Stafford, R. (on the application of) v Secretary of State for the Home Department

The central issue was the proper construction of section 35(2) of the Criminal Justice Act 1991: whether the Home Secretary, when deciding whether to release a mandatory life prisoner who has served the tariff part of his sentence, may refuse release solely on the ground that the prisoner might commit serious non-violent offences after release. The House held that section 35(2) confers a wide administrative discretion on the Home Secretary to refuse release subject to the statutory condition that the Parole Board must recommend release; it is not limited to consideration of risk of violence to life or limb.

The court rejected the appellant's argument that a basic common law principle of retributive proportionality or the line of authority limiting preventive detention required reading down section 35(2). The court also rejected the alternative contention that the scope of section 35(2) was narrower in the case of a prisoner who had previously been released and then recalled. The court noted that the Parole Board regime and Article 5(4) jurisprudence had judicialised the position of discretionary lifers but Parliament had not done so for mandatory lifers.

This is an application for judicial review by a mandatory life prisoner (the appellant) challenging the Home Secretary's refusal, after a Parole Board recommendation for release, to release him on licence on the ground that there was an unacceptable risk that he might commit serious non-violent offences.

Background facts: the appellant was convicted of murder in 1967, was previously released on licence and later had that licence revoked following offending and recall. After subsequent proceedings and a Parole Board recommendation in November 1996 for immediate release, the Home Secretary refused release in February 1997 on the ground of an unacceptable risk of serious non-violent offending and ordered transfer to an open prison; the appellant challenged that decision.

Procedural history: Collins J allowed the application for judicial review and quashed the Home Secretary's decision (5 September 1997). The Court of Appeal allowed the Home Secretary's appeal (judgment 26 November 1997, reported as Reg. v Secretary of State for the Home Department, Ex parte Stafford [1998] 1 W.L.R. 503). The case then came to the House of Lords.

Issues framed: (i) whether, under section 35(2) Criminal Justice Act 1991, the Home Secretary's power to refuse release of a mandatory life prisoner after tariff is limited to risk of serious harm (violent offending) or extends to risk of serious non-violent offending; (ii) whether Directions issued under section 32(6) and related policy statements were ultra vires if they directed regard to risk of any imprisonable offence; and (iii) whether a narrower construction applied where the lifer had previously been released and recalled (analogy to section 39).

Court's reasoning: the House analysed the statutory text and legislative history, distinguishing mandatory life prisoners from discretionary life prisoners and explaining Parliament's decision to judicialise the latter but not the former. The court held that there was no entrenched common law principle or contextual backcloth requiring that general words in section 35(2) be read down to cover only risk of violence; constraints applying at the tariff stage do not automatically limit the Home Secretary's post-tariff discretion. The court rejected the section 39 analogy for post-recall cases. The court observed that the Home Secretary's Directions might be better redrafted to avoid implying party political considerations but declined to make declaratory relief because none was necessary.

Appeal dismissed. The House held that section 35(2) of the Criminal Justice Act 1991 confers a wide discretion on the Home Secretary in relation to the release of mandatory life prisoners after the tariff, and that discretion is not limited to consideration of risk of violent offences; arguments based on a general common law principle of proportionality, on the section 39 analogy for post-recall lifers, and on reading down the statutory power were rejected.

At first instance Collins J allowed the appellant's application for judicial review and quashed the Home Secretary's decision (5 September 1997). The Court of Appeal allowed the Home Secretary's appeal (26 November 1997), reported as Reg. v Secretary of State for the Home Department, Ex parte Stafford [1998] 1 W.L.R. 503. The House of Lords dismissed the appeal on 23 July 1998 ([1998] UKHL 30).