Regina v Secretary of State for the Home Department Ex p Anderson (FC)

Fixing the punitive tariff of a mandatory life prisoner is a sentencing exercise. Article 6(1) of the European Convention on Human Rights therefore requires the tariff to be fixed by an independent and impartial tribunal. A minister, as a member of the executive, may play no part, even by merely confirming judicial advice.

Where primary legislation deliberately entrusts that decision to the executive, section 3 of the Human Rights Act 1998 cannot be used to create a contrary scheme. The appropriate remedy is a declaration of incompatibility under section 4. Removing the executive from tariff-setting does not prevent a court from imposing a whole-life tariff where an exceptionally grave offence justifies it.

Regina v Secretary of State for the Home Department Ex p Anderson (FC) concerned a mandatory life prisoner convicted of two murders. The trial judge and Lord Chief Justice recommended a punitive tariff of 15 years, but the Home Secretary fixed it at 20 years under section 29 of the Crime (Sentences) Act 1997.

The Divisional Court dismissed the prisoner's application for judicial review: [2001] EWHC Admin 181. The Court of Appeal also dismissed his appeal, although two members expressed serious reservations: [2001] EWCA Civ 1698; [2002] 2 WLR 1143. The central issue before the House was whether executive tariff-setting was compatible with the right under article 6(1) of the European Convention on Human Rights to have a sentence imposed by an independent and impartial tribunal.

1. Appeal allowed unanimously. Lord Bingham delivered the leading speech. Lord Steyn and Lord Hutton gave concurring substantive reasons, and the other Law Lords agreed with the proposed disposition. The House declared section 29 of the Crime (Sentences) Act 1997 incompatible with article 6(1) of the European Convention on Human Rights insofar as it enabled the Home Secretary to decide the punitive minimum term of a mandatory life prisoner.

2. Per Lord Bingham, Lord Steyn and Lord Hutton, the legal character of tariff-setting depended on its substance. The tariff determined the period to be served for retribution and general deterrence before release could be considered. It therefore fixed the individual prisoner's punishment and was a classical sentencing function. The mandatory sentence did not itself constitute punishment by imprisonment for the remainder of the prisoner's life.

3. Sentencing formed part of the determination of a criminal charge under article 6(1). It had to be performed by an independent and impartial tribunal. The Home Secretary was a member of the executive and was neither independent of the executive nor a tribunal. The separation of judicial and executive functions required that he play no part in fixing the tariff, even where he merely confirmed the judges' recommendation.

4. The House accepted and gave effect to Stafford v United Kingdom, which had reconsidered the earlier analysis in Wynne v United Kingdom. Under section 2(1)(a) of the Human Rights Act 1998, Strasbourg judgments were not strictly binding, but the House would ordinarily follow the principles in a carefully considered Grand Chamber judgment unless there was good reason to depart. No such reason existed.

5. Section 29 deliberately gave the Home Secretary control over referral to the Parole Board and the ultimate release decision. Per Lord Bingham, Lord Steyn and Lord Hutton, section 3(1) of the Human Rights Act 1998 could not be used to remove that power or limit it to the judicial recommendation. That would amend the statutory scheme rather than interpret it. The proper remedy was consequently a declaration of incompatibility under section 4.

6. Per Lord Steyn, the transfer of tariff-setting to the judiciary would not prevent a whole-life tariff. Exceptionally grave offences could still justify lifelong detention for retribution and deterrence. Lord Bingham also questioned whether continued detention could lawfully rest on public acceptability once the punitive term had expired and the Parole Board had found no significant public risk.

1. House of Lords: The appeal was allowed unanimously. The House declared section 29 of the Crime (Sentences) Act 1997 incompatible with article 6(1) insofar as the Home Secretary fixed the punitive minimum term: [2002] UKHL 46.
2. Court of Appeal: The appeal was dismissed, although Simon Brown and Buxton LJJ expressed serious reservations about treating tariff-setting as administrative: [2001] EWCA Civ 1698; [2002] 2 WLR 1143.
3. Divisional Court: The application for judicial review was dismissed. Sullivan and Penry-Davey JJ would, but for existing authority, have regarded tariff-setting as the imposition of sentence: [2001] EWHC Admin 181.