Tuesday Law Report: Home Secretary could set whole life tariff

THE FIXING of a "whole life tariff" by the Home Secretary for the purposes of retribution and deterrence in the case of a prisoner serving a mandatory life sentence was not unlawful, but a fixed tariff could not be increased in the absence of new circumstances.

The Court of Appeal dismissed Myra Hindley's appeal against the dismissal of her application for judicial review of decisions by two Home Secretaries that the tariff period of her life sentence should be whole life.

The appellant had been convicted in 1966 of the murders of two children and of being an accessory after the fact to the murder or a third child, and had been sentenced to life imprisonment. In a statement to the police in 1987, she had indicated that altogether she had been involved with her co-accused Ian Brady in five murders.

On 7 December 1994 the then Home Secretary, Michael Howard, had made a policy statement announcing, inter alia, that for those life- sentence prisoners who he had decided should remain in prison for the whole of their lives to meet the requirements of retribution and deterrence there would be a review when the prisoner had been in custody for 25 years. In February 1997 he had decided that the period of the appellant's tariff should be whole life. In November 1997 the new Home Secretary, Jack Straw, had made a further policy statement, and had affirmed the whole life tariff set on the appellant by his predecessor.

Edward Fitzgerald QC and Tim Owen (Taylor Nichol) for the appellant; David Pannick QC and Mark Shaw (Treasury Solicitor) for the Home Secretary.

Lord Woolf MR said that the Divisonal Court had concluded that the decisions of the two Home Secretaries were not unlawful, nor was the policy of 10 December 1997.

The Home Secretary was clearly given a discretion not to release a prisoner on licence, and there could be no objection in principle to to his saying that, on the information before him, he was satisfied that the offence which the particular prisoner had committed was so heinous that he could not fix a period after which punishment and deterrence would not require him to be incarcerated. That was what, in effect, the Home Secretary had to be regarded as having done in the present case.

The current policy did not entitle the Home Secretary to increase a fixed tariff in the absence of new circumstances, since such an approach would be arbitrary in the extreme and not in accord with the requirement of substantive natural justice or due process. What could constitute an exceptional circumstance had to be judged by the Home Secretary looking at the individual prisoner's circumstances as a whole and asking himself whether, in those circumstances, it was right to regard the case as being one which because of exceptional circumstances justified an increase.

The appellant's original tariff had been expressed to be provisional. She had not been aware of that, nor had she been aware of her whole life tariff until December 1994. Although she had had every reason to believe that she had a fixed tariff, that did not make a significant difference. If it was lawful for the Secretary of State to determine a whole life tariff, then unfairness or abuse of process only arose as a result of changing a fixed tariff to a whole life tariff when the prisoner had been told previously of the fixed tariff. In addition, the appellant's confession in 1987 had created a new situation and, as the tariff had been provisionally fixed, a new situation could justify an alteration in the tariff.

It had not been unlawful for the present Home Secretary to fix the appellant's tariff at whole life, subject to her being entitled to make submissions as to the effect of her conduct during her period in prison, and the Home Secretary being prepared to consider consulting the Parole Board and the judiciary.

Kate O'Hanlon,

Barrister