Law Report: Home Secretary could not lengthen tariff

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Regina v Secretary of State for the Home Department, ex parte Pierson; House of Lords (Lord Goff of Chieveley, Lord Browne-Wilkinson, Lord Lloyd of Berwick, Lord Steyn, Lord Hope of Craighead) 24 July 1997

Where a prisoner serving a life sentence had been informed of the minimum period he must serve to meet the requirements of retribution and deterrence, that period could not subsequently be increased by the Home Secretary.

The House of Lords by a majority (Lord Browne-Wilkinson and Lord Lloyd dissenting) allowed John Pierson's appeal against the decision of the Court of Appeal, dismissing his application for judicial review of a decision of the Home Secretary dated 6 May 1994, that 20 years was the appropriate penal element of the appellant's life sentence for murder.

The appellant was convicted in 1985 of the murders of his parents, and sentenced to life imprisonment. The trial judge and the Lord Chief Justice recommended a penal element of 15 years. After the decision of the House of Lords in R v Secretary of State for the Home Department, ex p Doody [1994] 1 AC 531 the Home Secretary wrote to the appellant informing him of the judicial recommendations about the penal element in his case, and of the decision of the Home Secretary, so that he might make representations about it.

The Home Secretary's decision was that the period should be set at 20 years, because although 15 might have been appropriate for one premeditated offence, a longer period was necessary because it was a double murder. Representations were made, pointing out that it had never been alleged that the appellant's actions were premeditated, and that the offences had been part of a single incident.

On 6 May 1994 the Home Secretary wrote setting out his new decision in the light of the appellant's representations that 20 years was appropriate.

Edward Fitzgerald QC and Tim Owen (Graham Withers & Co) for the appellant; David Pannick QC and Mark Shaw (Treasury Solicitor) for the Home Secretary.

Lord Goff said that the decision of 6 May 1994 was challenged as constituting, in effect, an increase in the penal element of the appellant's sentence.

Successive Home Secretaries had issued statements setting out the policy to be applied in connection with their statutory power to release convicted prisoners on licence. A statement made on 30 November 1983 drew the distinction in the case of life sentences between "the penal element" and "the risk period", and stressed that the penal element could not be increased unless the prisoner received a custodial sentence for a further offence.

On 27 July 1993 a statement was issued which gave effect to the decision in ex parte Doody. It also said that the view taken by the Home Secretary or by one of his ministers at the beginning of a mandatory life sentence was an initial view of the penal element, and that that view could be revised by increasing it.

In its terms the new policy did not apply to a case where the penal element had been fixed under a previous policy which stated that the penal element, once fixed, would not be subject to increase. Under the applicable policy the Home Secretary should have reduced the 20 year period, which had been fixed under a misapprehension.

Lord Steyn said that in fixing a tariff the Home Secretary was exercising a function closely analogous to the sentencing function and was thus subject to judicial constraints: R v Secretary of State for the Home Department, ex parte Venables (Law Report 18 June 1997). It was a general principle of the common law that a lawful sentence pronounced by a judge could not be retrospectively increased. That principle had been left untouched by Parliament in enacting section 35(2) of the Criminal Justice Act 1991. It followed that the Home Secretary did not have the power to increase a tariff lawfully fixed.

Lord Hope said that the Home Secretary did not have a general power to increase the penal element of of a mandatory life sentence fixed by him or his predecessor, once the decision had been issued and communicated.

Kate O'Hanlon, Barrister