Law Report: Parole procedure for life prisoners: Regina v Secretary of State for the Home Department, Ex parte McCartney - Queen's Bench Divisional Court (Lord Justice Kennedy and Mr Justice Pill), 22 October 1993

When operating the transitional provisions relating to discretionary life prisoners in the Criminal Justice Act 1991, the Home Secretary is not required to seek judicial advice before certifying the penal part of the sentence.

The Divisional Court dismissed the applicant's application for judicial review of two decisions of the Home Secretary.

In 1976 the applicant was sentenced to three discretionary life sentences. In July 1992 the Home Secretary certified under the transitional provisions of the Criminal Justice Act 1991 that the penal or relevant part of the applicant's sentence was 25 years. After representations from the applicant's solicitors, the Home Secretary in 1993 again concluded 25 years was the correct tariff, despite the present Lord Chief Justice's recommendation of 20 years.

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

LORD JUSTICE KENNEDY said that the criticism of the Home Secretary for not seeking judicial advice before issuing a certificate was rejected. However before the tariff in the certificate was fixed the applicant should have been afforded an opportunity to comment. The applicant should have been told not only the gist of the observations by the trial judge and previous Lord Chief Justice, but also the tariff set by the Home Secretary.

The Home Secretary, having sought the view of the present Lord Chief Justice, was not bound by it. However the applicant should have been given an opportunity to comment on that additional information.

Since everthing had now been disclosed and the Home Secretary was willing to reconsider the tariff in the light of any representations by the applicant, no relief would be granted for the non-disclosure.

MR JUSTICE PILL agreed.

Regina v Secretary of State for the Home Department, Ex parte H and others.

Queen's Bench Divisional Court (Lord Justice Kennedy and Mr Justice Pill).

22 October 1993.

Life prisoners serving their sentences in mental hospitals are entitled to have their cases referred to the parole board under the Criminal Justice Act 1991 once they have served the penal part of their sentences.

The Divisional Court granted declarations that prisoners serving life sentences, who became patients at mental hospitals, remained life prisoners and were entitled to the benefit of parole provisions in the Criminal Justice Act 1991.

Five applicants were convicted of serious offences and sentenced to discretionary life sentences. The sixth applicant was convicted of murder when aged 17 and detained at Her Majesty's pleasure. All six had been transferred to mental hospitals after sentence under the Mental Health Act 1983. The applicants contended that as patients, once the penal element of their sentences had been served, their cases should be referred to the parole board who would consider whether the Home Secretary should release them on licence.

Edward Fitzgerald (Taylor Nichol; Galbraith Branley; Scott-Moncrieff & Harbour, Brighton) for the applicants; Stephen Richards (Treasury Solicitor) for the Home Secretary.

LORD JUSTICE KENNEDY said that whilst a prisoner was a patient in a mental hospital time continued to run when calculating the relevant or penal part of his sentence for the purposes of section 34(5) of the 1991 Act.

Life prisoners, while they remained in hospital under the 1983 Act, were nevertheless existing life prisoners for the purposes of the transitional provisions and section 35(2) in the 1991 Act. The Home Secretary's policy not to certify under paragraph 9 of Schedule 2 to the 1991 Act discretionary life prisoners on the ground they had been transferred to hospital under the 1983 Act was unlawful. The Home Secretary might seek the recommendation of the parole board under the 1991 Act before he was in a position to exercise his powers under section 50(1) of the 1983 Act.

MR JUSTICE PILL agreed.

Ying Hui Tan, Barrister