Reasons To Be Cheerful
| Author | Alistair Lindsay |
| Date | 01 November 1994 |
| DOI | http://doi.org/10.1111/j.1468-2230.1994.tb01986.x |
| Published date | 01 November 1994 |
The
Modern
Law
Review
[Vol.
57
abandoned. Such a rule would be fair in practice and is right in principle. The time
has now sadly come when we can no longer afford to leave such a decision to the
discretion of either judge or prosecuting counsel. Such a rule needs to be legislated
for, and
s
9
of the Interception of Communications Act should be amended
accordingly.
Reasons
To
Be
Cheerful
Alistair Lindsay
*
The courts often make decisions on the most fundamental of rights when faced
with the most noxious of litigants. The applicants in
Doody
v
Secretary ofSratefor
the Home Department
were convicted murderers seeking information on their
release. The right to receive reasons in public law matters was in issue. As the
JUSTICE Committee2 observed:
‘No
single factor has inhibited the development
of English administrative law as seriously as the absence of any general obligation
upon public authorities to give reasons for their decisions.’ The House, while
denying that it was imposing a general obligation to give reasons, took an
important step
in
that direction by upholding the arguments of the prisoners.
Doody, Pegg, Pierson and Smart had been convicted of murder and were duly
serving their life sentences. All, understandably, were seeking release on licence
under the provisions of the Criminal Justice Act
1991,
section
35(2):
‘If
recommended to do
so
by the [Parole] Board, the Secretary of State may, after
consultation with the Lord Chief Justice together with the trial judge
if
available,
release on licence a [mandatory] life prisoner.’3 Section
35(3)
confers a
discretion upon the Secretary of State to refer the case to the Parole Board for its
advice. In
1983
the Home Secretary adopted a policy of consulting the judge and
Lord Chief Justice before fixing a minimum ‘penal element’ to the sentence. Only
on the expiry of this period, designed to reflect deterrence and retribution, did
questions of discretionary release come into play. The Parole Board was then
consulted regarding the prisoner’s dangerousness and his suitability for release.
In
Doody,
dispute turned upon the significance of the judge’s recommendation, the
prisoner’s right to information prior to the decision on the penal element and the
Home Secretary’s duty to give reasons for his finding.
The Decision
Lord Mustill delivered the sole speech. He held that the discretion to
fix
the length
of the penal element was vested wholly
in
the Home Secretary, who was therefore
free to depart from the recommendation
of
the trial judge, subject only to the long
stop of judicial review in the event of his ignoring the principles of good
administration. It was agreed that a prisoner has the right to address the Home
*Barrister.
The author wishes to thank Damian Chalmers of
LSE
for his kind assistance in the preparation of this notc.
1
2
3
[I9931
3
All
ER
92.
Administrution Under
Law
(JUSTICE, 1971)
p
23.
It
is stressed that thc regime
in
question applicd only to mandatory life sentences, ie,
to
murderers.
954
c)
The
Modern Law Revicw Limited
1994
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