R v Secretary of State for the Home Department, ex parte Pierson

JurisdictionEngland & Wales
CourtHouse of Lords
Judgment Date24 July 1997
Judgment citation (vLex)[1997] UKHL J0724-8
Date24 July 1997

[1997] UKHL J0724-8


Lord Goff of Chieveley

Lord Browne-Wilkinson

Lord Lloyd of Berwick

Lord Steyn

Lord Hope of Craighead

Secretary of State for the Home Department
Ex Parte Pierson (A.P.)

My Lords,


There is before your Lordships an appeal by John David Pierson, who is a convicted murderer. He committed a double murder of a terrible kind. In the early hours of 19 September 1984 at his family's home, a small farmhouse in North Wales where he lived with his mother and father, he killed both his parents by shooting them more than once at close range with a 12 bore shotgun which was kept in the house. The appellant himself called the police. At first he made admissions consistent with his guilt; but at his trial he said that he had no memory of the events in question. On 8 July 1985, he was convicted of both murders. Why he killed his parents was totally unexplained. The judge imposed the mandatory sentence of life imprisonment. In accordance with the usual practice, he wrote in confidence to the Home Secretary, describing the crimes as horrifying but also mystifying. He expressed the opinion that, failing some dramatic development or discovery, retribution and deterrence in the appellant's case would require a substantially longer than average period of custody to be served.


The present appeal is concerned with the period of time which the appellant is required to spend in prison to meet the requirements of retribution and deterrence, before the possibility of his release on licence can be considered. The statutory regime in force at the time of his conviction and sentence was contained in the Criminal Justice Act 1967. It was this Act which brought the Parole Board into being. Under section 61(1) of the Act, the Secretary of State might, if recommended to do so by the Parole Board, release on licence a person serving a sentence of imprisonment for life, but could not do so except after consultation with the Lord Chief Justice together with the trial judge, if available. However, it lay in the discretion of the Secretary of State whether or not to refer a case to the Parole Board (section 59(3)), and whether or not to accept the recommendation of the Parole Board, when given (section 60(1)). Nowadays, the position is governed by the Criminal Justice Act 1991 which, in section 35(2) and (3), contains provisions to the same effect applicable in the case of prisoners subject to mandatory life sentences.


However, for present purposes more important, successive Secretaries of State have issued statements setting out the policy which is to be applied in connection with their statutory power to release convicted prisoners on licence. Since these policy statements lie at the heart of the present appeal, I shall have to refer to them in some detail.


(1) Policy Statement of 30 November 1983


The first in the series of policy statements was made by Mr. Leon Brittan on 30 November 1983. This was primarily concerned to address public concern about the increase in violent crime, and about the gap which existed between sentences passed on criminals and the time actually served by them in prison. But for present purposes the most important feature of the statement was that, in the case of prisoners serving a life sentence, a distinction was to be drawn between a period which the prisoner would have to serve to meet the requirements of retribution and deterrence (which has come to be known as "the penal element"), and any remaining period which he is required to serve before he is released (now known as "the risk element"). The former period was to be fixed by the Secretary of State following consultation with the Lord Chief Justice and the trial judge (if available). To outward appearances, what was fixed was the date of the first reference of the case to a Local Review Committee. The first review normally took place three years before the expiry of the period of the penal element. This gave sufficient time for release if the Parole Board recommended it, having considered the question of risk; though the ultimate discretion whether to release remained with the Secretary of State. Moreover, although at that time the length of the penal element so fixed was not communicated to the prisoner, the date for his first reference to a Local Review Committee was communicated to him; and from that he could infer that the penal element in his sentence would expire three years later.


In addition the Secretary of State established certain procedures to ensure that he could consider any special circumstances or exceptional progress which might justify changing the review date, i.e. which might justify a reduction of the penal element. But he stressed that, except where a prisoner has committed an offence for which he has received a further custodial sentence, the first formal review date would not be put back, i.e. the penal element in his sentence would not be increased.


In re Findlay [1985] 1 A.C. 318


In another part of that Policy Statement, the Home Secretary decided to adopt a new policy of refusing in all but the most exceptional cases to release on licence prisoners serving sentences of over five years for offences of violence or drug trafficking. In In re Findlay [1985] 1 A.C. 318, four prisoners in those categories brought proceedings for judicial review in which they challenged the lawfulness of the new policy, on the ground that they had suffered loss of expectation of parole. The applications, which came before your Lordships' House on appeal, were dismissed. Lord Scarman delivered the only speech, with which the other members of the Appellate Committee agreed. He stated (at pp. 332-333) that the Secretary of State, in considering the early release of a prisoner, had to take into account not only the element of risk to the public, on which he had the benefit of advice from the Parole Board, but also deterrence, retribution and public confidence in the system. He said:

"But neither the board nor the judiciary can be as close, or as sensitive, to public opinion as a minister responsible to Parliament and the electorate. He has to judge the public acceptability of early release and to determine the policies needed to maintain public confidence in the system of criminal justice."


Furthermore, with regard to the prisoners' claim that they had suffered a loss of expectation of parole, Lord Scarman had this to say (at p. 338):

"But what was their legitimate expectation? Given the substance and purpose of the legislative provisions governing parole, the most that a convicted prisoner can legitimately expect is that his case will be examined individually in the light of whatever policy the Secretary of State sees fit to adopt provided always that the adopted policy is a lawful exercise of the discretion conferred upon him by the statute. Any other view would entail the conclusion that the unfettered discretion conferred by the statute upon the minister can in some cases be restricted so as to hamper, or even to prevent, changes of policy."


(2) Policy Statement of 1 March 1985


In a brief Statement on this date, Mr. Leon Brittan amended his policy with respect to those cases where the penal element was fixed at longer than 20 years, so that for these prisoners the first formal review date should nevertheless take place at an earlier date than three years before the expiry of the penal element, normally after 17 years in custody.


(3) Policy Statement of 23 July 1987


A third Policy Statement was made by Mr. Douglas Hurd on 23 July 1987, in response to the decision of a Divisional Court in Regina v. The Home Secretary, Ex parte Handscomb (1987) 86 Cr. App. R. 59. In that case, which was concerned with the application of the earlier Policy Statement to prisoners serving discretionary life sentences, the court, while upholding the lawfulness of the policy, was critical of two aspects, viz. the lapse of time before the penal element was fixed, and the fact that, in fixing the penal element for discretionary life prisoners, account was taken of other factors besides the judicial view on the requirements of retribution and deterrence which, in these cases, could be ascertained by reference to the determinate sentence which would have been passed if the prisoner had not, for reasons of risk, been sentenced to imprisonment for life. The Secretary of State accepted the force of both criticisms, and made appropriate amendments to his policy. He also decided that the first formal review date (and so the penal element) for mandatory life prisoners should likewise be fixed as soon as practicable after conviction and sentence. Apart from this amendment, the Secretary of State made it clear that the Policy as applied to mandatory life prisoners continued in force as before.


(4) Policy Statement of 27 July 1993


This statement was made by Mr. Michael Howard on 27 July 1993, to give effect to the decision of your Lordships' House in Regina v. The Home Secretary, Ex parte Doody [1994] 1 A.C. 531. In that case, applications for judicial review were made by four prisoners serving mandatory life sentences. Among them was the appellant in the appeal now before your Lordships. They asked for orders quashing the decisions of the Secretary of State fixing the penal element in their sentences. Their principal submission was that the Secretary of State was bound to adopt judicial advice in respect of the penal element in the case of mandatory life prisoners, as he had done in the case of discretionary life prisoners. That submission was rejected by your Lordships' House, but complaints by the applicants about the procedure adopted by the Secretary of State were upheld. It...

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