(back to preceding text)

    65. Therefore the Home Secretary has power to disregard the recommendations of the trial judge and the Lord Chief Justice and to decide himself on the length of the tariff. This has happened in the present case. The trial judge and the Lord Chief Justice recommended a tariff of 15 years as the period which the appellant should serve to meet the requirements of retribution and deterrence, but the Home Secretary fixed the tariff at 20 years.

    66. The appellant challenges the decision of the Home Secretary on the ground that a member of the executive, a government minister, should not decide the length of the period which he should serve in prison for the purposes of retribution and deterrence. He submits that for the Home Secretary, and not a judge or a judicial body, to decide on the length of the tariff period is to violate his rights under Article 6(1) of the Convention which provides:

"In the determination 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 …."

    67. Two matters are clear and are not in dispute. One is that "the determination of …. any criminal charge" against a person includes the fixing of the term of imprisonment which he will serve after he has been convicted of the charge: see Engel v Netherlands (1976) 1 EHRR 647, paras 82 and 83. The other is that the Home Secretary, being a member of the executive, is not "an independent and impartial tribunal established by law".

    68. The argument of Mr Fitzgerald QC on behalf of the appellant can be summarised as follows:

(1)  The fixing of the tariff in respect of the appellant is the fixing of a sentence, it is a sentencing exercise.

(2)  Therefore the fixing of the tariff in respect of the appellant is part of the determination of the criminal charge against him.

(3)  Under Article 6(1) the fixing of the tariff must be done by an independent and impartial tribunal established by law, and the fixing of the tariff in respect of the appellant by the Home Secretary and not by an independent tribunal constituted a violation of the rights given to him by Article 6(1).

    69. In his reply to Mr Fitzgerald's argument Mr Pannick QC, for the Home Secretary, relied on the express provisions of section 1(1) of the Murder (Abolition of Death Penalty) Act 1965 which provides:

"No person shall suffer death for murder, and a person convicted of murder shall ….. be sentenced to imprisonment for life."

Mr Pannick submitted that the sentence of imprisonment for life made mandatory by section 1(1) of the 1965 Act is the punishment for the murder committed by the defendant, it is the sole sentencing exercise and the setting of the tariff is not a sentencing exercise but an administrative procedure carried out for the implementation of the punishment and therefore does not constitute a breach of Article 6(1).

    70. Before turning to consider the judgments of the European Court in which similar arguments have been considered, it is relevant to refer to the speech of Lord Mustill (in which the other members of the House concurred) in R v Secretary of State for the Home Department, Ex p Doody [1994] 1 AC 531. In that case, which was heard before the enactment of the Human Rights Act 1998, Lord Mustill recognised the force of the argument that the fixing of the tariff element (which he described as "the penal element") was a sentencing exercise and he stated, at p 557A:

"Even if the Home Secretary still retains his controlling discretion as regards the assessment of culpability the fixing of the penal element begins to look much more like an orthodox sentencing exercise, and less like a general power exercised completely at large."

However Lord Mustill declined to hold that the practice whereby the Home Secretary fixed the tariff period was unlawful and, in considering the difference between a mandatory life sentence and a discretionary life sentence for a serious crime (other than murder) such as rape, he stated, at p 559D:

"The respondents' second argument is an appeal to symmetry. Mandatory and discretionary sentences are now each divided into the two elements. Under both regimes the judges play a part in fixing the penal element, and the Parole Board in fixing the risk element. At the stage of the Parole Board Review the practice as to the disclosure of materials and reasons is now the same under the two regimes. Given that the post-Handscomb practice, embodied in section 34 of the Act of 1991, now gives a direct effect to the trial judge's opinion, it is irrational (so the argument runs) for the Home Secretary not to have brought into alignment the two methods of fixing the penal element.

Whilst there is an important grain of truth in this argument, I believe it to be over-stated. The discretionary and mandatory life sentences, having in the past grown apart, may now be converging. Nevertheless, on the statutory framework, the underlying theory and the current practice there remains a substantial gap between them. It may be—I express no opinion— that the time is approaching when the effect of the two types of life sentence should be further assimilated. But this is a task for Parliament, and I think it quite impossible for the courts to introduce a fundamental change in the relationship between the convicted murderer and the state, through the medium of judicial review."

    71. In Wynne v United Kingdom (1994) 19 EHRR 333 the European Court considered a complaint by a prisoner that there had been a breach of Article 5(4) of the Convention which provides:

"Everyone who is deprived of his liberty by arrest or detention shall be entitled to take proceedings by which the lawfulness of his detention shall be decided speedily by a court and his release ordered if the detention is not lawful."

    In that case the prisoner had received a mandatory life sentence for murder and after his release on licence he killed another person and was convicted of manslaughter and received a discretionary life sentence. His licence was also revoked so that he was detained in prison pursuant to both life sentences. The Court referred in para 33 of its judgment to its judgment in Thynne, Wilson and Gunnell v United Kingdom (1990) 13 EHRR 666 where it had drawn a clear distinction between a discretionary life sentence which was considered to have a protective purpose and a mandatory life sentence which was viewed as essentially punitive in nature and stated, at paras 35 and 36:

"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. That mandatory life prisoners do not actually spend the rest of their lives in prison and that a notional tariff period is also established in such cases—facts of which the Court was fully aware in Thynne, Wilson and Gunnell —does not alter this essential distinction between the two types of life sentence ….

…. the Court sees no cogent reasons to depart from the finding in the Thynne, Wilson and Gunnell case that, as regards mandatory life sentences, the guarantee of Article 5(4) was satisfied by the original trial and appeal proceedings and confers no additional right to challenge the lawfulness of continuing detention or re-detention following revocation of the life licence. "

    72. However in Stafford v United Kingdom (Application no 46295/99), (28 May 2002) when considering allegations of breaches of Articles 5(1) and 5(4) of the Convention, the Court departed from its judgment in Wynne and held that the mandatory life sentence does not impose imprisonment for life as a punishment and that the fixing of the tariff by the Secretary of State was a sentencing exercise. The Court stated, at para 79 of its judgment:

"The Court considers that it may now be regarded as established in domestic law that there is no distinction between mandatory life prisoners, discretionary life prisoners and juvenile murderers as regards the nature of tariff-fixing. It is a sentencing exercise. The mandatory life sentence does not impose imprisonment for life as a punishment. The tariff, which reflects the individual circumstances of the offence and the offender, represents the element of punishment. The Court concludes that the finding in Wynne that the mandatory life sentence constituted punishment for life can no longer be regarded as reflecting the real position in the domestic criminal justice system of the mandatory life prisoner."

    73. Under section 2(1) of the Human Rights Act 1998 a United Kingdom court is required to take a decision of the European Court into account, but it is not obliged to follow it. Mr Pannick submitted that the House should not follow the judgment of the European Court in Stafford but rather should follow the judgment in Wynne. He submitted that the Court in Stafford had misunderstood the law in England and that there was, in truth, no development whereby the English courts had moved away from the position taken by the House of Lords in Doody and that, notwithstanding that the fixing of the penal element was looking much more like an orthodox sentencing exercise, the English courts still recognised that section 1(1) of the 1965 Act required them to hold that the entire life sentence was the punishment imposed for the crime of murder.

    74. I am unable to accept that submission and I consider that the European Court was right to hold in Stafford that the mandatory life sentence pronounced by a judge when a defendant is convicted of murder does not impose imprisonment for life as a punishment and that the fixing of the tariff for punishment and deterrence is a sentencing exercise. I would so hold for the following reasons.

    75. First, in considering whether there has been a violation of a convention right the European Court looks at the substance of the action which has been taken and not at its formal categorisation in domestic law, it looks behind appearances at the realities of the situation: see Welch v United Kingdom (1995) 20 EHRR 247, para 34. Viewing the issue in this way it is clear that the reality is that when the Home Secretary fixes the tariff he is deciding the punishment which the murderer should receive for his crime.

    76. Secondly, I consider the European Court was right to observe in paragraph 78 of its judgment that, whilst the abolition of the death penalty in 1965 and the giving of power to the Home Secretary to release a convicted murderer sentenced to life imprisonment was a major and progressive reform at the time, the Home Secretary's continuing role in fixing the tariff has become increasingly difficult to reconcile with the concept of the separation of powers between the executive and the judiciary, which is an essential element of a democracy.

    77. Thirdly, the correctness of the view that the fixing of the tariff is a sentencing exercise which should be carried out by a judge or judicial tribunal and not an administrative exercise to be carried out by a government minister is shown by the recent legislation in Scotland and Northern Ireland which provides that a judge will fix the tariff element of the sentence where a defendant is convicted of murder. Thus Article 5 of The Life Sentences (Northern Ireland) Order 2001 (SI 2001/2564 (NI 2)) under the heading "Determination of tariffs" provides:

"(1) Where a court passes a life sentence, the court shall, unless it makes an order under paragraph (3), order that the release provisions shall apply to the offender in relation to whom the sentence has been passed as soon as he has served the part of his sentence which is specified in the order.

(2) The part of a sentence specified in an order under paragraph (1) shall be such part as the court considers appropriate to satisfy the requirements of retribution and deterrence having regard to the seriousness of the offence, or of the combination of the offence and one or more offences associated with it."

Article 6 of the Order provides that it shall be the duty of the Secretary of State to release a life prisoner on licence as soon as he has served the tariff element of his sentence and the Life Sentence Review Commissioners have directed his release. Part I of the Convention Rights (Compliance) (Scotland) Act 2001 contains similar provisions relating to life sentence prisoners and the long title of the Scottish Act states that it is an Act "to amend certain enactments relating to the sentencing and release of life prisoners … which are or may be incompatible with the European Convention on Human Rights". This legislation in Scotland and Northern Ireland shows the manner in which similar changes could be made in England.

    78. Therefore I am of opinion that this House should follow the judgment of the European Court in Stafford and hold that the fixing of the tariff by the Home Secretary is a sentencing exercise so that the performance of that function by him constituted a breach of the appellant's rights under Article 6(1) of the Convention. It is relevant to observe that all three members of the Court of Appeal, who delivered their judgments [2002] 2 WLR 1143 before the European Court gave judgment in Stafford, would also have held that the fixing of the tariff is a sentencing exercise (see per Lord Woolf CJ at p 1149 G-H, Simon Brown LJ at p 1161 B-C, and Buxton LJ at p 1163 A-B) if they had not considered that they should follow the earlier jurisprudence of the European Court in cases such as Wynne v United Kingdom.

    79. The question then arises as to the relief to which the appellant is entitled. Section 3 of the Human Rights Act 1998 provides:

"(1)  So far as it is possible to do so, primary legislation and subordinate legislation must be read and given effect in a way which is compatible with the Convention rights."

Section 4 provides:

"(1)  Subsection (2) applies in any proceedings in which a court determines whether a provision of primary legislation is compatible with a Convention right.

(2)  If the court is satisfied that the provision is incompatible with a Convention right, it may make a declaration of that incompatibility.

(6)  A declaration under this section ('a declaration of incompatibility')—

(a)  does not affect the validity, continuing operation or enforcement of the provision in respect of which it is given; and

(b)  is not binding on the parties to the proceedings in which it is made."

    80. It is clear from the wording of section 29 of the Crime (Sentences) Act 1997 that Parliament intended that the decisions as to the length of the tariff period and as to when a prisoner serving a mandatory life sentence should be released from prison were to be taken by the Home Secretary and not by the judiciary or by the Parole Board. The Home Secretary is not obliged to accept the recommendation of the judiciary as to tariff. The Parole Board may recommend to the Home Secretary that a life prisoner should be released on licence, but it cannot make such a recommendation unless the Home Secretary has referred the particular case to it. Moreover even if it makes such a recommendation the Home Secretary is not obliged to accept it; Parliament has given him the power to decide that the prisoner should not be released.

    81. Therefore having regard to the clear provisions of section 29, I do not consider that it is possible, pursuant to section 3 of the 1998 Act, to interpret section 29 so as to take away from the Home Secretary the power to decide on the length of the tariff period and to give it to the judiciary. For this House to do so would be for it to engage in the amendment of a statute and not in its interpretation, and section 3 does not permit the House to engage in the amendment of legislation: see per my noble and learned friend Lord Nicholls of Birkenhead in In re S (Minors) (Care Order: Implementation of Care Plan) [2002] 2 WLR 720, para 39.

    82. Section 6 of the Human Rights Act provides:

"(1)  It is unlawful for a public authority to act in a way which is incompatible with a Convention right.

(2)  Subsection (1) does not apply to an act if—

(a)  as the result of one or more provisions of primary legislation, the authority could not have acted differently; or

(b)  in the case of one or more provisions of, or made under, primary legislation which cannot be read or given effect in a way which is compatible with the Convention rights, the authority was acting so as to give effect to or enforce those provisions."

Mr Fitzgerald submitted that the House should not make a declaration of incompatibility but rather should make a declaration that in accordance with his duty under section 6(1) of the 1998 Act not to act incompatibly with the appellant's rights under Article 6(1), the Home Secretary must not fix as his tariff a term of years longer than that recommended by the judiciary. I am satisfied that this submission must be rejected because in forming his own view whether to accept the recommendation of the judiciary as to tariff or to fix a longer tariff period and when to refer a case to the Parole Board, the Home Secretary is acting in accordance with the intention of Parliament expressed in section 29. In deciding for himself when to release a prisoner the Home Secretary is, for the purposes of section 6(2)(b) "acting so as to give effect to" section 29.

    83. Therefore I consider that the House should make a declaration of incompatibility pursuant to section 4(2) of the 1998 Act in the terms proposed by Lord Bingham.

    84. Accordingly for the reasons which I have given, and also for the reasons given by Lord Bingham and Lord Steyn, I would allow the appeal and make the declaration of incompatibility.

    85. For the reasons given by my noble and learned friends Lord Bingham of Cornhill and Lord Hutton, I too would make the declaration proposed.

LORD SCOTT OF FOSCOTE

My Lords,

    86. I have had the opportunity of reading in advance the opinions of my noble and learned friends Lord Bingham of Cornhill, Lord Steyn and Lord Hutton and for the reasons they give, with which I agree, I would make the order proposed by Lord Bingham.

LORD RODGER OF EARLSFERRY

My Lords,

    87. I have had the privilege of reading the speeches of my noble and learned friends Lord Bingham of Cornhill, Lord Steyn and Lord Hutton in draft. For the reasons they give I too would allow the appeal and make the declaration which Lord Bingham proposes.