Cole & Anor v Secretary of State for the Home Department

The Secretary of State’s review of a mandatory lifer’s tariff is legally indistinguishable from initial tariff-setting for the purposes of Anderson and Article 6. A Secretary of State review would therefore breach Article 6, save in wholly exceptional circumstances. Criminal Appeal Act 1968 Schedule 2, paragraph 2, which prevents a court imposing a more severe sentence after retrial, cannot be construed as applying to a tariff fixed by the Secretary of State. Pending replacement legislation, the Secretary of State may adopt an interim policy declining ordinary tariff reviews. That policy does not unlawfully fetter the discretion where exceptional cases remain open and future High Court review is contemplated.

Three serving mandatory life prisoners sought judicial review of the Secretary of State’s refusal to review their tariffs following the House of Lords’ decision in Anderson. Cole had received a higher tariff after retrial than after his original conviction and relied on Schedule 2, paragraph 2 of the Criminal Appeal Act 1968. Rowland and Hawkes relied principally on alleged exceptional progress or circumstances and challenged the Secretary of State’s reliance on proposed transitional legislation and Article 6. The central issues were whether tariff review was distinct from tariff-setting, whether the Secretary of State had unlawfully fettered his discretion, and whether Cole’s tariff was subject to the statutory protection applying after retrial.

1. All three applications dismissed. The court refused permission to appeal, holding that the proposed grounds were not arguable.
2. There was no distinction between setting and resetting a tariff. Following Anderson [2003] 1 AC 837, either exercise by the Secretary of State would breach Article 6 because tariff-fixing is a sentencing exercise which must be performed by an independent and impartial tribunal.
3. Cole’s argument failed. Schedule 2, paragraph 2 of the Criminal Appeal Act 1968 could not be construed as applying to the Secretary of State. The statutory reference to the court before which the defendant was convicted could not include the executive authority fixing the tariff. Cole suffered no present disadvantage because the High Court would later be able to review the tariff and take account of the reasoning in Lea [2002] EWCA Crim 215.
4. The Secretary of State was entitled, pending enactment of replacement legislation, to decline ordinary tariff reviews. It was not improper to have regard to the proposed legislation, whose final form remained for Parliament, and the policy did not unlawfully fetter the discretion because wholly exceptional cases remained possible.
5. The intended High Court review of existing tariffs was expected to take exceptional progress in prison into account. Rowland and Hawkes had not shown that their cases were wholly exceptional. Their applications were therefore dismissed.

The applications were brought with permission granted by Collins J and were heard expeditiously by the Divisional Court. The court dismissed all three applications and refused permission to appeal.