Judgment - Regina v. Secretary of State for the Home Department, Ex Parte Pierson (A.P.)  continued

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    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 E.H.R.R. 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 A.C. 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:

     "I take this opportunity to emphasise that the view which I, or a Minister acting under my authority, take, at the beginning of a mandatory life sentence, of the period necessary to satisfy the requirements of retribution and deterrence is an initial view of the minimum period necessary to satisfy those requirements. It therefore remains possible for me, or a future Secretary of State, exceptionally to revise that view of the minimum period, either by reducing it, or by increasing it where I or a successor in my Office conclude that, putting aside questions of risk, the minimum requirements of retribution and deterrence will not have been satisfied at the expiry of the period which had previously been determined."

    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:

     "Consideration of a case is not excluded by a policy which provides that exceptional circumstances or compelling reasons must be shown because of the weight to be attached to the nature of the offence, the length of sentence and the factors of deterrence, retribution, public confidence, all of which it was the duty of the Secretary of State to consider."

    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.


    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.


© Parliamentary copyright 1997
Prepared 24 July 1997