R (Lichniak) v Secretary of State for the Home Department
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE KENNEDY |
| Judgment Date | 02 May 2001 |
| Neutral Citation | [2001] EWHC 294 (Admin) |
| Docket Number | Case No: CO/4221/2000 & CO/4222/2000 |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 02 May 2001 |
[2001] EWHC 294 (Admin)
Lord Justice Kennedy
Mr Justice Garland and
Mr Justice Richards
Case No: CO/4221/2000 & CO/4222/2000
CACD 00/6552/Z5 & 00/6548/Z5
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL CRIMINAL DIVISION
QUEEN'S BENCH DIVISION (DIVISIONAL COURT) AND
Edward Fitzgerald QC and Phillippa Kaufmann (instructed by Bhatt Murphy for Lichniak and Pyrah)
David Pannick QC and Mark Shaw (instructed by the Treasury Solicitor for the Home Secretary and the Crown)
.
Each of these claimants seeks judicial review of a decision to impose a mandatory sentence of life imprisonment following their separate convictions for murder. They contend that section 1 of the Murder (Abolition of Death Penalty) Act 1965 is incompatible with Articles 3 and 5 of the European Convention on Human Rights. Section 1(1) of the 1965 Act so far as material provides that "… a person convicted of murder shall ….. be sentenced to imprisonment for life". Article 3 of the Convention reads -
"No one shall be subjected to torture or to inhuman or degrading treatment or punishment."
Article 5 so far as material reads -
"1. Everyone has the right to liberty and security of person. No one shall be deprived of his liberty save in the following cases and in accordance with a procedure prescribed by law:
(a) the lawful detention of a person after conviction by a competent court; ……"
Permission to apply for judicial review was granted by Scott Baker J on 23rd January 2001 when he also ordered that this court sit both as a Divisonal Court and as the Court of Appeal Criminal Division, which we have done.
Circumstances of offences
A. Lichniak
In January 1990, when she was 29 years of age, Daniella Lichniak was living with a man named Thomas. In the words of the trial judge Thomas "used her to go with him in his car to a local public house, and there to challenge the deceased man to a fight. She took a large carving knife from the car and while the two men were grappling with each other she fatally stabbed the deceased. Steven Thomas was also charged with murder, but acquitted by the jury on the basis that he was not party to a joint venture to use the knife." At her trial the jury had to consider the issues of intent and diminished responsibility. There was evidence that she was suffering from a chronic depressive anxiety state sometimes causative of sudden panic attacks. The judge in his report to the Secretary of State after the trial said -
"I have no doubt that while the jury (in my view) rightly rejected her defence of diminished responsibility, she was in a state of chronic anxiety stress induced in part by the demands of four (including two very young) children, as well as a fairly stormy relationship with Thomas, with whom she had lived for 12 years and who had fathered all the children. I think that she became highly emotional on this occasion and took the knife and killed on an impulse —hence Thomas'acquittal."
Mr Fitzgerald QC submitted that there is evidence that she was a "battered wife" and, more important for present purposes, that she never did present any ongoing danger to society. The trial judge said -
"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."
We see no reason to question that assessment. In her case the period of detention necessary to meet the requirements of retribution and general deterrence was fixed at 11 years. She served that period, and is now in an open prison awaiting a review of her case by the Parole Board..
B. Pyrah
In October 1996 Pyrah, who was then 41 years of age, had been drinking heavily. He heard and saw in the street a fracas which involved a woman being assaulted and pushed to the floor. Medical evidence indicated that he was sensitive to that kind of situation because as a child he had seen his mother being treated violently. He went up to the woman's assailant and punched him, knocking him to the ground. He then kicked him. The first and fatal kick was described as being like a penalty kick, and the injury sustained proved fatal. The trial judge described the incident as a tragic event, and said in his report to the Secretary of State -
"In my view he does not present any danger to the community and there is no likelihood of him re-offending."
Subsequent medical reports have tended to confirm that assessment, which we see no reason to question. In his case the period necessary to meet the requirements of retribution and general deterrence was fixed at 8 years.
The Basic submission.
Mr Fitzgerald's basic submission is that now that all mandatory life sentences are recognised to fall into two parts, namely first a penal element to meet the requirements of retribution and general deterrence (fixed by the Home Secretary after considering the views of the trial judge and the Lord Chief Justice) and, secondly, a subsequent period of detention justified on preventive grounds, life sentences should not be imposed where at the time of sentencing there is no foreseeable risk of the defendant being a danger to the public after he or she has served the penal element of the sentence. Referring to the European Convention Mr Fitzgerald argues that the mandatory life sentence has no clear penological objective. It violates article 5 because it is arbitrary, and article 3 because it is disproportionate. Before we turn to look at these submissions in more detail we must say something about the jurisdiction of this court.
Jurisdiction.
Everyone agrees that the issues now raised need to be addressed, but there is a problem as to jurisdiction. Section 9(1) of the Criminal Appeal Act 1968 provides -
"A person who has been convicted of an offence on indictment may appeal to the Court of Appeal against any sentence (not being a sentence fixed by law) passed on him for the offence ….."
Plainly on the face of it the sentence for murder is fixed by law, namely by section 1 of the 1965 Act, so it is not easy to see how we, sitting as a division of the Court of Appeal, can be vested with jurisdiction to hear an appeal against sentence.
The obvious alternative is the jurisdiction of the Divisional Court to hear an application for judicial review, but section 29(3) of the Supreme Court Act 1981 makes it clear that the jurisdiction of the Divisional Court in relation to the Crown Court relates only to matters other than the latter Court's jurisdiction "in matters relating to trial on indictment". Although the Crown Court is not named by either claimant as defendant, the decision under challenge in each case is the decision to impose a mandatory life sentence following conviction, which is plainly a matter relating to trial on indictment (see re Smalley [1985] AC 622 at 642E approved in re Ashton [1994] 1 AC 9 at 20A). Furthermore, as Mr Pannick QC for the defendant pointed out, the only relevant decision other than the one identified by the claimants would seem to be the decision of Parliament in 1965 and there is no challenge to that. If there were it would fall foul of what in R v Parliamentary Commissioner ex parte Al Fayed [1998] 1 WLR 669 was described by Lord Woolf MR at 670G as the court's "self-denying ordinance in relation to interfering with proceedings of Parliament". It would also now encounter the problem that whereas section 6(1) of the Human Rights Act 1998 makes it unlawful for a public authority to act in a way which is incompatible with a Convention right section 6(3) makes it clear that for the purposes of section 6 Parliament is not a public authority. On the other hand there is a question whether a declaration of incompatability could be made under section 4 without identifying an unlawful act under section 6. In R v Secretary of State for Employment ex parte Equal Opportunities Commission [1995] 1 AC 1 Lord Keith at 26 H accepted that a declaration of incompatibility could be made in relation to primary legislation in judicial review proceedings brought by a person with a sufficient interest. That of course was in relation to an EC issue and was before Parliament enacted the Human Rights Act, and in R v DPP ex parte Kebilene [2000] 2 AC 236 Lord Steyn at 371G emphasised the importance of human rights challenges in relation to criminal matters taking place "in the criminal trial or on appeal".
For present purposes we are satisfied that the most attractive route to jurisdiction is to have resort to section 3(1) of the 1998 Act which requires us to read and give effect to section 9(1) of the 1968 Act in a way which is compatible with Convention rights. If a statutory provision which requires the imposition of a sentence of life imprisonment is incompatible with the Convention then, at least until Parliament has had the opportunity to consider its response to the court's declaration of incompatibility, the sentence is not for the purposes of section 9(1) of the 1968 Act fixed by law; alternatively the exclusion of sentences fixed by law is itself subject to an implied exception where the statutory provision fixing the sentence is incompatible with the Convention. Accordingly we hold that this court, sitting as a division of the Court of Appeal, has jurisdiction to entertain these matters as appeals against sentence, since they raise arguable issues as to the compatibility of section 1 of the 1965 Act with the Convention. We in each case extend time and grant permission to...
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