R (on the application of Anderson) v Secretary of State for the Home Department
| Jurisdiction | UK Non-devolved |
| Judge | LORD BINGHAM OF CORNHILL,LORD NICHOLLS OF BIRKENHEAD,LORD STEYN,LORD HUTTON,LORD HOBHOUSE OF WOODBOROUGH,LORD SCOTT OF FOSCOTE,LORD RODGER OF EARLSFERRY |
| Judgment Date | 25 November 2002 |
| Neutral Citation | [2002] UKHL 46 |
| Date | 25 November 2002 |
| Court | House of Lords |
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
My Lords,
This appeal concerns the sentencing, punishment and detention of adults convicted of murder in England and Wales and, in particular, the power now exercised by the Home Secretary to decide how long they should spend in prison for purposes of punishment. The question arises, as one of law not policy, whether that is a power which, compatibly with the European Convention on Human Rights ("the convention"), the Home Secretary may properly exercise, and the answer must turn on how, on a proper legal analysis, exercise of that power is properly to be regarded. This opinion is concerned only with adults convicted of murder in England and Wales (whom I shall call "convicted murderers") save where express reference is made to other classes of offender or other jurisdictions.
I preface this opinion by recording three propositions, none of which is controversial. First, a convicted murderer is a person who has taken a life or lives with the intention either of doing so or of causing serious physical injury. Contrary to widespread public belief, such a person need not have intended to kill and may have intended not to kill. It is enough that he intended to cause serious physical injury if death resulted. Secondly, the crime of murder so defined embraces acts of widely varying culpability, including horrific and brutally sadistic conduct at one end of the spectrum and "almost venial, if objectively immoral" conduct at the other: R v Howe [1987] AC 417, 433G, per Lord Hailsham of St Marylebone LC; Ong Ah Chuan v Public Prosecutor [1981] AC 648, 674 per Lord Diplock; Report of the Royal Commission on Capital Punishment 1949-53 (1953, Cmd 8932, p 6, para 21); House of Lords Select Committee on Murder and Life Imprisonment (1989, HL Paper 78-I, p 13 para 27); Report of the Committee on the Penalty for Homicide chaired by Lord Lane (Prison Reform Trust, 1993, p 21). Thirdly, judges have never in modern times enjoyed any discretion in passing sentence on a convicted murderer. Until 1957 the sentence was one of death. Under the Homicide Act 1957 death continued to be the sentence mandatorily passed on those convicted of capital or multiple murders (sections 5 and 6), while other convicted murderers were mandatorily sentenced to imprisonment for life (sections 7 and 9(1)). By the Murder (Abolition of Death Penalty) Act 1965 it was provided that convicted murderers should be sentenced to imprisonment for life (section 1(1)).
For the past century at least there has been some divergence between the sentence passed and the sentence carried out, perhaps because of the inclusive definition of murder and the broad range of conduct it covers. Statistics published by the Royal Commission on Capital Punishment show that of murderers convicted and sentenced to death between 1900 and 1949 (when no defence of diminished responsibility was available) 91% of women and 39% of men were reprieved (Report, p 326). Of those reprieved, twice as many served terms of imprisonment of under 5 years (in some cases terms of less than a year) as served terms of over 15 years (Report, pp 316-317). Since 1965 only a small minority of convicted murderers have spent the remainder of their lives in prison: that minority has included some whose crimes have been held to be so heinous as to merit lifelong imprisonment; it has also included some who have served such terms of imprisonment as their crimes have been held to merit for purposes of punishment but whom it has not been thought safe to release.
So long as courts were required to pass sentence of death on convicted murderers or convicted capital murderers, it was natural to regard those reprieved as saving their lives at the price of forfeiting their liberty to the state for life (although the terms of imprisonment to which capital sentences were commuted were on occasion very short indeed: the death sentences passed on the defendants in R v Dudley and Stephens (1884) 14 QBD 273 were commuted to sentences of 6 months' imprisonment). It was also natural to regard release, if ordered, as an act of executive indulgence. It seems clear that a similar view was taken of the mandatory life sentence passed on all convicted murderers following effective abolition of the death penalty in 1965.
Section 61(1) of the Criminal Justice Act 1967 conferred a discretion on the Home Secretary to release on licence a convicted murderer serving a sentence of life imprisonment if recommended to do so by the newly created Parole Board. In a written answer given in the House of Commons on 30 November 1983 the then Home Secretary (Mr Leon Brittan QC) made a statement concerning his exercise of this discretion (Hansard (HC Debates), 30 November 1983, cols 505-507). In this he made two announcements relevant for present purposes: first, that he would continue to look to the judiciary for advice on the time to be served to satisfy the requirements of retribution and deterrence and to the Parole Board for advice on risk; and secondly, that the new procedures he was announcing would separate consideration of the requirements of retribution and deterrence from consideration of risk to the public. Over the years since 1983 the procedures then introduced have been clarified, refined and formalised.
A power to release convicted murderers was again conferred on the Home Secretary by section 35(2) and (3) of the Criminal Justice Act 1991, and is now conferred (in terms substantially identical to those of the 1991 Act) in section 29 of the Crime (Sentences) Act 1997, which provides
"(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 [a discretionary life prisoner].
(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."
This section, no doubt deliberately, gives little indication of the procedures which in practice follow imposition of a mandatory life sentence on a convicted murderer, although for some years now those procedures have been well understood and routinely followed in practice.
The first stage is directed to deciding how long the convicted murderer should remain in prison as punishment for the murder or murders he has committed. This is what Mr Brittan meant when he referred to "retribution and deterrence", although deterrence should be understood as meaning general deterrence; deterrence of the particular convicted murderer is embraced in the notion of retribution. In determining the appropriate measure of punishment in a particular case all the traditional factors may, and should so far as appropriate, be taken into account: pure retribution, expiation, expression of the moral outrage of society, maintenance of public confidence in the administration of justice, deterrence, the interests of victims, rehabilitation and so on. The term of imprisonment appropriate in a particular case is subject to no minimum, and no maximum; it may in a case of sufficient gravity extend to the whole life of the convicted murderer ( R v Secretary of State for the Home Department, Ex p Hindley [1998] QB 751 at 769; [2001] 1 AC 410 at 416).
In the first instance, advice on the appropriate punitive term of imprisonment, which has become known as "the tariff", is given by the trial judge, who will have a detailed knowledge of the facts of the case and of the offender and, if the charge was contested, will have had an opportunity to assess the conduct of the convicted murderer, albeit in the artificial context of a criminal trial. The trial judge, in giving his advice, will review the factors which in his expert judgment go to mitigate and aggravate the offence and will approach his task in very much the same way as if he were sentencing a defendant other than a convicted murderer. The trial judge's advice is passed to the Lord Chief Justice of the day, who does not enjoy the trial judge's immediacy of exposure to the facts of the case or the offender but who does, through the frequency with which he is consulted, obtain an overall view denied to any individual trial judge and who thus has the opportunity to give advice reflecting some uniformity of approach to classes of case and particular considerations. As is plain from the language I have used, the role of the trial judge and the Lord Chief Justice is that of advisers or makers of recommendations. The power of decision rests with the Home Secretary (or a junior Home Office minister) who, having received the written advice of officials in his department, will decide how long the particular convicted murderer should remain in prison to meet the requirements of retribution and general deterrence. In recent years the Home Secretary has set a period in line with the judicial recommendations in a large majority of cases, but in a small minority of cases the period set has been either longer or shorter than the judges have recommended. This is the process, colloquially known as "fixing the tariff", with which this appeal is centrally concerned, and I shall return to it.
This procedure was followed in the case of the appellant, Mr Anthony Anderson. In September 1986 the appellant murdered a 60 year old man in obviously poor health who had allowed the appellant into his house....
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