R v Secretary of State for the Home Department, ex parte Hindley
| Jurisdiction | England & Wales |
| Judge | THE LORD CHIEF JUSTICE,MR JUSTICE HOOPER,MR JUSTICE ASTILL,LORD WOOLF, MR,LORD JUSTICE HUTCHISON,LORD JUSTICE JUDGE |
| Judgment Date | 05 November 1998 |
| Neutral Citation | [1997] EWCA Civ J1218-12 |
| Judgment citation (vLex) | [1998] EWCA Civ J1105-8 |
| Docket Number | CO/1413/97,FC3 98/7150/4 |
| Court | Court of Appeal (Civil Division) |
| Date | 05 November 1998 |
[1997] EWCA Civ J1218-12
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
CROWN OFFICE LIST
DIVISIONAL COURT
Royal Courts of Justice
The Strand
London
The Lord Chief Justice of England
(Lord Bingham of Cornhill)
Mr Justice Hooper
and
Mr Justice Astill
CO/1413/97
Mr EDWARD FITZGERALD QC and Mr TIM OWEN (instructed by Messrs Taylor Nichol, London N4 2DH) appeared on behalf of THE APPLICANT
Mr DAVID PANNICK QC and Mr MARK SHAW (instructed by The Treasury Solicitor) appeared on behalf of THE RESPONDENT
Thursday 18 December 1997
The applicant (Myra Hindley) is a mandatory life sentence prisoner now detained at Durham prison. She moves with leave to challenge two decisions and two policy statements. These are:
(1) The decision of the then Home Secretary communicated on 3 February 1997 that the applicant should serve a "whole life" tariff to satisfy the requirements of retribution and deterrence in respect of the two offences of murder of which she had been convicted.
(2) The decision of the present Home Secretary communicated on 19 November 1997 to maintain the whole life tariff imposed on the applicant.
(3) The policy of the then Home Secretary announced on 7 December 1994 and maintained thereafter that those upon whom whole life tariffs had been imposed would not thereafter be able to gain release by virtue of their progress in prison and lack of dangerousness to society.
(4) The policy of the present Home Secretary "to maintain a category of "whole life" life sentence prisoners in respect of whom their length of time in custody (however long), their progress in prison (however great), and their lack of dangerousness to society (however clear)" would never qualify them for more than the possibility of release before death as an exception to a pre-determined general rule of life-long incarceration.
The applicant contends that these decisions and policy statements were unlawful.
The Crimes
On the evening of 6 October 1965 Edward Evans, aged 17, left his home to go to a football match. On the following day the applicant's brother-in-law telephoned the police to say that he had witnessed a murder in the house where Ian Brady and the applicant were living in Hattersley. The police visited and searched the house. They found the body of Edward Evans, trussed up in a polythene bag in a bedroom of the house. Lying near the body was another polythene bag containing a blood-stained axe. Post mortem examination showed a number of irregular head wounds and widespread bruising of the neck, shoulders, back, hands and arms. Most of the right side of the skull had been fractured. Death had been caused by cerebral contusion and haemorrhage, hastened by strangulation with a ligature.
Both Brady and the applicant were arrested. On 15 October 1965 the police found two suitcases in the left luggage office at Manchester Central station. The suitcases contained pornographic books and books on torture, diaries belonging to Brady and the applicant, photographs and negatives and two recording tapes. The photographs included some of a young girl, naked except for shoes and socks, in obscene poses; there was a scarf tied round her mouth. One of the tapes was a recording of a young girl who was crying that she was being coerced to put something in her mouth and to take her hand away so that she could be photographed. She asked not to be undressed and pleaded to be allowed to go home to her mother. The voice of a woman was audible telling the victim to put something in her mouth. The child's voice on the tape was that of Lesley Ann Downey (aged 10) who had disappeared on 26 December 1964 after going to a fair-ground with a friend. On 16 October 1965 her naked body was found in a shallow peat grave on Saddleworth Moor. Her clothing, shoes and a string of beads were buried beside her. Part of the body had been eaten by animals, but sufficient remained to show that there was no gross injury or ligature to account for her death. Suffocation or smothering were thought to be possible causes of death. The woman's voice on the tape was the applicant's.
On 21 October 1965 another body was found in a shallow grave on Saddleworth Moor. It was that of John Kilbride, who had disappeared on 23 November 1963 after leaving home at 1 p.m. to go to the cinema. He had been aged 12 at the time. His body, when discovered, was clothed, but the trousers and underpants were pulled down to mid-thigh and the underpants appeared to have been knotted at the back. There was no ligature on the neck or obvious sign of injury, and because of the degree of decomposition it was not possible to ascertain the cause of death.
Brady and the applicant were charged with the murder of these three children. They pleaded not guilty. On 6 May 1966, at Chester Assizes, Brady (then aged 27) was convicted of all three murders and sentenced to three terms of life imprisonment as required by law. He did not appeal. The applicant was convicted of murdering Edward Evans and Lesley Ann Downey, and was sentenced to two terms of life imprisonment. She was acquitted of murdering John Kilbride, but was found guilty of being an accessory after the fact to that murder and for that offence was sentenced to 7 years' imprisonment. She was then aged 23. On the case presented by the Crown, Brady was the initiator of these crimes, and the actual killer; the applicant was cast as his willing accomplice, corrupted and dominated by him.
These crimes, and the ensuing trial, received intense publicity, and aroused deep public enmity towards both Brady and the applicant.
The issue
This court is now asked to rule on the lawfulness of decisions and policy statements made by successive Home Secretaries. That is its only task. It is no part of our function to decide whether the applicant should be released from prison, or whether she should remain in prison; or, if she is to remain in prison, to decide for how long she should remain. Our task, and our only task, is to review the lawfulness of what successive Home Secretaries have decided and announced as their policy.
The history
When passing sentence on Brady and the applicant, the trial judge (Fenton Atkinson J) made no recommendation under section 1(2) of the Murder (Abolition of Death Penalty) Act 1965. But on 8 May 1966 he wrote to the then Home Secretary in these terms:
"I did not make a recommendation in passing sentence because the only possible one would have been at that stage that neither of them should ever be set free again.
Though I believe that Brady is wicked beyond belief without hope of redemption (short of a miracle), I cannot feel that the same is necessarily true of Hindley once she is removed from his influence. At present she is as deeply corrupted as Brady but it is not so long ago that she was taking instruction in the Roman Catholic Church and was a communicant and a normal sort of girl.
One watched them day after day, looking for the smallest flicker of an expression indicating some shame or regret or realization of the horror of what was being unfolded in the evidence, but it never came. There can be no doubt they tortured and later killed children because they enjoyed it and I am convinced that they regard those who are horrified by such conduct as "morons" and beneath contempt.
I hope Brady will not be released in any foreseeable future (assuming his fellow prisoners allow him to live) and that Hindley (apart from some dramatic conversion) will be kept in prison for a very long time. Indeed I would not expect to be available for consultation when any question of release comes up for consideration. But I do not claim sufficient prophetic insight to venture to suggest any term of years."
In response to the Permanent Under-Secretary at the Home Office, Lord Widgery CJ on 2 March 1978 wrote:
"I think that we must face up to the question of whether "life" should ever mean whole life. I think the public are given the impression that it does in really bad cases and I believe the pressure to restore capital punishment would increase sharply if this impression is dispelled.
Further, I am occasionally put in difficulty by a Judge who says, when passing sentence, that "this is a case where life should mean life". We must not say this sort of thing if it is not correct.
I think that we should sincerely accept that a life sentence can extend to whole life, though this would obviously be restricted to the most extreme cases. If this is so, it would follow that no question of release for Brady or Hindley would arise in the foreseeable future, with much of their active lives before them, and (very important) the crime is still vivid in the public mind.
I do not like the idea of putting the problem over for five years. I think this will encourage the view that something will be done after that time, whereas my view is that it is too early to contemplate release at all.
As to any distinction between Brady and Hindley, I think that it will be widely expected that the woman will serve a shorter term. This may seem wholly illogical, but it does accord with sentencing tendencies when man and woman commit a joint offence.
I have said enough to show that I do not think that we can usefully discuss what the ultimate term of imprisonment might be."
On 24 January 1979, the then Home Secretary (Mr Rees), asked to make a statement about the prospects of release from prison of Brady and the applicant, said that the joint committee of Home Office and Parole Board representatives had felt unable to recommend a date for the first formal review of these cases. He continued:
"Final...
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