Secretary of State for the Home Department, Ex Parte Pierson, R v.

The House of Lords considered whether the Home Secretary could lawfully increase the "penal element" or tariff previously fixed and communicated to a mandatory life prisoner. The key statutory context was section 35 of the Criminal Justice Act 1991 and the practice developed by successive Home Secretaries under which a tariff period (the minimum period before referral for parole consideration) was fixed and, in many cases, communicated to the prisoner.

The court held that where a tariff had been fixed and communicated to a prisoner under an earlier policy which treated the tariff as not normally subject to increase, the Home Secretary could not rely on a later policy statement to justify retrospectively increasing that tariff. The House identified limits derived from the principle of legality, the character of the tariff as a penal measure and the demands of substantive fairness and procedural fairness (as developed in Ex parte Doody).

The Lords also examined whether a general principle of non-aggravation prevented any administrative increase of a previously fixed punishment and whether the setting of a tariff by the Home Secretary is akin to a judicial sentencing exercise. The majority concluded that the Home Secretary did not possess a general power to increase a tariff lawfully fixed and communicated, except possibly in exceptional circumstances; accordingly the decision to re-affirm (in substance to increase) the appellant's tariff to 20 years was unlawful and was quashed.

The appellant, John David Pierson, was convicted of the double murder of his parents and received mandatory life sentences. In accordance with Home Office practice at the time, a "penal element" (tariff) of 20 years was treated as fixed for his case in 1988, although the trial judge and the Lord Chief Justice had earlier recommended 15 years. Following the House's decision in Ex parte Doody, the Home Secretary disclosed the judicial recommendations and the Home Secretary's decision so that representations could be made. The appellant made representations that premeditation had not been alleged; by a later decision of 6 May 1994 the Home Secretary accepted the absence of premeditation but nevertheless reaffirmed a 20-year tariff. The appellant applied for judicial review of that decision.

The matter had previously been the subject of judicial review in which Turner J quashed the Home Secretary's earlier decision; the Court of Appeal reversed that order ([1996] 3 W.L.R. 547) and held that the Secretary of State could, in principle, increase a tariff. The appellant appealed to the House of Lords.

The primary issues were:

• whether the Home Secretary could increase a tariff once it had been fixed and communicated to the prisoner;
• whether the setting of a tariff by the Home Secretary was sufficiently like a judicial sentencing exercise to attract a rule of non-aggravation of penalties; and
• whether the 1993 policy statement by Mr Howard (which stated that an "initial view" might be revised upwards) had retrospective effect so as to permit increases of tariffs fixed under earlier statements.

The Lords considered the series of Home Office policy statements (1983, 1985, 1987 and 1993) and authorities including Ex parte Doody. Lord Goff and two other Law Lords concluded that the 1993 statement did not operate retrospectively and that the Home Secretary had no general power to increase a tariff lawfully fixed and communicated. The result was that the Home Secretary's decision maintaining the 20-year tariff (despite accepting that premeditation was not established) amounted in substance to an unlawful increase and was quashed. Two Law Lords took a different view and would have upheld the Home Secretary's power to increase tariffs under the broad statutory discretion, but the majority allowed the appeal.

Appeal allowed. The House concluded that the Home Secretary did not have a general power to increase a tariff which had previously been fixed and communicated to a mandatory life prisoner under the earlier policy statements; the 1993 policy statement did not have retrospective effect in the appellant's case and the Secretary of State's decision to maintain (in substance to increase) the penal element to 20 years was unlawful and was quashed.

Application for judicial review succeeded at first instance (Turner J) and the decision was quashed. On appeal the Court of Appeal allowed the Secretary of State's appeal ([1996] 3 W.L.R. 547). The appellant then appealed to the House of Lords, which allowed the appeal and quashed the Secretary of State's decision ([1997] UKHL 37; [1998] AC 539).