|Judgment - Regina v. Secretary of State for the Home Department, Ex Parte Pierson (A.P.) continued|
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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.
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  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  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  1 A.C. 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  3 W.L.R. 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  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  A.C. 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  2 All E.R. 255, at 259, per Lord Goddard, C.J.; Mixnam's Properties Ltd. v. Chertsey U.D.C.  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  A.C. 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  3 W.L.R. 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  Q.B. 778; Regina v. Secretary of State for the Home Department, Ex parte Leech  Q.B. 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  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.