R (Lichniak) v Secretary of State for the Home Department

JurisdictionEngland & Wales
JudgeLORD BINGHAM OF CORNHILL,LORD NICHOLLS OF BIRKENHEAD,LORD STEYN,LORD HUTTON,LORD HOBHOUSE OF WOODBOROUGH,LORD SCOTT OF FOSCOTE,LORD RODGER OF EARLSFERRY
Judgment Date25 November 2002
Neutral Citation[2002] UKHL 47
Date25 November 2002
CourtHouse of Lords
Regina
and
Lichniak
(Appellant) (On Appeal from the Court of appeal (Criminal Division))
Regina
and
Pyrah
(Appellant) (On Appeal from the Court of Appeal (Criminal Division)) (Consolidated Appeals)

[2002] UKHL 47

Lord Bingham of Cornhill

Lord Nicholls of Birkenhead

Lord Steyn

Lord Hutton

Lord Hobhouse of Woodborough

Lord Scott of Foscote

Lord Rodger of Earlsferry

HOUSE OF LORDS

Session 2002_03

[2001] EWHC Admin 294

LORD BINGHAM OF CORNHILL

My Lords,

1

The issue which arises on these appeals is agreed to be

"whether section 1(1) of the Murder (Abolition of Death Penalty) Act 1965 is incompatible with:

(1) article 3 of the European Convention on Human Rights (on the grounds that the mandatory life sentence for murder is arbitraryand/or disproportionate); and/or

(2) article 5 of the European Convention on Human Rights (on the grounds that the mandatory life sentence for murder is arbitrary)."

2

Section 1(1) of the 1965 Act provides that those convicted of murder committed as adults should be sentenced to imprisonment for life. The thrust of the appellants' case can be shortly summarised: section 1(1) is arbitrary and disproportionate because it requires the same life sentence to be passed on all convicted murderers, whatever the facts of the case or the circumstances of the offender, and irrespective of whether they are thought to present a danger to the public or not. The Court of Appeal rejected the appellants' case and they now challenge that decision: [2002] QB 296; [2001] EWHC Admin 294.

3

In January 1990 Ms Lichniak, who was 29, lived with a man named Thomas, with whom she had had 4 children, 2 of them very young. On the occasion in question Thomas used her to go with him in his car to a public house to challenge a man with whom he had had a quarrel. She took a large carving knife from the car and while the two men were grappling with each other she fatally stabbed the deceased. Thomas was charged with her but acquitted on the basis that he had not been party to a joint enterprise. She claimed that her responsibility had been diminished at the time of the incident, but the jury rejected this defence. The trial judge (Ognall J) thought this a right decision, but found that she had been in a state of chronic anxiety stress induced in part by the demands of her children and her stormy relationship with Thomas. The judge thought that she had become highly emotional on this occasion, and took the knife and killed on an impulse. The judge reported to the Home Secretary:

"She has no previous convictions, and I do not believe that upon release she is likely to commit offences of a kind making her a public danger".

4

The judge advised that Ms Lichniak be detained for 10-12 years to meet the requirements of retribution and general deterrence. The Lord Chief Justice suggested a minimum of 10 years, but observed that the risk factor could not be discounted. The Home Secretary in April 1997 set a tariff of 11 years. She was released on licence in July 2001.

5

In October 1996 Mr Pyrah, who was aged 41, was in a residential area with friends following an evening during which he had drunk heavily. He heard and saw in the street a fracas involving a woman being assaulted by a man. The woman was pushed to the ground. There was medical evidence that he had a particular sensitivity to such a situation because, as a child, he had witnessed his mother being treated violently. Upon seeing the fracas he approached the woman's assailant, punched him and knocked him to the ground, and there kicked his head. This first kick was described as being like a rugby penalty kick. It proved fatal. The trial judge (Smedley J) regarded the incident as a tragic event and when advising the Home Secretary drew attention to Mr Pyrah's good record and young family. He continued:

"In my view, he does not present any danger to the community and there is no likelihood of him re-offending … "

6

Having seen Mr Pyrah in the dock and the witness box, the judge considered that a prison term well below the norm would be sufficient in this case and recommended a term of 10 years. The Lord Chief Justice agreed that a term significantly below the norm was indicated and was of the opinion that, on the exceptional facts, a term of 8-9 years would meet the requirements of retribution and general deterrence. The Home Secretary, after a delay of nearly 2 years, set a tariff term of 8 years.

7

The nature and operation of the mandatory life sentence passed on convicted murderers (by which I mean adults convicted of murder in England and Wales) have been fully described in the opinions of the House in R (Anderson) v Secretary of State for the Home Department [2002] UKHL 46, in which the appeal was heard at the same time as the present appeals and in which judgment is also being given at the same time. I shall treat the opinions of the House in that appeal as read into this opinion, to the extent that they are relevant, and I shall take the conclusions of the House in that appeal as my starting point in these.

8

If the House had concluded that on imposition of a mandatory life sentence for murder the convicted murderer forfeited his liberty to the state for the rest of his days, to remain in custody until (if ever) the Home Secretary concluded that the public interest would be better served by his release than by his continued detention, I would have little doubt that such a sentence would be found to violate articles 3 and 5 of the European Convention on Human Rights ("the convention") as being arbitrary and disproportionate. But Anderson, following earlier authority, makes plain that such is not the effect of the sentence. It is a sentence partly punitive, partly preventative. The punitive element is represented by the tariff term, imposed as punishment for the serious crime which the convicted murderer has committed. The preventative element is represented by the power to continue to detain the convicted murderer in prison unless and until the Parole Board, an independent body, considers it safe to release him, and also by the power to recall to prison a convicted murderer who has been released if it is judged necessary to recall him for the protection of the public. It is a sentence so characterised that the appellants must attack if their appeals are to succeed.

9

In presenting his argument for the appellants Mr Edward Fitzgerald QC did not, as in Anderson, attack the role of the executive in the imposition and implementation of mandatory life sentences. Since, in the case of both appellants, the Home Secretary had fixed the tariff term within the bracket recommended by the judges, this line of attack could scarcely have advanced the appellants' interests. Instead, Mr Fitzgerald based his argument on the one striking feature common to both their cases: that in each of them the trial judge had concluded that the appellant was not at all likely on release to present any danger to the public. Had the judges enjoyed any discretion it was very unlikely that either would have imposed a life sentence (see Attorney-General's Reference (No 32 of 1996) ( R v Whittaker) [1997] 1 Cr App R (S) 261; R v Chapman [2000] 1 Cr App R 77). Thus Mr Fitzgerald argued that, however appropriate the preventative aspects of the life sentence might be in the cases of those judged to be a continuing threat or potential threat to the public (and I did not understand him to criticise the appropriateness of preventative safeguards in such cases), it was arbitrary, disproportionate and excessive to impose those safeguards on those who, like the appellants, were judged to present no danger to the public.

10

In support of his argument Mr Fitzgerald relied heavily on the decision of the Court of Appeal in R v Offen [2001] 1 WLR 253. That case concerned section 2 of the Crime (Sentences) Act 1997, which required a life sentence to be imposed on a person convicted of a serious offence (as defined in the section) committed after the commencement of the section if, at the time of committing that offence he was 18 or over and had previously been convicted in any part of the United Kingdom of another serious offence "unless the court is of the opinion that there are exceptional circumstances relating to either of the offences or to the offender which justify its not doing so". Parliament did not, when enacting this section, include any definition of "exceptional circumstances", nor did it provide that a life sentence need not be imposed on a defendant who did not appear to present a continuing danger to the public. The section had earlier ( R v Buckland [2000] 1 WLR 1262 at 1268) been described as

"founded on an assumption that those who have been convicted of two qualifying serious offences present such a serious and continuing danger to the safety of the public that they should be liable to indefinite incarceration and, if released, should be liable indefinitely to recall".

11

The central question in R v Offen, decided after the coming into force of the convention, was whether section 2 was compatible with articles 3 and 5 of the convention if it permitted or required the imposition of life sentences on those who did not appear to pose a threat to the safety of the public. The court concluded ( [2001] 1 WLR 253 at 277, para 97):

"In our judgment, section 2 of the 1997 Act will not contravene Convention rights if courts apply the section so that it does not result in offenders being sentenced to life imprisonment when they do not constitute a significant risk to the public".

12

Mr Fitzgerald argued by analogy that convicted murderers should not be sentenced to imprisonment for life unless they appeared to present a danger to the public or if it appeared that they did not. His criticism was focused not on the first, punitive, stage of the sentence but on...

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