R v Secretary of State for the Home Department, ex p. Doody (conjoined with Pierson, Smart and Pegg)

The House of Lords considered the lawfulness and fairness of the Home Secretary's practice of fixing the minimum period to be served by prisoners sentenced to mandatory life imprisonment ('penal element') and the extent of procedural rights that follow. The court held that (i) a prisoner serving a mandatory life sentence is entitled to make written representations before the Secretary of State sets the first review date; (ii) the prisoner must be informed of the period recommended by the judiciary (and any other judicial opinion relevant to that recommendation); and (iii) where the Secretary of State departs from the judicial recommendation he is obliged to give reasons for doing so. The decision applies the general principles of fairness in judicial review to the particular statutory and administrative framework governing life sentences and parole, taking account of developments in practice (including provisions of the Criminal Justice Act 1991, notably sections 34 and 35) and the increasing demands of openness in administrative decision-making.

This appeal arose from conjoined judicial review applications by four prisoners convicted of murder (Doody, Pierson, Smart and Pegg) challenging the Home Secretary's refusal to disclose the basis of his decisions fixing the dates for first review of their life sentences. The applicants sought declarations and relief that they be given the opportunity to make representations, be informed of the judiciary's recommendation as to the period to be served for purposes of retribution and deterrence, and that reasons be provided where the Secretary of State departs from judicial recommendations.

The House of Lords summarised the historical and statutory background: mandatory life sentences for murder, the development of a practice dividing a life term into a 'penal' (fixed number of years) and 'risk' (indeterminate) element, the role of the judiciary, the Parole Board and the Home Secretary, and changes introduced or reflected in the Criminal Justice Act 1991 (sections 34 and 35). The court set out the six issues agreed between the parties (including whether prisoners are entitled to make written representations; entitlement to be told the judges' recommended period and reasons; obligation to give reasons for departure; whether the Home Secretary must adopt the judicial view; whether the decision must be taken personally by the Home Secretary; and a factual issue specific to Mr Pegg).

On the central issues the Lords reasoned that fairness in the exercise of administrative powers requires that a person affected be given an opportunity to make representations and know the gist of the case he has to answer. Given the role that the judges' recommendations play in the Secretary of State's decision-making, prisoners must be informed of the judges' recommended term and the reasons relevant to that recommendation. Moreover, when the Secretary of State departs from that recommendation, fairness and the necessities of effective judicial review require that reasons be given for the departure so that the prisoner can challenge the decision-making process if necessary. The court also held that delegation of the fixing function to a junior minister is permissible and that the Home Secretary need not always act personally. The specific complaint of Mr Pegg did not establish unfairness on the material before the House.

The appeal by the Secretary of State was dismissed. The cross-appeals by the prisoners were dismissed except in respect of the obligation to give reasons for departing from the judiciary's recommendation (issue 3), which was allowed. The House declared that mandatory life prisoners are entitled to make written representations before the first review date is set, to be informed of the judiciary's recommended period and relevant reasons, and that the Secretary of State must give reasons when he departs from the judicial recommendation. Delegation to a junior minister is permissible and there was no present basis to find unfairness in Mr Pegg's particular case.

Conjoined appeals from orders of the Court of Appeal dated 6 May 1992 arising from judicial review applications by Doody, Pierson, Smart and Pegg. Determination by the House of Lords in reported decision [1993] UKHL 8.