R (Cole, Rowland and Hawkes) v Secretary of State for the Home Department
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE ROSE,MR JUSTICE HENRIQUES |
| Judgment Date | 10 July 2003 |
| Neutral Citation | [2003] EWHC 1789 (Admin) |
| Docket Number | CO/1354/2003, 1919/2003, 2297/2003 |
| Date | 10 July 2003 |
| Court | Queen's Bench Division (Administrative Court) |
[2003] EWHC 1789 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
DIVISIONAL COURT
Royal Courts of Justice
Strand
London WC2
Lord Justice Rose
(Vice President of the Court of Appeal, Criminal Division)
Mr Justice Henriques
CO/1354/2003, 1919/2003, 2297/2003
MR J TILLYARD QC appeared on behalf of the CLAIMANT, COLE
MR H SOUTHEY appeared on behalf of the CLAIMANTW, ROWLAND and HAWKES
MISS K GALLAFENT appeared on behalf of the DEFENDANT
Thursday, 10th July 2003
These three applications are brought with the permission of Collins J, who ordered that they be heard expeditiously. The members of this court would have preferred to take time to consider their judgments, but, for a variety of reasons, not least the pressing timescale of events to which I shall shortly come, this has not been feasible.
The claimants are all serving a mandatory term of life imprisonment for murder. They challenge the Secretary of State's refusal to review the tariff, or minimum term for purposes of retribution and deterrence, which they have each been ordered to serve, following the decision of the House of Lords in Anderson [2003] 1 AC 837, and pending legislation by Parliament in the Criminal Justice Bill. It is anticipated that this Bill will receive Royal Assent in November of this year and its transitional provisions will come into effect two weeks later.
Before turning to the competing submissions in relation to each of the claimants, it is convenient first to set out the statutory provisions and other materials which are relevant to these claims.
Section 28 of the Crime (Sentences) Act 1997 makes provision for the release on licence of discretionary lifers and those under 18 at the time of their offence. Section 29 is in these terms:
"Power to release other life prisoners
(1) If recommended to do so by the Parole Board, the Secretary of State may, after consultation with the Lord Chief Justice together with the trial judge if available, release on licence a life prisoner who is not one to whom section 28 above applies.
(2) The Parole Board shall not make a recommendation under subsection (1) above unless the Secretary of State has referred the particular case, or the class of case to which that case belongs, to the Board for its advice".
There is no legislative basis for determining the period for which a convicted murderer should remain in prison for the purposes of retribution and deterrence. By virtue of section 29, it is for the Secretary of State to decide this.
In Anderson, the House of Lords made a declaration under section 4 of the Human Rights Act that section 29, in conferring powers in relation to the length of imprisonment and the release of mandatory lifers on the Secretary of State, and member of the executive, was incompatible with the right to a fair hearing and an independent and impartial tribunal under Article 6.1 of the European Convention on Human Rights, since tariff-fixing was legally indistinguishable from the imposition of a sentence.
On 25th November 2002, the day on which the House of Lords gave their opinions in Anderson, the Secretary of State made a statement to the Press. The relevant parts, for present purposes, are as follows:
"We will need to study the judgment carefully before finalising our proposals but I … intend to legislate this Session, to establish a clear set of principles within which judges will fix minimum tariffs in the future. These principles will be debated and agreed by both Houses of Parliament, and in setting minimum sentences a judge must, in open court, give reasons if the term being imposed is inconsistent with these principles.
The judgment will affect only the issue of who actually sets the tariff in each individual case …
In respect of the ruling in Anderson our firm intention is that once we have the new arrangements in place a judicial authority will be able to consider afresh the tariff for any murderer at present serving a life sentence in accordance with the framework I have described.
This is the new system we are outlining today which should become law, subject to Parliament, by autumn next year. We intend that any application by a serving prisoner for their tariff to be re-set would be heard under the new law".
A letter was sent from the Lifer Unit to Governors and Lifer Managers. The relevant part is in these terms:
"3. The Home Secretary will introduce new legislation to set out clear principles which courts will be expected to follow in fixing tariffs in future. The principles will include that for the most serious crimes a whole life tariff will normally be imposed. The new legislation should be in place before the end of 2003.
4. Tariffs for existing mandatory lifers remain unchanged. Once the legislation is passed it will be open to lifers to have their tariffs reset under the judicial arrangements. It is expected that tariffs will be reset on the basis of the new principles.
5. From the date of the judgment, 25 November 2002, Ministers will no longer set tariffs. Mandatory lifers who have not yet had a tariff fixed will now have to wait until the new legislation is in place to have their tariffs judicially set. Similarly Ministers will no longer consider representations about existing tariffs. Lifer Unit will write to the individual prisoners concerned in cases where the representation process has already started".
That document goes on to refer to a question and answer briefing attached to it, and I read the presently relevant part:
"Can I apply to have my tariff reset?
• Once the new legislation is in place you will be able to apply to have your tariff reset judicially.
Will my tariff then be reduced in line with the original recommendation?
• Not necessarily. When a new judicial tariff is set judges will be required to take into account new sentencing principles agreed by Parliament. It is possible in some cases that tariffs could be set higher than those originally fixed by Ministers. This will be for the new judicial body to decide.
Can I continue to make representations to Ministers about my tariff?
• No. As the House of Lords has decided that Ministerial tariff setting is incompatible with the ECHR Ministers will no longer consider any representations against the level of tariff.
I have already made representations about my tariff. What will happen to them?
• Because Ministers will no longer be setting tariff the representation process will be discontinued. Lifer Unit will be writing to those affected".
Lifer Unit did indeed write to those affected in January 2003, referring to the existing tariffs remaining unchanged, and the legislation, which was to be introduced and which was expected to come into force in November. The letter ended with an indication that it was expected later in the year that the Prison Service would indicate the starting date for the new arrangements and the address to which any application for reduction in tariff should be made.
The evidence of Mr Morris, the Head of the Tariff Section in the Lifer Unit, exhibited the Secretary of State's statement and the other documents to which I have just referred. Mr Morris also said at paragraphs 5 to 10 of his statement:
"5. The policy adopted by the Home Secretary is as set out in those documents. However, as has been made clear in these cases and others, the Home Secretary remains open to the possibility that he would review an existing tariff where wholly exceptional circumstances are shown. Such exceptional circumstances might include, for example, a prisoner whose tariff had not long to run who displays exceptional bravery in preventing the death or serious injury of a member of staff or fellow prisoner, or in preventing the spread of fire which would have otherwise caused extensive damage or loss of life.
6. On 7 May 2003 the Home Secretary introduced amendments to the Criminal Justice Bill to provide for minimum terms to be set by the High Court for all convicted murderers whose tariffs have not yet been set and, on application, for those who already have tariffs set by Ministers. The Criminal Justice Bill has completed its passage through the House of Commons and had its Second Reading in the House of Lords on 16 June 2003. It is currently anticipated that the Criminal Justice Bill will receive Royal Assent in November 2003, and the transitional provisions relating to existing mandatory life prisoners would commence two weeks thereafter.
7. In the meantime, the Home Secretary has adopted the policy that, save for exceptional cases, he does not wish to set or review any tariff on a basis that is not compliant with the ECHR and which would in any event shortly become reviewable again, in an ECHR compliant manner, under this legislation. The legislation was introduced at the earliest reasonable opportunity to give effect to the strong and unanimous decision of the House of Lords in Anderson.
8. Under the draft new legislation the High Court, when setting minimum terms, will be required to take a number of specified factors into account. The draft provisions do not require the High Court to take exceptional progress, or exceptional circumstances into account, and the Home Secretary has never intended that the courts should be obliged to do so. Rather, the draft legislation leaves it open to the courts to take into account exceptional circumstances, including exceptional progress in prison, in appropriate cases. It is currently proposed that this will be a matter for the courts, although of course the...
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