(back to preceding text)

    18. It was argued for the Home Secretary that the House should not follow this judgment, which was criticised as erroneous and lacking in reasoning to justify and explain the court's departure from its previous ruling. I cannot accept this argument. While the duty of the House under section 2(1)(a) of the Human Rights Act 1998 is to take into account any judgment of the European Court, whose judgments are not strictly binding, the House will not without good reason depart from the principles laid down in a carefully considered judgment of the court sitting as a Grand Chamber: R (Alconbury Developments Ltd) v Secretary of State for the Environment, Transport and the Regions [2001] 2 WLR 1389 at 1399, para 26. Here, there is very strong reason to support the decision, since it rests on a clear and accurate understanding of the tariff-fixing process and the Home Secretary's role in it. The court advanced ample grounds for its change of opinion: among them were the judgments already referred to in the present case; and the court noted that in R (Lichniak and Pyrah) v Secretary of State for the Home Department [2002] QB 296 the Home Secretary had sought to resist an attack on the mandatory life sentence as arbitrary by contending that an individualised tariff was set and that after the expiry of that tariff the prisoner could expect to be released once it was safe to release him, a departure from the contention that a mandatory life sentence represented a punishment whereby a prisoner forfeited his liberty for life (para 77). In ruling on the rights of the appellant under article 6(1) of the convention, I am satisfied that the House should, in accordance with the will of Parliament expressed in the Human Rights Act 1998, seek to give effect to the decision of the European Court in Stafford.

    19. In the agreed issue formulated for decision by the House attention was focused on the conduct of the Home Secretary in this case in setting the appellant's tariff substantially higher than that recommended by the trial judge and the Lord Chief Justice, and Mr Edward Fitzgerald QC devoted part of his argument to this aspect. He had good forensic reason for doing so. The appellant has served almost 15 years in prison. Were the judicial recommendations to be effective, he would be approaching the stage at which the Parole Board would consider whether it was safe to release him on licence. As it is, because of the higher tariff set by the Home Secretary, he has 5 years to serve before reaching that stage. So it would best serve the appellant's interest if the Home Secretary's increase were invalidated and the judicial recommendations stood. But the principles which Mr Fitzgerald must invoke to attack the setting of the tariff by the Home Secretary at a level higher than that recommended by the judges preclude consideration of the issues on so narrow a basis. As became clear in argument, the decision of the House must rest on a broader basis of principle.

    20. Mr Fitzgerald's argument for the appellant involved the following steps:

Under article 6(1) of the convention a criminal defendant has a right to a fair trial by an independent and impartial tribunal.

The imposition of sentence is part of the trial.

(3) Therefore sentence should be imposed by an independent and impartial tribunal.

(4) The fixing of the tariff of a convicted murderer is legally indistinguishable from the imposition of sentence.

(5) Therefore the tariff should be fixed by an independent and impartial tribunal.

(6) The Home Secretary is not an independent and impartial tribunal.

(7) Therefore the Home Secretary should not fix the tariff of a convicted murderer.

I must review these steps in turn.

    21. Step (1) is correct. The right to a fair trial by an independent and impartial tribunal is guaranteed by article 6(1) of the convention. It is one of the rights which the United Kingdom committed itself to protect when it ratified the convention and it is one of the most important rights to which domestic effect was given by the Human Rights Act 1998.

    22. Step (2) is also correct. Strasbourg authority supporting the proposition is to be found in Ringeisen v Austria (No 1) (1971) 1 EHRR 455; Eckle v Germany (1983) 5 EHRR 1, paras 76-77; Bromfield v United Kingdom (Application No 32003/96, 1 July 1998, p 10); V v United Kingdom (1999) 30 EHRR 121 at pp 185-186, para 109. It makes good sense that the same procedural protections should apply to the imposition of sentence as to the determination of guilt.

    23. Step (3) is a logical consequence of steps (1) and (2). But the point was clearly expressed by the Supreme Court of Ireland in Deaton v Attorney-General and the Revenue Commissioners [1963] IR 170 at 182-183:

"There is a clear distinction between the prescription of a fixed penalty and the selection of a penalty for a particular case. The prescription of a fixed penalty is the statement of a general rule, which is one of the characteristics of legislation; this is wholly different from the selection of a penalty to be imposed in a particular case...The Legislature does not prescribe the penalty to be imposed in an individual citizen's case; it states the general rule, and the application of that rule is for the Courts...the selection of punishment is an integral part of the administration of justice and, as such, cannot be committed to the hands of the Executive…..".

    24. Examination of the facts has already led me to accept the correctness of step (4): see paragraphs 17-18 above. The clearest authoritative statement of this proposition is in paragraph 79 of the European Court's judgment in Stafford, quoted in paragraph 17 above. But earlier authorities had laid the foundations for that conclusion: R v Secretary of State for the Home Department, Ex p Doody [1994] 1 AC 531 at 557; R v Secretary of State for the Home Department, Ex p Venables and Thompson [1998] AC 407 at 490, 526, 537; R v Secretary of State for the Home Department, Ex p Pierson [1998] AC 539 at 585; R (Anderson) v Secretary of State for the Home Department [2002] 2 WLR 1143, paras 57, 67 (the present case in the Court of Appeal). It is clear beyond doubt that the fixing of a convicted murderer's tariff, whether it be for the remainder of his days or for a relatively short time only, involves an assessment of the quantum of punishment he should undergo.

    25. If it be assumed that steps (1) to (4) are correct, step (5) necessarily follows from them.

    26. The correctness of step (6) was accepted on behalf of the Home Secretary, and rightly so. The European court has interpreted "independent" in the context of article 6(1) of the convention to mean "independent of the parties to the case and also of the executive": V v United Kingdom (1999) 30 EHRR 121, at 186-187, paragraph 114. Far from being independent of the executive, the Home Secretary and his junior ministers are important members of it. I need not linger on this point, since it is not controversial. Plainly, the Home Secretary is not independent of the executive and is not a tribunal.

    27. Step (7) follows logically from the preceding steps and must be accepted. In R v Secretary of State for the Home Department, Ex p Stafford [1998] 1 WLR 503 at 518 the Court of Appeal expressed concern at the imposition of what was in effect a substantial term of imprisonment by the exercise of executive discretion, which in its view lay uneasily with ordinary concepts of the rule of law. This concern was echoed in the House of Lords ([1999] 2 AC 38 at 51), and again by the European Court (Stafford v United Kingdom (Application No 46295/99, 28 May 2002) in paragraph 78 of its judgment quoted in paragraph 17 above. In Benjamin and Wilson v United Kingdom (Application No 28212/95, 26 September 2002) the European Court took a step further: it held that the Home Secretary's role in the release of 2 "technical lifers" was objectionable because he was not independent of the executive and he could not save the day by showing that he always acted in accordance with the recommendation of the mental health review tribunal (paragraph 36). The European Court observed (paragraph 36):

"This is not a matter of form but impinges on the fundamental principle of separation of powers and detracts from a necessary guarantee against the possibility of abuse..."

The European Court was right to describe the complete functional separation of the judiciary from the executive as "fundamental", since the rule of law depends on it.

    28. Thus I accept each of Mr Fitzgerald's steps (1) to (7) save that, in the light of Benjamin and Wilson v United Kingdom (Application No 28212/95), it must now be held that the Home Secretary should play no part in fixing the tariff of a convicted murderer, even if he does no more than confirm what the judges have recommended. To that extent the appeal succeeds.

    29. The conclusion that the Home Secretary should play no part in the fixing of convicted murderers' tariffs makes for much greater uniformity of treatment than now exists. The tariff term to be served by a discretionary life sentence prisoner is already determined by the trial judge in open court (subject to the accused's right of appeal under section 9 of the Criminal Appeal Act 1968 and the Attorney General's right to apply to refer a sentence to the court as unduly lenient under section 36 of the Criminal Justice Act 1988) and the Parole Board decide whether it is safe to release the prisoner at the end of that tariff term. The Home Secretary has no role. The result of V v United Kingdom (1999) 30 EHRR 121 was to make plain that the Home Secretary should not fix the tariff of a young murderer ordered to be detained during Her Majesty's Pleasure. In Scotland, following an audit conducted by the Scottish Executive to identify procedures operating there which might fall foul of the convention, the Convention Rights (Compliance) (Scotland) Act 2001 was enacted: this provides that those convicted of murder in Scotland should be treated in very much the same way as discretionary life sentence prisoners, with no intervention by the executive. Similar arrangements have been adopted in Northern Ireland, doubtless with the same object of complying with the convention. It is the Home Secretary's role in relation to convicted murderers which has become anomalous.

    30. The question of relief therefore arises. Section 29 of the Crime (Sentences) Act 1997, quoted in paragraph 6 above, appears to stand in the way of the appellant. It is unrepealed primary legislation. Mr Fitzgerald contended that it was possible to read and give effect to section 29 in a manner compatible with the convention, and that the House should do so in exercise of the interpretative power conferred by section 3(1) of the Human Rights Act 1998. Mr Pannick contended that, even if the House were to accept Mr Fitzgerald's argument summarised in paragraph 20 above, the only relief which the appellant could obtain would be a declaration of incompatibility under section 4 of the 1998 Act. On this point I am satisfied that Mr Pannick is right. As observed in paragraph 6 above, Parliament did not attempt to prescribe the procedures to be followed in fixing the tariff of a convicted murderer. But some things emerge clearly from this not very perspicuous section. The power to release a convicted murderer is conferred on the Home Secretary. He may not exercise that power unless recommended to do so by the Parole Board. But the Parole Board may not make such a recommendation unless the Home Secretary has referred the case to it. And the section imposes no duty on the Home Secretary either to refer a case to the board or to release a prisoner if the board recommends release. Since, therefore, the section leaves it to the Home Secretary to decide whether or when to refer a case to the board, and he is free to ignore its recommendation if it is favourable to the prisoner, the decision on how long the convicted murderer should remain in prison for punitive purposes is his alone. It cannot be doubted that Parliament intended this result when enacting section 29 and its predecessor sections. An entirely different regime was established, in the case of discretionary life sentence prisoners, in section 28. The contrast was plainly deliberate. In section 1(2) of the Murder (Abolition of Death Penalty) Act 1965, Parliament was at pains to give judges a power to recommend minimum periods of detention, but not to rule. That was for the Home Secretary. To read section 29 as precluding participation by the Home Secretary, if it were possible to do so, would not be judicial interpretation but judicial vandalism: it would give the section an effect quite different from that which Parliament intended and would go well beyond any interpretative process sanctioned by section 3 of the 1998 Act (In re S (Minors) (Care Order: Implementation of Care Plan) [2002] 2 WLR 720 at 731-732, para 41).

    31. For these reasons and also for the reasons given by my noble and learned friends Lord Steyn and Lord Hutton I would accordingly allow the appeal to the extent already indicated with costs in the House and below and make a declaration of incompatibility in terms which have been agreed between the parties:

"Section 29 of the Crime (Sentences) Act 1997 is incompatible with a Convention right (that is the right under Article 6 of the European Convention on Human Rights to have a sentence imposed by an independent and impartial tribunal) in that the Secretary of State for the Home Department is acting so as to give effect to section 29 when he himself decides on the minimum period which must be served by a mandatory life sentence prisoner before he is considered for release on life licence."

LORD NICHOLLS OF BIRKENHEAD

My Lords,

    32. I have had the advantage of reading in draft the speeches of my noble and learned friends Lord Bingham of Cornhill, Lord Steyn and Lord Hutton. For the reasons they give, with which I agree, I too would allow this appeal.

LORD STEYN

My Lords,

    33. The question is whether decisions about the term of imprisonment to be served by convicted murderers, sentenced to mandatory life imprisonment, should be made by the Secretary of State for the Home Department, a member of the executive, or by independent courts or tribunals.

    34. The House has before it the appeal of Anthony Anderson, who was convicted in 1988 of two unrelated murders committed in 1986 and 1987. The appellant committed the two murders in the same way, that is by kicking his victims to death in the course of theft. In accordance with section 1(1) of the Murder (Abolition of Death Penalty) Act 1965 the trial judge imposed, as the law required and still requires, sentences of life imprisonment.

    35. Since the abolition of the death penalty in 1965 successive statutes have entrusted to the Home Secretary the power to decide when a mandatory life sentence prisoner may be released. From 1983 successive Home Secretaries have applied a policy of fixing by way of a tariff the part of a mandatory sentence of life imprisonment which must be served by a prisoner to satisfy the requirements of retribution and deterrence before the risk of releasing him can be considered. Throughout this period Home Secretaries have looked to the trial judge and the Lord Chief Justice for advice on the tariffs to be served in individual cases, reserving to themselves the power to fix the tariff.

    36. The trial judges and the Lord Chief Justice recommended a tariff of 15 years to be served by the appellant. The Home Secretary rejected the judicial advice and fixed the tariff at 20 years. For the appellant the challenge to the Home Secretary's decision is important. The judicially recommended tariff is about to lapse. If the tariff set by the Home Secretary is lawful the process of the Parole Board considering whether, from a point of view of risk, the appellant can be released must be postponed for at least another five years.

II. The Framework.

    37. The Home Secretary's power to control the release of mandatory life sentence prisoners derives from section 29 of the Crime (Sentences) Act 1997. It reads:

"(1)  If recommended to do so by the Parole Board, the Secretary of State may, after consultation with the Lord Chief Justice together with the trial judge if available, release on licence a life prisoner who is not one to whom section 28 above applies.

(2)  The Parole Board shall not make a recommendation under subsection (1) above unless the Secretary of State has referred the particular case, or the class of case to which that case belongs, to the Board for its advice."

Since 1965 the statutory precursors of this provision have been section 61 of the Criminal Justice Act 1967 and section 35(2) and (3) of the Criminal Justice Act 1991. In R v Secretary of State for the Home Department, Ex p Doody [1994] 1 AC 531 Lord Mustill, speaking for a unanimous House, observed about this regime (at 559B):

"It is [the Home Secretary], and not the judges, who is entrusted with the task of deciding upon the prisoner's release, and it is he who has decided, within the general powers conferred upon him by the statute, to divide his task into two stages. It is not, and could not be, suggested that he acted unlawfully in this respect . . ."

The two stages to which Lord Mustill referred were, of course, the fixing of the tariff and, after the lapse of the tariff period, a decision on whether from the point of view of risk the prisoner could be released.

    38. Given that the primary focus of this case is the Home Secretary's power of fixing the tariff, it is of some relevance to set out how the system worked and still works. On 17 July 1995 the Home Secretary explained the position to the House of Commons (Hansard (HC Debates), col 1353). He said:

"In every case where an offender is convicted of murder, the trial judge completes a detailed report on the background to the case. Whether or not he has made a formal recommendation in open court, the judge sets out his advice on the minimum period that should be served for retribution and deterrence. This report goes first to the Lord Chief Justice, who adds his own comments and then forwards the report to me. All this normally happens within two or three weeks of the conviction.

The whole of the report, apart from opinions about the risk, is disclosed to the prisoner, together with any other relevant papers, such as details of previous convictions, which will be put to Ministers in due course. This means that in practice, the prisoner sees everything that is relevant to the setting of the tariff.

The prisoner is given the opportunity to make any representations he wishes on the judicial recommendations and the other contents of the report. It is, however, made clear to him that the judicial views are advisory and that the tariff will be set by the Secretary of State. The prisoner's representations, along with the judicial report, are then submitted to Ministers, who make the decision on tariff. This is communicated to the prisoner.

If, after considering the judicial advice and the prisoner's representations, I decide that a tariff higher than that recommended by the trial judge is required for deterrence and retribution, the prisoner is given detailed reasons for that decision and these reasons are, of course, open to scrutiny by the courts by way of judicial review.

To summarise, the prisoner is aware of the judicial view and has the opportunity to make representations. He is then told of the tariff set. If there is any departure from the judicial advice, he is given detailed reasons. Once the prisoner has been informed of the tariff, we are prepared to disclose both the tariff and the judicial recommendation in individual cases to anyone who asks. The process cannot therefore be described as secretive - it could hardly be more open."

There have been subsequent ministerial statements on this subject but as far as the executive is concerned the 1995 statement is still controlling. It is to be noted that within the institutional constraints of a decision taken by a member of the executive, a concerted attempt was made to model the fixing of the tariff on a quasi judicial procedure. The procedure highlights the analogy between the role of the Home Secretary, when he fixes a tariff representing the punitive element of the sentence, and the role of a sentencing judge. Not surprisingly the Home Office described the duty of the Home Secretary as follows: "[The Home Secretary] must ensure that, at all times, he acts with the same dispassionate sense of fairness as a sentencing judge": R v Secretary of State for the Home Department, Ex p Venables [1998] AC 407, 526B.

    39. In a series of decisions since Doody in 1993 to which I will refer later, the House of Lords has described the Home Secretary's role in determining the tariff period to be served by a convicted murderer as punishment akin to a sentencing exercise. In our system of law the sentencing of persons convicted of crimes is classically regarded as a judicial rather than executive task. Our constitution has, however, never embraced a rigid doctrine of separation of powers. The relationship between the legislature and the executive is close. On the other hand, the separation of powers between the judiciary and the legislative and executive branches of government is a strong principle of our system of government. The House of Lords and the Privy Council have so stated: Attorney-General for Australia v The Queen and the Boilermakers' Society of Australia [1957] AC 288, 315; Liyanage v The Queen [1967] 1 AC 259, 291; Hinds v The Queen [1977] AC 195; Duport Steels Ltd v Sirs [1980] 1 WLR 142, 157B. It is reinforced by constitutional principles of judicial independence, access to justice, and the rule of law. But the supremacy of Parliament is the paramount principle of our constitution. Whatever arguments there were about the precise nature of the Home Secretary's role in controlling the release of convicted murderers, Parliament had the power to entrust this particular role to the Home Secretary. It did so unambiguously by enacting section 29 of the 1997 Act and its precursors. While a series of House of Lords' decisions have revealed concerns about the compatibility of the operation of the system with the rule of law, the lawfulness in principle of the Home Secretary's role was not in doubt.

    40. The question is now whether the Home Secretary's decision-making power over the terms to be served by mandatory life sentence prisoners is compatible with a later statute enacted by Parliament, namely the Human Rights Act 1998 by which Parliament incorporated the European Convention on Human Rights into the law of the United Kingdom. Article 6(1) of the Convention, so far as it is material, provides:

"In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law."

Article 6(1) requires effective separation between the courts and the executive, and further requires that what can in shorthand be called judicial functions may only be discharged by the courts: Ringeisen v Austria (1971) 1 EHRR 455, p 490, para 95; V v United Kingdom (1999) 30 EHRR 121, pp 186-187, para 114. In Millar v Dickson [2002] 1 WLR 1615, Lord Hope of Craighead captured the flavour of the European jurisprudence by holding, at p 1633, para 41:

"Central to the rule of law in a modern democratic society is the principle that the judiciary must be, and must be seen to be, independent of the executive."

Even in advance of the formal incorporation of the Convention the interpretation and application of article 6(1) has brought about substantial changes in our law. Since the coming into operation of the Human Rights Act on 2 October 2000 this process has accelerated. Thus the judicial systems of Scotland and England and Wales had to be reorganised to take into account a decision of a Scottish court which held that temporary sheriffs were not sufficiently independent: Millar v Dickson [2002] 1 WLR 1615.

    41. The relevant developments for present purposes include the following. First, as a result of a decision of the European Court of Human Rights in Thynne, Wilson and Gunnell v United Kingdom (1990) 13 EHRR 666 Parliament made the judiciary and the Parole Board alone responsible for decisions about the release of discretionary life sentence prisoners. The Home Secretary was not perceived to be independent. Parliament reformed the law by enacting section 34 of the Criminal Justice Act 1991. In the result the Home Secretary no longer controls release of a category of life sentence prisoners which includes some of the most dangerous prisoners in our prisons. Secondly, a parallel development followed in respect of young persons sentenced to detention during Her Majesty's Pleasure. As a result of the decision of the ECHR in V v United Kingdom (1999) 30 EHRR 121, the tariff system in respect of juveniles had to be reorganised. Ministers lost their power to set the tariff: Practice Statement (Juveniles: Murder Tariff) [2000] 1 WLR 1655; see further Practice Statement (Crime: Life Sentences) [2002] 1 WLR 1789. Again, the reason for this development was that the Home Secretary could no longer be regarded as independent for the purposes of performing this function.

    42. Thirdly, the coming into force in 1999 of the Scotland Act 1998, to which was scheduled the Human Rights Act, led to legislation by the Scottish Parliament effectively to eliminate the role of the executive in Scotland in fixing terms to be served by mandatory life sentence prisoners: Convention Rights (Compliance) (Scotland) Act 2001. The reason for this legislation was the apprehension that the executive's role would be in conflict with article 6(1): Policy Memorandum relating to the Bill introduced in the Scottish Parliament on 10 January 2001. For the same reason the role of the executive in controlling the periods to be served by mandatory life sentence prisoners in Northern Ireland was brought to an end: the Life Sentences (Northern Ireland) Order 2001 (S1 2001/2564 (NI 2)). These developments have increased the doubts about the Home Secretary's remaining role in England and Wales about the one class of life sentence prisoners over whom he still exercises control.

    43. Until recently, however, there was a justification in European jurisprudence for the Home Secretary's retention of the power to fix the tariff in respect of mandatory life sentence prisoners. It derived from the ruling in Wynne v United Kingdom (1994) 19 EHRR 333 to the following effect (p 347, para 35):

"the fact remains that the mandatory sentence belongs to a different category from the discretionary sentence in the sense that it is imposed automatically as the punishment for the offence of murder irrespective of considerations pertaining to the dangerousness of the offender."

As a result of two recent decisions of the European Court of Human Rights this prop of the Home Secretary's position has now, in terms of European jurisprudence, been knocked out.