R v Secretary of State for the Home Department, ex parte Stafford
| Jurisdiction | England & Wales |
| Judge | LORD GOFF OF CHIEVELEY,LORD BROWNE-WILKINSON,LORD SLYNN OF HADLEY,LORD STEYN,LORD CLYDE |
| Judgment Date | 23 July 1998 |
| Judgment citation (vLex) | [1998] UKHL J0723-2 |
| Date | 23 July 1998 |
| Court | House of Lords |
[1998] UKHL J0723-2
HOUSE OF LORDS
Lord Goff of Chieveley
Lord Browne-Wilkinson
Lord Slynn of Hadley
Lord Steyn
Lord Clyde
My Lords,
I have had the advantage of reading in draft the speech prepared by my noble and learned friend, Lord Steyn. For the reasons he gives I would dismiss this appeal.
My Lords,
I have had the advantage of reading in draft the speech prepared by my noble and learned friend, Lord Steyn. I agree with it and for the reasons which he gives I too would dismiss the appeal.
My Lords,
I have had the advantage of reading in draft the speech prepared by my noble and learned friend Lord Steyn. For the reasons he gives I too would dismiss the appeal.
My Lords,
The shape of the appeal
The central question is whether it was lawful for the Home Secretary to refuse to release a mandatory life sentence prisoner, who has served the tariff part of his sentence, on the sole ground that there was a risk that he might after release commit serious non-violent offences. This is a point of statutory construction regarding the width of the power of the Home Secretary to release or to refuse to release a mandatory life sentence prisoner. It is important to understand straightaway three distinctions which limit the scope of the issue before the House. First, the position of a mandatory life sentence prisoner differs in material respects from a discretionary life sentence prisoner. By primary legislation Parliament has provided fundamentally different regimes for the release of mandatory life sentence prisoners and discretionary life sentence prisoners. In the present appeal only the scope of a statutory provision affecting mandatory life sentence prisoners is directly at stake. Secondly, last year in Reg. v. Secretary of State for the Home Department, Ex parte Venables and Thompson [1997] 3 W.L.R. 23 and Reg. v. Secretary of State for the Home Department, Ex parte Pierson [1997] 3 W.L.R. 492 the House of Lords by majority rulings decided that in applying his policy of fixing a tariff in respect of mandatory life sentence prisoners, the Home Secretary is under certain legal constraints which flow from the fact that such decisions are closely analogous to a sentencing function performed by the judge. In the present case the appellant has served the tariff part of his sentence. The central issue is the width of the Home Secretary's discretion to release or refuse to release a prisoner in the post tariff phase. Thirdly, since 16 July 1991 successive Home Secretaries have asserted in policy statements to Parliament the need for them to have regard to the public acceptability of early release of a mandatory life sentence prisoner. In the present case the Home Secretary did not make his decision on this ground. The lawfulness of this criterion does not arise in the present case. In my view it ought to await consideration when it arises.
A narrative
Given the narrow scope of the appeal a brief narrative will be sufficient. On 6 March 1967 the appellant, then aged 33 years, was convicted of murder. In April 1979 the Home Secretary directed that he be released on life licence. In breach of the terms of his licence the appellant left the United Kingdom and went to South Africa. In September 1980 the Home Secretary revoked his licence. The appellant stayed in South Africa for almost 10 years. During that period he was not convicted of any offences. In April 1989 while he was on a visit to England the appellant was arrested and taken into custody. In June 1989 the appellant was convicted of possession of a false passport and forgery. He was fined £250 on each count. In July 1990 the Parole Board confirmed the revocation of the appellant's licence. In November 1990 the Parole Board recommended his release. In March 1991 the appellant was released on life licence.
In July 1994 the appellant was convicted on two counts of conspiracy to forge travellers cheques and British passports. He was sentenced to six years' imprisonment. In September 1994 the Parole Board recommended revocation of the appellant's life licence and further recommended a formal review at the parole eligibility date of his six-year determinate sentence. The Home Secretary accepted this recommendation and revoked the appellant's licence.
In March 1995, the Parole Board rejected an application by the appellant to recommend his release on licence. But in November 1996 the Parole Board concluded that the risk of the appellant committing serious offences was very low and that nothing further would be gained by placing him in open conditions for a period before release. The Parole Board recommended that the appellant be released immediately on licence. By a notice dated 27 February 1997 the Home Secretary rejected this recommendation. The Home Secretary took the view that there was an unacceptable risk that the appellant might commit serious non-violent offences. The Home Secretary decided that the appellant should be transferred to an open prison with his next formal review by the Parole Board to begin two years after his arrival there. The appellant challenged the lawfulness of this decision.
The proceedings
On 5 September 1997 Collins J. allowed the appellant's application for judicial review and quashed the Home Secretary's decision not to release him. In a closely reasoned judgement Collins J. observed that under section 35(2) of the Criminal Justice Act 1991 "the Home Secretary is not entitled to extend the detention of a mandatory life prisoner beyond the point where he has completed his tariff and is no longer dangerous, in the sense of presenting a more than minimal risk to life or limb".
In a judgment given on 26 November 1997 the Court of Appeal concluded that the Home Secretary's power under section 35(2) is not so limited and allowed the Home Secretary's appeal against the decision of Collins J.: Reg. v. Secretary of State for the Home Department, Ex parte Stafford [1998] 1 W.L.R. 503. But the Lord Bingham of Cornhill C.J. and Buxton L.J. expressed the hope that, notwithstanding the outcome of the appeal, the Home Secretary would give further consideration to the appellant's case. The Home Secretary indicated that he would do so.
On 16 December 1997 the appellant was moved to an open prison. On 21 January 1998 the Home Secretary informed the appellant that after reconsidering his case, he had decided that the appellant should spend six months in open conditions before the next review by the Parole Board should begin. That review has now begun.
The statutory provisions
The critical provision in respect of mandatory life prisoners is section 35(2) of the Criminal Justice Act 1991. (This provision has been replaced by section 29(1) of the Crime (Sentences) Act 1997. It will be convenient to refer to section 35(2) of the Act of 1991). Section 35(2) reads as follows:
"If recommended to do so by the Board, the Secretary of State may, after consultation with the Lord Chief Justice together with the trial judge if available, release on licence a life prisoner who is not a discretionary life prisoner."
The history of this provision is of some significance. The immediate forerunner of section 35(2) of the Act of 1991 was section 61 of the Criminal Justice Act 1967, which in turn was modelled on section 57 of the Criminal Justice Act 1948. But before legislative intervention the executive possessed the power, through the prerogative, to release life sentence prisoners: A.T. Smith, The Prerogative of Mercy, 1983 Public Law 398, at 425; S. McCabe, The Powers and Purposes of the Parole Board (1985) Crim. L. R. 489; Genevra Richardson, Law Process and Custody: Prisoners and Patients, 1993, at 194. This power came under the prerogative of mercy. The Home Office view was that "a remission of the remainder of the sentence is the customary mode of authorising release from prison": Reg. v. Secretary of State for the Home Department, Ex parte Bentley [1994] Q.B. 349, at 357H, per Watkins L.J. acting on a Home Office memorandum of 1874. A formalised licensing system apparently developed later.
By the statutory provisions of 1948, 1967 and 1991 Parliament entrusted the power to decide on the release of life prisoners to the Home Secretary. But in 1990 the European Court of Human Rights held that once the tariff of a discretionary life sentence prisoner ends Article 5(4) of the European Convention on Human Rights requires that he should be able to challenge the grounds of his continued detention before an independent tribunal: Thynne, Wilson and Gunnell v. United Kingdom (1990) 13 E.H.R.R. 666. This decision compelled Parliament to review the existing system in respect of discretionary life sentence prisoners. In 1991 Parliament judicialised the system of releasing discretionary life sentence prisoners. The final decision on the release of such prisoners now rests with the Parole Board: section 34 of the Act of 1991. Given that the Parole Board, unlike the Home Secretary, carries out its duties regarding the release of life sentence prisoners in a judicial fashion, the institutional difference is significant. Parliament has specifically provided that where a prisoner has served the equivalent of the tariff part of his sentence, the Parole Board must direct his release if "the Board is satisfied that it is no longer necessary for the protection of the public that the prisoner should be confined": section 34(4)(b). This contrasts with the open-textured wording of section 35(2).
To this dichotomy between the regimes applicable to mandatory life sentence prisoners and discretionary life sentence...
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