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

Under section 35(2) of the Criminal Justice Act 1991, the Home Secretary’s discretion to release a mandatory life prisoner after expiry of the tariff is not confined to risks of violence or serious harm to life or limb. A risk of serious non-violent offending may lawfully justify continued detention.

The common law principle that punishment should be proportionate to the offence operates at the tariff stage. It does not govern the post-tariff decision, which looks to future risk. General statutory language cannot be restricted by a basic common law principle unless that principle forms part of the relevant legislative context.

The appellant was serving a mandatory life sentence for murder. After release on life licence, subsequent recall and convictions for forgery-related offences, the Parole Board recommended his immediate release. The Home Secretary refused because he considered that there was an unacceptable risk of serious non-violent offending.

Collins J allowed the appellant’s application for judicial review and quashed the refusal. The Court of Appeal reversed that decision in [1998] 1 WLR 503.

The central issue before the House was whether section 35(2) of the Criminal Justice Act 1991 limited continued post-tariff detention to cases involving an unacceptable risk of violence or serious harm to the public. A further issue was whether a narrower rule applied because the appellant had previously been released and recalled.

1. The appeal was dismissed unanimously. Lord Steyn delivered the leading speech. Lord Goff of Chieveley, Lord Browne-Wilkinson, Lord Slynn of Hadley and Lord Clyde agreed with his reasons.

2. Per Lord Steyn, section 35(2) of the Criminal Justice Act 1991 conferred a broad administrative discretion concerning the release of mandatory life prisoners. The text required a Parole Board recommendation and consultation with the Lord Chief Justice and, if available, the trial judge. It did not restrict the Home Secretary to considering a risk of violence or serious harm to life or limb. The Home Secretary could therefore refuse release because of an unacceptable risk of serious non-violent offending.

3. The constraints governing the fixing of a tariff could not simply be transferred to the post-tariff release decision. Tariff-setting is closely analogous to sentencing, but release after expiry of the tariff concerns the future. In that context the Home Secretary may take account of broader considerations of a public character.

4. The common law principle of retributive proportionality did not restrict the post-tariff discretion. Lord Steyn was prepared to assume that proportionality between sentence and offence was a leading common law principle. It applied at the tariff stage, whereas the post-tariff decision focused on future risk. There was no relevant settled common law principle or practice forming the legislative background against which Parliament enacted section 35(2). The principle of statutory construction stated in Ex parte Pierson therefore did not justify reading the proposed limitation into the section.

5. Parliament had deliberately created different release regimes. Release of discretionary life prisoners and young offenders detained during Her Majesty’s pleasure had been judicialised, with protection of the public as the statutory touchstone. Mandatory life prisoners remained subject to the more general wording of section 35(2). An appeal to symmetry could not overcome that legislative choice.

6. The appellant’s status as a recalled prisoner did not narrow section 35(2). Section 39 was inapplicable and supplied no basis for limiting the Home Secretary’s discretion by analogy.

7. No declaration was granted. Lord Steyn nevertheless considered the reference in the Home Secretary’s direction to wider political implications unfortunate. He suggested redrafting it to exclude any implication that party-political considerations were relevant.

1. House of Lords: Dismissed the prisoner’s appeal and affirmed the Court of Appeal’s construction of section 35(2) of the Criminal Justice Act 1991.
2. Court of Appeal: In [1998] 1 WLR 503, allowed the Home Secretary’s appeal and held that his power was not confined to the risk of violence or serious harm to life or limb.
3. High Court: Collins J allowed the application for judicial review and quashed the refusal of release, holding that post-tariff detention could not continue where the prisoner presented no more than a minimal risk to life or limb.