R v Secretary of State for the Home Department, ex p Anderson– Ending the Home Secretary's Sentencing Role
| Published date | 01 January 2004 |
| Author | Merris Amos |
| DOI | http://doi.org/10.1111/j.1468-2230.2004.06701006.x |
| Date | 01 January 2004 |
RvSecretary of State for the Home Department, ex p Anderson ^
Ending the Home Secretary’s Sentencing Role
Merris Amos
n
INTRODUCTION
Since 1948, primary legislation has entrusted the Home Secretary withthe power
to decide when a life sentence prisoner may be released from prison. At present
this power is contained in section 29 of the Crime (Sentences) Act 1997
1
and
applies only to convicted murderers for whom a term of life imprisonment is
mandatory.
2
It is used by the Home Secretary to determine not only the date of
release on licence for such‘mandatory life’prisoners but also to set the ‘tari¡’ by
deciding how long he or she should remain in prison.
For manyyears the existence of this power has been a cause of concernto those
who maintain that the Home Secretary in carrying out this role is performing a
judicial function and thereby acting in breach of the separation of powers.
3
Numerous legal challe nges have been brought both domestical ly and in the
European Court of Human Rights (ECtHR).Whilst those concerning discre-
tionaryl ifeprisoners and those sentenced todetention during Her Majesty’s Plea-
sure eventually succeeded, the Home Secretary’s role being removed by
Parliament following judgments of the ECtHR,
4
until recently challenges con-
cerning the mandatorylife sentence havefailed. In RvSecretary of Statefor the Home
Department, ex p Doody
5
the House of Lords held that given the power had been
entrusted to the Home Secretary by Parliament, the only serious prospect of a
n
Department of Law and HumanRights Centre, University of Essex. I amvery grateful to Richard
Cornes, Adam Robb and Joel Robbfor their invaluable assistance in the writi ng of this case note.
1 Prior to legislative intervention, the executivepossessed the power to release life sentence prison-
ers as part of the prerogativeof mercy.
2 Murder (Abolition of Death Penalty) Act 1965, s 1(1).
3 See for example D.Feldman, Civil Libertiesand Human Rights in Englandand Wales (Oxford:OUP,
2002) 447^452; House of Lords Select Committee on Murdera nd Life Imprisonment HL 78-I
(1989) [101]^[122]; Committee on the Penalty for Homicide (London: Prison Reform Trust,
1993); comments of Lord Bingham in RvSecretary of Statefor the Home Department, ex p Sta¡ord
[1997] 1 WLR. 503, 518 later endorsed by the House of Lords in RvSecretary of State for the Home
Department,ex p Sta¡ord [1999]2 AC 38.
4 The Home Secretary’s role in relation to discretionary life sentences was removed by Parliament
following the decision of the ECtHR inThynne,W|lson and GunnellvUnited Kingdom (1990) 13
EHRR 666. Such sentences are now governed by section 28 of the Crime (Sentences) Act 1997.
The Home Secretary’s role in relation to those sentenced to detention during Her Majesty’sPlea-
sure was removed by Parliament following the decisions of the ECtHR in HussainvUni ted King-
dom (1996) 22 EHRR 1 and VvUnited Kingdom (1999) 30 EHRR 121. Such sentences are now
governedby section 82A of the Powers of Criminal Courts (Sentencing) Act 2000.
5 [1994] 1 AC 531. See also RvSecretaryof State for the Home Department,ex p Sta¡ord [1999]2 AC 38;
RvSecretaryof State for the Home Department,ex p Hindley [20 01]1 AC 410.
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(200 4) 67(1) MLR 108^123
successful challenge would be if the decision had been reached by a faulty
process.
6
InWy n n e vUnit ed Ki ngdom
7
the ECtHR accepted the argument that the
prisoner had forfeited his life to the State and in ¢xing the tari¡, the Home
Secretarywas administering ase ntence already imposed, not imposing a sentence.
It concluded that thereforethe mandatory life sentencewas in a di¡erent category
from other sentences and that the guarantee of Article 5(4) ofthe European Con-
vention on Human Rights (ECHR) to have the lawfulness of detention decided
by a court was satis¢ed by the original trial and appeal proceedings.
All legal avenues exhausted, it appeared that the campaign forreform had been
lost. Although the Hum an Rights Act 1998 (H RA) had come i nto force,
8
without
persuasive authority from the ECtHR the prospect of a British court ¢nding the
Home Secretary’s role incompatible with the ECHR was unlikely. In 2002, the
persuasive authority arrived in the form of the ECtHR reassessing its conclusion
in Wy n n e.
9
Six months later in RvSecretary of State for the Home Department, ex p
Anderson,
10
the House of Lords used the power conferred by section 4 of the
HRA to declare section 29 of the Crime (Sentences) Act1997 incompatible with
the right under Article 6 of the ECHR to have a sentence imposed by an inde-
pendent and impartial tribunal. Shortly after, despite a vigorous defence of his
role in the House of Lords, the Home Secretary announced legislative reform to
put an end to his remaining sentencing role.
The House of Lords’ judgment in Anderson and the swift action promised by
the Home Secretary could be described as a text-book example of the HRA in
operation. Using the power conferred on it by Parliament, the court noti¢ed the
executive of an incompatibility between primary legislation and a fundamental
human right. In response, the executiveu ndertook totake the necessary measures
to remove the incompatibility in the primary legislation and thereby put an end
to one of the more notable breachesof the separation ofpowers in currentconsti-
tutional arrangements. But beyond this important feat, the judgment may also
have implications for other continuing breaches of the separation of powers and
for the future operation and e¡ective ness of the HRA.
FACTS
AnthonyAnderson was convictedi n1988 of twoseparate murders. He had kicked
to death his victims in the course of theft. Pursuant to section 1(1) of the Murder
(Abolition of Death Penalty) Act 1965, the trial judge imposed a mandatory
sentence of life imprisonment. A life sentence is mandatory for adults convicted
of murder regardless of intent to kill; intent to cause serious injury is su⁄cient
if death resulted.
11
The mandatory life sentence is in a di¡erent category to the
discretionary life sentence, which may be imposed at the discretion of the trial
6per Lord Mustill with whom the others agreed.
7 (1994)19 EHRR 333. See al so RajavUnitedKingdom Application No.39047/97, 20 May 1998.
8 On 2 October 2000.
9Sta¡ord vUnitedKingdom (2002) 35EHRR 32.
11 Andersonn10 aboveper Lord Bingham at [2]. See also RvLichniak [2002] UKHL 47; [2003]1 AC
903.
Merris Amos
10 9rThe Modern LawReview Limited 2004
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