Home Secretary's decision on lifer unlawful

LAW REPORT 14 November 1995

Regina v Secretary of State for Home Department, ex parte Pierson; Queen's Bench Division (Mr Justice Turner); 10 November 1995

The Home Secretary could not increase the period to be served by mandatory life prisoners to satisfy the requirements of retribution and deterrence unless there were exceptional circumstances or reasons for an increase.

Mr Justice Turner quashed the Home Secretary's decision that the applicant, a prisoner serving two concurrent sentences of life imprisonment, should serve at least 20 years to satisfy the requirements of retribution and deterrence.

The applicant was convicted of killing his parents and sentenced to two mandatory life sentences. The Home Secretary was required to inform the applicant of recommendations made by the trial judge and Lord Chief Justice of the tariff period necessary to satisfy the requirements of retribution and deterrence. The Home Secretary was not required to adopt the judicial advice but must give reasons for departing from it. The Home Secretary's policy, as stated in Parliament, was exceptionally to revise the view of the minimum period by increasing it if he concluded that the minimum requirements were not satisfied.

The judiciary recommended 15 years as the appropriate period for the applicant. In August 1993 the Home Secretary decided that the period recommended by the judiciary would have been appropriate for a single premeditated offence but that, since this was a double murder, a longer period of 20 years was necessary.

The applicant responded to that decision by pointing out that the fact that the applicant had been convicted of a double murder would have been taken into account by the judiciary in their evaluation of the severity of the offences and that it had never been alleged against the applicant that what he did was premeditated.

The Home Secretary reconsidered the matter. In May 1994 he accepted that it would be wrong to proceed on the basis that the murders were premeditated and accepted that the two murders were part of a single incident. However his view was that 20 years was appropriate to meet the requirements of retribution and deterrence for the crimes. The applicant applied for judicial review of that decision.

Edward Fitzgerald QC (Graham Withers & Co, Shrewsbury) for the applicant; David Pannick QC (Treasury Solicitor) for the Home Secretary.

Mr Justice Turner said that it was accepted that the dual factors of premeditation and two separate murders, had they been present, would have justified an increase in the tariff. The applicant submitted that in the absence of those two factors, the tariff should have been fixed at a lower figure than originally chosen by the Home Secretary. The purported justification of the 20-year period included the two misconceptions identified. It was submitted that it was not lawfully open to the Home Secretary to fix the longer period if no new adverse factor had emerged.

The argument that the Home Secretary's discretion was absolute was rejected. It was contrary to the thrust of the statement made to Parliament. Fairness must also come into the exercise.

There was no doubt that an exceptional circumstance, such as relevant new information of an adverse character, would be required before the Home Secretary could make a decision to increase the period of detention that would be capable of withstanding an assault on the ground that the decision was irrational.

One of the main purposes in requiring the Home Secretary to tell mandatory life prisoners what minimum period was fixed was so that they might know how long they should expect to serve, provided all things remained constant. If fairness was the parameter which was to govern the exercise of his discretion, it might be thought that the Home Secretary had failed to measure up to the required standard.

The two manifest errors in the Home Secretary's first decision were corrected in the second decision. There was an absence of any other changed factor which could explain what implicitly was a change of mind. What remained unexplained and inexplicable was how the Home Secretary arrived at the identical period despite the absence of the two factors agreed to be aggravating, if they had been present. Therefore the Home Secretary's decision in 1994 must be quashed.

Ying Hui Tan, Barrister