R v Secretary of State for the Home Department, ex parte Hindley
| Jurisdiction | UK Non-devolved |
| Judge | LORD BROWNE-WILKINSON,LORD NICHOLLS OF BIRKENHEAD,LORD STEYN,LORD HUTTON,LORD HOBHOUSE OF WOODBOROUGH |
| Judgment Date | 30 March 2000 |
| Judgment citation (vLex) | [2000] UKHL J0330-3 |
| Date | 30 March 2000 |
| Court | House of Lords |
[2000] UKHL J0330-3
Lord Browne-Wilkinson
Lord Nicholls of Birkenhead
Lord Steyn
Lord Hutton
Lord Hobhouse of Wood-borough
HOUSE OF LORDS
My Lords,
I have read in draft the speech of my noble and learned friend, Lord Steyn. I agree with it completely and for the reasons which he gives would dismiss this appeal.
My Lords,
I have had the advantage of reading a draft of the speech of my noble and learned friend Lord Steyn. I agree that, for the reasons he gives, this appeal should be dismissed.
My Lords,
Myra Hindley is serving mandatory sentences of life imprisonment for murder. On 3 February 1997 the previous Secretary of State for the Home Department (Mr. Michael Howard) decided, and communicated to Hindley, that in her case the tariff necessary to satisfy the requirements of retribution and deterrence would be a whole life tariff, i.e. detention for the whole of her natural life. By a letter dated 19 November 1997 the present Home Secretary (Mr. Jack Straw) indicated that, subject to consideration of whether it might be appropriate to reduce Hindley's tariff because of exceptional progress she might have made in prison he "[saw] no reason to depart from the conclusion of his predecessor that a whole life tariff [was] appropriate in all the circumstances of the case".
In the meantime Hindley had commenced judicial review proceedings seeking an order quashing the decision of the Secretary of State for the Home Department to impose on her a "whole life" tariff. On 18 December 1997 the Divisional Court dismissed her application: Reg. v. Secretary of State for the Home Department, Ex parte Hindley [1998] Q.B. 751. She appealed against this decision. On 5 November 1998 the Court of Appeal dismissed her appeal but gave her leave to appeal to the House of Lords: Reg. v. Secretary of State for the Home Department, Ex parte Hindley [2000] Q.B. 152. There is now before the House the appeal of Hindley which raises for the consideration of the House the arguments which were rejected by the courts below. The context in which the issues arise is set out in the detailed and careful judgments.
Hindley is entitled to the full measure of the protection of the law and is therefore entitled to have her arguments examined afresh and with care by the House.
The genesis of the whole life tariff
It is necessary to explain briefly the background to the whole life tariff. By a statement made to the House of Commons on 30 November 1983 the Home Secretary (Mr. Leon Brittan) introduced a tariff system for prisoners serving mandatory life sentences: Hansard (H.C. Debates), cols. 505-507. This system involved the setting of a term by the Home Secretary which must be served by a mandatory life sentence prisoner before his or her release could be considered. Subject to the requirement that the Home Secretary must take decisions on tariff matters in accordance with fair procedures, the House of Lords accepted in Reg. v. Secretary of State for the Home Department, Ex parte Doody [1994] 1 A.C. 531 that the tariff system is in principle compatible with the statutory powers of the Home Secretary: see section 61(1) of the Criminal Justice Act 1967. In 1988 the Home Secretary (Mr. Douglas Hurd) first imposed a whole life tariff. Since that date such a tariff has been imposed on 30 occasions. At present 23 prisoners, including Hindley, is subject to such a tariff.
On 7 December 1994 the previous Home Secretary (Mr. Michael Howard) explained his policy of imposing in some cases a whole life tariff: Hansard (House of Commons Debates), cols. 234-235. On 10 November 1997 the present Home Secretary (Mr. Jack Straw) explained his policy in respect of such cases: Hansard (H.C. Debates), cols. 419-420. It will be necessary to return to the extant policy of the present Home Secretary.
The Issues:
By primary legislation Parliament has created fundamentally different regimes for the release of mandatory life sentence prisoners and discretionary life sentence prisoners. It is important to bear in mind that this case is only concerned with the regime applicable to mandatory life sentence prisoners, and with only one facet of the tariff system applicable to such prisoners, namely the whole life tariff.
The issues before the House fall into two categories. First, there are arguments to be considered that the Secretary of State's policy of imposing whole life tariffs on some mandatory life sentence prisoners is in principle unlawful. Under this heading the primary point is whether a whole life tariff is inconsistent with the statutory concept of life imprisonment. The remaining points challenge the policy of the Secretary of State on the general grounds that it fetters his discretion; it excludes all consideration of such cases by the Parole Board; and is inconsistent with the tariff system which is said to require expression of the tariff in a term of years.
Secondly, Hindley challenges the imposition of a whole life tariff on her as being unlawful on various public law grounds.
Unlawfulness of whole life tariffs
The first ground put forward raises a point of statutory interpretation. Counsel for Hindley submitted that when in 1965 Parliament enacted section 1(1) of the Murder (Abolition of Death Penalty) Act 1965, which in the case of murder replaced the sentence of death by a mandatory sentence of life imprisonment, the substitute sentence did not mean a lifelong period of imprisonment. It contemplated that, if the prisoner was not a risk to others, he or she would be released after a finite period of imprisonment. Counsel for Hindley pointed to the statement in the Report of the Royal Commission on Capital Punishment (1949-1953) that there is no recorded case in which it has been decided that a life sentence prisoner shall be kept in penal servitude until he dies: p. 226, para. 644. On the other hand, before 1965 persons convicted of heinous murders were sentenced to death and executed. The correctness of the legal submissions of counsel must be tested against the language of the statutory provisions. In 1965 Parliament was legislating against the background of a tolerably clear meaning of "life imprisonment." One does not need to go further back than section 27 of the Prison Act 1952. It provided as follows:
"27. (1) The Secretary of State may at any time if he thinks fit release on licence a person serving a term of imprisonment for life subject to compliance with such conditions, if any, as the Secretary of State may from time to time determine.
(2) The Secretary of State may at any time by order recall to prison a person released on licence under this section
…"
Section 27 shows that as a matter of law a sentence of life imprisonment was understood to authorise the detention of a person sentenced to life imprisonment for an indeterminate period which is only brought to an end by the death of the prisoner or if and when the Secretary of State in the exercise of his discretion decides to release him or her. Section 1 of the Act of 1965, read with section 27 of the Act of 1952, did not exclude the possibility that life sometimes might mean life. It is therefore impossible to conclude that life imprisonment in the statute meant a finite period short of the natural life of the prisoner. It is true that section 27 of the Act of 1952 was subsequently repealed and replaced from time to time by other provisions. In 1967 section 27 of the Prison Act 1952 was repealed by the Criminal Justice Act 1967 and replaced by a new provision: section 61(1). In 1991 the latter provision was replaced by section 35 of the Criminal Justice Act 1991. In 1997 a new provision was introduced by section 29 of the Crime (Sentences) Act 1997. It is however unnecessary to discuss the legislative amendments of 1967, 1991 and 1997 since it is not suggested that in any material respect the concept of life imprisonment acquired a different meaning through these changes.
One must therefore concentrate on the language of section 1(1) of the Act of 1965, read with section 27 of the Act of 1952. It yields no support for the argument of counsel for the appellant. Counsel sought to rely on the provisions of section 1(2) of the Act of 1965 which authorise a judge to make a recommendation for a minimum period to be served by a defendant convicted of murder. But this provision cannot sustain the argument. After all, the judge has a discretion to make or not to make a recommendation. If the judge thought that no fixed term was sufficient in terms of the need of deterrence and retribution he was entitled on that ground to refuse to make a recommendation. This is not altogether surprising. In the Divisional Court Lord Bingham of Cornhill C.J. observed that he could "see no reason, in principle, why a crime or crimes, if sufficiently heinous, should not be regarded as deserving lifelong incarceration for purposes of pure punishment": at 769B. I respectfully agree. Looking at the matter more broadly there is therefore no reason to give to the concept of life imprisonment anything but the contextual meaning of the legislation. I would reject the restrictive interpretation put forward on behalf of Hindley.
The second argument is that the Secretary of State's policy in respect of whole life tariffs unlawfully fetters his discretion. The following passage in the policy statement of the Secretary of State of 10 November 1997 is relevant:
"So far as the potential for a reduction in tariff is concerned, I shall be open to the possibility that, in exceptional circumstances, including for example, exceptional progress by the prisoner whilst in custody, a review and...
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