R v Secretary of State for the Home Department, ex parte Doody ; R v Same, ex parte Pierson ; R v Same, ex parte Smart ; R v Same, ex parte Pegg

JurisdictionEngland & Wales
CourtHouse of Lords
JudgeLord Keith of Kinkel,Lord Lane,Lord Templeman,Lord Browne-Wilkinson,Lord Mustill
Judgment Date24 June 1993
Judgment citation (vLex)[1993] UKHL J0624-1

[1993] UKHL J0624-1

House of Lords

Lord Keith of Kinkel

Lord Lane

Lord Templeman

Lord Browne-Wilkinson

Lord Mustill

Regina
and
Secretary of State for the Home Department
(Original Appellant and Cross-Respondent)
Ex Parte Smart (A.P.)
(Original Respondent and Cross-Appellant)
Regina
and
Secretary of State for the Home Department,
(Original Appellant and Cross-Respondents)
Ex Parte Pegg (A.P.)
(Original Respondent and Cross-Appellant)
Regina
and
Secretary of State for the Home Department,
(Original Appellant and Cross-Respondents)
Ex Parte Doody (A.P.)
(Original Respondent and Cross-Appellant)
Regina
and
Secretary of State for the Home Department,
(Original Appellant and Cross-Respondents)
Ex Parte Pierson (A.P.)
(Original Respondent and Cross-Appellant)
(Conjoined Appeals)
Lord Keith of Kinkel

My Lords,

1

For the reasons given in the speech to be delivered by my noble and learned friend Lord Mustill. which I have read in draft and with which I agree. I would dismiss the appeal, and the cross-apppeal save as to issue 3 which I would allow and make the declarations he proposes.

Lord Lane

My Lords,

2

I have had the advantage of reading in draft the speech prepared by my noble and learned friend Lord Mustill. I agree with his reasoning and conclusions. I would accordingly dismiss the appeal and cross-appeal, save that I would allow the cross-appeal on issue 3 as defined by Lord Mustill and make the declarations which he proposes.

Lord Templeman

My Lords,

3

For the reasons given by my noble and learned friend Lord Mustill I would dismiss the appeal and cross-appeal, save that I would allow the cross-appeal on issue 3 defined by Lord Mustill and make the declarations he proposes.

Lord Browne-Wilkinson

My Lords,

4

For the reasons given by my noble and learned friend Lord Mustill I would dismiss the appeal and dismiss the cross-appeal save as to issue 3 which I would allow and make the declarations which are proposed by Lord Mustill.

Lord Mustill

My Lords,

5

The sentencing of a convicted murderer according to English law is a unique formality. Although it is a very grave occasion it is a formality in this sense, that the task of the judge is entirely mechanical. Once a verdict of guilty is returned the outcome is pre-ordained. No matter what the opinion of the judge on the moral quality of the act, no matter what circumstances there may be of mitigation or aggravation, there is only one course for him to take, namely to pass a sentence of life imprisonment.

6

This purely formal character of the sentencing process is unique in more than one respect. Thus, whilst it is true that there are other, comparatively unimportant, offences where a particular sentence, or component of a sentence, is prescribed by law there is in practice no other offence besides murder for which a custodial sentence is mandatory. This singularity is not to be accounted for by the fact that the crime has resulted in the death of the victim, since although the offence of manslaughter carries a maximum penalty of life imprisonment the sentence is discretionary and the maximum is rarely imposed: and other offences in which the death of the victim is an element are subject to maximum fixed terms. Nor can the uniqueness of the mandatory sentence of murder be ascribed to the uniquely wicked quality of the intent which accompanies the fatal act, since as every law student knows, although many who speak in public on the subject appear to overlook, it is possible to commit murder without intending to kill, and many of those convicted of murder have intended to do no more than commit grievous bodily harm. In truth the mandatory life sentence for murder is symbolic.

7

The sentence of life imprisonment is also unique in that the words which the judge is required to pronounce do not mean what they say. Whilst in a very small minority of cases the prisoner is in the event confined for the rest of his natural life, this is not the usual or the intended effect of a sentence of life imprisonment, as a judge faced with a hard case will take pains to explain to the offender before sentence is passed. But although everyone knows what the words do not mean, nobody knows what they do mean, since the duration of the prisoner's detention depends on a series of recommendations to, and executive decisions by, the Home Secretary, some made at an early stage and others much later, none of which can be accurately forecast at the time when the offender is sent to prison.

8

There is, however, another form of life sentence, of which the philosophy, statutory framework and executive practice are quite different even though the words pronounced by the judge are the same. This is the discretionary life sentence. The imposition of this sentence is severely constrained by section 2(1) of the Criminal Justice Act, 1991, read with section 1(2), and by decisions of the Court of Appeal (Criminal Division), notably Reg. v. Hodgson (1967) 52 Cr. App. R. 113 and Reg. v. Wilkinson (1983) 5 Cr. App. R. (S) 105. Where the criteria so established are satisfied the judge has a choice between two very different procedures. He may decide to focus on the offence, passing a sentence appropriate to its gravity by the familiar process of identifying the range of sentences established through decisions of the Court of Appeal as being in general apposite to an offence of the kind in question, and then placing the individual offence within (or exceptionally outside) the range by reference to circumstances of mitigation or aggravation. The judge may however think it right to adopt a different approach, and to concentrate on the offender rather than the offence, imposing a sentence of life imprisonment to reflect his appraisal that even a long fixed term of years may not adequately protect the public against the risk that when the term has been served the prisoner will continue to be a danger to the public. Such a sentence ensures that the prisoner will be kept in custody until it is thought safe to release him.

9

The discretionary life sentence may thus be regarded as the sum of two sentences, to be served consecutively. First, a determinate number of years appropriate to the nature and gravity of the offence. This is often called the "tariff" element of the sentence. For my part. although I recognise that this is not inappropriate in the context of a discretionary life sentence. I consider that for reasons which I will later develop it is illogical and misleading when the usage is transferred to a mandatory sentence. I therefore prefer to avoid this terminology and will instead call the first component of the life sentence the "penal element". The second component is an indeterminate period, which the offender begins to serve when the penal element is exhausted. I will call this the "risk element".

10

In the past there was no need for the sentencer to give separate attention to these two components. Having once decided that a determinate sentence at the general level suggested by the nature of the offence would not adequately reflect the degree of risk, he would proceed directly to the imposition of a life sentence, and would have no reason to identify with precision, or to publish, the fixed term which he would have passed if he had chosen the alternative course. As will appear, the law and practice have more recently developed in a way which attaches great importance to the composite nature of the discretionary life sentence, and now requires that in the great majority of cases the judge will quantify and announce the penal element and will thereby fix directly the minimum period in custody which the offender must serve, before the question whether it is safe to release him becomes decisive. Although it is a comparative novelty this regime conforms very well with the rationale of the discretionary life sentence and. as it appears to me, is fair, practical in operation and easy to comprehend.

11

The same cannot I believe be said of the situation created by the ministerial decision, some ten years ago, to import the concept of a penal element into the theory and practice governing the release on licence of prisoners serving mandatory life sentences for murder. I must develop this later. For the present it is sufficient to state that the current practice, established by executive changes of policy rather than by Act of Parliament, now requires the division of the sentence into penal and risk elements, and entails that the ascertainment by the Home Secretary of the penal element fixes, at one remove, the minimum period for which the convicted murderer will be detained. It is to this element that the present appeal is directed.

12

The respondents to the appeal. S. Doody, J.D. Pierson. E.W. Smart and K. Pegg were each convicted of murder and sentenced to life imprisonment on various occasions between 1985 and 1987. It is possible to deduce from the dates fixed by the Secretary of State for the Home Department for the first review of their cases by the Parole Board (and in the case of Pierson from correspondence with the Home Office) that the penal elements of these life sentences fixed by Secretary of State were respectively 15 years: not more than 20 years: 12 years: and 11 years. So much each prisoner knows, but what he does not know is why the particular term was selected, and he is now trying to find out: partly from an obvious human desire to be told the reason for a decision so gravely affecting his future, and partly because he hopes that once the information is obtained he may be able to point out errors of fact or reasoning and thereby persuade the Secretary of State to change his mind, or if he fails in this to challenge the decision in the courts. Since the Secretary of State has declined to furnish the information the respondents have set out to obtain it by applications for...

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