R (on the application of Anderson) v Secretary of State for the Home Department

JurisdictionEngland & Wales
Judgment Date13 November 2001
Neutral Citation[2001] EWCA Civ 1698
Docket NumberCase No: C/2001/0577
CourtCourt of Appeal (Civil Division)
Date13 November 2001
The Queen (on the application of) Anthony Anderson
John Hope Taylor
Secretary of State for the Home Department

[2001] EWCA Civ 1698


The Lord Chief Justice of England and Wales and

The Rt. Hon. Lord Justice Simon Brown

The Rt. Hon. Lord Justice Richard Buxton

Case No: C/2001/0577






Royal Courts of Justice


London, WC2A 2LL

MR E FITZGERALD QC, MISS P KAUFMANN (instructed by Irwin Mitchell, Sheffield S1 2EL appeared on behalf of the Appellant, Anderson

MR E FITZGERALD QC, MISS S HATFIELD (instructed by Peter Ievins, Peterborough PE3 9RH appeared on behalf of the Appellant, Taylor

MR D PANNICK QC and MR M SHAW (instructed by the Treasury Solicitor) appeared on behalf of the Respondent



This appeal raises a single issue. It is whether, as the Home Secretary is a member of the executive, he is entitled to fix the minimum period of imprisonment to be served by a mandatory life prisoner to meet the requirements of retribution and deterrence ("the tariff") or whether his performing this role breaches article 6 of the European Convention on Human Rights.


The appeal is by two appellants who on separate occasions were sentenced to a mandatory life sentence having been convicted of murder. One of the appellants is Anthony Anderson. He was convicted in 1988 of 2 separate murders. He had kicked his victims to death in the course of theft. Both the trial judge and the Lord Chief Justice had recommended a tariff of 15 years. The Home Secretary has on three different occasions fixed the tariff at 20 years. The other appellant, John Hope Taylor was convicted of murder in 1989. He strangled a woman whose neck he had previously broken. In his case, the Lord Chief Justice and the trial judge had recommended a tariff of 16 years. The Home Secretary in 1994 had recommended a tariff of 30 years, but in March 2000 that was reduced to 22 years.


After the coming into force of the Human Rights Act, 1998 the appellants applied for judicial review. On the 22 February 2001, the Divisional Court (Lord Justice Rose, Vice President, Mr Justice Sullivan and Mr Justice Penry-Davey) dismissed the applications which were heard together. This was the latest decision in a series of cases, in our courts and in the European Court of Human Rights ("ECtHR"), which have considered the Home Secretary's role in relation to the fixing of tariffs. There are four different situations where it is necessary to fix tariffs for prisoners. There is the situation considered on this appeal involving a mandatory life sentence for murder; there is the situation where a Court imposes a discretionary life sentence, there are the cases where a life sentence is automatic and there is a situation where a Court sentences an offender who has committed murder at a time when he was under the age of 18 to a mandatory sentence of detention during Her Majesty's pleasure.



The legislative framework and the development of the policies under which successive Home Secretaries have fixed the tariffs of prisoners in all three situations can be summarised shortly because it is already set out in the different decisions of the House of Lords to which it will be necessary to refer. The starting point is the Murder (Abolition of Death Penalty) Act 1965. Section 1 (1) of that Act states:

"No person shall suffer death for murder, and a person convicted on murder shall . be sentenced to imprisonment for life"


Even when the 1965 Act was passed it was appreciated that it would only be rarely that a prisoner would actually remain in prison for the rest of his life. Instead he would be released on parole when it was considered appropriate for this to happen. Section 29 (1) of the Crime (Sentences) Act 1997, replacing earlier legislation to the same effect, provided:

"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"

(Section 28 does not apply to those sentenced to a mandatory life sentence.)


The involvement of the Parole Board on the question of release of a prisoner on licence raised the practical problem as to when the Parole Board should become involved. Over the years the practice of the Home Office changed as to this and there have been successive statements by Home Secretaries as to the practice they intended to follow. However, in relation to mandatory life sentences there has never been any question of the Home Secretary of the day not retaining a discretion as to when the Parole Board should become involved and as to when a prisoner was released on licence. One statement was made by Mr Leon Brittan on the 30 November 1983. In it he stated:

"At present I look to the judiciary for advice on the time to be served to satisfy the requirements of retribution of and deterrence and to the parole board for advice on risk. I shall continue to do so."


The case of R v Secretary of State for the Home Department, ex p. Handscomb (1988) 86 CR.App R. 59 criticised the way in which the Home Secretary exercised his discretion in cases involving prisoners serving a discretionary life sentence and the then Home Secretary, Mr Douglas Hurd, in a written answer to a parliamentary question on the 23 of July 1987 announced the new practice which was to be followed. He stated that the view of the judiciary in relation to discretionary life sentences would be sought as to "the determinate sentence that would have been passed but for the element of mental instability and /or public risk which led the judge to pass a life sentence". He added:

"In case of prisoners serving life sentences for murder, where the sentence is not at the discretion of the Court, the question of the notional equivalent determinate sentence does not arise. I shall continue to take into account the view of the judiciary on the requirements of retribution and deterrence in such cases as a factor amongst others (including the need to maintain public confidence in the system of justice) to be weighed in the balance in setting the first review date."

So at this stage, the use of tariffs in both the case of discretionary and mandatory life sentences was clearly established. So was the distinction between the two stages of life sentences: the initial period for punishment and deterrence and the subsequent period governed by risk. In the case of a mandatory sentence, however, the Home Secretary was reserving the right to take into account other factors such as the public confidence in the criminal justice system.


It is now necessary to refer to a significant decision of the ECtHR. It is the case of Thynne, Wilson and Gunnell v UK (1990) 13 EHRR 666. The three applicants in that case had received discretionary life sentences. Their tariff periods had expired. Relying on article 5 (4) of the ECHR, they complained of the lack of regular judicial scrutiny of the lawfulness of their detention. The ECtHR upheld the complaint. Although the Court acknowledged that the dividing line may be difficult to draw the Court considered there was a distinction between mandatory and discretionary life sentences. (See paragraphs 73 and 74). After the expiry of the tariff period in the case of discretionary life prisoners questions could arise as to the lawfulness of their continued detention. The Court reserved the question and as to what would be the position prior to the expiry of the tariff period.


In response to this decision a new statutory regime was introduced for discretionary life prisoners but not mandatory life prisoners. The result was that the trial judge now fixes the tariff when he imposes a discretionary life sentence and his decision is subject to appeal. After the tariff has expired the prisoner can, if this has not already happened, require his case to be referred to the Parole Board and the Home Secretary releases the prisoner if this is what the Parole Board decides should happen. The relevant statutory provisions were contained in section 34 of the Criminal Justice Act 1991. That section contains different provisions to those contained in section 35 which deals with mandatory life prisoners. In relation to mandatory life prisoners, the Home Secretary retained his discretion.


The next step which is important is the decision of the House of Lords in the case of Doody [1994] 1 AC 531 and Lord Mustill's speech in that case. The case established that the Home Secretary was required to exercise his discretion fairly when fixing the tariff. Accordingly, the prisoner was entitled to know the recommendations as to tariff of the judiciary and the prisoner was entitled to make representations to the Home Secretary. If the Home Secretary did not adopt the judicial view as to tariff he was required to give reasons for not doing so. The significance of Doody to the present case is that Lord Mustill rejected the argument that the Home Secretary was not entitled, in the case of a mandatory life sentence prisoner, to fix the tariff at a higher figure than that recommended by the judiciary. He accepted that the Home Secretary was entitled to have regard to broader considerations of a public character than those which apply to an ordinary sentencing function (see p 559 B). Lord Mustill added:

"The discretionary and mandatory life sentences having in the past grown apart, may now be converging. Nevertheless, on the statutory framework, the underlying theory and the...

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