EX PARTE STAFFORD (A.P.)
I have had the advantage of reading in draft the speech prepared by my noble and learned friend, Lord Steyn. For the reasons he gives I would dismiss this appeal.
I have had the advantage of reading in draft the speech prepared by my noble and learned friend, Lord Steyn. I agree with it and for the reasons which he gives I too would dismiss the appeal.
LORD SLYNN OF HADLEY
I have had the advantage of reading in draft the speech prepared by my noble and learned friend Lord Steyn. For the reasons he gives I too would dismiss the appeal.
The shape of the appeal
The central question is whether it was lawful for the Home Secretary to refuse to release a mandatory life sentence prisoner, who has served the tariff part of his sentence, on the sole ground that there was a risk that he might after release commit serious non-violent offences. This is a point of statutory construction regarding the width of the power of the Home Secretary to release or to refuse to release a mandatory life sentence prisoner. It is important to understand straightaway three distinctions which limit the scope of the issue before the House. First, the position of a mandatory life sentence prisoner differs in material respects from a discretionary life sentence prisoner. By primary legislation Parliament has provided fundamentally different regimes for the release of mandatory life sentence prisoners and discretionary life sentence prisoners. In the present appeal only the scope of a statutory provision affecting mandatory life sentence prisoners is directly at stake. Secondly, last year in Reg. v. Secretary of State for the Home Department, Ex parte Venables and Thompson  3 WLR 23 and Reg. v. Secretary of State for the Home Department, Ex parte Pierson  3 WLR 492 the House of Lords by majority rulings decided that in applying his policy of fixing a tariff in respect of mandatory life sentence prisoners, the Home Secretary is under certain legal constraints which flow from the fact that such decisions are closely analogous to a sentencing function performed by the judge. In the present case the appellant has served the tariff part of his sentence. The central issue is the width of the Home Secretary’s discretion to release or refuse to release a prisoner in the post tariff phase. Thirdly, since 16 July 1991 successive Home Secretaries have asserted in policy statements to Parliament the need for them to have regard to the public acceptability of early release of a mandatory life sentence prisoner. In the present case the Home Secretary did not make his decision on this ground. The lawfulness of this criterion does not arise in the present case. In my view it ought to await consideration when it arises.
Given the narrow scope of the appeal a brief narrative will be sufficient. On 6 March 1967 the appellant, then aged 33 years, was convicted of murder. In April 1979 the Home Secretary directed that he be released on life licence. In breach of the terms of his licence the appellant left the United Kingdom and went to South Africa. In September 1980 the Home Secretary revoked his licence. The appellant stayed in South Africa for almost 10 years. During that period he was not convicted of any offences. In April 1989 while he was on a visit to England the appellant was arrested and taken into custody. In June 1989 the appellant was convicted of possession of a false passport and forgery. He was fined £250 on each count. In July 1990 the Parole Board confirmed the revocation of the appellant’s licence. In November 1990 the Parole Board recommended his release. In March 1991 the appellant was released on life licence.
In July 1994 the appellant was convicted on two counts of conspiracy to forge travellers cheques and British passports. He was sentenced to six years’ imprisonment. In September 1994 the Parole Board recommended revocation of the appellant’s life licence and further recommended a formal review at the parole eligibility date of his six-year determinate sentence. The Home Secretary accepted this recommendation and revoked the appellant’s licence.
In March 1995, the Parole Board rejected an application by the appellant to recommend his release on licence. But in November 1996 the Parole Board concluded that the risk of the appellant committing serious offences was very low and that nothing further would be gained by placing him in open conditions for a period before release. The Parole Board recommended that the appellant be released immediately on licence. By a notice dated 27 February 1997 the Home Secretary rejected this recommendation. The Home Secretary took the view that there was an unacceptable risk that the appellant might commit serious non-violent offences. The Home Secretary decided that the appellant should be transferred to an open prison with his next formal review by the Parole Board to begin two years after his arrival there. The appellant challenged the lawfulness of this decision.
On 5 September 1997 Collins J. allowed the appellant’s application for judicial review and quashed the Home Secretary’s decision not to release him. In a closely reasoned judgement Collins J. observed that under section 35(2) of the Criminal Justice Act 1991 “the Home Secretary is not entitled to extend the detention of a mandatory life prisoner beyond the point where he has completed his tariff and is no longer dangerous, in the sense of presenting a more than minimal risk to life or limb”.
In a judgment given on 26 November 1997 the Court of Appeal concluded that the Home Secretary’s power under section 35(2) is not so limited and allowed the Home Secretary’s appeal against the decision of Collins J.: Reg. v. Secretary of State for the Home Department, Ex parte Stafford  1 W.L.R. 503. But the Lord Bingham of Cornhill C.J. and Buxton L.J. expressed the hope that, notwithstanding the outcome of the appeal, the Home Secretary would give further consideration to the appellant’s case. The Home Secretary indicated that he would do so.
On 16 December 1997 the appellant was moved to an open prison. On 21 January 1998 the Home Secretary informed the appellant that after reconsidering his case, he had decided that the appellant should spend six months in open conditions before the next review by the Parole Board should begin. That review has now begun.
The statutory provisions
The critical provision in respect of mandatory life prisoners is section 35(2) of the Criminal Justice Act 1991. (This provision has been replaced by section 29(1) of the Crime (Sentences) Act 1997. It will be convenient to refer to section 35(2) of the Act of 1991). Section 35(2) reads as follows:
- “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 a life prisoner who is not a discretionary life prisoner.”
The history of this provision is of some significance. The immediate forerunner of section 35(2) of the Act of 1991 was section 61 of the Criminal Justice Act 1967, which in turn was modelled on section 57 of the Criminal Justice Act 1948. But before legislative intervention the executive possessed the power, through the prerogative, to release life sentence prisoners: A.T. Smith, The Prerogative of Mercy, 1983 Public Law 398, at 425; S. McCabe, The Powers and Purposes of the Parole Board (1985) Crim.L.R. 489; Genevra Richardson, Law Process and Custody: Prisoners and Patients, 1993, at 194. This power came under the prerogative of mercy. The Home Office view was that “a remission of the remainder of the sentence is the customary mode of authorising release from prison”: Reg. v. Secretary of State for the Home Department, Ex parte Bentley  Q.B. 349, at 357H, per Watkins L.J. acting on a Home Office memorandum of 1874. A formalised licensing system apparently developed later.
By the statutory provisions of 1948, 1967 and 1991 Parliament entrusted the power to decide on the release of life prisoners to the Home Secretary. But in 1990 the European Court of Human Rights held that once the tariff of a discretionary life sentence prisoner ends Article 5(4) of the European Convention on Human Rights requires that he should be able to challenge the grounds of his continued detention before an independent tribunal: Thynne, Wilson and Gunnell v. United Kingdom (1990) 13 E.H.R.R. 666. This decision compelled Parliament to review the existing system in respect of discretionary life sentence prisoners. In 1991 Parliament judicialised the system of releasing discretionary life sentence prisoners. The final decision on the release of such prisoners now rests with the Parole Board: section 34 of the Act of 1991. Given that the Parole Board, unlike the Home Secretary, carries out its duties regarding the release of life sentence prisoners in a judicial fashion, the institutional difference is significant. Parliament has specifically provided that where a prisoner has served the equivalent of the tariff part of his sentence, the Parole Board must direct his release if “the Board is satisfied that it is no longer necessary for the protection of the public that the prisoner should be confined”: section 34(4)(b). This contrasts with the open-textured wording of section 35(2).
To this dichotomy between the regimes applicable to mandatory life sentence prisoners and discretionary life sentence prisoners must now be added the amendment introduced last year by sections 28 of the Crime (Sentences) Act 1997 in relation to young offenders convicted of murder and sentenced to a mandatory term of detention during Her Majesty’s pleasure. The Act of 1997 provides that once such an offender has served the tariff part of his sentence, it is the responsibility of the Parole Board to decide whether to release him on life licence. And the touchstone is whether “the Board is satisfied that it is no longer necessary for the protection of the public that the prisoner should be confined”: section 28(6)(b) of the Act of 1997. Parliament so legislated in order to comply with the judgment of the European Court of Human Rights in Hussain v. United Kingdom (1996) 22 EHRR 1. The specific language of section 28(6)(b) contrasts with the generality of the wording of section 35(2).
It is necessary to refer to another provision in the Act of 1991 which may be relevant to the specific issue before the House. Section 32(1) provides for the continuance of the Parole Board. After providing in sub-section (5) that the Home Secretary may make procedural rules for the Board, subsection (6) provides:
- “The Secretary of State may also give to the Board directions as to the matters to be taken into account by it in discharging any functions under this Part: and in giving any such directions the Secretary of State shall in particular have regard to- (a) the need to protect the public from serious harm from offenders; and (b) the desirability of preventing the commission by them of further offences and of securing their rehabilitation.”
The relevance of this provision is said to be the generality of the reference to “further offences.” On the other hand the context is that section 32(6) applies to parole for all kinds of offences and it may be unremarkable that the words “further offences” are used without limitation. In any event, purportedly pursuant to section 32(6) the Home Secretary in March 1993 gave Directions to the Parole Board. Those Directions included the following:
- “1. The Home Secretary takes the final decision on the release of mandatory life sentence prisoners (‘lifers’) and that decision might be taken on grounds that go beyond the risk posed by the prisoner. The Home Secretary is also concerned with the wider political implications, including the effect on public confidence in the life sentence system which release may have . . . 2. The Parole Board’s responsibilities in the release consideration are whether, having regard to the degree of risk involved of the lifer committing further imprisonable offences after release, it remains necessary for the protection of the public for the lifer to be confined. 3. Each case should be considered on its individual merits.”
The appellant’s case on this appeal
The argument of counsel for the appellant on appeal to the House, as before Collins J. and the Court of Appeal, was that the Home Secretary acted unlawfully insofar as he based his decision on the risk that the appellant might commit serious non-violent offences. Counsel submitted that the Home Secretary’s power under section 35(2) was limited to considering the risk of serious harm to the public and hence the risk of the appellant committing offences involving violence. Counsel argued for relief in the following form:
- “1. A declaration that the Home Secretary may only continue to detain the appellant if satisfied that his release on licence would present an unacceptable risk of serious harm to the public. 2. A declaration that the Home Secretary’s Directions to the Parole Board on the release of mandatory life sentence prisoners are
- (6) of the 1991 Act insofar as they purport to direct the Parole Board to have regard to the degree of risk of a lifer committing any imprisonable offence if released on licence. 3. A declaration that Secretary of State’s policy statement of 10th November 1997 is unlawful insofar as it purports to justify continued detention and recall of a mandatory lifer by reference to the risk of his future commission of any imprisonable offences.
An alternative contention that the Home Secretary acted irrationally, which was advanced before Collins J. and in the Court of Appeal, was not pursued on appeal to the House. On the other hand, it is right to record that counsel for the Home Secretary emphasized that decisions by the Home Secretary under section 35(2) are in principle subject to judicial review, and that an approach of heightened scrutiny as explained by Sir Thomas Bingham M.R. in Reg. v. Ministry of Defence, Ex parte Smith  QB 517, at 554F would be appropriate in such cases: see also Reg. v. Secretary of State for the Home Department, Ex parte Bugdaycay  AC 514.
The Primary Argument: The principle of proportionality
Section 32(5) contains only two expressed limitations on the discretion of the Home Secretary: he may only release a prisoner if recommended to do so by the Parole Board and after consultation with the Lord Chief Justice and the trial judge. Counsel for the appellant acknowledged that on its face section 35(2) entrusts a wide administrative discretion to decide on the release of mandatory life sentence prisoners to the Home Secretary. That discretion is limited so far as successive Home Secretaries have developed and pursued a policy of fixing a tariff. But the matter under consideration is the Home Secretary’s discretion to release a prisoner who has served the tariff part of his sentence. And constraints applicable to the fixing of the tariff cannot notionally be carried over to the subsequent decision on release. In deciding on issues of release the Home Secretary is “entitled to have regard to broader considerations of a public character than those which apply to an ordinary sentencing function”: Reg. v. Secretary of State for the Home Department, Ex parte Doody  1 AC 531, at 559B, per Lord Mustill. This is reinforced by recent decisions of the House: see Reg. v. Secretary of State for the Home Department, Ex parte Venables  3 WLR 23; at 40H-41C C (per Lord Goff of Chieveley), at 51B (per Lord Browne-Wilkinson), at 85A-G (per Lord Hope of Craighead); Reg. v. Secretary of State for the Home Department, Ex parte Pierson  3 WLR 492, at 496A-D, 500H and 501H-502A (per Lord Goff of Chieveley); at 528D-E and 532E-533B (per Lord Hope of Craighead); and my speech at 522C-D.
But counsel for the appellant invoked the principle of construction which requires the court, in certain cases, to construe general words in a statute as impliedly limited. Counsel relied on the observations of Lord Browne-Wilkinson in Pierson. After reviewing the authorities Lord Browne-Wilkinson formulated the principle as follows (507A):
- “A power conferred by Parliament in general terms is not to be taken to authorise the doing of acts by the donee of the power which adversely affect the legal rights of the citizen or the basic principles on which the law of the United Kingdom is based unless the statute conferring the power makes it clear that such was the intention of Parliament.”
Counsel for the appellant made this principle the foundation of his argument.
Counsel relied on what he described as the basic common law principle of retributive proportionality. He submitted that there is a general common law principle that a man must only be punished for the crime he has committed and not for crimes he may in future commit. Put another way he said that the common law has set its face against preventive detention of an offender on the grounds of offences which he may in future commit. In support of this principle counsel quoted observations in Reg. v. King (1973) 57 C.A.R. 696. In dealing with offences involving firearms and burglary Lawton L.J. observed:
- “The learned judge increased the sentences . . . because of his view, . . . that these young men were enemies of society. But the Court has to bear in mind that in our system of jurisprudence there is no offence known as being an enemy of society. The Court is concerned with the offences charged in the indictment. It may well be that at a trial the evidence establishes that those who have committed the offences charged are dangerous men. When the evidence establishes that the Court has no reason for mitigating the penalties in any way. If the evidence does establish that the accused are dangerous men, then it is no good their saying that they have no previous convictions, or that they are still young men. The evidence cancels out such mitigation as there is. But the fact remains that the correct principle for sentencing is to sentence for the offences charged and on the facts proved or admitted.”
The distinction to be drawn is “between an extension of a sentence merely by way of preventive detention, which is impermissible, and an exercise of the sentencing discretion having regard to the protection of society, which is permissible”: Veen v. R. (No. 2) (1988) 7 A.L.R. 385, at 390. Counsel also cited the decisions laying down the principle that a discretionary life sentence may only be imposed to protect members of the public from persons dangerous to life or limb: see the criteria spelt out in Reg. v. Hodgson (1967) 52 Cr. App. R. 113, a decision followed in Reg. v. Waller (1995) 16 Cr. App. R. (S) 251. Counsel submitted that protection of the public from serious harm is the only relevant qualification to the generality of the principle of proportionality. For present purposes I am content to assume that the proportionality of the sentence to the seriousness of the crime is the leading common law principle: see Andrew Ashworth, Sentencing and Criminal Justice, 1995, Chapter 4. This principle has also been enshrined in legislation: section 2(2)(a) of the Act of 1991. For the purposes of the present appeal I need not explore the precise contours of the principle. But in my view counsel’s argument breaks down at this point. The principle of proportionality may apply at the tariff stage. But in relation to the post tariff phase, and the Home Secretary’s power to release, it has no role to play. At that stage the focus is not on past acts but on the future. In any event, before the evolution of the tariff system, the principle of proportionality was never applied in any judicial decision to the administrative discretion of the Home Secretary to release mandatory life sentence prisoners under section 35(2) or its forerunners. And there was no settled practice upon which the appellant can rely. There is, therefore, no relevant and applicable principle which could be said to have been the assumption upon which Parliament entrusted the discretion under section 35(2) (or under the corresponding provisions of the Acts of 1948 and 1967) to the Home Secretary. The principle enunciated in Pierson by Lord Browne-Wilkinson cannot in any event apply since the necessary contextual backcloth of a relevant basic common law principle is absent. On this simple ground the main argument must fail.
Counsel for the appellant placed two other matters before the House. He pointed out that as a class discretionary life sentence prisoners are more dangerous than mandatory life sentence prisoners. That is so. He said that it is anomalous that the system affecting the former category is judicalised but not the system in respect of the latter category. That in my view is not an overstatement. Under the influence of judgments of the European Court of Human Rights, Parliament has judicalised the system applicable to offenders sentenced to discretionary life sentences and to detention during Her Majesty’s pleasure. But Parliament has deliberately refrained from judicalising the system applicable to mandatory life sentence prisoners. Counsel argument is in reality an appeal for a more rational system. The appeal to symmetry was rejected by the House of Lords in Doody, at 559D. And in Wynne v. United Kingdom (1994) 19 E.H.R.R. 333 the European Court of Human Rights held that the post-tariff phase of the detention of a mandatory life sentence prisoner does not attract the safeguards of Article 5(4) of the European Convention for Human Rights. As matters stand at present the duality is embedded into our law by primary legislation.
Counsel also said that the Home Secretary still relies on the theory that a mandatory life sentence prisoner forfeits his life to the State. In Doody Lord Mustill observed that “this is no longer the practice, and can hardly be sustained any longer as the theory”: at 565D-E. Nevertheless, in policy statements to Parliament the previous Home Secretary and the present Home Secretary have reasserted the old theory. In the present case Collins J. posed the question whether it was open to the Home Secretary to reject a view of the House expressed in a judgment on a matter of law. Like Collins J. I am satisfied that this point does not arise directly in this case. It is sufficient for the disposal of the present appeal to say that the issue about the rationale of the mandatory life sentence arose after the enactment of the Acts of 1948 and 1967 and it cannot throw light on the re-enactment of substantially similar language in 1991. It is not a helpful aid to the construction of section 35 (2).
For these reasons I would reject the principal argument of the appellant.
The alternative argument
Counsel for the appellant advanced one further argument which was not placed before Collins J. or the Court of Appeal. It is based on the appellant’s status as a post-recall life prisoner. The argument is that, whatever the position of a post-tariff mandatory life sentence prisoner who has not been released, once such a lifer has been released and recalled, the Home Secretary’s discretion under section 35(2) must be limited to the consideration of serious harm to the public. For this purpose counsel invoked by analogy the provisions of section 39 of the Act of 1991. If the Parole Board recommends release under Section 39(5) following a reference under section 39(4) the Home Secretary must release the prisoner. In the present case the focus is on section 35(2) and the power to release which is entrusted to the Home Secretary. It is common ground that section 39 is inapplicable. It is not a helpful analogy and no warrant for cutting down the width of section 35(2) of the 1991 Act. I would reject the alternative argument.
There was some discussion whether, even if the appeal is dismissed, there should be declaratory relief. In my view there is no need for any declaration. But I ought to record that during the hearing, counsel for the Home Secretary recognised that the wording of Direction 1, which speaks of the Home Secretary as being concerned with “the wider political implications” of release, is unfortunate because it might be thought that those words were wide enough to include party political considerations. I do not for one moment imagine that this was the intention; but it is, I suggest, desirable that the Direction should be redrafted to exclude any such interpretation, perhaps with reference to the expression “broader considerations of a public character” used by Lord Mustill in Doody.
For substantially the same reasons as are contained in the judgment of Lord Bingham of Cornhill C.J. I have come to the conclusion that the appeal must be dismissed. But I would echo the concluding words of the Lord Chief Justice. He said: “The imposition of what is in effect a substantial term of imprisonment by the exercise of executive discretion, without trial, lies uneasily with ordinary concepts of the rule of law”: at 518F.
I have had the advantage of reading the speech prepared by my noble and learned friend Lord Steyn. For the reasons he has given, I too would dismiss this appeal.