R (Anderson) v Secretary of State for the Home Department (R (Taylor) v Secretary of State for the Home Department)

The fixing of a tariff for a mandatory life prisoner is, in substance, a sentencing exercise because it determines the punitive period required for retribution and deterrence. However, the domestic court must take account of clear and consistent Strasbourg authority treating the mandatory life sentence differently from discretionary life sentences and detention during Her Majesty’s pleasure. While that jurisprudence remains in force, and is shortly to be reconsidered by the European Court of Human Rights, the court should not pre-empt Strasbourg by declaring the existing statutory arrangement incompatible with article 6. The Secretary of State therefore retains the power to fix the tariff, subject to the safeguards of domestic public law.

Two mandatory life prisoners challenged the Home Secretary’s power to fix their tariffs for retribution and deterrence. The Divisional Court dismissed their applications on 22 February 2001. The appellants argued that tariff-fixing was a sentencing function engaging article 6(1) of the Convention and therefore had to be undertaken by an independent and impartial tribunal, namely the judiciary.

The appeal required the court to reconcile the domestic authorities, including Doody, [1994] 1 AC 531, with Strasbourg decisions distinguishing mandatory life sentences from discretionary life sentences and detention during Her Majesty’s pleasure, particularly Wynne v United Kingdom and (1994) 19 EHRR 333, and V v United Kingdom, [1999] 30 EHRR 121. The central issue was whether the existing tariff-setting regime breached article 6(1).

1. The appeals were dismissed. Leave to appeal was refused.
2. The court accepted that tariff-fixing for a mandatory life prisoner determines the punitive element of the sentence. In substance, it is closely analogous to, and properly characterised as, a sentencing exercise. The distinction between the formal sentence of life imprisonment and the tariff period cannot be resolved by relying on form alone.
3. That conclusion did not entitle the court to grant the relief sought. The Strasbourg jurisprudence in Wynne v United Kingdom, (1994) 19 EHRR 333, and V v United Kingdom, [1999] 30 EHRR 121, treated the mandatory life sentence as a distinct, essentially punitive sentence and regarded the original trial and appeal proceedings as satisfying the relevant judicial guarantees. The jurisprudence was clear and consistent.
4. Under section 2 of the Human Rights Act 1998, the court was required to take that jurisprudence into account, though not formally bound by it. Section 6 did not justify departing from it where Parliament had deliberately retained the Secretary of State’s discretion for mandatory life prisoners, while introducing judicialised regimes for other indeterminate sentences. The court should not pre-empt Strasbourg’s forthcoming reconsideration of the issue in Stafford.
5. The Secretary of State’s tariff-setting discretion therefore remained lawful, subject to the procedural safeguards recognised in Doody, including disclosure of judicial recommendations, an opportunity for representations, and reasons for departure from the judicial view. Lord Woolf CJ further indicated that article 6 should not ordinarily govern the post-tariff release process, where a public hearing would be inappropriate.

• Court of Appeal: Appeals from the Divisional Court were dismissed. Leave to appeal was refused.
• Divisional Court: The applications for judicial review were dismissed on 22 February 2001.