|Judgment - Regina v. Secretary of State for the Home Department, Ex Parte Pierson (A.P.) continued|
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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  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  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.
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.
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 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 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  1 A.C. 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.
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  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  A.C. 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  Q.B. 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  2 All E.R. 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.