R v Secretary of State for the Home Department, Ex parte Hindley (Hindley, Ex parte)

A whole-life tariff for a mandatory life prisoner is lawful. It represents a decision not to fix a determinate tariff because the offence is so serious that punishment and deterrence may require lifelong detention. The Secretary of State must nevertheless retain and exercise the statutory discretion to review release, including exceptional cases. A fixed tariff cannot be increased merely because a later Secretary of State takes a different view of the original assessment. An exceptional increase requires exceptional circumstances, such as significant new information. The prisoner must receive fair consideration of relevant post-sentence conduct and representations. The Secretary of State must remain prepared to consult the Parole Board where its advice could assist. The policy and decision were lawful on the facts, subject to those qualifications.

The appellant, serving mandatory life sentences for murder, challenged successive Home Secretary policy statements and decisions concerning her tariff. The Divisional Court held that the decisions were lawful, that the 7 December 1994 policy was unlawful because it failed to allow for exceptional progress in custody, and that the 10 November 1997 policy was lawful: [1998] 2 WLR 505. The appeal concerned whether a whole-life tariff was lawful, whether the Secretary of State could exceptionally increase a tariff, and whether the policy unlawfully excluded the Parole Board. The appellant also challenged the application of the policy to her case and the adequacy of the reasons given.

The appeal was dismissed. The court held as follows.

1. Whole-life tariff. The sentence imposed for murder remains imprisonment for life under section 1(1) of the Murder (Abolition of Death Penalty) Act 1965. The statutory release powers do not prevent the Secretary of State from concluding that, in an exceptionally serious case, punishment and deterrence require detention for life. A whole-life tariff should, however, be understood as a decision not to fix a determinate tariff. The Secretary of State must continue to review the prisoner’s position and must deal with exceptional cases exceptionally.
2. Parole Board. Sections 29 and 30 of the Crime (Sentences) Act 1997 confer continuing discretionary powers. The Secretary of State must consider whether to refer a mandatory life prisoner to the Parole Board where its advice could assist, although the statute does not require a reference in every case. A policy which excluded all such involvement would be unlawful. The omission in the policy had not prejudiced the appellant because her case had already been referred and the Secretary of State remained prepared to consider further consultation.
3. Increasing a tariff. The current policy did not permit a fixed tariff to be increased merely because the Secretary of State or a successor later considered the original assessment inadequate. An exceptional increase requires exceptional circumstances, assessed in the context of the prisoner’s circumstances as a whole. New information concerning culpability may constitute such a circumstance. The court rejected any automatic rule that a tariff could never be increased, but required fairness and substantive due process.
4. Application. The appellant’s earlier tariff had been provisional and had never been communicated to her. Her later confession disclosed materially greater involvement in the offences. Those features meant that the change to a whole-life tariff was not contrary to legitimate expectation, unreasonable, or procedurally unfair. The Secretary of State had to consider her representations concerning exceptional progress and remain prepared to obtain the views of the Parole Board and judiciary where useful. His reasons were adequate.

• Court of Appeal: Appeal from the Divisional Court was dismissed. The court upheld the lawfulness of the decisions concerning the appellant’s whole-life tariff, subject to the requirement to consider exceptional progress and possible Parole Board consultation.
• Divisional Court: The court held that the Home Secretaries’ decisions were lawful, but that the policy of 7 December 1994 was unlawful because it made no allowance for exceptional progress in custody. The policy of 10 November 1997 was lawful: [1998] 2 WLR 505.