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

Where transitional legislation requires the Secretary of State to certify what sentence the sentencing court would have ordered, the task is substantially judicial in character. The Secretary of State must obtain and follow judicial advice unless there is a good reason to depart from it. The decision-maker cannot choose between two reasonable sentencing views merely because the statutory power is formally vested in the Secretary of State. Certification under paragraph 9 of Schedule 12 to the Criminal Justice Act 1991 is distinct from ordinary administrative discretion.

The applicant, serving concurrent discretionary life sentences for offences arising from the 1980 Iranian Embassy siege, challenged the Secretary of State’s refusal to reduce his 25-year tariff. The Lord Chief Justice had advised that, in light of fresh mitigating material, a tariff of 22 years or less was appropriate. The Secretary of State nevertheless maintained the 25-year tariff.

Henriques J refused permission for judicial review after accepting that the Secretary of State was entitled to form his own opinion. The Court of Appeal granted permission and considered whether, under paragraph 9 of Schedule 12 to the Criminal Justice Act 1991, the Secretary of State could reject the Lord Chief Justice’s advice without good reason.

1. Appeal allowed. The application for judicial review succeeded, and the Secretary of State’s decision dated 7 April 2003 was quashed.
2. Simon Brown LJ, with Keene and Scott Baker LJJ agreeing, held that paragraph 9(1) of Schedule 12 to the Criminal Justice Act 1991 required certification of what the sentencing court would have ordered if section 34 had applied. The statutory yardstick was therefore the hypothetical judicial sentence, not the Secretary of State’s personal view of the appropriate tariff.
3. The court applied R v Secretary of State for the Home Department ex parte McCartney (transcript dated 19 May 1994 (unreported)). In most cases the Secretary of State’s function was virtually administrative certification of the tariff which the court would have fixed. Where existing judicial advice was inadequate or fresh circumstances required reconsideration, consultation with the judiciary was the obvious first step.
4. Although different reasonable views could be taken of fresh mitigating material, the Secretary of State could not simply prefer his own view after obtaining judicial advice. He had to follow that advice unless there was a good reason to the contrary. No such reason existed.
5. The court did not need to determine the separate Article 6(1) compatibility argument. Scott Baker LJ additionally criticised delay and reliance on outdated reports in preparing the applicant’s case for the Parole Board, stating that further inactivity should not prolong his custody. Costs were ordered in the applicant’s favour.

• Court of Appeal (Civil Division): [2004] EWCA Civ 33. Appeal allowed; the application for judicial review was allowed and the Secretary of State’s decision dated 7 April 2003 was quashed.
• Administrative Court, Queen’s Bench Division: Henriques J refused permission for judicial review following an oral hearing on 22 October 2003. No citation is stated in the judgment.