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

A mandatory sentence of life imprisonment may lawfully require imprisonment for the prisoner’s natural life where retribution and deterrence demand it. A whole-life tariff is compatible with the statutory meaning of life imprisonment and need not be expressed as a finite term.

The Home Secretary may adopt such a policy provided that the discretion to reconsider individual tariffs remains genuinely open and fair procedures are observed. There is no obligation to refer a whole-life-tariff case to the Parole Board or to accept its recommendation. A provisional tariff which was neither fixed nor communicated creates no protection against later revision. The Home Secretary may also reconsider an assessment made without material facts.

The appellant was serving mandatory life sentences for murder. A Home Secretary decided that the requirements of retribution and deterrence justified a whole-life tariff. His successor maintained that assessment, subject to reconsideration and the possibility of reduction.

The Divisional Court dismissed the application for judicial review: [1998] QB 751. The Court of Appeal dismissed the appeal but granted leave to appeal to the House of Lords: [2000] QB 152.

The appeal challenged both the general legality of whole-life tariffs for mandatory life prisoners and the lawfulness of the tariff imposed in this particular case. The issues included statutory interpretation, fettering of discretion, the role of the Parole Board, retrospective tariff increases, legitimate expectation, changes in penal policy, rationality and proportionality.

1. Appeal dismissed unanimously. Lord Steyn delivered the leading speech. Lord Browne-Wilkinson, Lord Nicholls of Birkenhead and Lord Hutton agreed with his reasons. Lord Hobhouse of Woodborough agreed with their substance and added observations.

2. Per Lord Steyn, section 1(1) of the Murder (Abolition of Death Penalty) Act 1965, read with section 27 of the Prison Act 1952, authorised detention for an indeterminate period ending only on death or discretionary release. Life imprisonment could therefore mean imprisonment for the prisoner’s natural life. Section 1(2), which permitted a judicial recommendation of a minimum term, did not require every life sentence to have a finite punitive period.

3. Per Lord Steyn, a whole-life tariff was compatible with the tariff system. Crimes might be so heinous that detention until death would not exhaust the requirements of retribution and deterrence. The policy did not unlawfully fetter the Home Secretary’s discretion because, as clarified by counsel’s assurances, every whole-life tariff remained open to reconsideration from time to time, even without exceptional progress in prison.

4. Per Lord Steyn, the Home Secretary was not obliged to refer whole-life-tariff cases to the Parole Board. Its role under the lawful directions made pursuant to section 35 of the Criminal Justice Act 1991 concerned risk rather than tariff. The Home Secretary could reject its recommendation. Lord Hobhouse similarly emphasised that the statutory discretion concerning release of mandatory life prisoners belonged to the Home Secretary alone.

5. Per Lord Steyn, the earlier tariff assessment did not engage any principle against retrospective increases. It had been expressly provisional and had not been communicated to the prisoner. There was no principled basis for extending the competing observations in Ex parte Pierson, [1998] AC 539, to such a decision. Further, the earlier assessment had been made without material information. Even a communicated assessment would not, as a matter of public-law fairness, have been protected where it rested on ignorance of material facts.

6. Per Lord Steyn, no substantive legitimate expectation arose. The prisoner had received no assurance, did not know the tariff until much later and had been told to make no assumption about release. Ex parte McCartney was distinguishable because it concerned transitional arrangements for discretionary life prisoners under a judicialised tariff regime.

7. Per Lord Steyn, adoption of a more severe penal policy was not, without more, beyond the statutory powers conferred on successive Home Secretaries. The mitigation advanced had been assumed in the prisoner’s favour. The murders nevertheless fell within an exceptional category of wickedness, and the whole-life tariff was neither irrational nor disproportionate. The decision to maintain it was lawful.

1. House of Lords: Dismissed the appeal unanimously and affirmed the Court of Appeal’s conclusion.
2. Court of Appeal: Dismissed the appeal from the Divisional Court but granted leave to appeal to the House of Lords: [2000] QB 152.
3. Divisional Court of the High Court: Dismissed the application for judicial review of the whole-life-tariff decision: [1998] QB 751.