Hindley, R (on the application of) v Secretary Of State For Home Office [1998] EWCA Civ 1695 (5 November 1998)

Royal Courts of Justice
London WC2A 2LL
Thursday 5 November 1998
B e f o r e:
– – – – – –
– v –
– – – – – –
(Transcript of the handed down Judgment of
Smith Bernal Reporting Limited, 180 Fleet Street,
London EC4A 2HD
Tel: 0171 421 4040
Official Shorthand Writers to the Court)
– – – – – –
MR E FITZGERALD QC and MR T OWEN (Instructed by Messrs Taylor Nichol, London, N4 2DH) appeared on behalf of the Appellant.
MR D PANNICK QC and MR M SHAW (Instructed by The Treasury Solicitor, London, SW1H 9JS) appeared on behalf of the Respondent.
– – – – – –
(As approved by the Court)
– – – – – –
©Crown Copyright
Thursday 5 November 1998
The Background
This is an appeal by Myra Hindley from the decision of Lord Bingham of Cornhill CJ, Hooper and Astill JJ sitting in the Divisional Court on 18 December 1997. The decision relates to an application made by the appellant for judicial review. The application challenges the lawfulness of a policy statement by the former Secretary of State, Mr Michael Howard, dated 7 December 1994 and his decision of 3 February 1997 that the period of her tariff should be whole life. The application was made on 23 April 1997 and leave was granted to move for judicial review on 16 May 1997. Following the change of government, Mr Jack Straw became Home Secretary. He made a further statement of policy on 10 November 1997. On 19 November 1997 he affirmed the decision of a whole life tariff set by his predecessor. The application for judicial review was then extended so that it also applied to the later policy statement and decision. Both the applicant and the Home Office are agreed that whether the applicant’s whole life tariff should be reduced “by reason of exceptional progress is to be considered and determined by the Home Secretary after the court has considered the other points” raised on the application for judicial review.
In his judgment the Lord Chief Justice came to the following conclusions with which the other members of the court agreed:
“1. That both decisions of the Home Secretaries were not unlawful nor was either decision vitiated by lack of reasons.
2. The policy decision of 7 December 1994 was unlawful in that it failed to make any allowance “for the possibility that in exceptional circumstances, such as exceptional progress by a prisoner while in custody, a review and reduction of the mandatory life sentence prisoner’s tariff term might be made”.
3. The policy of 10 November 1997 was not unlawful.”
There is no cross appeal as to the finding that the policy of 7 December 1994 was unlawful. Nor has there been any appeal against the conclusion of the Divisional Court that Mr Howard’s decision of 3 February 1997 was not unlawful, notwithstanding that it was taken applying a policy which is now accepted to be unlawful. The reason for this is no doubt that any success on the appeal in relation to that decision would be of no benefit to the appellant as that decision has been overtaken by the subsequent decision of Mr Straw. The argument of the appellant on the appeal does however make it obvious that she does not accept the lawfulness of the earlier decision.
As did the Lord Chief Justice in his judgment, I start this judgment by making it clear that these proceedings are limited to requiring the courts to consider the lawfulness of the decisions and policy statements made by successive Home Secretaries. It is not part of our function to decide whether the appellant should be released from prison, or whether she should remain in prison; or, if she is to remain in prison, to decide how long she should remain in prison. The best that the appellant could hope to achieve by these proceedings is a change from the present policy and the reconsideration of her position in the light of that change of policy. This does not diminish the significance of this case to both the Home Secretary and the appellant. The Home Secretary is concerned to maintain his position that for the most serious murders, he is entitled to apply a policy which means literally that for the rest of their lives they will remain in prison. As confirmation of this the court was told in the course of argument that the Home Office is evaluating the provision which already exists in the United States for geriatric prisoners. The adverse consequences to the appellant of the latest policy and decision are obvious. Absent a further change of policy or “exceptional” circumstances, it is intended she should remain in prison for the rest of her life. She has already served over 32 years and as she is now 56 she could well serve another 30 years or more in prison.
As the Divisional Court decision is now reported [1998] 2 WLR 505 and this appeal primarily turns on questions of law, it is not necessary to repeat the details of the horrendous crimes which the appellant committed between July 1963 and October 1965. She was convicted of two murders, and of being an accessory after the fact to a third, of children. A statement she made in 1987 to the police indicated that altogether she was involved with her co-accused Ian Brady in five murders. It is true that that statement and other evidence strongly indicate that in relation to these crimes, she was acting under the domination of Ian Brady. However it would be not unreasonable to treat the statement as disclosing a picture of an involvement which is even more serious than that which was indicated by the evidence given at the trial.
Having made clear that this court has not and could not be under any illusion as to the gravity of the applicant’s crimes, it is also important not to forget that “a convicted prisoner … retains all those civil rights which are not taken away by necessary implication” ( Raymond v Honey [1983] AC 1 p.10 per Lord Wilberforce). Like any other citizen, she is entitled where she has grounds for suggesting that the Home Secretary has acted unlawfully to have his conduct scrutinised by the courts on an application for judicial review.
The Relevant Statutory Provisions and the Secretary of State’s Discretion
In order to resolve the issues on this appeal, it is necessary to examine the current statutory provisions and the latest policy of the Secretary of State in some detail. When doing this, it is important to have in mind the legislative history of the present statutory provisions and the stages by which the present policy evolved. This has been influenced by a series of cases in the House of Lords to which it will be necessary to refer. They commence with the case of R v Secretary of State for the Home Department, ex parte Doody [1994] 1 AC 531. These cases set out the history. The history is also set out in the judgments of the Lord Chief Justice and Lord Justice Judge on this appeal. I cannot improve on these accounts and so I only set out in full the relevant current statutory position and the present policy.
It is Section 1(1) of the Murder (Abolishment of Death Penalty) Act 1965 which provides for the mandatory life sentence for those found guilty of murder. Section 1(1) provides:
“No person shall suffer death for murder, and a person convicted of murder shall … be sentenced to imprisonment for life.”
Section 1(1) of the 1965 Act has now to be read with Sections 29 and 30 Crime (Sentences) Act 1997. Section 29 states:
“(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 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.”
Section 30 provides:
“(1) The Secretary of State may at any time release a life prisoner on licence if he is satisfied that exceptional circumstances exist which justify the prisoner’s release on compassionate grounds.
(2) Before releasing a life prisoner under subsection (1) above, the Secretary of State shall consult the Parole Board, unless the circumstances are such as to render such consultation impracticable.”
The 1997 Act also contains different provisions relating to prisoners who have been sentenced to a discretionary life sentence. In connection with these prisoners the Home Secretary’s role is now subordinate to that of the court and the Parole Board.
The statutory provisions I have set out make it clear that the sentence for murder always remains a sentence which continues for the life of the prisoner. Sections 29 and 30 of the 1997 Act do not affect this. Their effect is limited to permitting the release of a prisoner, who remains a life prisoner, on licence; a licence that may in specified circumstances be revoked leading to the prisoners’ recall to prison. It is this discretion of the Secretary of State to release on licence which is central to this appeal. The Secretary of State’s discretion is only made subject to two express limitations. The first is the requirement of a recommendation from the Parole Board and the second is a requirement to consult the Lord Chief Justice and the trial judge (if available). In practice it is well established that the consultation with the judiciary is as to the period which is appropriate for the prisoner to serve in prison by way of retribution and deterrence and that the Parole Board makes its recommendation as to the risk of the prisoner re-offending. In relation to discretionary life prisoners, the role of the Parole Board and the judiciary are made statutory by Section 28 of the 1997 Act.
Under Section 28(7) a discretionary life prisoner has in specified circumstances the right to require the Secretary of State to refer his case to the Parole Board. A mandatory life prisoner has no similar right. In addition unless the Secretary of State refers a particular case to the Board for its advice, the Board is not in a position to make a recommendation.
Despite the absence of any express obligation to refer a case to the Board, the Secretary of State is clearly required to refer a case to the Board, so that he shall have the benefit of their recommendation, if he is considering releasing a prisoner on licence. Otherwise he could fetter or frustrate his discretion to release a prisoner on licence. Parliament having entrusted him with a discretion to release, he cannot create a situation where he cannot exercise that discretion. It can therefore be said that the Secretary of State has two discretions both of which he can be under a duty to consider exercising. The primary discretion is that of deciding whether a prisoner should be released, and the secondary discretion is as to when to seek the recommendation of the Parole Board. The position is very much the same as to consulting the judiciary.
Due Process or Abuse of Process
Article 5(4) on the European Convention of Human Rights, does not require the continued detention of a mandatory life prisoner to be subject to review by a court. (See Wynne v United Kingdom [1994] 19 EHRR 333) However as is the case with any sentence of a court, the common law does require compliance with the principles of fairness or of due process not only before sentence but also after sentence while it is being carried out. The same point can be made by saying that the Executive can be guilty of abuse of process after sentence although the conditions of detention, even if intolerable, will not render the detention itself unlawful (see ex parte Hague [1992] AC 58, 166 and 167). The principle of due process is not confined to procedure. It can have effect on the substance of what is happening in carrying out the sentence.
Like many of the underlying principles of the common law, the principle of due process or fairness may not be readily discernible or overtly enunciated in the authorities. It can nonetheless be identified as the theme linking together a series of decisions dealing with the same subject matter. In the cases placed before this court for the purposes of the appeal, it is most readily discerned in a decision of the Privy Council in Pratt v Morgan [1994] 2 AC 1. That case was concerned with delay in carrying out an execution when a court in Jamaica had passed a sentence of death. Jamaica has a written constitution which could in itself be regarded as reflecting common law principles. However the Privy Council was concerned as to what would have been the position at common law with regard to the carrying out of an execution before Jamaican independence. In delivering the judgment of the Privy Council, Lord Griffiths stated at p.19:
“It is difficult to envisage any circumstances in which in England a condemned man would be kept in prison for years awaiting execution. But if such a situation had been brought to the attention of the court their Lordships do not doubt that the judges would have stayed the execution to enable the prerogative of mercy to be exercised and the sentence commuted to one of life imprisonment. Prior to Independence applying the English common law, judges in America would have had the like power to stay a long delayed execution, as foreshadowed by Lord Diplock in Abbott v The Attorney General of Trinidad and Tobago [1979] 1 WLR 1342 at 1348 when he said:
“in such a case, which is without precedent and, in their Lordships view, would involve delay measured in years, rather than in months, it might be argued that the taking of the condemned man’s life was not by due process of law; …”.”
“Due Process” is a concept which is more often referred to in the decisions of the courts in North America than in this jurisdiction. Here the expressions abuse of process and fairness are usually preferred. However, whichever expression is used, as the case of Pratt v Morgan vividly illustrates, it can result in substantive benefits not only for an accused before sentence but also for a prisoner after sentence. In R v The Home Secretary ex parte Doody [1994] 1AC 531, in a landmark judgment, the House of Lords made an immense stride in securing due process for prisoners serving a mandatory life sentence. Lord Mustill drew attention to the fact that as a consequence of the policy to which successive Home Secretaries have given effect since Mr Brittan announced the change of policy on 30 November 1983, the indeterminate sentence of life imprisonment “is at a very early stage formally broken down into penal and risk elements”.
“If the matter is approached in this way the Home Secretary can be regarded as exercising a very broad general discretion, in which all the relevant factors are weighed together when deciding whether the public interest permits release, in very much the same way as the discretion had been exercised before the Parole Board came on the scene; and from this it is not a long step to hold that since the prisoner is essentially in mercy there was no ground to ascribe to him the rights which fairness might otherwise demand. This reasoning is however much weakened now that the indeterminate sentence is at a very early stage formally broken down into penal and risk elements. The prisoner no longer has to hope for mercy but instead knows that once he has served the “tariff” the penal consequences of his crime have been exhausted. 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”. (page 556, emphasis added)
Lord Mustill went on to conclude that a mandatory life prisoner’s entitlement is:
(a) to make written representations before his tariff is set by the Secretary of State,
(b) the Secretary of State is required to tell the prisoner what period the judiciary have recommended he should serve for the purposes of retribution and deterrence and of any other opinion expressed or reasons given by the judiciary which are or may be relevant to the Secretary of State’s decision as to the appropriate period to be served for these purposes, and that while the Secretary of State was not obliged to adopt the judicial view of tariff, if he departed from it he was required to give reasons for doing so.
Each of these requirements can equally well be regarded as a requirement of fairness or due process. Together they establish a structure which should enable the Home Secretary more effectively to perform his critically important discretion of determining when a life prisoner should be released back into the community. In addition they provide a structure which enables the courts to perform their task of ensuring that the Secretary of State exercises his discretion according to law.
The Policy
Having made those, what I am afraid, are no more than preliminary comments about the legislation, it is now convenient to turn to the Secretary of State’s current policy. The policy is a descendant of the policy of Mr Leon Brittan of 30 November 1983 to which I have already made reference. Mr Brittan’s policy had revealed to the public at large that there were two strands involved in the decision making process of determining when a life prisoner should be released on licence. The first involved the requirements of retribution and deterrence, as to which the judiciary made an input and the second involved the question of risk which was for the consideration of the Parole Board. A policy of this nature was required to enable the Secretary of State to exercise the discretion which he had been entrusted by Parliament. It was needed so as to know when to seek the recommendation of the Parole Board and the views of the judiciary. At that time the prisoner was kept in the dark as to what had been decided in his case. However he would be able to form a view as to what at least was the tariff determined by the Secretary of State since part of the policy which was announced was that the local review committee of the Parole Board was normally to take place three years before the expiry of the period necessary to meet the requirements of retribution and deterrence and the prisoner would be aware of the review. Where the tariff period was over 20 years, the prisoner would only know that the minimum period of his tariff was 20 years since in the case of a tariff of over 20 years, the case was in any event reviewed after 17 years.
Mr Howard made two relevant policy statements the first on 27 July 1993. This indicated that the tariff decided upon by the Secretary of State was only “an initial view of the minimum period necessary to satisfy” the requirements of retribution and deterrence and that the Secretary of State could therefore decide “exceptionally to revise that view of the minimum period, either by reducing it, or by increasing it” if “the minimum requirements of retribution and deterrence will not have been satisfied at the expiry of the period which has previously been determined”.
In addition Mr Howard identified three strands to his approval instead of two by reaffirming what had previously been said by Dame Angela Rumbold on 16 July 1991. The third strand is the public acceptability of the prisoner’s release in order to maintain the confidence of the public in the criminal justice system.
The second policy statement by Mr Howard was made on 7 December 1994. He indicated that every life sentence prisoner would have a review of his or her case by the Secretary of State after a period of 10 years detention. In addition he announced that for those life sentence prisoners who he had decided should remain in prison for the whole of their life to meet the requirements of retribution and deterrence there would be a Ministerial review when the prisoner had been in custody for 25 years. He said, “the purpose of this review will be solely to consider whether the whole life tariff should be converted to a tariff of a determinate period. The review will be confined to the consideration of retribution and deterrence. Where appropriate, further Ministerial review will normally take place at five yearly intervals thereafter.”
It is now possible to turn to the wording of the policy statement made by Mr Straw on 10 November 1997. This was a response to the decision of the House of Lords in R v The Home Secretary ex parte Pierson [1998] AC 539, a case to which I will have to refer later. Mr Straw having stated that he intended to continue the procedure for setting and reviewing tariffs of adult murderers set by his predecessors, went on to say:
“With regard to the discretion to alter tariff, I reiterate that the view which I take (or a Minister acting under my authority takes) 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 procedure for considering any increase of a tariff once set will include the opportunity for the prisoner to make representations after being informed that the Secretary of State is minded to increase tariff, and to be given reasons for any subsequent decision to increase it.
So far as the potential for a reduction in tariff is concerned, I shall be open to the possibility that, in exceptional circumstances including for example exceptional progress by the prisoner whilst in custody, a review and reduction of the tariff may be appropriate. I shall have this possibility in mind when reviewing at the 25 year point the cases of prisoners given a whole life tariff and in that respect will consider issues beyond the sole criteria of retribution and deterrence described in the answer given on 7 December 1994. Prisoners will continue to be given the opportunity to make representations and to have access to the material before me.
I intend to apply these policies in respect of all tariffs for adult murderers, whether or not they were originally set before 27 July 1993 and whether or not they were originally fixed by me personally, or a Minister acting on my behalf, or by or on behalf of a previous holder of my office. I intend to invite representations from the prisoner before re-setting tariff at a level which I consider appropriate.
I take the opportunity to confirm that my approach on the release of adults convicted of murder once tariff has expired will reflect the policy set out in the answer given on 27 July 1993. In particular, the release of such a person will continue to depend not only on the expiry of tariff and on my being satisfied that the level of risk of his committing further imprisonable offences presented by his release is acceptably low, but also on the need to maintain public confidence in the system of criminal justice. The position of a prisoner subject to a mandatory life sentence continues to be distinct from that of a prisoner serving a discretionary life sentence, a decision on whose final release is a matter for the Parole Board alone.”
There are the following issues which arise in relation to this policy statement:
“(I) Is it lawful to have a whole life tariff?
(ii) Is it lawful for the Secretary of State to have a policy which entitles him “exceptionally” to revise the tariff by increasing it.
(iii) Is it lawful for the Secretary of State to have a policy which excludes any involvement by the Parole Board?”
It is not possible to separate entirely the consideration of these issues. They do overlap. However they provide a starting point and I shall seek to consider them each in turn.
The whole life tariff
The concept of a whole life tariff is a relative newcomer on the penal scene. I appreciate that as a label it has attractions. The judiciary including the Lord Chief Justice have identified a category of prisoners for whom they recommend that the whole of their future life is to be the period of punishment. The Secretary of State also wants to identify a category of prisoners whose crimes are so serious that for reasons of punishment they are never to be released back to the community. However by his policy the Secretary of State now accepts, this is something which he cannot achieve. He has statutory discretions to release on licence and to refer to the Parole Board which he is under a duty to consider exercising. He accepts that even in the case of whole life tariff prisoners he has to subject them to review and be prepared exceptionally to move them from this category. Furthermore, he cannot prevent his successor taking a different view and for example introducing a new policy removing this category from tariffs.
The Home Secretary has a different statutory role from that of the judiciary. There are other aspects of the whole life tariff label to which I would draw attention which make its use questionable. It does not achieve the purposes which the tariff approach was designed to achieve. It does not assist in determining when a prisoner’s case should be referred to the Parole Board, nor does it indicate when an up to date view should be obtained from the judiciary. Nor does it fulfil the purpose of the tariff within a sentence of life imprisonment for the prisoner. This is to establish a fixed period, which when it has been served means that the prisoner has met the requirements of retribution and deterrence. This is a matter of considerable importance to the prisoner. Finally the very fact that a whole life tariff is indeterminate in length sits uncomfortably with the concept of fixing a tariff. A tariff suggests a fixed period rather than a period which will vary with the life expectancy of the prisoner. Because a prisoner may live many years beyond his or her normal life expectancy the period of imprisonment as a punishment may be longer than was expected. It can also mean that because a prisoner is younger than a co-defendant who is more to blame, the sentence is likely to be longer for the less guilty. For these reasons, I would consider it more accurate and desirable, if there are to be a set of prisoners who for reasons of punishment and deterrence are never to be released, to describe them, as in fact I believe them to be, as non tariff prisoners. That is prisoners who because of the seriousness of their offence, have no fixed period set. This is not only to draw a linguistic distinction. It draws attention also to features of “a whole life” tariff which are relevant when considering the lawfulness of the policy which the present Home Secretary and his predecessor adopted.
As to lawfulness, the starting point must be that the Secretary of State is clearly given a discretion not to release a prisoner on licence. If the prisoner would continue to be a risk, if he were released, that would certainly justify the Secretary of State not releasing the prisoner. If the situation was one where the Secretary of State was satisfied for good reason that the prisoner would continue to be a risk to the public for the rest of his life, it seems to me there could be no objection to his announcing this to be his position as long as he made it clear that he would be prepared to reconsider his decision at reasonable intervals in the light of the then current circumstances. If the Home Secretary is entitled to come to that conclusion with regard to a prisoner who continues to be a risk, I do not see objection in principle to the Home Secretary saying that on the information which is before him at the present time, he is satisfied that the offence which the particular prisoner has committed is so heinous that he cannot fix a period after which punishment and deterrence would not require him to be incarcerated. If this be the position it would seem to me perfectly proper as a matter of law for him to decline to fix a tariff. This is what in effect the Secretary of State has to be regarded as having done in the case of the appellant. If he refers at all to a whole life tariff that is a matter for him. However whatever the label used it has to be remembered that he must still be prepared to consider the question of release especially after the prisoner has served what would normally be regarded as a very long sentence. An alternative way and in my judgment a preferable way, of achieving the same objective would be for the Secretary of State to fix an extremely long period as the tariff. This would be more satisfactory than the course taken by the Secretary of State under his policy, because it would make clear that the Secretary of State really meant to impose the tariff which he has. It would also make it easier for the court at least to assess the reasonableness of the tariff.
What is important to recognise is that whole life tariff prisoners are in fact in a class which forms an exception within the general policy for mandatory life sentence prisoners. The law accepts that a Minister can have a policy which indicates how a statutory discretion will be exercised. However, it is a requirement of the law that the Minister must be prepared to deal with exceptional cases exceptionally. This requirement is necessary to protect the interests of the individual who is subject to the policy but whose case has exceptional features which require special consideration which the policy may not provide. The danger which can result from not recognising that a case is exceptional is that a policy which in general is perfectly acceptable will in the exceptional case result in the statutory discretion being exercised unlawfully or unfairly. The discretion to release given to the Home Secretary imposes a duty upon him to review the position of mandatory life prisoners from time to time. The Home Secretary must not by the use of the expression “whole life tariff” deprive a prisoner of the benefit of that duty which Parliament has placed upon the Home Secretary.
However despite these considerations the policy is not unlawful merely because of the use of the expression “whole life tariff”.
The exclusion of the Parole Board
The next issue that it is convenient to consider is what is the effect on the lawfulness of the current policy of the fact that prisoners who have no fixed tariff will now never be referred to the Parole Board unless the Secretary of State decides exceptionally to change the whole life tariff to a fixed period tariff. Is this contrary to the intention of Parliament? Where the tariff is a fixed tariff it is, in general, perfectly reasonable to await until shortly before the expiry of the fixed tariff which has to be served to obtain the recommendation from the Parole Board.
However in the case of indeterminate tariff the situation is different unless the Secretary of State decides to change the tariff. The policy could result in there never being a reference to the Parole Board. Is this what Parliament intended? Until the change made by Mr Howard in his policy statement there would have been a reference after 17 years. He makes no mention of any reference to the Parole Board in exceptional circumstances. However this was in a context of a policy where the whole life tariff would only be reduced in the light of circumstances relating to the offence. Mr Straw in his revised policy, is prepared to take into account when considering whether or not there are exceptional circumstances justifying a change to a fixed term policy the progress the prisoner has made. This is an acceptance that in these cases he is not only concerned with punishment. When considering the progress the prisoner has made whilst in prison , the Parole Board could make a contribution to the Secretary of State’s decision. It would therefore be wrong for the Secretary of State not to be prepared to consider exercising his discretion to refer to the Parole Board though he is not obliged to refer. At the present his policy is silent as to whether he would be prepared to do this for the purposes of reviewing the whole life tariff. In this case this has already happened on the 4th March 1997. The applicant was informed that the Board had recommended her transfer to open prison conditions with a further review two years later. This is as positive a recommendation as the applicant could anticipate. Particularly as the Secretary of State has yet to take into account the effect on her tariff of her behaviour while in prison, this possible lacuna has not prejudiced her in this case and I am not prepared to assume that the Secretary of State is not prepared to consider referring her case to the Parole Board when this could assist.
Increasing or reducing the tariff
At the time Mr Leon Brittan made his announcement in the House of Commons on 30 November 1983 as to the adoption of the tariff policy by the Home Office, there was nothing said to suggest that tariffs would be revised or that they would be determined as being for life. In his policy statement of 27 July 1993 Mr Howard emphasised that the view that he took at the beginning of a mandatory life sentence was an “initial” view of the minimum period necessary to satisfy retribution and deterrence and that it remained possible for him or future Secretaries of State “exceptionally” to revise that view of the minimum period. The current policy announced by Mr Straw therefore reflects the approach of his predecessor. However it differs from the policy of Mr Howard in that it expressly states in relation to a potential reduction of tariff that among the circumstances taken into account would be exceptional progress by the prisoner while in custody. The progress which a prisoner made after sentence was not a factor which would be taken into account under Mr Howard’s policy when considering whether a tariff should be changed. This is made clear by the affidavit of Mr Timothy Morris on behalf of the Home Office. In that affidavit he said:
“By its very nature (being designed to reflect the requirement of retribution and deterrence for the crime), the tariff is concerned exclusively with the circumstances of the offence and the characteristics of the offender at the time of the offence. Information which comes into existence after the date of the offence can be relevant to tariff but only if it relates back to the circumstances as they existed at the date of the offence. Exceptional progress “including later remorse and confessions” made by the offender while in custody is not per se regarded as relevant to tariff although it is highly material to an offenders dangerousness to the public (on which the Parole Board advises).”
It was this approach, confirming the information which was relevant, which the Lord Chief Justice in the Divisional Court held to be unlawful. In his judgment the Lord Chief Justice only referred to a reduction of a mandatory life sentence but if his view as to a reduction in the tariff term is correct, as I think it is, it must also apply equally to an increase in the tariff term from a fixed term to a life term. The evidence does not throw any light on whether the view I have just expressed is accepted by the Home Secretary. However, this is not surprising in view of the agreement that the Home Secretary should consider the appellant’s conduct while in prison when the outcome of the present proceedings is known. Mr Straw’s decision of 19 November 1997 was stated to be:
“subject to consideration whether it is appropriate to reduce the tariff in your client’s case by reason of any exceptional progress (on which the Home Secretary will not form a concluded view until you have had a fair opportunity to make any further written representations you may wish to make).”
The position therefore appears to be satisfactory, subject to it being lawful for the Secretary of State to review a tariff upwards once a tariff has been initially fixed. Here the previous decisions of the courts disclose an unsatisfactory confusing situation notwithstanding the number of occasions on which the courts have had to consider the position of prisoners subject to mandatory life sentences.
The first case to which it is necessary to make reference is the decision of the House of Lords in Re Findlay [1985] 1 AC 318. That case concerned four prisoners, only two of whom had been sentenced to life imprisonment. The two other prisoners were subject to determinate sentences. The prisoners had applied to the courts in consequence of the adverse effect upon them of the policy of Mr Brittan to which I have already referred. The two prisoners serving a life sentence had until just before the announcement of the new policy, been transferred to an open prison but by the time of the announcement they had been transferred back to a closed prison. In his speech with which the other members of the House agreed, Lord Scarman referred to the fact that the prior practice in the administration of parole, “understandably nourished their hope of release” (at p329 G). Lord Scarman went on to decide that Mr Brittan’s policy was not unlawful though it would have the effect of prisoners who were already sentenced having their date for parole postponed. He also dealt with the prisoners legitimate expectations in these terms:
“The post-sentence history of these two appellants, each of whom is serving a life sentence, I have already summarised. They had good reason under the practice which prevailed before the adoption of the new policy to expect release much earlier than became likely after its adoption. The doctrine of legitimate expectation has an important place in the developing law of judicial review. It is however, not necessary to explore the doctrine in this case, it is enough merely to note that a legitimate expectation can provide a sufficient interest to enable one who cannot point to the existence of a substantive right to obtain the leave of the court to apply for judicial review. These two appellants obtained leave. But their submission goes further. It is said that the refusal to except them from the new policy was an unlawful act on the part of the Secretary of State in that his decision frustrated their expectation. But what was their legitimate expectation? Given the substance and purpose of the legislative provisions governing parole, the most that a convicted prisoner can legitimately expect is that his case will be 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 . Any other view would entail the conclusion that the unfettered discretion conferred by the statute upon the minister can in some cases be restricted so as to hamper, or even to prevent, changes of policy. Bearing in mind the complexity of the issues which the Secretary of State has to consider and the importance of the public interest in the administration of parole I cannot think that Parliament intended the discretion to be restricted in this way.” (emphasis added)”
Mr Fitzgerald QC on behalf of the appellant submits that this decision is not an insurmountable impediment to the successful outcome of this appeal. Mr Pannick QC on behalf of the Home Office argues equally persuasively to the contrary. What can be said about the Findlay case is that since it has been decided, considerable strides have been made in developing the jurisprudence as to judicial review. It can also be said that the passage from the Lord Scarman speech which I have cited is based on the premise that the policy which is being introduced is lawful. What Mr Fitzgerald is contending is the policy here is unlawful. Furthermore Lord Scarman’s remarks have to be seen in the context of the policy prior to the implementation of the tariff approach and the decision of the House of Lords in Doody based on that approach. In addition, if a prisoner is expressly told that his tariff is “x” years, even if this qualified by the word “initial”, it is difficult to treat the legitimate expectation as being limited in the way Lord Scarman has described. This is confirmed by the citations I have already made from Doody.
The next case to which reference should be made is the case of R v The Home Secretary ex parte Venables and Thompson [1998] AC 407. This case did not deal with prisoners who are subject to a mandatory life sentence but children and young persons who have been ordered to be detained during Her Majesty’s pleasure. The statutory provisions and the policies which were adopted in relation to those who were ordered to be detained during Her Majesty’s pleasure were closely allied to those which apply to adult offenders. Indeed it was one of the grounds on which the minors succeeded on their appeal. The policy adopted by the Home Secretary was unlawful because it precluded any regard being had to how a child progresses and matures during his detention. While the considerations that are relevant in this appeal and those that were relevant on the appeal in the Venables case are not identical, it is relevant to note that in his speech Lord Goff said:
“In my opinion the only way in which the conflict can be resolved is by recognising that, if the Secretary of State implements a policy of fixing a penal element of these sentence of a mandatory life prisoner pursuant to his discretionary power under Section 35, he is to this extent 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 exercising the same function. (490 G-H)”
It is also relevant to note the similar remarks made by Lord Steyn and Lord Hope of Craighead. Lord Steyn described the Home Secretary in fixing a tariff as “carrying out, contrary to the constitutional principle of separation of powers, a classic judicial function” which meant that “like a sentencing judge the Home Secretary would not act contrary to fundamental principles governing the administration of justice” (p526). Lord Hope made it clear that “If the Secretary of State wishes to fix a tariff for the case – in order to replace the views of the judiciary with a view of his own about the length of the minimum period – he must be careful to abide by the same rules”.
These statements were not made in respect of altering tariffs but in the context of the Secretary of State taking into account information which should have been treated as irrelevant.
On this subject Lord Browne-Wilkinson took a different view and indicated that courts should be careful not to impose “judicial procedures and attitudes on what Parliament has decided should be an Executive function” (p.503D). He did however earlier indicate that what had saved Mr Brittan’s ‘s policy from being unlawful was that the policy contained within it “the flexibility”, in exceptional circumstances, to have regard to relevant circumstances and such circumstances included not only those factors relevant to the culpability of the offence but also “other relevant factors such as prison record, personal or family circumstances”.
The final case to which it is necessary to refer is the R v Secretary of State for the Home Department ex parte Pierson [1998] AC 539. In this case the courts were considering the position of a prisoner serving a life sentence where the tariff had been fixed at 20 years although he was informed that 15 years would have been appropriate to a single premeditated offence but he had committed a double murder requiring the longer period. In response to his representations, the Secretary of State subsequently accepted that the murders had been unpremeditated and part of a single incident but despite this the Secretary of State considered 20 years was still appropriate. On this approach, the Secretary of State was changing 15 years to 20 years. At first instance, the decision of the Secretary of State was quashed. The Court of Appeal allowed an appeal but the House of Lords reversed the decision of the Court of Appeal. Lord Hope and Lord Steyn decided that the Home Secretary did not have the power to increase a tariff lawfully fixed. Lord Lloyd took quite the opposite view. Lord Browne-Wilkinson again pointed out that Parliament having 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. He then went on to consider whether there is any principle of construction which requires the court in certain cases to construe general words contained in a statute as being impliedly limited and he said that there was such a principle. He said:
“It is well established that Parliament does not legislate in a vacuum; Statutes are drafted on the basis that the ordinary principles of the common law will apply to the express statutory provisions: …. as a result, Parliament is presumed not to have intended to change the common law unless it has clearly indicated such an intention either expressly or by necessary implication: … this presumption has been applied in many different fields including the construction of statutory provisions conferring wide powers on the Executive.”
Lord Browne-Wilkinson then refers to the implication that Parliament requires the decisions to be made in accordance with rules of natural justice. However he indicated that while he found it distasteful that a prisoner who has been told the appropriate period of punishment for his crime can then be told many years later that such punishment has been increased he went on to indicate that he could find no general principle of non aggregation of penalties and on that basis, he then concluded that:
“It is therefore clear that, while the law leans against any increase in penalty once imposed, there is no general principle that such an increase is contrary to law. In my judgment there is no absolute principle against aggravation of penalties and therefore no ground for limiting the general words of Section 35 so as to preclude the Home Secretary from adopting the 1993 policy … under which the tariff period can be increased”.”
Lord Browne-Wilkinson made those remarks after considering the decision of the Customs and Excise Commission v Menocal [1980] AC 598, a case in which the House of Lords made it clear that the Crown Court has no power to vary or rescind a sentence except under an express statutory power. I speculate, without knowing the answer, that if the principle relied on had been expressed more broadly based on due process Lord Browne-Wilkinson might have taken a different view. This is because it is clear, in my judgment, that courts, because of the principles of fairness and due process, have never increased sentences once fixed at least in the absence of new circumstances without express statutory authority permitting them to do so. An appeal is different. If the process is one which includes an appeal the requirements of due process are met. The appeal must however be heard with due expedition.
Lord Goff decided the matter in favour of the prisoner on the basis of his interpretation of the then policy. However reading his speech as a whole, I have no doubt that it was implicit in his approach, that he was accepting that the Secretary of State could adopt a policy which justified his increasing the tariff. He did not however rule out the possibility of the prisoner being able to invoke the principle of legitimate expectation notwithstanding Lord Scarman’s speech re Findlay .
Mr Pannick submitted that under the current policy the Secretary of State or his successor would not need to find any new circumstance in order to justify his decision to increase the tariff. He could do so on any review because evaluating the previous facts afresh he recognised that his previous evaluation was in error. I can only see support for this approach in the decision of Pierson in the speech of Lord Lloyd which is not supported by the other speeches. Such an approach would be arbitrary in the extreme and not in accord with the requirement of substantive natural justice or due process or with my interpretation of the Secretary of State’s own policy. This accepts that the tariff will only be increased exceptionally. That requires some exceptional circumstance. It cannot be right to regard the policy as permitting changes merely because on a numerical basis the number of cases where there is an increase is small. This would not be a rational approach. What can be an exceptional circumstance has to be judged by the Home Secretary looking at the circumstances as a whole of the individual prisoner and asking himself whether in those circumstances, it is right to regard the case as being one which because of exceptional circumstances justify an increase. The exceptional treatment may possibly, as in Pierson, be initiated by the Secretary of State himself making a mistake but this does not derogate from the requirement of there having to be exceptional circumstances. The fact that a task is entrusted to a minister rather than a judge does not change the nature of the task, though it does enable the minister to bring to bear, when performing the task, experience and information which differ from those which will be available to a judge.
If my interpretation of the policy statement is incorrect, and it purports to entitle the Secretary of State to increase a tariff without there being any change of circumstance, albeit exceptionally, I would regard the policy as being unlawful. In his submissions to the court Mr Fitzgerald rightly placed great emphasis on a passage of Lord Justice Hoffmann in the case of ex parte McCartney . That is a case involving a discretionary life sentence. However at page 9 of the transcript Lord Justice Hoffmann said:
“I think it offends against basic principles of justice that the sentence should be fixed retrospectively 15 years later by reference to the view taken of the seriousness of the offence in the circumstances then prevailing. It offends even further if the Home Secretary is, as Mr Pannick submitted … [entitled to] take into account other matters such as public confidence in the way the criminal justice system deals with the IRA.”
I would apply this passage to all life prisoners. What is critical is that we are not concerned here with a normal ministerial discretion but a discretion as to how a sentence of a court which deprives a person of his liberty is to be administered. Such a discretion has to be exercised in a manner which is peculiarly sensitive to the requirements of justice.
What I have said so far indicates how I answer the three questions I have posed.
The Application of the Policy to the Appellant
On the assumption that the policy is lawful, the next question which arises is as to whether this decision of the Secretary of State is unlawful because of the manner in which he applied his policy in the case of the appellant. Here I regard it as unfortunate that so far the Secretary of State has not been able to consider all the relevant circumstances, which must include the period of imprisonment which the appellant has already served and the manner she has responded to her crimes during that period. Further, there has to be taken into account the extent to which she was led to believe that there was a finite period which she would have to serve by way of retribution and deterrence.
I have already indicated that I do not regard the decision in re Findlay as being decisive as to whether or not the tariff which has been fixed can be departed from. It depends on the relevant facts. These can be summarised here as being as follows: In January 1985 Mr Brittan decided upon a 30 year tariff. This however was a provisional conclusion. It was made at the same time as the provisional tariff in the case of her co-defendant was fixed at 40 years. At the time Mr Brittan reached that view, it was anticipated that further consideration would be given to the duration of the tariff for the purposes of the next formal Parole Board review.
It was apparently unusual for a tariff to be described as provisional and this was done only in a most serious case. The appellant was not aware that this provisional tariff was set at the time. However she knew that her case was being considered by the local review committee in 1979, 1982 and 1985. She says that she thought that her tariff was between 25 and 30 years because no-one, as far as she was aware, had ever been recommended for any longer period. In 1985 she was told that she would not be reviewed for another five years and she was aware that her co-defendant, Ian Brady, was not to be reviewed for a further period of 10 years. Her understanding was that her tariff was not more than 30 years.
In July 1990 her tariff was increased to whole life by the then Home Secretary Mr David Waddington without her knowing and on the next review in September 1990 she was told that her case would be reviewed in five years time. In deciding to increase the tariff to that of life, the Home Secretary took into account the confession that the appellant had made to the police in February 1987 which referred to her greater involvement as well as mitigating factors.
The appellant could not remember being shown Mr Brittan’s Parliamentary statement of March 1985. This indicated that there would be a formal review after 17 years in the case of those whose tariff was set at a period of 20 years or longer but the review should not in any way imply that 20 years had been set “as a period necessary to meet the requirements of retribution and deterrence”. Mr Brittan added that he had asked the Parole Board to consider the cases of the appellant and her co-defendant but he expressly stated:
“The review of these cases does not mean either that the periods of retention necessary to meet the requirements of retribution and deterrence had been completed or are near completion; or that the Parole Board will recommend the release of either prisoner; or that I would necessarily accept such a recommendation if it were made”. “
In March 1989 the appellant petitioned the Home Office about her date of release. Not being satisfied by the reply that she received on 28 July 1989 on the following day she wrote to the Home Office a letter which contained a plea asking WHAT IS MY TARIFF DATE , please? She did not receive a reply and was unaware of the whole life tariff until December 1994.
The appellant’s letter of 29 July 1989 makes it clear how important it was for her to know what her tariff was. In future thanks to the decision in Doody prisoners will not be kept in the dark as she was. However, the fact that she was never told of the 30 years provisional tariff, means that she is in no better position than the prisoners in re Findlay to contend that she had a legitimate expectation binding on the Home Office, either that she had a fixed term tariff or a fixed term tariff provisionally fixed at 30 years which prevented the Home Secretary determining that the proper tariff was a whole life tariff. If she had been told of the provisional tariff then I would distinguish the Findlay case.
Equally if the appellant had been told of the provisional fixing of a tariff in January 1985, and thereafter almost ten years were allowed to elapse before she was invited to make representations on the subject of a whole life tariff, I would have regarded it as contrary to due process or an abuse of process and substantively unfair to change the tariff. By December 1994 she had already served 28 years imprisonment and assuming she had a tariff of 30 years then she could legitimately expect that she had served the required period to meet retribution and deterrence. If it had been suggested that the 30 year period was provisional, she would have been entitled to respond that it ceased to be provisional as a result of the passage of time. In answer to a suggestion that to prevent the Secretary of State changing his mind would defeat the intention of Parliament, she would justifiably have been able to say that on the contrary the Secretary of State, by seeking in those circumstances to change her tariff so fundamentally, was acting contrary to the intention of Parliament. When Parliament confers a discretion on the Secretary of State unless it uses language which indicates clearly a different intention, it can be assumed not to intend the Secretary of State to act unfairly or otherwise than in accordance with the common law principle of due process.
Does it make any difference that the appellant was not aware of the fixing of the provisional 30 year tariff in the whole of the circumstances of this case? I am bound to say that this is a question which has caused me some difficulty as she had every reason to believe that she had a fixed tariff. However my conclusion is that it does make a significant difference. Due process or abuse of process is all about fairness. If a prisoner has not been told her tariff, then she is less prejudiced by the fact that before she learns of the tariff it is changed. If it is lawful for the Secretary of State to determine a whole life tariff, then in my judgment the unfairness or abuse of process only arises as a result of changing a fixed tariff to a whole life tariff when the prisoner has been told previously of the fixed tariff. In addition in this case her confession created a new situation and as the tariff was provisionally fixed, a new situation could justify an alteration in the tariff.
Is the whole life tariff unreasonable?
I would start my consideration of this question by recollecting that at the time her offence was committed, the norm for murder was a tariff of 12 years. It could be less than 12 years it could be more. I also take into account that when the tariff was changed to whole life, she had already served just over 24 years and she was then of an age when it was not improbable that she could live another 30 or even 40 years. That means a possible total of 60 or 70 years in prison. In addition it was a case where her co-accused’s conduct was even more grave than hers. She had, however, made a confession which showed her involvement was greater than had previously been thought although she was alleging that she was being dominated by her co-accused.
If the announcement of a whole life tariff meant, absent fresh circumstances, that the Secretary of State had decided that she should spend possibly more than double the provisional tariff of 30 years in prison , I am bound to say I would regard the period for punishment and deterrence as being disproportionate and unreasonable, if there was to be left out of account the question of public reaction and her own behaviour in prison.
On the other hand if I am right in believing that the correct interpretation of what had happened is that the Secretary of State was saying that this is such a bad case he was not going to fix a determinate tariff but would review the whole of her circumstances at appropriate intervals then I do not have the same difficulty. It seems to me with offences as horrendous as these it is perfectly reasonable for a Secretary of State to adopt the position that this is a case which is so bad that it would not be appropriate to fix a tariff. He could add, that there might come a time when he or a successor would come to the conclusion that to release the appellant would not involve any risk to the public, would not undermine the public’s confidence in the criminal justice system or result in the appellant not being sufficiently punished but, that time had not yet arrived so he would review the situation at five yearly intervals.
Mr Fitzgerald also complains about the Home Secretary’s reasons for his decision. As to this, I need say no more than I have considered the point and do not accept it. He made clear the way he was dealing with the position of her co-accused.
What then is the result? My conclusions are:
The whole life tariff is not unlawful but it is to be treated as a decision not to determine a fixed tariff for retribution and deterrence because of the seriousness of the offence.
The current policy does not entitle the Home Secretary to increase a fixed tariff in the absence of new circumstances.
Subject to 1 and 2 above, it was not unlawful for the present Home Secretary to fix the tariff of the appellant at whole life, that being subject to the appellant being entitled to make submissions as to the effect of her conduct during her period in prison and the Home Secretary being prepared to consider consulting the Parole Board.
His decision was not unreasonable, on the assumption he intends now to keep her case under review and is prepared to ascertain the views of the Parole Board and the judiciary when he considers their views would assist him to come to a decision.
He gave adequate reasons.
I would dismiss this appeal.
LORD JUSTICE HUTCHISON: I have had the advantage of reading in draft the judgments of the Master of the Rolls and Judge LJ and I agree that this appeal should be dismissed. However, given the significant differences in their approach to the problems posed by this case, I shall state my reasons. I propose to do so quite briefly.
I begin by emphasising the importance of distinguishing between statutory provisions and ministerial statements of policy. This case is essentially to do with the latter. By statute, the only sentence for murder is life imprisonment but the Secretary of State is given a discretion to release a mandatory life prisoner on licence. All that the statute requires is (expressly) that before doing so, he has received a recommendation for release from the Parole Board and consulted the Lord Chief Justice and the trial judge if available; and (impliedly) that he should give appropriate consideration to whether or not to refer any particular mandatory life sentence case to the Parole Board, and to their views and those of the Lord Chief Justice and trial judge. (I am not here considering compassionate grounds – Section 30 of the 1997 Act). There can accordingly be no doubt that the statute contemplates that there may be mandatory life sentence prisoners who will never be released, and that it is the Secretary of State who has the power and the duty to decide whether such a prisoner should be released.
Successive Home Secretaries have sought to spell out the policies which will guide them in the exercise of this power and duty. As one would expect (putting the matter for the moment in the most general terms) the policy Statements have embodied the notion, which is both rational and humane, that a murderer should not be released until he has served a term commensurate with the gravity of his particular crime, and then only if his release would not pose a significant risk to the public. It is implicit in that approach that, ordinarily at least, a murderer who has served a commensurate term and is considered not to pose a risk will be released on licence.
Mr Leon Brittan’s 1983 policy statement for the first time gave formal expression to this approach, by characterising the commensurate period as that necessary to meet the requirements of retribution and deterrence and accepting that once that period had been served the determining factor was risk to the public. There was no mention of any further criterion to which the Secretary of State would have regard when exercising his powers.
However Mr Michael Howard in July 1993 and the present Home Secretary, Mr Jack Straw in his policy statement of 10 November 1997 both identified a third criterion which was (I quote from Mr Straw’s statement) that release would depend:
“also on the need to maintain public confidence in the system of criminal justice”.
It is worth emphasising that it is not in reliance on this third criterion that Mr Straw has made the decision to which, effectively, these proceedings relate. In my view we are not concerned with the legality of that part of the policy statement of November 1997 – nor indeed have we heard any argument on that topic – and I refrain from expressing any view about it. The decision we are concerned with is one to increase the tariff, and involves the increase from 30 years to life of the period assessed as being appropriate for retribution and deterrence.
Like the Master of the Rolls, I consider that the concept of a whole life tariff is one which sits uneasily with the meaning ascribed to tariff in ministerial policy statements. By definition it is an uncertain period, which in itself seems at odds with the notion of a tariff. It may also, as Lord Woolf has pointed out, bear more severely on a young that on an older offender even though both are, in terms of culpability, deserving of similar punishment. However, I am not persuaded that such difficulties justify the conclusion that a whole life tariff is in some way inherently unreasonable and I feel driven to agree with Judge LJ that there may be cases in which the Secretary of State (without having to invoke the third strand of his policy, discussed above) is entitled to conclude that the requirements of retribution and deterrence cannot be met save by life-long detention of the particular offender. Having said that, I would respectfully agree with the Master of the Rolls that it would be preferable if tariffs were to be expressed in terms of years even though, in the case of a very long tariff, the effect might in practice be the same.
The principal issue in this case is whether the Secretary of State’s decision of 19 November 1997 to affirm his immediate predecessor’s whole life tariff was lawful. This in turn depends on whether Mr Howard’s decision of 3 February 1997 to set the appellant’s tariff afresh at whole life was lawful. In concluding, in respectful agreement with the Lord Chief Justice and my Lords that those decisions were lawful I make the following observations:
1 Unlike Judge LJ, I do not regard the matter as being determined by the decision of the House of Lords in Findlay’s case. I agree with the observations of the Master of the Rolls in regard to that authority, which seems to me in any event to be distinguishable on the ground that it was not a case which concerned the alteration of a tariff but rather the unfortunate consequences (for the prisoners) of Mr Brittan’s lawful new policy as to release on parole.
2 I consider that the debate as to whether the Home Secretary is exercising a quasi-judicial function or one analogous to sentencing is comparatively sterile. There is no absolute principle that sentences cannot be increased, as Judge LJ has demonstrated: but it cannot be doubted that when the Home Secretary (who in this context is to be regarded not as an individual but as the holder of a continuing office) makes a decision in the light of a full appreciation of the relevant facts, he is, under his policy statement, doing something which in a very real sense approximates to a sentence because it formally tells the prisoner (in broad terms) the length of time he is likely to have to serve.
3 Leaving on one side for the moment the peculiarity of the present case that the tariff was expressed to be provisional, it seems to me that – at any rate in a case where the tariff has not been communicated to the prisoner – the reservation by the Secretary of State of a right exceptionally to revise tariffs is not unlawful. This conclusion follows in my view from the decision in Pierson’s case , as to which I, like the Lord Chief Justice, regard it as being part of the reasoning of Lord Hope and Lord Steyn that the tariff there in issue had been both fixed and communicated. However, I am in full agreement with Lord Woolf MR that current policy, properly interpreted, does not entitle the Secretary of State to increase a tariff which has already been fixed, whether by himself or a predecessor, unless there has been a change in the circumstances. For example, such a change could be said to have occurred where, as here, new facts became known to the Secretary of State after he had set the original tariff. A decision to vary a tariff which has been set after due consideration in the light of all material facts and communicated and has not been characterised as provisional, simply because the current office-holder thought it was too short, ought not to be countenanced. It would fly in the face of the published policy, disappoint legitimate expectations and be unfair and unreasonable.
4 Because the appellant’s tariff had been expressed to be provisional as well as because it had not been communicated to her and because there has been a significant change in the circumstances bearing on her culpability, I do not consider that her challenge to the legality of the decision to increase the tariff to life can succeed.
5 I agree with what the Master of the Rolls has said as to legitimate expectation.
6 While the decision can be said to be severe, I do not consider that it can be characterised as perverse in the Wednesbury sense.
7 In my view the Secretary of state has given adequate reasons for his decision.
I would therefore dismiss this appeal.
LORD JUSTICE JUDGE: On 6th May 1966, when she was 23 years old, Myra Hindley and Ian Brady were convicted at Chester Assizes of the murders of Edward Evans and Lesley Ann Downey, a girl aged 10 years, and of being an accessory after the fact to the murder by Ian Brady of John Kilbride. She was acquitted of participation in his murder. She was sentenced to life imprisonment on each count of murder and seven years imprisonment for her involvement in the death of John Kilbride.
The case presented by the Crown was that Brady “was the initiator of these crimes, and the actual killer”; the appellant was “his willing accomplice, corrupted and dominated by him”. (per Lord Bingham of Cornhill CJ in his judgment in the Divisional Court [1998] 2 WLR 505 at 510.)
The assessment of the trial judge (Fenton Atkinson J) was contained in a letter to the Home Secretary dated 8th May 1966. He said about the appellant
“At present she is as deeply corrupt as Brady ……. One watched them day after day, looking for the smallest flicker of an expression indicating some shame or regret or realisation of the horror of what was being unfolded in the evidence, but it never came. There can be no doubt they tortured and later killed children because they enjoyed it and I am convinced that they regard those who are horrified by such conduct as ‘morons’ and beneath contempt. “
These observations no doubt carried, and still carry, particular weight with every Home Secretary who subsequently considered the case, not only because they represented the judgment of the trial judge who had seen both the appellant and Brady over a prolonged period, but also because the judge was at pains to recognise some distinction between them. He observed that
“Brady is wicked beyond belief without hope of redemption (short of a miracle), I cannot feel that the same is necessarily true of Hindley once she is removed from his influence.”
Events over 20 years later in the form of a narrative confession by the appellant of complicity in the crimes to which she had pleaded not guilty, and to other earlier murders with which she had not been charged, underlined the accuracy of the trial judge’s observations. All that however lay in the future and it will be necessary to examine the contents of the narrative given by the appellant in 1987 in the context of the submission by Mr Edward Fitzgerald QC on her behalf that the confession included, in addition, important matters of mitigation.
The sentence of life imprisonment imposed by Fenton Atkinson J on Brady and the appellant followed the mandatory requirements of the then newly enacted Murder (Abolition of Death Penalty) Act 1965, section 1(1) of which provides:
“………A person convicted of murder shall …….. be sentenced to imprisonment for life.”
Despite examination in argument of what was said contemporaneously during the course of Parliamentary debates by adherents of passionately held but contradictory beliefs about the proposal to abolish the death penalty, the analysis added nothing to the language of the section which is simple and clear. On conviction of murder only one sentence is permitted. The sentence of life imprisonment is obligatory, or mandatory. The sentence imposed by Fenton Atkinson J provided and remains the legal foundation for the appellant’s continued imprisonment.
Fenton Atkinson J did not exercise the power provided by section 1(2) of the Act and recommend the period of custody which should elapse before the appellant’s release. Whether he had or not, the sentence would have remained imprisonment for life, and any recommendation would have been no more than that, to be accepted or rejected by the Home Secretary. Shortly after the appellant began to serve her sentence, section 61(1) of the Criminal Justice Act 1967 came into force, providing that in cases of mandatory life imprisonment the Secretary of State, on the recommendation of the Parole Board and after consultation with the Lord Chief Justice and the trial judge, if available, might release such a prisoner on licence. The power therefore was subject to a positive recommendation from the Parole Board and consultation (but not the agreement) of the Lord Chief Justice and the trial judge. So far as adults were concerned, and subject to modifications in the statutory provisions relating to release on licence which had no relevance to a mandatory life sentence, these remained the appropriate statutory requirements until the Criminal Justice Act 1991 came into force on 1st October 1992.
Part II of the 1991 Act created a new statutory framework governing the early release of prisoners generally. In summary, section 33 imposed a duty on the Home Secretary to release short term and long term prisoners after specified proportions of their terms of imprisonment had been served, and section 35(1) granted him the power to release a long term prisoner after a shorter period than that specified in section 33. In response to the decision of the European Court of Human Rights in Thynne v United Kingdom [1990] 13 EHRR 666 a duty to release a prisoner serving a discretionary life sentence was imposed on the Home Secretary by section 34. The precise operation of this section does not require detailed analysis. For effective purposes once such a prisoner has completed the penal part of his sentence determined by the court, and assuming that the Parole Board directs release, he can no longer be detained. The Home Secretary cannot increase the period to be served for retribution and deterrence. That period was fixed by the sentencing judge. The essential question to be decided when the penal period has elapsed is whether the prisoner represents a risk to the public, something about which a trial judge cannot safely form a concluded view at the time he imposes sentence.
In contrast, for effective purposes, the power to release a prisoner serving a mandatory life sentence continued unchanged. Section 35(2) and (3) provided:
“(2) If recommended to do so by the Board, the Secretary of State may, after consultation with the Lord Chief Justice together with the trial judge if available, release on licence the life prisoner who is not a discretionary life prisoner.
(3) The Board shall not make a recommendation under sub-section (2) 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.”
These provisions remained effective until 1st October 1997 when sections 28-34 of the Crime (Sentences) Act 1997 were brought into force. The further modifications were designed to comply with the judgment of the European Court of Human Rights in Hussain v UK [1996] 22 EHRR 1, a case concerning a young offender sentenced to a mandatory term of detention during Her Majesty’s pleasure, but had no practical impact on the position of adults serving a mandatory sentence of life imprisonment.
Throughout the time when the appellant has been in custody the effect of the relevant statutory provisions has been that the mandatory sentence of life imprisonment could indeed mean what it said, that is, the whole of the remainder of the prisoner’s natural life, however long that might be. This sentence was imposed on her by the trial judge, as required by law, without statutory exceptions, and without regard to any personal mitigation. Even when murder is committed in circumstances with which a significant proportion of the public would have profound sympathy (for example, a genuine “mercy” killing at the exhortation of a pain riddled, terminally ill, beloved spouse, as a final gesture of love) the law must take its course. Whether the mandatory life sentence is appropriate in every case of murder is not in question in this appeal. At present it covers the entire spectrum of criminal culpability. The injustice of requiring that every convicted murderer should serve the same period in custody, irrespective of his true culpability, has at least in part been alleviated by the now well established practice of assessing the minimum period of imprisonment appropriate to satisfy the penal elements in the sentence.
Three critical distinctions between the mandatory and discretionary life sentence remain. First, the sentencing judge does not assess the penal period: nor does the Lord Chief Justice. They make recommendations. They do not pass a sentence which incorporates their recommendations. The Home Secretary remains responsible for the assessment and application of the penal period. Second, the position of the Parole Board is much more constrained. It must await a reference by the Home Secretary before making a recommendation, and it cannot direct release. Third, the Secretary of State is not under a duty to order release. As Lord Mustill emphasised in R v Secretary of State, ex parte Doody [1994] 1 AC 531, this discretionary power has been left by Parliament to the Home Secretary.
The present appeal is not concerned with the circumstances in which the Home Secretary may decide whether to exercise his power to order release after the appropriate penal period has been served when, for example, considerations of continuing risk or dangerousness, or public confidence in the administration of criminal justice, may bear on his decision. The single issue is the lawfulness of his decision that irrespective of any such considerations, Myra Hindley should be subject to a penal element or tariff period which should endure for the rest of her life.
In the Divisional Court Lord Bingham rejected the argument that it was unlawful for such a whole life tariff ever to be imposed. He observed, at p 518,
“I cannot for my part accept that argument. I can see no reason, in principle, why a crime or crimes, if sufficiently heinous, should not be regarded as deserving life long incarceration for the purposes of pure punishment. One can readily accept that in requiring a sentence of imprisonment for life on those convicted of murder Parliament did not intend sentence to mean what it said in all, or even a majority, of cases, but there is nothing to suggest that Parliament intended that it should never (even leaving risk considerations aside) mean what it said. When, in section 29 of the Crime (Sentences) Act 1997, Parliament again conferred a wide discretion on the Home Secretary to release mandatory life sentence prisoners, it did so in the knowledge (from Mr Howard’s statement of 7 December 1994) that some such prisoners were subject to whole life tariffs. Successive Lord Chief Justices have regarded such a tariff as lawful, and I share their view.”
I respectfully agree. There is no value in further elaboration. The language of the statute is clear. Even when the judge in open court expressly states the period that he recommends should be served before release is considered, this does not form part of the sentence, nor determine the relevant penal element. The sentence is life imprisonment. In my judgment the possibility remains that for the purposes of deterrence and punishment alone the criminal culpability involved in some cases of murder may lawfully permit imprisonment for life in accordance with the actual sentence pronounced by the trial judge.
It was not suggested that the Home Secretary’s power to order, or refuse, release may be exercised capriciously, and indeed Mr David Pannick QC readily conceded on behalf of the Secretary of State that, in the light of subsequent decisions in the House of Lords, it was no longer appropriate to regard his discretion as “unfettered”, the word used by Lord Scarman in Re Findlay [1985] AC318. In the sensible exercise of the Home Secretary’s power, attention would no doubt be paid to the value of a reasonable degree of consistency, not least so that (ignoring the element of future risk) different persons convicted of murder in roughly similar circumstances should not be incarcerated for significantly disparate periods, and in the interests of humane prison management for prisoners, for whom it is reasonable to provide at least some general idea of the prospect of eventual release. Throughout the decades of the appellant’s incarceration the practices and policies of Home Secretaries have developed and changed, sometimes on the basis of a perceived public interest, sometimes in response to the decisions of the courts, critical of some particular facet of the then current policy. Each change has no doubt had its effect on a significant number of prisoners. Once alerted to any new policy prisoners will inevitably reflect on the personal consequences of the changes, and almost equally inevitably, construe them in the manner most favourable to themselves. Subsequent changes in policy with adverse rather than advantageous personal consequences are bound severely to disappoint, dashing hopes sometimes reasonably based on the earlier policy.
This is critical to the main complaint advanced by Mr Fitzgerald that, even if a whole life sentence were permissible as a matter of law, it was unlawful for the Home Secretary to order it in the case of the appellant as it involved an increase in the tariff which had already been set. He submitted, in my judgment rightly, and indeed consistently with the approach of the Court of Appeal Criminal Division in R v Whittaker [1967] CLR 431, that the replacement of a determinate period of whatever length with a whole life tariff represents an increase in sentence. Although there are a number of strands to this argument, Mr Fitzgerald naturally focused his attention on policy changes which had adverse rather than favourable consequences for existing prisoners, and indeed, as I understood him, accepted that the prisoner might take advantage of a beneficial change in policy. If he is right, policy changes during the course of the progress of a sentence should not impact adversely on prisoners currently serving mandatory life sentences, but apply only to those on whom such sentences are imposed after the relevant policy comes into effect. Therefore the crucial question for consideration is whether the introduction of a new policy by the Home Secretary should be limited in its application to those prisoners sentenced after the announcement of the policy, or whether it extends to all prisoners including those currently serving their sentences.
In Re Findlay , two of the four appellants, Hogben and Honeyman, were convicted of murder, and in accordance with section 1 of the 1965 Act, sentenced to life imprisonment. After excellent reports from prison they were transferred to an open prison, and under the practice then in operation, their hopes of release were “understandably nourished”. Each anticipated that release on parole would follow in the “not too distant future”. In October 1983, on the day before the Home Secretary announced a change of policy, they were returned to a closed prison. The effect of the change of policy on them was “shattering”. Under the earlier practice they “had good reason ….. to expect release much earlier than became likely after its adoption”.
Having been announced at a party conference the relevant policy was repeated in Parliament. Its effect on the parole arrangements for those serving sentences for “offences of violence or drug trafficking” was increased stringency, the terms of custody to be served by such prisoners being longer than previously anticipated. The new policy was expressly directed to those already serving sentences.
For life sentence prisoners new procedures for separating the penal element from risk considerations were introduced. In this policy statement the Home Secretary said nothing about whole life tariffs in respect of the penal element of mandatory life sentences. That concept lay in the future. Although he decided that prisoners who had already been given “a provisional date of release” would be unaffected by the new arrangements, Hogben and Honeyman, and two other prisoners, were adversely affected because their “release in the relatively near future would not have accorded with my view of the gravity of their offences …..” In practical terms the then Home Secretary was applying his own judgment to and increasing the penal element in their sentences.
It was argued that the new policy was unlawful and that the four prisoners should have been excepted from it. The submission was rejected in the House of Lords in a speech by Lord Scarman with which each member of the House agreed. To have accepted the submission would have involved hampering or preventing ministerial changes of policy. That was not the intention of Parliament.
Some factual distinctions between the appellant and the unsuccessful appellants in Findlay can be identified. In particular, in 1982 and 1983, when each was transferred to an open prison no formal tariff system was in operation. However the reality is that Hogben and Honeyman reasonably believed that their period in custody was shortly coming to an end and their expectations were suddenly dashed by change of policy. The application of the new policy meant that, close to their anticipated dates of release, their periods in custody were lengthened. Although more stark, in principle the appellant’s situation cannot reasonably be distinguished.
Mr Fitzgerald suggested that, if not distinguishable, Re Findlay had been rendered obsolete or had been over-ruled by subsequent decisions in the House of Lords, which had considered the acceptable practices to be followed on two subsequent occasions in the context of mandatory sentences life imprisonment ( R v Secretary of State for the Home Department, ex parte Doody [1994] 1 AC 531 and R v Secretary of State for the Home Department, ex parte Pierson [1998] AC 539) and detention during Her Majesty’s pleasure under section 53(1) of the Children & Young Persons Act 1933 (R v Secretary of State for the Home Department, ex parte Venables [1998] AC 407). Re Findlay was cited in all three cases.
In ex parte Doody , in a speech with which each member of the House of Lords agreed, Lord Mustill concluded that Re Findlay did not preclude the courts from considering whether the requirements of fairness might not result in the creation of “new rights” for prisoners, but cautioned “that Parliament has entrusted not only the making of the decision but also the choice as to how the decision is made” (p561) to the Home Secretary and warned himself that the courts should not “impose on a statutory general discretion constraints which Parliament has chosen not to create.” (p 562)
The policy of fixing a penal element was not called into question, but the broad discretion of the Home Secretary did not permit him to act contrary to basic principles of “fairness”, assessed in the context of the statute creating the discretion and “the shape of the legal and administrative system within which the decision is taken”. Lord Mustill touched on a consideration, developed in subsequent cases, that the assessment of the penal element by the Home Secretary “began to look much more like a sentencing exercise”, than the broad implementation of a discretionary power.
The next case to reach the House of Lords was ex parte Venables . Argument was concluded on 30th January 1997 and judgment reserved, and shortly afterwards, on 10th March the House of Lords, identically constituted, began the hearing of the appeal in ex parte Pierson . Next day, 11th March, judgment was reserved. The speeches in ex parte Venables became available on 12th June: those in ex parte Pierson , on 24th July. The two decisions underlined the rapidly developing features in this area of the law, and a divergence of views emerged.
The essential feature of the decision in ex parte Venables was that a sentence of detention during Her Majesty’s pleasure under section 53(1) of the Children & Young Persons Act 1933 was not to be equated with a mandatory life sentence imposed for murder on an adult. Lord Steyn, at p 524, assumed without deciding, that
“The Home Secretary was entitled to apply a ‘practice’ that a prisoner serving a mandatory life sentence has forfeited his life to the state and that the ‘presumption’ must be that the prisoner will spend the rest of his days in prison.”
The obligation on the Home Secretary to approach the assessment of the tariff period as a sentencing decision was underlined by Lord Goff of Chieveley, at p 490:
“……….. If the Secretary of State implements a policy of fixing a penal element of the sentence of a mandatory life prisoner pursuant to his discretionary power under section 35, he is to this extent 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 exercising the same function.”
Both Lord Steyn and Lord Hope of Craighead applied the same principle, Lord Steyn referring to it as a “classic judicial function”, Lord Hope identifying “the characteristics of an orthodox judicial exercise”. Therefore in making his decision about the penal period the Home Secretary was required to ignore, as sentencing judges must ignore, public clamour intended to influence his decision. Re Findlay did not arise for consideration, nor did the question whether new policies apply to existing prisoners, or solely to prisoners subsequently sentenced.
In ex parte Pierson the facts briefly were that in 1988, after Pierson was convicted of two murders on a single occasion, the Home Secretary fixed at 20 years the appropriate period for retribution and detention before release could be considered. In doing so he rejected the recommendations of the trial judge and the Lord Chief Justice. In July 1993, following the decision in ex parte Doody , he informed Pierson of his conclusion, justifying it on the basis that although 15 years would have been an appropriate period for a single premeditated offence, Pierson had committed two murders. However after considering representations on Pierson’s behalf he accepted that the crimes had been unpremeditated and formed part of a single incident. Despite this conclusion he adhered to his earlier view: the appropriate period remained 20 years.
Pierson sought judicial review on the basis of irrationality. He was successful before the judge, but the Court of Appeal allowed the appeal by the Secretary of State. Pierson’s appeal to the House of Lords was successful. In the Court of Appeal Mr Fitzgerald for Pierson argued that Re Findlay no longer applied (p 543) and Mr Pannick responded by contending that it had not been displaced and remained good law (p 544). Both counsel cited Re Findlay in the House of Lords, no doubt to similar effect.
Mr Fitzgerald also argued for what was described as the “non aggravation principle of sentencing”, that “the same sentencing authority should not aggravate or increase its own punishment simply because it subsequently reappraises the gravity of the offence”. This submission had been rejected by the Court of Appeal. In the judgment of the Court handed down by Sir Thomas Bingham MR, in December 1995, it was observed, at p 555:
“….. The court cannot cut down the wide discretion conferred by Parliament by attaching non-statutory conditions not required by procedural fairness to its exercise. The Home Secretary has done no more than indicate that the power to increase a penal term will only be exercised exceptionally. That can, we think, mean no more than that the power to increase will be exercised by way of exception to the general rule that a term once fixed will not be altered. It may also mean that the power to increase will be exercised infrequently. The Home Secretary has not defined or restricted the occasions upon which he will see fit to depart from the general rule and we do not see how this court, consistently with statute and the Doody case, can take upon itself to do so. If, by way of exception to the general rule that a penal term once fixed remains fixed, the Home Secretary revises upwards a term fixed by his predecessor (which is only “an initial view”) on the ground that it does not adequately meet the requirements of retribution and deterrence, there is nothing in law to stop him.”
At the risk of inadequately paraphrasing him, Lord Goff concluded that the appeal should be allowed on the basis that the penal element in Pierson’s sentence was fixed in accordance with the Home Secretary’s policy announced on 23rd July 1987. Its effect was that Pierson would expect, save in exceptional circumstances, that the penal element in his tariff would not be increased. At the outset of the argument the Home Secretary maintained that he had not in fact increased it. Plainly he had. Having accepted the absence of premeditation, he failed to reduce the 20 year period arrived at on the basis that the offences had been premeditated, an aggravating feature without which Pierson had been informed that the tariff period would have been 15 years. He sought then to argue that he was acting in accordance with a subsequent policy, declared on 27th July 1993. The relevant passage reads:
“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, 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.”
Lord Goff concluded that this policy had no application to Pierson’s case and held that the Home Secretary’s re-affirmation of the 20 year period was unlawful. He did not however express doubts about the lawfulness of the policy dated 27th July 1993, nor found his conclusion on the proposition that Re Findlay was obsolete. His language is to the opposite effect. He said, at p 568:
“On the basis of that statement (that is, the statement dated 23 July 1987) the applicant 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 [1985] AC 318, 338 per Lord Scarman.”
He later added, at p 569,
“The Secretary of State did not claim to be entitled to depart from the policy applicable in the applicant’s case. Had he done so, the question would have arisen whether the applicant could invoke the principle of legitimate expectation in the light of Lord Scarman’s speech in Re Findlay [1985] AC 318, 338.”
This is not language appropriate for indicating an intention to distinguish or over-rule a previous decision of their Lordships’ House. Moreover, subject to a possible argument about legitimate expectation, it acknowledged that a new policy would apply to existing prisoners.
Lord Browne-Wilkinson applied the principle in Re Findlay . After reciting Lord Scarman’s observation about the legitimate expectation of a convicted prisoner, he said, at p 572
“The question in this case, therefore, is whether the discretion conferred by section 35 of the Act of 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.”
He concluded that it did.
Lord Lloyd of Berwick also referred expressly to Re Findlay , quoting the same passage from the speech of Lord Scarman as Lord Browne-Wilkinson . Re Findlay had decided the question that even if a date for release “had been set, a prisoner can have no legitimate expectation that it will not be deferred”. Although both Lord Browne-Wilkinson and Lord Lloyd recognised the unfairness of a policy which authorised an increase in the period of custody of which the prisoner had already been informed, each concluded that the Home Secretary was permitted to operate such a policy.
Lord Steyn did not expressly consider Re Findlay . He based his consideration “on the proposition that the Home Secretary had no general power to increase a tariff fixed and communicated” (p 592) Lord Hope of Craighead considered that the principle continued to apply to what he described, at p 601, “as a legitimate exercise of an administrative discretion”, but expressed concern at rigidity in its application and rejected it as providing a proper basis for any general power permitting an increase in sentence where a more lenient sentence had been fixed and communicated to the prisoner.
“………. The decision to increase the minimum period 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.” (p 604)
While Lord Steyn left open the question whether the power to increase sentence might be exercised in exceptional or special circumstances, Lord Hope concluded that even after the tariff decision had been issued and communicated, in exceptional circumstances, it might nevertheless properly be increased. This view, consistent with Lord Goff’s observations, was plainly implicit in the conclusions of Lord Browne-Wilkinson and Lord Lloyd.
In my judgment the speeches in ex parte Pierson do not sustain the argument that Re Findlay is obsolete or undermined. Indeed I doubt whether the House of Lords would consider it appropriate for an inferior court so to treat its earlier decisions where the House itself had the opportunity to say so expressly, and did not do so. The reasoning which most clearly supports this proposition is found in the speech of Lord Steyn. Lord Hope, too, plainly regarded the principle in Re Findlay as too narrow to permit the alteration of the tariff period in the circumstances which obtained in ex parte Pierson . Yet neither suggested that the individual cases with which Re Findlay was concerned – in particular Hogben and Honeyman – would have been decided differently as a result either of subsequent judicial development of the principles relating to legitimate expectation, or the introduction of the tariff system and the subsequent identification of the close similarity between fixing the tariff and the sentencing process. The distinction between Pierson, in whose case the tariff was fixed and communicated, and despite a demonstrable misconception of the facts by the Home Secretary, nevertheless maintained without any appropriate discount to allow for the manifest error, and Hogben and Honeyman, is that despite any reasonable anticipation they may have entertained, their dates for release had never been formally notified to them.
Lord Browne-Wilkinson and Lord Lloyd applied the Findlay principle, and Lord Goff appears to have endorsed it. This was consistent with the views of the Court of Appeal. Each of them accepted that new policies would apply to existing prisoners, and the objections of Lord Steyn and Lord Hope were predicated on the proposition that the new policy would indeed apply to prisoners currently serving mandatory life sentences, and for that reason, was required to measure up to the appropriate minimum requirements of fairness and compliance with proper sentencing principles.
Despite their personal distaste for the general unfairness of an effective increase in the tariff neither Lord Browne-Wilkinson nor Lord Lloyd was prepared to disapply the policy or treat it as unlawful, and neither accepted that there was a general principle of “non-aggravation” of penalties.
No detailed argument on R v Secretary of State for the Home Department, ex parte Stafford [1998] 3 WLR 372 was addressed to us. It is necessary only to notice that Stafford’s challenge to the lawfulness of the Home Secretary’s decision to detain him after the expiry of the penal element of the mandatory life sentence failed. Although the introduction and development of policies relating to the fixing of a penal tariff and the close analogy with judicial sentencing decisions was again underlined, ex parte Stafford does not suggest that Re Findlay had been or was over-ruled.
On the foundation of the speeches of Lord Steyn and Lord Hope in ex parte Pierson , Mr Fitzgerald argued that the decision to raise the appellant’s penal period to a whole life tariff defeated the legitimate expectation created in her by the overall conduct of the Home Office and the Parole Board over the years.
I shall not repeat Lord Bingham CJ’s summary of the facts which led to the conclusion that this expectation was not based on the fixing and communication to her of any tariff.. The appellant was sentenced to life imprisonment before the concept of a penal tariff existed. So no tariff was fixed. No doubt in common with all prisoners who were then sentenced to a mandatory term of life imprisonment, she anticipated that the time would eventually come when she would be released. Once the tariff system was introduced she herself was understandably anxious to discover the level at which her personal tariff had been set. That indeed was what she asked “in the plainest possible English”, in the context of the policy statement of 23rd July 1987, at the end of July 1989. “What is my tariff date, please?”. This question demonstrates that whether or not she believed that a tariff had been fixed, it had never been communicated to her. Nothing said or done thereafter by the Home Secretary could have led her to conclude that she had, at last, from her point of view, been given the information and assurance she had been so desperately seeking.
The concept of legitimate expectation has continued to develop since Lord Scarman referred to it in the course of Re Findlay : so for that matter has the approach of the court to the exercise by the Home Secretary of his powers under the legislation affecting mandatory life prisoners. Nevertheless neither Lord Steyn nor Lord Hope based his objection to the decision by the Home Secretary in ex parte Pierson on the general concept of legitimate expectation, but rather focused on the specific features of a fixed and communicated, quasi judicial, sentencing decision. If, absent these features, Pierson’s appeal would have been allowed, it is difficult to see why they were mentioned and the impact of judicial developments in this area of law on the cases of Hogben and Honeyman was not addressed. In my judgment it is not possible for this court to progress from the particular features which led Lord Steyn and Lord Hope in ex parte Pierson to express themselves as they did, deprecating an increase in a tariff which had already been fixed and notified, to the conclusion that as a matter of principle it was unlawful for a whole life tariff to be applied to the appellant because she had not previously been warned of the risk that such an assessment might one day be made.
Mr Fitzgerald’s argument, carried to its logical conclusion, means that since the introduction of the policy of assessing the penal tariff the mandatory sentence of life imprisonment under the 1965 Act forms but the first, public, part of the sentencing process, the second, a separate, private, sentencing decision, thereafter immutable upwards, but not downwards, reached by the Home Secretary. Despite the similarities between the two processes, and the importance of the Home Secretary observing proper sentencing principles when making his determination, the processes are analogous, not identical. In particular, unlike the sentence imposed by the judge, there is no provision for an appeal against sentence, and no hierarchy of courts to reconsider his determination. Subject to judicial review if he acts unlawfully, or in breach of his own policy, or for an impermissible consideration or improper motive, or indeed irrationally, the Home Secretary is also answerable to Parliament, both for current policies and their development and application generally, and by way of exception, in individual cases. In these ways, but not by way of appeal against a sentencing decision, the continuing process by which the Home Secretary considers and monitors each mandatory life sentence is kept under review. Recognition of these principles underlines Re Findlay and the subsequent development of this area of the law in the House of Lords.
If the appellant had in fact been given notice of her tariff, or if I am wrong about the limited application in this context of the speeches of Lord Steyn and Lord Hope, then the validity of the current policy of 10th November 1997 would arise for consideration. The policy enables the Home Secretary to examine the tariff period after it has been set and “exceptionally to revise ……. the minimum period, ……. 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 would not have been satisfied at the expiry of the period which had previously been determined”. The procedures require notification to the prisoner of any proposal to increase the tariff, and for reasons to be given for any subsequent decision to do so. The starting point is that the tariff period should not be increased. It may only be revised upwards, “exceptionally”. Any revision must be justified with reasons. Therefore the policy itself prevents the Home Secretary from lengthening the tariff period on a personal whim, or in response to clamour of the kind criticised in ex parte Venables , but, consistently with the views of Lord Goff and Lord Hope, and the implied support of Lord Browne-Wilkinson and Lord Lloyd in ex parte Pierson , permits an increase in the tariff period in exceptional circumstances. As reasons must be given for any exceptional decisions they would be susceptible to judicial review: so would a decision for which reasons were not given. In my judgment this policy, with its express, and significant, limitations on the authority of the Home Secretary to alter tariff periods, is lawful.
In this context two further strands of Mr Fitzgerald’s submissions require specific attention. First, he re-argued the principle of “non aggravation” about which there had been emphatic disagreement in the House of Lords in ex parte Pierson.
Before the enactment of the Criminal Appeal Act 1907 no proper mechanism for dealing with appeals against sentence imposed at quarter sessions or assizes existed. The pressure, and conflicting views, which eventually led to the procedures enacted in the 1907 Act are illuminatingly set out in the paper published in 1979 by Dr David Thomas of the Institute of Criminology at the University of Cambridge, “Constraints on Judgment”, at pp 75 ff. He identifies a significant body of opinion in favour of permitting what eventually became the Court of Criminal Appeal to have the power to increase sentences, both to encourage consistency, and to reduce the perceived injustice of an inadequate sentence. In due course the Court of Criminal Appeal was granted jurisdiction both to reduce and increase sentence on appeal. The power to increase sentence survived for over half a century. It was used very infrequently, but regularly. On occasions determinate sentences were increased to life imprisonment. (For example, R v Holmes & Holmes [1955] CLR 578.) So far as quarter sessions and assizes were concerned this power was abolished by the Criminal Appeal Act 1966.
The Report of the Interdepartmental Committee on the Court of Criminal Appeal, chaired by Lord Donovan, which recommended its abolition, concluded at paragraph 204:
“…………… that the undesirable features inseparable from the existence of the present power to increase sentence outweigh the benefits resulting from the circumstance that in a very few cases each year an adequate sentence is substituted for an inadequate one. The extent to which the power operates as a deterrent against frivolous appeals cannot, in the absence of experience, be reliably estimated. The effect of the power as means of avoiding disparity of sentence is quite negligible. In these circumstances we think that the power should be abolished, if only experimentally. If this were to lead to a flood of unmeritorious appeals against sentence the matter could be reviewed.”
Given the Committee’s powerful antipathy to the “idea that the prosecution should be able to appeal against a sentence imposed at trial” this last observation does not suggest that the Committee identified any sentencing principle of “non aggravation”. Not very much more than 20 years later, the objections of the Committee notwithstanding, section 36 of the Criminal Justice Act 1988 permitted the prosecution (through the Attorney General) to appeal against “unduly lenient” sentences in specified offences. The Court of Appeal Criminal Division cannot increase sentence on an appeal by the prisoner, but may do so on the application of the Attorney General under the 1988 Act. Despite stringent safeguards, and in particular a limited period in which an application may be started, there is now nothing unusual about the replacement of an unduly lenient determinate sentence with a discretionary sentence of life imprisonment. (For recent examples, see Attorney General’s Reference No 6 of 1993 [1994] 15 CAR(S) 375 and Attorney General’s Reference No 76 of 1995 [1997] 1 CAR(S) 81). Therefore throughout most of the period since the creation of a system for appeals against sentence, the process has included a power to increase sentence, formerly when deciding an appeal by a defendant seeking a reduction of sentence, and presently, on application by the prosecution, irrespective of any appeal by the defendant.
In the meantime the power of the Crown Court to increase sentence on an appeal from the magistrates has remained unchanged, and indeed was confirmed by section 48(4) of the Supreme Court Act 1981. The only relevant limitation is that the power must not exceed that which the magistrates had jurisdiction to impose.
Mr Fitzgerald rightly emphasised that save in exceptional circumstances, the power to increase sentence was not and is not open to a court of equal jurisdiction. The former common law power by which a sentence might be increased at any date until the end of the assize or sitting of the quarter sessions, was preserved in the Crown Court by section 11 of the Courts Act 1971 (now section 47(2) of the Supreme Court Act 1981). Sentences may be varied or rescinded within 28 days after they have been passed. Thereafter a Crown Court judge cannot alter the sentence. He is functus. ( R v Menocal [1980] AC 598) This power would only be exercised to order an increase in sentence in exceptional circumstances: similarly, with the power of the Crown Court to increase the sentence imposed by the magistrates. Without the benefit of the opinions of Lord Steyn and Lord Hope, I should have unhesitatingly rejected Mr Fitzgerald’s submission. What he has shown is that the sentencing court’s own jurisdiction to increase sentence is rarely if ever exercised, and, in any event in the Crown Court, lapses 28 days after the imposition of the sentence. Nevertheless the sentencing process does not preclude such increases. Accordingly, I agree with Lord Browne-Wilkinson and Lord Lloyd that he has failed to establish that “non aggravation” is contrary to sentencing principle.
In the result however I doubt whether this argument is as fundamental as Mr Fitzgerald contended. The question is whether in the exercise of the powers entrusted to him by Parliament, the Home Secretary is entitled to adopt a policy which permits an effective increase in sentence. Re Findlay suggests that such a policy would not be unlawful. Even if the development of the relevant principles in the House of Lords in subsequent cases may have constrained the very wide powers of the Home Secretary endorsed in Re Findlay , they do not lead to the conclusion that the existence of a power effectively to increase sentence, to be exercised “exceptionally”, and justified by reasons, would be unlawful.
The difficulties of treating the ordinary sentencing process in court and the determination of the penal tariff as if they were identical were illustrated by the final strand of Mr Fitzgerald’s argument, arising from his client’s 1987 “confession”. He complained that the Home Secretary should have accepted its contents and acted accordingly, and that as he had not expressly given an indication to the contrary, he should be deemed to have done so. Judges are familiar with the process of assessing relative culpability of co-defendants. They explain their conclusions, and reasons, in open court, and their conclusions are reflected in the sentences. They can be considered in the Court of Appeal, Criminal Division. Like the sentencing judge, who must act fairly to all the co-defendants in any given case, the Home Secretary has responsibilities to Brady, identical to those he owes to Hindley. If he were to accept the allegations made by Hindley over 20 years after the relevant events, he would be making findings adverse and damaging to Brady in his absence, on the basis of untested allegations by an accomplice, and without giving Brady any opportunity to answer them. That, too, would contradict the principles of fairness, without any practical possibility of a “hearing” to establish the truth of the allegations .
It is permissible for a sentencing judge considering allegations made by a co-accused to indicate that he will approach them favourably to that defendant’s case on the basis that they may be true, while making it clear to the co-defendant that in deciding sentence in his case, he would disregard them. In other words the fact that they may be true for the purpose of considering one defendant’s case does not mean that they have been positively established against the other defendant. The process is public, and usually all the co-defendants are present. However carefully expressed, with all the safeguards of public hearings and fully recorded proceedings, such conclusions reached in the absence of one or other of the co-defendants provide a persistent source of appeals, usually on the ground of disparity, sometimes unfairness. Given the private nature of the present procedure, and its possible impact on Brady, it was not unreasonable for the Home Secretary to be cautious in his approach to the allegations made by the appellant.
Mr Fitzgerald’s reliance on the 1987 “confession” as material relevant to the date of his client’s release, highlights another distinction between the sentence imposed by a trial judge and the evaluation of the penal tariff. The lapse of time means that this material cannot be reconsidered by the sentencing judge, or the Lord Chief Justice, or the Home Secretary in office when the mandatory sentence was imposed, who would, if the tariff system had then been in operation, and subject to the emergence of exceptional circumstances, have decided the matter. The trial judge cannot be asked to re-evaluate his assessment of the relative culpability of the appellant. With the possible exception of consultation with the present Lord Chief Justice, no further judicial input is available. As part of the continuing process in these cases, a prisoner serving a mandatory life sentence must be permitted to put fresh material before the Home Secretary for consideration, even many years after the fixing of the penal tariff. It is unnecessary to decide whether he should consider material relating to the tariff from sources other than the prisoner herself, and if so, subject to what procedural precautions. If admissible information throws light on the offences for which the prisoner was sentenced, or her involvement or culpability, then I can see no justification for the conclusion that it can only be taken into account to the extent that it may be favourable. In my judgment it may serve either to mitigate or to aggravate her culpability. If so the Home Secretary may take it into account and conclude, “exceptionally”, that the tariff period should be “revised”. This process may result in the adjustment of the tariff period, upwards or downwards.
Mr Fitzgerald supported his argument by pointing out that sentencing courts normally give credit to any defendant for admissions, frankness with investigating police officers, and ultimately pleas of guilty. Indeed the principle that a plea of guilty should be taken into account is now enshrined in statute (section 48 of the Criminal Justice & Public Order Act 1994). Nevertheless when a defendant pleads guilty to murder the plea cannot be taken into account in the sentence, which remains life imprisonment. It is a factor to which the Home Secretary’s attention would no doubt be drawn by the judge in his report on the case, and would normally be regarded as providing some mitigation. Mr Fitzgerald’s greater difficulty is that if a confession reveals greater criminality than the prosecution would have been able to prove without it (as it frequently does) the court determining sentence does not ignore damaging admissions and confine its attention exclusively to matters of mitigation. Similarly, when taking into consideration offences admitted by the defendant, the sentencing court does not ignore them: they are indeed taken into consideration, and the result sometimes is that a much longer sentence is imposed than would otherwise have been appropriate by reference only to the specific offences charged in the indictment.
The appellant’s convictions did not reveal the full extent of her criminal activity with Brady. Between February and August 1987 she admitted to the Greater Manchester police, first, what she had previously denied, that she had in fact been guilty of the murders of Edward Evans, Lesley Ann Downey and John Kilbride, and that she was party to the murders of two other children, Pauline Reade (murdered in July 1963) and Keith Bennett (murdered in June 1964). As she had been acquitted of the murder of John Kilbride she could not have been prosecuted for that crime, and she has not in fact been prosecuted for the murders of Pauline Reade and Keith Bennett.
When this information eventually emerged over 20 years after the appellant’s conviction it required the most careful attention. In the Divisional Court Lord Bingham CJ summarised her detailed account of “the manner in which she had been dominated, intimidated, and suborned by her co-defendant Brady, with whom she had at the time been deeply in love. She described how she had been drugged and assaulted by Brady; how she had told a girlfriend of her fear of him; how he had made threats against her and her family; how she had applied for a job in Germany in order to get away from him. This account was accepted by the police as in all essentials correct”.
Notwithstanding Mr Fitzgerald’s measured deployment of the contents of the narrative statement by way of mitigation, the stark reality was that the murders of Edward Evans and Lesley Ann Downey could now be seen as the culmination of a series of killings in which the appellant was involved with Brady. This murderous relationship had persisted for over two years. With full knowledge of and having been involved with him in dreadful earlier events, she actively participated and assisted him to torture and kill Edward Evans and Lesley Ann Downey. Assuming in her favour, without deciding, that everything she said about Brady’s power over and violence towards her was true, the “confession” underlined the accuracy of the trial judge’s comments that she was “as deeply corrupted” as Brady, and had indeed been so corrupted when she took part in the murders of which she was convicted in May 1966.
It was not unreasonable for the Home Secretary to conclude from this confession that a “much greater level of involvement” with Brady than the appellant had previously admitted was now revealed, and that whatever the position may have been at any earlier assessment of her penal tariff, “given the appalling circumstances of these offences and her role in them” a whole life tariff was now justified. In my judgment this conclusion, albeit based on information coming from the appellant herself, cannot be stigmatised as unreasonable, or falling outside the proper application of the Home Secretary’s present policy. No grounds for interference by this Court have been shown.
This appeal should be dismissed.
Order: Appeal dismissed. Application for further discovery refused. Nor order a to costs. Leave to appeal to House of Lords granted. Legal Aid Taxation. 

Source: www.bailii.org