Secretary of State For The Home Department, Ex Parte Hindley, R v.

This appeal concerns the lawfulness in principle and in application of a "whole life" tariff imposed by the Home Secretary on a prisoner serving a mandatory life sentence. The House of Lords held that a life sentence can lawfully be interpreted to permit detention for the whole of the prisoner’s natural life; nothing in section 1(1) of the Murder (Abolition of Death Penalty) Act 1965 or the statutory framework required a restrictive meaning. The court rejected challenges that the Secretary of State's policy unlawfully fettered his discretion, excluded Parole Board consideration, or was inconsistent with the tariff concept expressed as a term of years. On the facts the House rejected all public law challenges to the imposition of a whole life tariff on Hindley, including arguments based on retrospective increase, substantive legitimate expectation and disproportionality.

The appellant, Myra Hindley, serving mandatory life sentences for murder, sought judicial review of the Home Secretary's decision to impose a whole life tariff (detention for the whole of natural life). She challenged (i) the lawfulness in principle of a whole life tariff under the statutory scheme that replaced the death penalty with life imprisonment; and (ii) the lawfulness in her particular case on grounds including retrospective increase of tariff, legitimate expectations, failure to consider mitigation, and disproportionality.

Procedural history: the Divisional Court dismissed Hindley’s application (reported at Reg. v. Secretary of State for the Home Department, Ex parte Hindley [1998] QB 751), the Court of Appeal dismissed her appeal but granted leave to appeal to the House of Lords (reported at Reg. v. Secretary of State for the Home Department, Ex parte Hindley [2000] QB 152), and the appeal was heard by the House of Lords.

Issues framed by the House: (a) whether a whole life tariff is inconsistent with the statutory concept of life imprisonment; (b) whether the Secretary of State’s policy unlawfully fetters discretion, ousts Parole Board consideration, or is inconsistent with the tariff system; and (c) whether the imposition of a whole life tariff on Hindley was unlawful on specific public law grounds (retrospective increase, legitimate expectation, procedural fairness, and disproportionality).

The court’s reasoning:

• Statutory interpretation: reading section 1(1) of the 1965 Act with the then-extant statutory provisions (for example section 27 of the Prison Act 1952) shows Parliament contemplated indeterminate detention and did not exclude the possibility that "life" might mean life in particular cases.
• Fettering and policy: the House accepted the Secretary of State’s clarified position that whole life tariffs express the current view that retribution and deterrence may justify lifelong detention but are subject to reconsideration; accordingly there was no unlawful fettering of discretion. Directions under section 35 of the Criminal Justice Act 1991 properly define the Parole Board’s role as advisory on risk, and the Secretary of State was not obliged to refer whole life tariff cases to the Board.
• Application to Hindley: earlier provisional internal decisions were not communicated and, in any event, later material (confessions and further evidence of involvement) justified a reassessment. Hindley had no substantive legitimate expectation of a finite tariff; the Secretary of State proceeded on assumptions favourable to her and was entitled to treat newly disclosed facts as aggravating. The whole life tariff was not disproportionate on the facts.

The House therefore dismissed the appeal.

Appeal dismissed. The House held that a "whole life" tariff is compatible with the statutory concept of life imprisonment and that the Secretary of State's policy did not unlawfully fetter his discretion or exclude Parole Board consideration. On the facts the imposition of a whole life tariff on Hindley was lawful: prior provisional decisions were not binding, legitimate expectations did not arise, procedural fairness was satisfied, and the sentence was not disproportionate.

Divisional Court: Reg. v. Secretary of State for the Home Department, Ex parte Hindley [1998] QB 751 (application dismissed). Court of Appeal: appeal dismissed but leave to appeal to the House of Lords granted, reported as Reg. v. Secretary of State for the Home Department, Ex parte Hindley [2000] QB 152. House of Lords: appeal dismissed [2000] UKHL 21.