LAW REPORT: Home Secretary's decision on lifer was lawful

Regina v Secretary of State for the Home Department, ex parte Pierson; Court of Appeal (Sir Thomas Bingham, Master of the Rolls, Lord Justice Neill and Lord Justice Hirst); 5 December 1995

The task of determining the penal element of the sentence to be served by a mandatory life prisoner had been entrusted to the Home Secretary under section 35 of the Criminal Justice Act 1991, conferring a wide discretion which the court could not curb by attaching conditions not required by procedural fairness.

The Court of Appeal allowed the Home Secretary's appeal from Mr Justice Turner (Law Report, 14 November) who had quashed the Home Secretary's decision that the applicant, who was serving two concurrent sentences of life imprisonment, should serve 20 years to satisfy the penal element of his sentence.

The applicant was convicted in 1985 of killing his parents. In 1988 the trial judge and Lord Chief recommended to the Home Secretary that the applicant should serve 15 years as his penal term. However the Home Secretary fixed the penal element at 20 years.

From 1993 the Home Secretary was required to inform prisoners serving mandatory life sentences of the judiciary's recommendation but he was not obliged to adopt the judicial advice and was required to give reasons for departing from it. The Home Secretary's policy was exceptionally to revise the view of the period where the minimum requirements of retribution and deterrence were not satisfied.

In August 1993 the applicant was informed that the judicial recommendation would have been appropriate for a single premeditated offence but, because this was a double murder, 20 years was set. After considering representations from the applicant, the Home Secretary accepted that it would be wrong to proceed on the basis that the murders were premeditated and accepted that the two murders were part of a single incident. However his view was that 20 years was appropriate.

Mr Justice Turner quashed the Home Secretary's decision on the basis that exceptional circumstances would be required before the Home Secretary could increase the period and no such circumstances had been shown.

David Pannick QC (Treasury Solicitor) for the Home Secretary; Edward Fitzgerald QC and Tim Owen (Graham Withers & Co, Shrewsbury) for the applicant.

Sir Thomas Bingham MR, giving the court's judgment, said that the court was not concerned in deciding the period to be served by the applicant but was concerned to rule on the lawfulness of the decision made in the applicant's case. The decision was made in the Home Secretary's name but it was not legally necessary that it was made by him personally.

It was argued that it was irrational for the Home Secretary to fix the same penal term despite his concession that the aggravating features were absent. However, the Home Secretary's function was not an orthodox sentencing function. The Home Secretary in 1994 did not share the view of his predecessor in 1988 that 15 years would have been appropriate but for the aggravating features. He thought a longer term was called for anyway. His decision could not be stigmatised as irrational.

It was also argued that the Home Secretary had no power to increase a penal term as there was no exceptional circumstance here. In the absence of any curb on the Home Secretary's discretion in section 35 of the Criminal Justice Act 1991 the court could not cut down the wide discretion conferred by Parliament by attaching non-statutory conditions not required by procedural fairness to its exercise. The Home Secretary had done no more than indicate that the power to increase a penal term would only be exercised exceptionally.

That could mean no more than that the power to increase would be exercised by way of exception to the general rule that a term once fixed would not be altered. The Home Secretary had not defined or restricted the occasions on which he would depart from the general rule and the court could not do so.

The Home Secretary took a more serious view of the case than did his predecessor. The appeal would be allowed. The applicant might address any representations he wished to the Home Secretary. The court trusted the Home Secretary to give any such representations fair and careful consideration.