Law Report: Life prisoners entitled to reasons for sentence: Regina v Secretary of State for the Home Department, Ex parte Doody and others - House of Lords (Lord Keith of Kinkel, Lord Lane, Lord Templeman, Lord Browne-Wilkinson and Lord Mustill), 24 June 1993

The Home Secretary is entitled to depart from the judiciary's view of the period a mandatory life prisoner should serve for the purposes of retribution and deterrence. However, he must give reasons for departing from that view.

The House of Lords dismissed an appeal by the Home Secretary and allowed in part a cross-appeal by the applicants, mandatory life prisoners, against the Court of Appeal's decision (The Independent, 7 May 1992) about the Home Secretary's scheme for fixing the penal element of mandatory life sentences. The Home Secretary, under his current practice, consults the judiciary about the penal element of the sentence to be served for the requirements of retribution and deterrence. The Home Secretary does not necessarily adopt the judicial view of the penal element and, taking into account other factors, such as the public interest, fixes the penal element.

David Pannick QC and Robert Jay (Treasury Solicitor) for the Home Secretary; Geoffrey Nice QC and Gregory Treverton-Jones (Cartwright Adams & Black); Michael Beloff QC and Richard Gordon (Bindman & Partners); Edward Fitzgerald (B M Birnberg & Co); Geoffrey Robertson QC and Edward Fitzgerald (Graham Withers & Co) for the applicants.

LORD MUSTILL said there was no doubt that the Home Secretary was not obliged to adopt the judicial view of the period to be served for retribution and deterrence by a prisoner serving a mandatory life sentence.

The issue was whether the way in which the Home Secretary's scheme was administered fell below the minimum standards of fairness. It was accepted that a prisoner had a right to address to the Home Secretary representations as to the penal term he should serve before the first review date.

A life prisoner whose future depended on the Home Secretary's decision on the penal element and who had a right to make representations on it should know what factors the Home Secretary would take into account. The prisoner needed to know the substance of the judges' advice comprising not only the term of years but their reasons. That did not mean that the documents in which the judges stated their opinion needed to be disclosed in their entirety. The requirement was only that the prisoner learn the gist of what the judges had said.

The refusal of the Home Secretary to give reasons for departing from the judicial view of the penal element was not fair. His decision was susceptible to judicial review. To mount an effective attack on the decision there should be an effective means of detecting the kind of error which would entitle the court to intervene and it was necessary for that purpose that the Home Secretary's reasoning should be disclosed. The reasoning in Payne v Lord Harris of Greenwich (1981) 1 WLR 754 could not be sustained today.

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