of 1952 by providing that no person convicted of murder was to be released by him on licence under that section unless he had, prior to such release, consulted the Lord Chief Justice together with the trial judge if available. Then, when provision was made by section 59 of the Criminal Justice Act 1967 for establishing the Parole Board, a further restriction was placed the Secretary of State's power to release on licence persons who were serving sentences of life imprisonment. Section 27 of the Prison Act 1952 and section 2 of the Murder (Abolition of Death Penalty) Act 1965 were both repealed. They were replaced by the following provision in section 61(1) of the Act of 1967, which was to apply generally to all persons sentenced to life imprisonment and not just to those who had been sentenced to the mandatory sentence for murder:

    That is the system which is now set out in section 35(2) and section 35(3) of the Criminal Justice Act 1991. There are only two statutory restrictions on the exercise of the power to release on life licence by the Home Secretary. The first is that the prisoner may not be released by him until a recommendation to this effect has been made by the Parole Board. The second is that the power may not be exercised until the Home Secretary has consulted with the Lord Chief Justice together with the trial judge if available. But the timing of any recommendation for release by the Parole Board remains subject to control in the exercise of his discretion by the Home Secretary, because section 35(3) provides that the Parole Board shall not make a recommendation under section 35(2) until he has referred the particular case, or the class of case to which it belongs, to the Board for its advice. So also does the timing of his consultation under section 35(2) with the judiciary. Thus, as Lord Mustill remarked in Regina v. Secretary of State for the Home Department, Ex parte Doody [1994] 1 AC 531, 550B, the duration of the detention of the life prisoner 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 of sentencing by the trial judge. Until 1983, when the first of an important series of statements of policy was made by the Home Secretary, the statutory restrictions remained the only ways in which the Home Secretary was constrained in any given case about the choice of the release date.

 

    The thinking behind the system which was devised in these provisions by Parliament appears simply to have been this. Consultation with the judiciary was required in order that the Home Secretary might be informed about the requirements of retribution and deterrence for the offence as seen by the judges. The advice of the Parole Board, in the form of a recommendation for release, was required--especially in the interests of public safety--to enable account to be taken of the prisoner's progress while in custody and his response to any programme that might be set for his release. So long as the Home Secretary had advice from both sources, his decision as to whether or not to release, and if so when, could be taken to have been an informed one. In all other respects he could be allowed to exercise his discretion as he saw fit. It was not thought by Parliament to be necessary to devise, for mandatory life sentences, the system which has now been enacted by section 34 of the Act of 1991 in the case of discretionary life sentence prisoners, following the decision of the European Court of Human Rights in Thynne, Wilson and Gunnell v. United Kingdom (1991) 13 EHRR 666, by which the minimum period which is to be served in custody is identified at the outset by the trial judge when imposing the life sentence.

    There is obvious merit in the flexibility which is inherent in the system for mandatory life sentences. Cases of murder vary greatly in their character, as also do those who have committed this crime. For some life prisoners the progress through the long period which must be spent in custody is a smooth one, as they settle into the routine and move through the various categories into open conditions and then to a proposed release date. For others it is quite different. Aggression and resentment may lead to acts of violence or of resistance to authority. There may be other indications that it would be unsafe, for the time being, for them to be released. The result may be that they will have to be held in closed conditions for many years until they are at risk of being institutionalised. In such cases difficult decisions will have to be made at various stages throughout the life sentence, both by the prison authorities and by the Home Secretary. Decisions to release or to postpone release may have to be rescinded in the light of changed circumstances, such as the prisoner's progress in custody or his response to his training for freedom programme. Then there is the prison regime itself. It is a highly structured regime, in the interests of efficiency and of the secure retention of the prisoners in custody. But it may be in need of change from time to time, and changes may affect the life prisoner and, perhaps, indirectly his release date.

    In Hughes v. Department of Health and Social Security [1985] A.C. 776, 788A-B Lord Diplock said that the liberty to make changes in administrative policy in the light of changing circumstances, including changes in the political complexion of governments, is inherent in our constitutional form of government. Clearly the need for the Home Secretary to retain flexibility in these matters is paramount. The timing of the release of the mandatory life prisoner on life licence remains and must remain, unless otherwise directed by Parliament, his prerogative.

The Changes of Policy

    But in the last fifteen years changes in policy have had a marked effect on the way in which in practice mandatory life sentences are administered. These changes have not been introduced by Parliament. Indeed Parliament has been remarkably inactive in this field, in comparison with what it has done in regard to discretionary life sentences. The changes have been developed step by step by the executive, through a series of statements by Ministers. The history has been set out fully by my noble and learned friend Lord Goff of Chieveley, and I do not need to repeat the details. I wish only to draw attention to what I see as the important milestones.

    In his statement of 30 November 1983 Mr. Leon Brittan, when dealing with life sentence prisoners, set out various categories of murderer who could in future normally expect to serve at least twenty years in custody. He added that other murderers outside these categories might merit no less punishment to mark the seriousness of the offence. I note first that he saw the period to be spent in custody as "punishment". But I note also that his primary concern was to set out, on grounds of policy, how he proposed to deal with those cases which fell within the defined categories. Then he described some changes in the procedure. These were to involve his obtaining "an initial judicial view" from the judiciary on the requirements of retribution and deterrence after the prisoner had been in custody for about 3 years, following which he would himself decide the date of the first reference of his case to a local review committee.

    Under this procedure advice on the penal element was to come from the judiciary. The risk element was to be considered separately by the prison and other staff, the local review committee and the Parole Board. The ultimate discretion as to release was to remain with the Home Secretary. There was no indication in this statement that the Home Secretary proposed to involve himself directly in decisions as to what should be fixed as being the penal element. He made it clear that he would consider any special circumstances or exceptional progress which might justify changing the review date. But he also made it clear that, except where the prisoner had committed an offence for which he had received a further custodial sentence, the first formal review date would not be put back. I am in no doubt that this qualification was added in recognition of the fact that it would be unfair for this to be done in cases where the prisoner had already been given a date for the first formal review of his case by the Parole Board.

    In his statement of 23 July 1987, following the decision in Regina v. Secretary of State for the Home Department, Ex parte Handscomb (1987) 86 Cr.App.R. 59 which related to the case of discretionary life sentences, Mr. Douglas Hurd announced that the date of the first review of prisoners serving mandatory life sentences was to be fixed as soon as practicable after conviction and sentence. He made it clear however that it was to remain a matter for the Home Secretary to fix the first review date, and that in doing this he would continue to take into account the view of the judiciary. He said that the view of the judiciary on the requirements of retribution and deterrence was to be 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. Here again there was no indication that the Home Secretary himself was to fix the period for retribution and deterrence as a distinct and separate element in reaching his view as to what was to be the date for the first review.

    In his statement of 27 July 1993 Mr. Michael Howard set out his proposals for changing the procedure in the light of the decision of your Lordships' House in Regina v. Secretary of State for the Home Department, Ex parte Doody [1994] 1 AC 531. There is no doubt that the decision in that case had an important effect on the approach which the Home Secretary was to take thereafter to the setting of the first review date, and in particular to the setting of the minimum period for retribution and deterrence, which had by then become known as the tariff or penal element. No criticism can be made of his decision to inform all life prisoners of the substance of the judicial recommendation as to the minimum period and of the Home Secretary's decision as to the length of that period after considering the advice which he had received from the judiciary. This was an accurate reflection of the views expressed by Lord Mustill about what was required to meet the minimum standard of procedural fairness in the administration of the life sentence. But these proposals also contained the seeds of a misunderstanding which were already apparent in what Mr. Howard said in the following paragraph:

    The "initial view" to which Mr. Howard referred in this paragraph was a reflection of the reference by Mr. Brittan to the "initial judicial view" which he was to obtain from the judiciary. The view to be given by the judiciary under his procedure clearly had to be an initial view only, because the statutory procedure made it necessary for the judiciary to be consulted again before the life prisoner was released on licence. But it is not obvious why the Home Secretary's view about the first review date had to be an initial view also. He is not required to follow any particular procedure by the statute about the timing of the ultimate release date, and all views expressed by him until the moment of release are necessarily provisional. If the purpose of describing it as an initial view was to make it clear that he would take account of exceptional circumstances as indicated in Mr. Brittan's statement, that would have been consistent both with what Mr. Brittan had said and with the proper exercise of the discretion given to him by Parliament. But unlike Mr. Brittan, who stated that the first review date would not be put back except where the prisoner had received a further custodial sentence, Mr. Howard opened the door in his statement to increases in the minimum period, albeit exceptionally, on any ground which he or another Home Secretary considered appropriate. Further, unlike Mr. Brittan, Mr. Howard directed his statement not to the penal element as one among other factors relevant to the timing of the first review date, but to the fixing of the penal element itself according to the Home Secretary's own view of the requirements of retribution and deterrence for the offence. The exercise had thus become one which was directed specifically to the fixing by the Home Secretary of the penal element to satisfy the requirements of retribution and deterrence. It was directly concerned with the question of punishment, not with the choice of the review date taking all the circumstances into account.

    In In re Findlay [1985] A.C. 318, in reaching the view that the new policy which Mr. Leon Brittan had announced on 30 November 1983 as to the "tariff" element in life sentences was not unlawful, Lord Scarman recognised at p. 337C-D that in a very real sense extra time spent in custody was a punishment. An effect of the new policy was that the appellants who were already serving sentences of imprisonment and whose offences lay within the classes which had been specified had to expect that they would remain in prison for longer than they would have done had the policy not been adopted. He went on to say at p. 337E that the sentence of the court was in law the punishment, and that the disappointment of their expectation under the parole system was not a punishment or a penalty which went beyond the sentence of the court. But it was an important part of his reasoning that the policy did not amount to a refusal by the Home Secretary to consider the case of the prisoner within the classes that had been specified. At p. 336E-F he said:

    Up to this stage--that is, the stage of Mr. Brittan's policy statement-- it was possible to distinguish clearly between the functions of the judges and those of the Home Secretary. The function of the judges was to impose the punishment which had been laid down by Parliament. The function of the Home Secretary was to exercise the administrative discretion which had been given to him by the statutes. But the statement which Mr. Howard made on 27 July 1993 revealed a significant shift in the position of the Home Secretary. It seems to me that Mr. Howard's position was almost indistinguishable from that which, under the procedures laid down by Parliament, the judges had originally been expected to exercise. This policy statement, unlike that of Mr. Brittan on 30 November 1983, was not dealing with the policy to be adopted in regard to categories of offenders whose offences were thought to be particularly in need of long periods in custody in response to public concern about violent crime. It was dealing with the procedure which he proposed to apply to all cases in regard to the setting of the minimum period to be spent by each prisoner in custody as punishment.

    Furthermore it has now become clear, as a result of what was said in the course of the argument in Regina v. Secretary of State for the Home Department, Ex parte Venables and Thompson on behalf of the Home Secretary, that he is not willing to take account of the prisoner's progress in custody in applying the policy. Neither can a trial judge when passing sentence as the sentence has to be passed, once and for all, before the commencement of the period to be spent as a sentenced prisoner in custody. This refusal to take account of progress in custody is the logical position to adopt in regard to a minimum period which has been fixed as punishment for the crime. But that is not what is to be expected of the exercise of the administrative discretion vested in the Home Secretary. What was regarded in In re Findlay as a legitimate exercise of an administrative discretion has now become so rigid as to be virtually indistinguishable from a sentence imposed by a court by way of punishment.

    Lord Mustill observed in Doody at p. 552D that during the period up to 1983 the practice of making recommendations as to the minimum period to be spent in custody, permitted by section 1(2) of the Act of 1965, had steadily diminished. It has now, in England and Wales, apparently fallen into desuetude. What has been happening has been the replacement of (a) a recommendation as to the minimum period made in open court by the trial judge when passing sentence, where this was appropriate, by (b) the fixing of a minimum period shortly after conviction and sentence by means of an executive decision made by the Home Secretary. That this is not a necessary part of the system laid down by Parliament is clear from the fact that, prior to 1983, it was left entirely to the judges to make recommendations about the minimum period to be spent in custody. That still remains the position in Scotland, under legislation which began its life in the same provisions as those for England and Wales in the Acts of 1965 and 1967: see section 1(2) and 2 of the Act of 1965 and section 61 of the Act of 1967. These provisions are now set out in section 205 of the Criminal Procedure (Scotland) Act 1995.

    It is not the practice of the Secretary of State for Scotland to consult the judges with a view to the setting of a tariff at the outset of a life sentence, although he is provided by the trial judge with a report on the case which sets out the facts and circumstances as they emerged at the trial for his use and use by the prison authorities in planning the life sentence. In a statement which he made to Parliament on 18 December 1984 the then Secretary of State for Scotland, Mr. George Younger, said that, while he had made it clear to the Parole Board for Scotland that only in exceptional circumstances would he feel that release earlier than twenty years would be appropriate for a prisoner sentenced to life imprisonment for murder within certain categories, he did not propose to make any changes in the procedures for the consideration for release of life sentence prisoners in Scotland. The judges are not consulted about the release date until after recommendation for release has been made by the Parole Board, when consultation is required by the statute before the prisoner can be released on licence. But the judges in Scotland do still from time to time, when imposing the mandatory life sentence, make recommendations to the Secretary of State under section 1(2) of the Act of 1965 about the minimum period which the prisoner should serve in custody. It is competent, under a procedure which was introduced by section 43 of the Criminal Justice (Scotland) Act 1980, to appeal against these recommendations to the High Court: see Casey v. H.M. Advocate 1994 J.C. 102, in which the circumstances which might justify a trial judge in making such a recommendation were reviewed, and Greenfield v. H.M. Advocate 1996 S.L.T. 1214.

A Step Too Far

    So long as the tariff system in England and Wales is employed by the Home Secretary with a correct appreciation of the difference of function between the judge on the one hand and the Secretary of State on the other, there is no reason to regard it as tainted by illegality. The Secretary of State is entitled to declare and then to apply his policy in the administration of life sentences, and one Home Secretary is entitled to differ from another as to all questions which fall within the areas of policy. Statements of policy about the treatment of categories of offender are within the proper exercise of his discretion, so long as he reserves to himself the opportunity to consider the circumstances of each prisoner within these categories according to their individual cases and to take account at any time of exceptional circumstances. So also are decisions about the minimum periods to be served by individual prisoners in custody, so long as they are made on policy grounds within the power given to him by Parliament. This is because all decisions about the prisoner's release date are for him alone to take.

    But there is a clear, if narrow, difference between these decisions on grounds of policy and decisions which are concerned purely and solely with the question of punishment. If the only reasons which the Home Secretary can give for setting a minimum period which differs from that which has been recommended by the judiciary, or which has been set by him or by his predecessor, are reasons concerned with the appropriate punishment for the particular crime which the prisoner has committed, he has moved into an area of decision-taking which normally belongs to the court. He is not disabled from taking a different view from the judges about the minimum period, because the power resides with him alone to decide on the release date. But he is bound by considerations of substantive fairness to observe the same rules as the judges if the view which he takes about the length of the minimum period is concerned solely with the question of punishment. This means that he cannot increase a minimum period which he or his predecessor has decided upon once that view has been communicated to the prisoner simply because he now thinks, on further reflection, that the punishment is inadequate.

    The root of the problem in which the Home Secretary now finds himself seems to me to lie in the tariff system as it has now developed, and the absence of any regulation of it by Parliament. As there are no statutory rules, the presumption must be that he will exercise his powers in a manner which is fair in all the circumstances. What fairness demands depends on the context in which the power is being exercised. On the one hand there is the need for flexibility in the administration of the life sentence. On the other there is the desire to make known both to the prisoner and to the public as soon as possible the view which the Home Secretary has formed about the minimum period which must be served in custody. It is a striking feature of the current position on this matter that, while the Act of 1965 gives power to the trial judge to recommend to the Home Secretary a minimum period--a power which has to be exercised once and for all after hearing parties in open court at the time of sentencing--the Home Secretary has evolved for himself a procedure for fixing the minimum period which lacks all these safeguards. What he now does is to declare the minimum period which is to be served in custody as soon as practicable after the life prisoner has been sentenced. But this is not done in open court nor is it done once and for all, as he has reserved the right to reduce or to increase that minimum period at any time as he or his successor may see fit while declining to take any account in this regard of the prisoner's progress in custody.

    Reduction of the minimum period will not give rise to unfairness, so there is no reason on this ground to regard the taking of that step as objectionable on grounds of legality. But as for the power to increase, I do not think that the Home Secretary cannot have it both ways. On the one hand it is open to him to continue to exercise to its fullest extent the flexibility which he has been given by Parliament--in which case the process of tariff-fixing should be left to the judges, as the expression by them of an initial judicial view which the Home Secretary can then use as an aid in the planning and administration of the life sentence. Or he can allow himself, in the decisions which he takes, to take decisions which are essentially about punishment--in which case he must recognise that it would be unlawful to increase the minimum period simply because the previous punishment was considered to be inadequate. The minimum standard of fairness does not permit a person to be punished twice for the same offence. Nor does it permit a person, once he has been told what his punishment is to be, to be given in substitution for it a more severe punishment. The choice then is for the Home Secretary, and it is his alone. In this case by taking a decision about punishment he has exposed himself to regulation by the court, in an important area of the exercise of power by the executive where administrative discretion must give way to legality.

Conclusion

    For these reasons I am of the opinion that the Home Secretary does not have a general power to increase the period which he or his predecessor has fixed as the minimum period to be served by a mandatory life prisoner in custody in order to satisfy the requirements of retribution and deterrence for his crime, once his decision has been issued and communicated. This is not to say that the minimum period may not be increased where exceptional circumstances make this necessary But the decision to increase the minimum period was not, in this case, made in the light of any exceptional circumstances. It was made in the belief, which I consider to be erroneous, that it was within the power of the Home Secretary to increase the minimum period simply because he disagreed with the view formed by his predecessor about the appropriate level of punishment. As that view had already been made known to the appellant as being the decision which had been taken in his case, it was no longer within his power to increase the minimum period. So I also would allow this appeal.




© 1997 Crown Copyright


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