McfEtrich, R (on the application of) v Secretary of State for the Home Department

For the purposes of Article 7 of the ECHR, the penalty for an adult convicted of murder is the mandatory sentence of life imprisonment, not the tariff period fixed for retribution and deterrence.

A change in tariff-setting arrangements, or the possibility that a prisoner might have served a shorter period in another jurisdiction, does not itself impose a heavier penalty retrospectively. Following transfer under section 26(4) of the Criminal Justice Act 1961, the prisoner is treated as if sentenced by a court in the receiving jurisdiction. The Secretary of State was therefore entitled, and obliged, to set the tariff under the English procedure.

The claimant pleaded guilty to murder in Scotland and received the mandatory sentence of life imprisonment. He later requested transfer to England under section 26(1) of the Criminal Justice Act 1961, before any Scottish review had fixed a tariff.

After consultation, the Secretary of State fixed a 12-year tariff and later refused to review it. The claimant sought judicial review of both decisions. He argued that section 26(4) required his Scottish tariff position to follow him into England and that the longer English tariff breached Article 7(1) of the ECHR. The central issues were the proper construction of section 26(4) and whether the tariff constituted the relevant penalty for Article 7 purposes.

1. The claim was dismissed. The Secretary of State was entitled, and indeed obliged, to apply section 26(4) of the Criminal Justice Act 1961. A transferred prisoner is treated, for detention, release, supervision, recall or otherwise, as if the sentence had been passed by a court in the receiving jurisdiction. The reference to an equivalent sentence passed by a court was important. The sentence for murder was life imprisonment; the tariff was not a statutory sentence and no Scottish tariff had been fixed.
2. For Article 7(1), the relevant penalty was the whole sentence of mandatory life imprisonment. A life sentence contains a punitive element directed to retribution and deterrence and a protective element directed to public safety. The tariff fixes only the minimum period before consideration of release. It does not determine the actual period served, which depends on suitability for release and possible recall.
3. The court adopted the distinction between the penalty and the execution of imprisonment reflected in H v United Kingdom (Application 11653-85). The fact that the claimant might have been considered for parole earlier in Scotland did not mean that a heavier penalty had been imposed in England. The comparison required by Article 7 was between the penalty imposed and the penalty applicable when the offence was committed. Both were life imprisonment.
4. R (Uttley) v Secretary of State for the Home Department [2003] EWHC 950 did not assist the claimant. It concerned a determinate sentence and statutory licensing, not the tariff component of a mandatory life sentence. R (Anderson) v Home Secretary [2003] 3 WLR 1800 established that tariff-setting involved an assessment of punishment for Article 6 purposes, but it did not equate the tariff with the whole penalty for Article 7.
5. The claim concerning the refusal to review the tariff also failed. There was no Article 7 violation, and section 22(4) of the Human Rights Act 1998 presented an insuperable obstacle to reviewing the earlier decision.