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
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE GLIDEWELL,LORD JUSTICE STAUGHTON,LORD JUSTICE FAROUHARSON |
| Judgment Date | 06 May 1992 |
| Judgment citation (vLex) | [1992] EWCA Civ J0506-6 |
| Docket Number | 92/0435 OBCOF/91/0475/D OBCOF/91/0476/D OBCOF/91/0474/D |
| Court | Court of Appeal (Civil Division) |
| Date | 06 May 1992 |
and
[1992] EWCA Civ J0506-6
Lord Justice Glidewell
Lord Justice Staughton
and
Lord Justice Farouharson
92/0435
OBCOF/91/0477/D
OBCOF/91/0475/D
OBCOF/91/0476/D
OBCOF/91/0474/D
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (Civil Division)
ON APPEAL FROM THE DIVISIONAL COURT
QUEEN'S BENCH DIVISION
(MANN LJ AND MACPHERSON J)
Royal Courts of Justice
MR. A. SCRIVENER QC and MR. R. GORDON (instructed by Messrs Bindman & Partners, London, NW1) appeared on behalf of the Appellant/Applicant Pegg.
MR. G. NICE QC and MR. G. TREVERTON-JONES (instructed by Messrs Malkin Janners, Agents for Messrs Cartwrights Adams & Black, Cardiff) appeared on behalf of the Appellant/Applicant Smart.
MR. S. SEDLEY QC and MR. E. FITZGERALD (instructed by Messrs Graham Withers & Co., Shropshire) appeared on behalf of the Appellant/Applicant Pierson.
MR. S. SEDLEY QC and MR. E. FITZGERALD (instructed by Messrs B.M. Birnberg and Co., London, SE1) appeared on behalf of the Appellant/ Applicant Doody.
MR D. PANNICK and MR. R. JAY (instructed by the Treasury Solicitor) appeared on behalf of the Respondent/ Respondent.
In these appeals we are concerned with issues arising out of the procedure by which the Secretary of State for the Home Department decides, in the exercise of his power under section 61 of the Criminal Justice Act 1967, the date on which a person serving a sentence of imprisonment for life may be released on licence. Messrs Doody, Pierson, Smart and Pegg appeal against a decision of the Divisional Court (Mann LJ and Macpherson of Cluny J) given on 18 January 1991 refusing them the relief claimed in their applications for judicial review of decisions made in relation to each of them by the Secretary of State for the Home Department.
The same issues arise in all four appeals and it is therefore convenient to consider them in one judgment. However, Mr. Pegg raises a point which relates only to his own appeal, to which I shall refer later.
This court does not have jurisdiction to determine these appeals if they are appeals in a "criminal cause or matter" within s. 18(1) of the Supreme Court Act 1981. Counsel for all the Appellants and for the Respondent were unanimous in their view that the appeals are not in a criminal cause or matter, and on a brief consideration of the relevant authorities I agree. I note that in two of the main authorities to which we have been referred on the substantive issues, Payne v. Lord Harris of Greenwich [1981] 1 WLR 754 CA and In re Findlay and Others (1985) AC 318, it seems to have been assumed without argument that this court had jurisdiction.
Messrs Doody, Pierson, Smart and Pegg have all been convicted of murder, and each in consequence is serving a sentence of imprisonment for life. This is of course the mandatory sentence for a person convicted of murder. Before setting out such facts and relating to the sentences on the individual offenders as are material for the purposes of these appeals, it is necessary first to describe the procedure followed by the Secretary of State in exercising his power under section 61, and the steps by which he came to adopt that procedure.
The statutory background
Section 1(1) of the Murder (Abolition of Death Penalty) Act 1965 abolished the death penalty for murder and substituted for it imprisonment for life. By section 27(1) of the Prison Act 1952, the Secretary of State was already empowered:
"…. 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."
Section 1(2) of the 1965 Act provided that:
"On sentencing any person convicted of murder to imprisonment for life the Court may at the same time declare the period which it recommends to the Secretary of State as the minimum period which in its view should elapse before the Secretary of State orders the release of that person on licence under section 27 of the Prison Act 1952…."
Moreover, section 2 of the 1965 Act imposed a restraint on the power of the Secretary of State to release on licence a person convicted of murder, by providing that no such person should be released:
"unless the Secretary of State has prior to such release consulted the Lord Chief Justice of England…together with the trial judge if available."
Presumably this provision had the effect of discouraging the Secretary of State from releasing a convicted murderer on licence at a date earlier than the judiciary thought appropriate.
The provisions of section 27 of the 1952 Act and section 2 of the 1965 Act were repealed by the Criminal Justice Act 1967, and replaced by section 61 of that Act.
Section 61(1) provides:
"The Secretary of State may, if recommended to do so by the Parole Board, release on licence a person serving a sentence of imprisonment for life…but shall not do so in the case of a person sentenced to imprisonment for life…except after consultation with the Lord Chief Justice of England together with the trial judge if available."
This sub-section applies both to mandatory life sentences for murder and to discretionary life sentences for other offences for which such a sentence may lawfully be imposed.
Section 62 of the 1967 Act deals with the revocation of licences, a subject which has aroused much controversy but with which we are not concerned in any of these appeals.
It will be seen that section 61(1) does not require the Secretary of State to release any person serving a sentence of imprisonment for life on licence, but imposes two conditions which must be satisfied before he may do so, namely that the release must first be recommended by the Parole Board (a body which was itself constituted by section 59 of the 1967 Act) and that the Secretary of State may not release on licence except after consultation with the Lord Chief Justice of England together with the trial judge if available.
The procedure adopted
Section 61 of the 1967 Act does not specify any procedure by which the Secretary of State should decide whether and when to release a prisoner serving a life sentence. The choice of an appropriate procedure is therefore a matter within his discretion. However, since he may not release a prisoner unless and until he is recommended to do so by the Parole Board, the stage in an individual prisoner's sentence at which the Board considers whether to make a recommendation for his release is therefore very important.
The wording of section 61(1) apparently envisages that, if and when the Parole Board (or a Local Review Committee) recommends release, the judiciary will then be consulted.
For some years after the 1967 Act came into force, the majority of life sentences were reviewed by Local Review Committees seven years after the sentences were imposed. A small number were reviewed earlier, usually after four years. In many cases the Local Review Committee at the seven year review considered it too early to set a release date, which no doubt dashed the hopes of the prisoners whose sentences were under review.
A new procedure was introduced in 1973. A Joint Committee of members of the Parole Board and officials of the Home Office was formed, which included the Vice-chairman of the Board, a High Court judge. This Committee scrutinised the case of each prisoner serving a life sentence in order to set the date for the first review, which might be more than seven years after the date of sentence. It was not the Committee's function to recommend release, but inevitably the Committee would attempt to set a date at which there would be a reasonable prospect that the Local Review Committee and then the Parole Board might be able to recommend release.
This procedure remained in force for ten years, until on 30 November 1983 the then Secretary of state, the Rt Hon Leon Brittan MP, made a statement in a written Parliamentary answer about the release of prisoners on parole licences. The first part of the statement announced a specific policy relating to prisoners serving determinate sentences of over five years for offences of violence or drug trafficking. The second part related to prisoners serving life sentences. It read as follows:
" Life Sentence Prisoners
The release of life sentence prisoners is at the discretion of the Home Secretary, subject to a favourable recommendation by the Parole Board and to consultation with the Lord Chief Justice and, if he is available, the trial judge. Taking account again of the public concern about violent crime, in future I intend to exercise my discretion so that murderers of police or prison officers, terrorist murderers, sexual or sadistic murderers of children and murderers by firearm in the course of robbery can normally expect to serve at least 20 years in custody; and there will be cases where the gravity of the offence requires a still longer period. Other murders, outside these categories, may merit no less punishment to mark the seriousness of the offence.
At present I 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. I shall continue to do so.
The Joint Parole Board/Home Office Committee was established in 1973 to give initial consideration, usually after a life sentence prisoner had been detained for about three years in custody, to the date for the first formal consideration of the case by the Parole Board machinery....
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