Law Report: Home Secretary's tariff for discretionary lifer quashed: Regina v Secretary of State for the Home Department, Ex parte McCartney - Court of Appeal (Lord Justice Stuart-Smith, Lord Justice Hoffmann and Lord Justice Saville), 19 May 1994

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The Home Secretary, when certifying the penal part of a discretionary life sentence under the transitional provisions of paragraph 9(1) of Schedule 12 to the Criminal Justice Act 1991, had to fix a term which was the equivalent fixed-term sentence which the court would have imposed at the time of sentencing and not what he considered appropriate at the present time.

The Court of Appeal allowed an appeal by the applicant, a prisoner serving a discretionary life sentence, from the Divisional Court's decision that the Home Secretary had not misdirected himself when certifying a tariff or penal element of 25 years in relation to the applicant.

The applicant was sentenced in 1976 to three concurrent terms of life imprisonment for offences of attempted murder of police officers. Under the Criminal Justice Act 1991, which applies to cases after the Act came into force on 1 October 1992, if the court orders that section 34 should apply, the tariff or penal element of a discretionary life sentence is fixed by the judge and the decision to release is entrusted to the parole board.

Paragraph 9 of Schedule 12 makes transitional provision for discretionary life prisoners sentenced before 1 October 1992 and provides: 'This paragraph applies where, in the case of an existing life prisoner, the Secretary of State certifies his opinion that if - (a) section 34 of this Act had been in force at the time when he was sentenced . . . the court by which he was sentenced would have ordered that that section should apply to him as soon as he had served a part of his sentence specified in the certificate.'

Although Lord Taylor of Gosforth, the Lord Chief Justice, recommended a tariff of 20 years, the Home Secretary certified a tariff of 25 years. The Home Secretary's certification was challenged on the grounds that he was not free to fix a figure which he considered appropriate, according to his own judgment and perceptions in 1993 of deterrence and retribution but was required to fix as the tariff the equivalent fixed-term sentence which the court would have imposed in 1976.

Edward Fitzgerald (B M Birnberg & Co) for the applicant; David Pannick QC (Treasury Solicitor) for Home Secretary.

LORD JUSTICE STUART-SMITH said the Home Secretary considered that he was free to set the tariff period in accordance with his own views of what was appropriate in 1993. As a matter of plain construction, if section 34 had been in force at the material time that the Home Secretary was required to certify his opinion as to what the court would have done in respect of two matters, namely, whether the section would have applied and the part of the sentence after which section 34 applied. The Home Secretary had to certify his opinion that the court would have ordered section 34 to apply after the prisoner had served a term of years and not some other indeterminate period.

It would be surprising if Parliament had intended the Home Secretary to have a wholly unfettered discretion to set whatever tariff he thought fit. It seemed contrary to the general intention manifested in section 34 that the tariff part of the sentence was to be set by the judges and the risk part by the parole board. The Home Secretary misdirected himself in law and applied the wrong test. The certificate issued by the Home Secretary would be quashed.

LORD JUSTICE HOFFMANN, agreed that the Home Secretary must certify what in his opinion the tariff would have been if the court had been applying the criteria in section 34.

LORD JUSTICE SAVILLE agreed with Lord Justice Stuart-Smith.