Regina v Lichniak (On Appeal from the Court of Appeal (Criminal Division)) Regina v Pyrah (On Appeal from the Court of Appeal (Criminal Division))(Consolidated Appeals)

The mandatory life sentence for an adult convicted of murder is neither arbitrary nor disproportionate merely because the offender is unlikely to endanger the public after release. The sentence contains an individualised punitive tariff and a preventative element permitting continued detention only where public protection requires it.

Uncertainty about release at tariff expiry, assessment of dangerousness at that later date and lifelong liability to recall do not attain the severity required by article 3, or render detention arbitrary under article 5 of the European Convention on Human Rights. Dangerousness may properly be assessed at tariff expiry in light of the prisoner’s intervening behaviour, with independent safeguards governing release and recall.

Two adults convicted of murder received the mandatory life sentence required by section 1(1) of the Murder (Abolition of Death Penalty) Act 1965. Each trial judge considered that the offender was unlikely to present a future danger. Individual tariff periods were nevertheless set to meet the requirements of retribution and deterrence.

The Court of Appeal rejected their contention that the mandatory sentence was arbitrary or disproportionate: [2001] EWHC Admin 294; [2002] QB 296. On consolidated appeals, the House considered whether section 1(1) was incompatible with articles 3 or 5 of the European Convention on Human Rights because it imposed the preventative incidents of a life sentence regardless of an offender’s assessed dangerousness.

1. The appeals were unanimously dismissed. Lord Bingham and Lord Hutton delivered the substantive speeches. Lord Nicholls, Lord Steyn, Lord Hobhouse, Lord Scott and Lord Rodger agreed with both. Section 1(1) of the Murder (Abolition of Death Penalty) Act 1965 was not incompatible with article 3 or article 5 of the European Convention on Human Rights.

2. Per Lord Bingham, applying R (Anderson) v Secretary of State for the Home Department [2002] UKHL 46, a mandatory life sentence does not forfeit the offender’s liberty unconditionally for life. It has an individualised punitive element, represented by the tariff for retribution and deterrence, and a preventative element. After the tariff, detention may continue only while the Parole Board considers release unsafe, and a released prisoner may be recalled where public protection requires it.

3. Per Lord Bingham and Lord Hutton, punishment must attain a sufficient level of severity to engage article 3. For article 5, the legitimacy of the aim and the proportionality of detention to that aim bear upon arbitrariness. The appellants’ tariff periods reflected their individual offences and circumstances. The remaining incidents of the sentences, considered cumulatively, were not sufficiently severe, arbitrary, disproportionate or excessive to infringe either article.

4. Per Lord Hutton, it was legitimate to assess dangerousness at tariff expiry rather than determine it conclusively at trial. Conduct in custody and on home leave may provide important evidence about the safety of release. Although some uncertainty is inevitable, it neither amounts to inhuman punishment nor makes the sentence arbitrary.

5. R v Offen [2001] 1 WLR 253 was distinguished. It concerned mandatory life sentences following qualifying offences which could fall far short of murder. Murder necessarily involved the taking of life with intent to kill or cause really serious injury, so careful consideration of risk at tariff expiry was justified.

6. Per Lord Bingham and Lord Hutton, lifelong liability to recall was not arbitrary. Section 32 of the Crime (Sentences) Act 1997 provided independent Parole Board scrutiny. Lord Hutton further observed that, after tariff expiry, the release decision had to be made through an independent body with judicial procedures and safeguards satisfying article 5(4).

1. House of Lords: The consolidated appeals were dismissed unanimously. The House held that section 1(1) of the Murder (Abolition of Death Penalty) Act 1965 was compatible with articles 3 and 5 of the European Convention on Human Rights: [2002] UKHL 47.

2. Court of Appeal (Criminal Division): The court rejected the appellants’ challenges to the mandatory life sentence: [2001] EWHC Admin 294; [2002] QB 296.

3. Crown Court: Each appellant was convicted of murder and received the mandatory life sentence. The respective trial judges considered that neither was likely to present a future danger and recommended individual tariff periods.