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

The House held that the Home Secretary's power to set the minimum period to be served by an adult convicted of murder (the "tariff") is in substance a sentencing exercise governed by Article 6(1) of the European Convention on Human Rights and therefore must be performed by an independent and impartial tribunal. The court followed the Grand Chamber judgment in Stafford v United Kingdom and concluded that the fixing of the tariff is part of the punishment element of the sentence rather than merely an administrative implementation of a judicial sentence. Section 29 of the Crime (Sentences) Act 1997, which leaves tariff-fixing to the Home Secretary, cannot be read down compatibly with the Convention under section 3 of the Human Rights Act 1998. The appropriate domestic remedy was a declaration of incompatibility under section 4 of the Human Rights Act 1998 in terms agreed between the parties.

The appellant, Anthony Anderson, was convicted of two murders and the trial judge and the Lord Chief Justice recommended a tariff of 15 years' imprisonment for retribution and general deterrence. The Home Secretary set the tariff at 20 years. The appellant sought judicial review of the Home Secretary's decision, lost in the Queen's Bench Divisional Court ([2001] EWHC Admin 181) and in the Court of Appeal ([2002] 2 WLR 1143), and appealed to the House of Lords.

The central legal question was whether the Home Secretary's setting of a convicted murderer's tariff constituted a determination of a criminal charge for the purposes of Article 6(1) ECHR and therefore had to be made by an independent and impartial tribunal. The House analysed (i) the nature of the mandatory life sentence and the tariff-fixing procedure; (ii) Strasbourg authority, in particular Stafford v United Kingdom; and (iii) the domestic framework created by the Human Rights Act 1998 and the Crime (Sentences) Act 1997.

The House reasoned that tariff-fixing defines the punitive element of the sentence and in practice decides the minimum period of imprisonment to be served before the Parole Board may consider release. Because the Home Secretary is an executive minister and not independent of the executive, Article 6(1) requires that the function of fixing tariffs be performed by the judiciary or an independent tribunal. The court considered whether section 29 of the Crime (Sentences) Act 1997 could be read compatibly with Article 6(1) using section 3 of the Human Rights Act 1998 and concluded that the statutory scheme plainly vested the decision in the Home Secretary and could not be reinterpreted to transfer the power to the judiciary. Accordingly, the House allowed the appeal to the extent of granting a declaration of incompatibility under section 4 of the Human Rights Act 1998 (in agreed terms), leaving it to Parliament to remedy the incompatibility.

Relief sought: quashing or review of the Home Secretary's tariff decision and a declaration of incompatibility. Issues decided: whether tariff-fixing is a "determination of a criminal charge" within Article 6(1); whether section 29 could be given a Convention-compatible construction under section 3 HRA; and the appropriate remedy under the Human Rights Act. The court held tariff-fixing is a sentencing exercise within Article 6(1), section 29 is incompatible, and the appropriate remedy was a declaration of incompatibility because section 3 could not be used to reinterpret section 29 consistently with the Convention.

Appeal allowed to the extent that the House made a declaration of incompatibility under section 4 of the Human Rights Act 1998 in agreed terms. Rationale: tariff-fixing is a sentencing exercise (a determination of the punitive element of the criminal charge) and must be performed by an independent and impartial tribunal under Article 6(1) ECHR; the statutory scheme in section 29 of the Crime (Sentences) Act 1997 vests the tariff decision in the Home Secretary and cannot be read down compatibly under section 3 HRA, so the appropriate domestic remedy was a declaration of incompatibility.

Divisional Court (Queen's Bench) dismissed the appellant's judicial review ([2001] EWHC Admin 181; Rose LJ, Sullivan and Penry-Davey JJ). The Court of Appeal dismissed the subsequent appeal ([2002] 2 WLR 1143; [2001] EWCA Civ 1698; Lord Woolf CJ, Simon Brown and Buxton LJJ). The appeal succeeded in the House of Lords ([2002] UKHL 46) with a declaration of incompatibility made under the Human Rights Act 1998.