R v Secretary of State for the Home Department, Ex p Doody (R v Secretary of State for the Home Department, Ex parte Smart (Elfed Wayne))

An administrative power is presumed to be exercised fairly. The content of fairness depends on the statutory, legal and practical context. It will often require an opportunity to make representations and disclosure of the gist of the adverse case.

Before fixing the penal element of a mandatory life sentence, the Home Secretary must permit written representations and disclose the judicially recommended period and the gist of relevant judicial reasons. The Home Secretary must give reasons for the resulting decision, including any departure from the judicial recommendation. Judicial advice remains advisory, and the minister retains a rationally exercised discretion. Although administrative decisions carry no general duty to give reasons, such a duty may arise where fairness and effective judicial review require it.

Four prisoners, Stephen Doody, John David Pierson, Elfed Wayne Smart and Kenneth Pegg, had been convicted of murder and given mandatory life sentences. The Home Secretary fixed the penal element of each sentence. The prisoners knew the resulting periods but were not told the relevant judicial advice or the reasons for the ministerial decisions.

They sought judicial review. Six issues concerned written representations, disclosure of judicial advice, reasons for departure from that advice, whether the advice bound the Home Secretary, delegation to a junior minister and the treatment of Mr Pegg's petition. The Court of Appeal found for the prisoners on the first two issues but rejected the other four. The Home Secretary appealed, and the prisoners cross-appealed.

1. Disposition. Lord Mustill delivered the leading speech. Lord Keith of Kinkel, Lord Lane, Lord Templeman and Lord Browne-Wilkinson expressly agreed with his reasoning and conclusions. The House unanimously dismissed the Home Secretary's appeals and dismissed the prisoners' cross-appeals except on issue 3, which it allowed.
2. Contextual fairness. Per Lord Mustill, an administrative power conferred by Parliament is presumed to be exercised fairly. Fairness is not immutable or uniform. Its requirements depend on the decision's entire context, including the language and structure of the governing statute. A court must determine whether the adopted procedure is actually unfair, while recognising that Parliament entrusted both the decision and ordinarily its procedure to the decision-maker.
3. Representations and disclosure. Per Lord Mustill, a mandatory life prisoner must be allowed to make written representations before the Home Secretary fixes the penal element. That opportunity would be ineffective unless the prisoner knew the substance of the matters which might operate adversely. The prisoner must therefore be told the judicially recommended period and the gist of the judicial reasons relevant to the penal element. Disclosure need not extend to the complete judicial documents or to observations concerning other matters, such as risk.
4. Reasons. Per Lord Mustill, administrative law recognises no general duty to give reasons, but a duty may be implied in appropriate circumstances. Refusing reasons here was unfair because the decision gravely affected the prisoner's future and reasons were necessary to expose reviewable error. The reasons must explain the decision as a whole and, where applicable, why the Home Secretary differed from the judiciary. The analysis in R v Civil Service Appeal Board, Ex parte Cunningham [1991] 4 All E.R. 310 was approved. Payne v Lord Harris of Greenwich [1981] 1 W.L.R. 754 was distinguishable and its reasoning could no longer be sustained.
5. Ministerial discretion. Per Lord Mustill, the judicial recommendation concerning a mandatory life sentence was advisory. Unlike an order under section 34 of the Criminal Justice Act 1991 for a discretionary life sentence, it did not bind the Home Secretary. The minister could consider broader public factors but had to consider the judicial advice, disregard irrelevant matters and act rationally. R v Secretary of State for the Home Department, Ex parte Handscomb (1987) 86 Cr. App. R. 59 concerned discretionary sentences and did not transfer this discretion to the judiciary.
6. Delegation and Mr Pegg. Per Lord Mustill, whether statutory discretion may be delegated depends principally on statutory construction. The scheme did not require the Home Secretary to act personally, and a junior minister could fix the penal element. The available material did not show that Mr Pegg's representations had been misunderstood or irrationally rejected, although any later challenge based on the disclosed reasons remained open.
7. Declarations. The House declared that the Home Secretary must permit written representations before setting the first review date, first disclose the judicially recommended period and other relevant judicial opinion, and give reasons for departing from the recommended period.

• House of Lords: The Home Secretary's appeals were dismissed. The prisoners' cross-appeals were dismissed except on issue 3, which was allowed. A third declaration requiring reasons was added to the two declarations made below.
• Court of Appeal: By orders dated 6 May 1992, the prisoners succeeded on the issues concerning written representations and disclosure of judicial advice. They failed on the four remaining issues.
• Divisional Court: The applications originated as claims for judicial review. The judgment records that both the Divisional Court and the Court of Appeal rejected the contention that the Home Secretary was bound to adopt the judicial recommendation. The precise Divisional Court orders are not stated.