Neutral Citation no.  NICA 48
Judgment: approved by the Court for handing down
(subject to editorial corrections)
First Issue: Article 6 and the role of the Secretary of State
The relevant portions of Article 5 read:-
5.-(1) Where a court passes a life sentence, the court shall, unless it makes an order under paragraph (3), order that the release provisions shall apply to the offender in relation to whom the sentence has been passed as soon as he has served the part of his sentence which is specified in the order.
(2) The part of a sentence specified in an order under paragraph (1) shall be such part as the court considers appropriate to satisfy the requirements of retribution and deterrence having regard to the seriousness of the offence, or of the combination of the offence and one or more offences associated with it.
(3) If the court is of the opinion that, because of the seriousness of the offence or of the combination of the offence and one or more offences associated with it, no order should be made under paragraph (1), the court shall order that, subject to paragraphs (4) and (5), the release provisions shall not apply to the offender.
(4) If, in a case where an order under paragraph (3) is in force, the offender was aged over 18 when he committed the offence, the Secretary of State may at the appropriate stage direct that the release provision shall apply to the offender as soon as he has served the part of his sentence which is specified in the direction.
(5) If, in a case where an order under paragraph (3) is in force, the offender was aged under 18 when he committed the offence, the Secretary of State shall at the appropriate stage direct that the release provisions shall apply to the offender as soon as he has served the part of his sentence which is specified in the direction.
(6) The appropriate stage, for the purposes of paragraphs (4) and (5), is when the Secretary of State has formed the opinion, having regard to any factors determined by him to be relevant for the purpose, that it is appropriate for him to give the direction."
The relevant portions of Article 6 are headed and read:-
"6.-(1)In this Order –
(a) references to a life prisoner to whom this Article applies are references to a life prisoner in respect of whom –
(i) an order has been made under paragraph (1) of Article 5; or
(ii) a direction under paragraph (4) or (5) of that Article has been given; and
(b) references to the relevant part of his sentence are references to the part of his sentence specified in the order or direction,
and in this Article "appropriate stage", in relation to such a direction, has the same meaning as in Article 5(6).
(3) As soon as –
(a) a life prisoner to whom this Article applies has served the relevant part of his sentence; and
(b) the Commissioners have directed his release under this Article, it shall be the duty of the Secretary of State to release him on licence.
(4) The Commissioners shall not give a direction under paragraph (3) with respect to a life prisoner to whom this Article applies unless –
(a) the Secretary of State has referred the prisoner's case to the Commissioners; and
(b) the Commissioners are satisfied that it is no longer necessary for the protection of the public from serious harm that the prisoner should be confined.
(5) A life prisoner to whom this Article applies may require the Secretary of State to refer his case to the Commissioners at any time –
(a) after he has served the relevant part of his sentence … "
Article 7 reads:
"7-(1) The Secretary of State may at any time release a life prisoner on licence if he is satisfied that exceptional circumstances exist which justify the prisoner's release on compassionate grounds.
(2) Before releasing a life prisoner under paragraph (1), the Secretary of State shall consult the Commissioners, unless the circumstances are such as to make such consultation impracticable."
Article 11 reads:
"11.-(1) This Article applies where, in the case of an existing life prisoner, the Secretary of State, after consultation with the Lord Chief Justice and the trial judge if available, certifies his opinion that, if this Order had been in operation at the time when he was sentenced, the court by which he was sentenced would have ordered that the release provisions should apply to him as soon as he had served a part of his sentences specified in the certificate.
(2) This Article also applies where, in the case of an existing life prisoner, the Secretary of State certifies his opinion that, if this Order had been in operation at the time when he was sentenced, the Secretary of State would have directed that the release provisions should apply to him as soon as he had served a part of his sentence specified in the certificate.
(3) In a case to which this Article applies, this Order shall apply as if –
(a) the existing life prisoner were a life prisoner to whom Article 6 applies; and
(b) the relevant part of his sentence within the meaning of Article 6 were the part specified in the certificate."
First Issue: appellant's arguments
"1. The Secretary of State has adopted a policy that in all cases to which Article 11 of the 2001 Order applies he will either (a) accept the judicial recommendation in respect of the appropriate 'tariff' period or (b) determine a shorter period. The Secretary of State cannot, at present, envisage acting other than in accordance with one of these two alternatives.
2. In order to cater in particular for the second alternative, the essence of the judicial recommendation will be conveyed to the prisoner before the Secretary of State makes a final determination under Article 11. The Secretary of State will, ultimately, decide whether there is anything in the prisoner's representations or any other factor which would merit determining a lower 'tariff' period than that proposed in the judicial recommendation."
At the hearing before Kerr J the statement made by Mr Haire in paragraph 1 of his affidavit of 15 May 2000 that "the Secretary of State cannot, at present, envisage acting other than in accordance with one of these two alternatives, viz accepting the judicial recommendation or determining a shorter period" was altered by counsel for the respondent, acting on instructions, so as to remove the words "at present".
" Provided, as is currently the case, the Secretary of State will accept the recommendations of the trial judge and the Lord Chief Justice as to the appropriate tariff in this case, no violation of the applicant's Article 6 rights arises. It is clear, however, that in the present state of the jurisprudence of the Strasbourg court, a failure to follow their recommendations would give rise to a violation …
 … I propose to give effect to Article 11 in the case of the applicant by acknowledging that, under that provision, the Secretary of State is obliged to accept the recommendations of the trial judge and the Lord Chief Justice in relation to the tariff to be served by him."
"77. … Then in the case of Anderson and Taylor decided [by the Court of Appeal] in November 2001, which concerned a challenge under Article 6(1) to the role of the Secretary of State in fixing the tariffs for two mandatory life prisoners, the Court of Appeal was unanimous in finding that this was a sentencing exercise which should attract the guarantees of that Article …
79. The court considers that it may now be regarded as established in domestic law that there is no distinction between mandatory life prisoners, discretionary life prisoners and juvenile murderers as regards the nature of tariff-fixing. It is a sentencing exercise …"
"The situation is different in the case of mandatory life prisoners. In R (Anderson & Taylor) v Secretary of State for the Home Department  UKHRR 261 the Court of Appeal in England held that where Parliament had deliberately chosen not to interfere with the Home Secretary's discretion as to the length of the tariff in the case of mandatory life sentences, the court should not interfere with the clearly expressed views of the democraticallyelected Parliament. In that case, however, the court found that its decision was not inconsistent with the approach adopted by ECtHR. In the present case, involving as it does a sentence of detention during the Secretary of State's pleasure, I consider that to allow the Secretary of State to refuse to follow the recommendations of the judiciary would be inconsistent with the decision of ECtHR in V v United Kingdom. It is for this reason that I have adopted the interpretation of Article 11 that I set out in the preceding paragraph. I expressly refrain from expressing any view as to how Article 11 should be applied in cases involving mandatory life sentences imposed before the coming into force of the 2001 Order."
"Section 3(2)(c) of the Human Rights Act should be read alongside Section 6(2)(b). In general the Act envisages that subordinate legislation which is incompatible with the Convention should be quashed. Parliamentary sovereignty does not protect subordinate legislation; the courts have a long-established jurisdiction to quash such legislation … But if it were possible to attack subordinate legislation that primary legislation requires to be incompatible with the Convention, the result would be to emasculate the primary legislation. The result would be inconsistent with the scheme of the Act …"
"We do not think it is legitimate to read down a legislative provision so as to extinguish it."
Kerr J was attempting to do what Tuckey LJ rejected; he was reading down the role of the Secretary of State so as to extinguish it. To construe Article 11 compatibly with Article 6(1), one would have to remove the Secretary of State or nullify his powers as a decision-maker. That would be a step too far, they argued.
"A declaration of incompatibility is a measure of last resort. It must be avoided unless it is plainly impossible to do so. If a clear limitation on Convention rights is stated in terms, such an impossibility will arise."
Reliance was also placed on the decision in Re S and Re W  UKHL 10 and the passages in the speech of Lord Nicholls at paragraphs  to .
First issue: respondent's arguments
"Provided, as is currently the case, the Secretary of State will accept the recommendations of the trial judge and the Lord Chief Justice as to the appropriate tariff in this case, no violation of the applicant's article 6 rights arises."
First Issue: Our Conclusion
"The Court considers that it may now be regarded as established in domestic law that there is no distinction between mandatory life prisoners, discretionary life prisoners and juvenile murderers as regards the nature of tariff-fixing. It is a sentencing exercise. The mandatory life sentence does not impose imprisonment for life as a punishment. The tariff, which reflects the individual circumstances of the offence and the offender, represents the element of punishment. The Court concludes that the finding in Wynne that the mandatory life sentence constituted punishment for life can no longer be regarded as reflecting the real position in the domestic criminal justice system of the mandatory life prisoner. This conclusion is reinforced by the fact that a whole life tariff may, in exceptional cases, be imposed where justified by the gravity of the particular offence. It is correct that the Court in its more recent judgments in T and V, citing the Wynne judgment as authority, reiterated that an adult mandatory life sentence constituted punishment for life (T v the United Kingdom, cited above, § 109, and V v the United Kingdom, cited above, § 110). In doing so it had, however, merely sought to draw attention to the difference between such a life sentence and a sentence to detention during Her Majesty's pleasure, which was the category of sentence under review in the cases concerned. The purpose of the statement had therefore been to distinguish previous case-law rather than to confirm an analysis deriving from that case-law."
"So far as it is possible to do so, … subordinate legislation must be read and given effect in a way which is compatible with the Convention rights."
"… the interpretative obligation under section 3 of the 1998 Act is a strong one. It applies even if there is no ambiguity in the language in the sense of the language being capable of two different meanings. It is an emphatic adjuration by the legislature: R v Director of Public Prosecutions ex parte Kebilene  2 AC 326 sub nom. R v Director of Public Prosecutions ex parte Kebilene  UKHRR 176, per Lord Cooke of Thorndon at 373F; and my judgment at 366B. The White Paper made clear that the obligation goes far beyond the rule which enabled the courts to take the Convention into account in resolving any ambiguity in a legislative provision: see Rights Brought Home: The Human Rights Bill, cm 3782 (1997) para 2.7. The draftsman of the Act had before him the slightly weaker model in s 6 of the New Zealand Bill of Rights Act 1990 but preferred stronger language. Parliament specifically rejected the legislative model of requiring a reasonable interpretation. Section 3 places a duty on the court to strive to find a possible interpretation compatible with Convention rights. Under ordinary methods of interpretation a court may depart from the language of the statute to avoid absurd consequences: s 3 goes much further. Undoubtedly, a court must always look for a contextual and purposive interpretation: s 3 is more radical in its effect. It is a general principle of the interpretation of legal instruments that the text is the primary source of interpretation: other sources are subordinate to it: compare, for example, Arts 31-33 of the Vienna Convention on the Law of Treaties 1980 (Cmnd 7964). Section 3 qualifies this general principle because it requires a court to find an interpretation compatible with Convention rights if it is possible to do so. In the progress of the Bill through Parliament the Lord Chancellor observed that 'in 99% of the cases that will arise, there will be no need for judicial declarations of incompatibility' and the Home Secretary said 'We expect that, in almost all cases, the courts will be able to interpret the legislation compatibly with the Convention': Hansard HL Deb, col 840, 3rd Reading (5 February 1998) and Hansard, HC Deb, col 778, 2nd Reading (16 February 1998). For reasons which I explained in a recent paper, this is at least relevant as an aid to the interpretation of s 3 against the executive: 'Pepper v Hart: A re-examination' (2001) 21 Oxford Journal of Legal Studies 59. In accordance with the will of Parliament as reflected in s 3 it will sometimes be necessary to adopt an interpretation which linguistically may appear strained. The techniques to be used will not only involve the reading down of express language in a statute but also the implication of provisions. A declaration of incompatibility is a measure of last resort. It must be avoided unless it is plainly impossible to do so. If a clear limitation on Convention rights is stated in terms, such an impossibility will arise: R v Secretary of State for the Home Department ex parte Simms  2 AC 115, 132A-B per Lord Hoffman. There is, however, no limitation of such a nature in the present case."
"In my view s.3 requires the court to subordinate the niceties of the language of s 41(3)(c), and in particular the touchstone of coincidence, to broader considerations of relevance judged by logical and common sense criteria of time and circumstances. After all, it is realistic to proceed on the basis that the legislature would not, if alerted to the problem, have wished to deny the right to an accused to put forward a full and complete defence by advancing truly probative material. It is therefore possible under s 3 to read s 41 and in particular s41(3)(c), as subject to the implied provision that evidence or questioning which is required to ensure a fair trial under Art 6 of the Convention should not be treated as inadmissible. The result of such a reading would be that sometimes logically relevant sexual experiences between a complainant and an accused may be admitted under s 41(3)(c). On the other hand, there will be cases where previous sexual experience between a complainant and an accused will be irrelevant, eg an isolated episode distant in time and circumstances. Where the line is to be drawn must be left to the judgment of trial judges. On this basis a declaration of incompatibility can be avoided. If this approach is adopted, s 41 will have achieved a major part of its objective but its excessive reach will have been attenuated in accordance with the will of Parliament as reflected in s 3 of the 1998 Act."
"…. I would hold on ordinary principles of construction that S. 41 [of the Youth Justice and Criminal Evidence Act 1999] is incompatible with the right to a fair trial given by Art. 6." He went on to say:
"Under S 3 of the Human Rights Act 1998 can S 41 be read and given effect in a way which is compatible with the right to a fair trial given by Art. 6?"
"As my noble and learned fried Lord Steyn stated in R v Director of Public Prosecutions ex parte Kebilene  2 AC 326, 366B, sub nom R v Director of Public Prosecutions ex parte Kebilene  UKHRR 176, 182G, this subsection enacts a strong interpretative obligation, and Lord Cooke of Thorndon at 373F and 190A respectively, described the subsection as an adjuration. It is clearly desirable that a court should seek to avoid having to make a declaration of incompatibility under s 4 of the Human Rights Act 1998 unless the clear and express wording of the provision makes this impossible."
He went on to state at paragraph  that he was in full agreement with the test of admissibility stated by Lord Steyn in that case.
These passages are cited in order to show the approach in principle by the House of Lords. The decision in R v A itself, is not germane to the argument in this case.
"The crucial words in relation to this interpretative obligation (Section 3) are 'possible' and 'must'. As the White Paper explained: 'This goes far beyond the present rule which enables the courts to take the Convention into account in resolving any ambiguity in a legislative provision. The courts will be required to interpret legislation so as to uphold the Convention rights unless the legislation itself is so clearly incompatible with the Convention that it is impossible to do so. So, it is argued, courts and tribunals must strive for compatibility between legislation and Convention rights, so far as possible, if necessary reading down (that is limiting in scope and effect) provisions which would otherwise breach Convention rights, and reading in necessary safeguards to protect such rights. In this context, the role of the court is not (as in traditional statutory interpretation) to find the true meaning of the provision, but to find (if possible) the meaning which best accords with Convention rights."
"Traditionally the search has been for the one true meaning of a statute. Now the search will be for a possible meaning that would prevent the need for a declaration of incompatibility. The questions will be: (1) What meanings are the words capable of yielding? (2) And, critically, can the words be made to yield a sense consistent with Convention rights? In practical effect there will be a rebuttable presumption in favour of an interpretation consistent with Convention rights. Given the inherent ambiguity of language the presumption is likely to be a strong one."
See also Lord Cooke of Thorndon: in the course of the second reading debate in the House of Lords he said:
"Section 3(1) will require a very different approach to interpretation from that to which the United Kingdom courts are accustomed. Traditionally, the search has been for the true meaning; now it will be for a possible meaning that would prevent the making of a declaration of incompatibility."
"This Article applies, where in the case of an existing life prisoner, the Secretary of State, after consultation with the Lord Chief Justice and the trial judge if available, certifies his opinion in accordance with their recommendation or the lower of the two recommendations, that if this Order had been in operation when he was sentenced, the court by which he was sentenced would have ordered that the release provisions should apply to him as soon as he had served a part of his sentence specified in the certificate."
Second Issue: The materials to be provided to decide the minimum term
"… certifies his opinion that, if this Order had been in operation when he was sentenced, the court by which he was sentenced would have ordered that the release provisions should apply to him as soon as he had served a part of his sentence specified in the certificate [of the Secretary of State]."
Second Issue: appellant's arguments
"(35) In my judgment, it is plain beyond peradventure on the English and European authorities that, in relation to a child, the court fixing a tariff not only can, but must, take into account matters known in relation to rehabilitation at the date when the tariff is fixed or reviewed. Where as in the present case, the tariff, unusually, and for the reasons given earlier, was fixed not soon after the trial but nearly eight years after, the events during those eight years should be taken into account. It follows that Lord Wolff LCJ was right to take those matters into account."
Second Issue: respondent's argument
"It has long been established that if the Secretary of State … takes into account matters irrelevant to his decision or refuses or fails to take into account matters relevant to his decision … the court may set his decision aside".
They also referred to the judgment of Lord Slynn in R (Alconsbury Developments) v Secretary of State for the Environment [ 2001] 3 All ER 1 at paragraph .
(a) A presumption that any principle or rule of law which prevails in the territory to which the enactment extends and is relevant to its operation in that territory is imported.
(b) A presumption that where an enactment confers on a public authority a power to make a decision the relevant legal rules and principles are imported. See Bennion, Statutory Interpretation (3rd Edition) pp 805 and 817.
"The relevant test … is whether a consideration has been omitted which, had account been taken of it, might have caused the decision maker to reach a different conclusion" per Sedley J (as he then was) in R v Parliamentary Commissioner for Administration, ex parte Balchin (1988) 1 PLP 1.
If the papers considered by those involved in the decision-making process contained materials outside the ambit of the exercise being performed, as defined above, they would be obliged to disregard them. The judiciary had ample expertise and experience to enable them to segregate the relevant from the irrelevant. If, ultimately, any errors in this respect should occur the remedy of judicial review would be at the disposal of the prisoner.
"… I have concluded that the progress of the applicant since the time of sentencing may be highly relevant to the issues that those who fix the tariff have to consider. There is no reason, therefore, that they should be deprived of material that could be heavily influential on their decision."
In support of this conclusion they relied on the judgment of Hoffman LJ (as he then was) in R v Secretary of State for the Home Department, ex parte McCartney [Unreported, 19th May 1994] and by analogy, on the decision of the English Divisional Court in R (Bulger v Secretary of State  3 All ER 449, especially the remarks of Rose LJ: see paragraph .
(a) A fact sheet would be provided containing
(1) details of all convictions and sentences imposed at the time of the conviction of the life prisoner and whether any appeal had been made
(2) the date of committal to prison and length of time served at time of referral to the Lord Chief Justice (and trial judge)
(3) the current prison location, including pre-release unit if appropriate
(4) a record of any referrals to the Life Sentence Review Board and the outcome of the Board's consideration of the case.
(b) Where relevant, for any prisoner currently detained at the Secretary of State's pleasure a progress report on the prisoner since sentence and any representations made by the prisoner or the victim's family in relation to the life sentence conviction.
(c) The court papers from the time of conviction. A list of such papers would be provided to the prisoner and/or his legal representative and copies might be obtained by them if they so wished.
(d) The guide to the Order would be provided to the judiciary by way of background. A copy had been sent to all prisoners.
(e) Any written representations to the Secretary of State would be made available to the judiciary. Representations by the victim's family would also be made available. They would also be made available to the prisoner.
The Lord Chief Justice and the trial judge would make their recommendations without holding a hearing (save in exceptional cases). The Secretary of State would act on their joint recommendation or on the lower of the two recommendations.
He then dealt with the documentation in the appellant's case. The progress report in the appellant's case, to which paragraph 7 of Mr Haire's affidavit of 7 February 2002 referred, would consist of a report from Dr Pollock, Forensic Clinical Psychologist dated 3 September 2001 based on an interview with the appellant on 31 August 2001 which had been provided to the appellant: the medical officer's report on the appellant which was dated 17 September 2001: the prison governor's report would have to be edited but would include records of any anger management or alcohol dependency course and reports thereon: the Probation Service progress report dated 8 October 2001, omitting reference to the prisoner's good or bad conduct in prison. All of these would have to be updated. Other documents referred to by Mr Haire would be omitted.
The judiciary should be given information which in all probability the trial judge would have obtained, if enquiries had been carefully made. These would include representations from the victim's family. All information made available to the judiciary would be given to the prisoner's legal representatives before they were given to the judiciary so that written representations could be made to the judiciary.
"… The essential object of Article 8 is to protect the individual against arbitrary interference by the public authorities … The concept of respect is not precisely defined. In order to determine whether such obligations exist, regard must be had to the fair balance that has to be struck between the general interest and the interest of the individual, while the State had, in any even, a margin of appreciation." Botta v Italy (1998) 26 EHRR 241, paragraph 33.
It was submitted that the reasoning and conclusion of Kerr J on this issue were beyond reproach.
Second Issue: Our Conclusion
"… certifies his opinion that, if this Order had been in operation at the time when he was sentenced, the court by which he was sentenced would have ordered that the release provisions should apply to him …"
"It would be illogical to ignore factors that are directly relevant to the issue [of the tariff] simply because they were not known at the time of sentencing. The applicant's progress while in custody may well be of substantial significance in deciding on the appropriate tariff period. If he had evinced remorse for his crime and had displayed evidence of rehabilitation it may well be considered that the period required to ensure that he has been deterred from such offending in the future is not as great as might originally have appeared necessary."
"9(1) This paragraph applies where, in the case of an existing life prisoner [such as the appellant], 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; and
(b) the reference in subsection (1)(a) of that section to a violent or sexual offence the sentence for which is not fixed by law were a reference to any offence the sentence for which is not so fixed,
the court by which he was sentenced would have ordered that this section should apply to him as soon as he had served a part of his sentence specified in the certificate."
"the appellant, then 22 years old, was convicted of three offences of attempted murder of police officers and sentenced to concurrent terms of life imprisonment on 7 May 1976 … For the first 6 or 7 years of his imprisonment the [appellant] was thoroughly uncooperative, unruly and disruptive. However, in about 1983 he seems to have turned over a new leaf; he had become a model, not to say an exemplary prisoner, attracting high commendation from those who have been concerned with him. This is accepted by the Home Secretary … a discretionary life sentence is to be regarded as the sum of two sentences to be served consecutively. First, a determinable number of years appropriate to the nature and gravity of the offence; this is called the tariff or penal element of the sentence. Secondly, an indeterminate period, which the offender begins to serve when the penal element is exhausted ……………………………… It remains only to consider the relevance, if any, of the appellant's good conduct in prison since 1983. Should the Secretary of State take this into account when certifying under paragraph 9(1)? Mr Fitzgerald accepted that the logic of his argument on the construction of this paragraph [that the Secretary of State is required to fix as the tariff the equivalent fixed term sentence which the court would have imposed in 1976] means that he could not. I agree with him. … it is clear in my judgment that questions of motivation, remorse and contrition, especially if the latter are reflected in a plea of guilty, are always regarded as reflecting on the seriousness of the offence and behaviour after the offence but before sentence should be taken into account by the trial judge in fixing the part [the minimum term] under section 34. But it appears to me that once this part has been set, the Secretary of State has no discretion to alter it, either upwards or downwards, having regard to the appellant's conduct in prison. This will therefore only be relevant to the risk factor … Both counsel [Mr Fitzpatrick QC and Mr Pannick QC] accepted that this was so … I consider, however, that this does not affect the Secretary of State's power to grant early release on compassionate grounds … it is consistent with my view of the construction of the paragraph which seeks to put the test back to what the sentencing court would have done had section 34 been in force at the time. I do not see how it could have taken into account matters either in favour of or against the prisoner, which ex hypothesi it would have known nothing about."
Saville LJ (as he then was) agreed with this judgment.
"… The argument turns on the nature of the opinion which the Secretary of State must certify. Mr Pannick QC for the Secretary of State says that he must certify his opinion, first, that the sentencing court would have ordered that section 34 should apply after some unspecified period of imprisonment had been served, and secondly, his own opinion as to what that period should be. In forming the latter opinion he is not confined to considering what a court at the time of passing sentence would have thought appropriate but what `having regard to his public responsibilities' he now thinks that the seriousness of the offence deserves. Mr Fitzgerald, for the applicant, says that the Secretary of State must certify his opinion that if section 34 had been in force, the sentencing court would have ordered that the section should apply to him after the expiry of the tariff period specified in the certificate.
The Divisional Court … favoured Mr Pannick's construction. With all respect to the Divisional Court, it seems to me plain and obvious that Mr Fitzpatrick must be right. The last four words of paragraph 9(1) – `specified in the certificate' are a past participial phrase which qualifies `part of his sentence' … if a discretionary life sentence by its nature contains within it a notional determinate sentence, I think it offends against basic principles of justice that the sentence should be fixed retrospectively 15 years later by reference to the view taken of the seriousness of the offence in the circumstances then prevailing. It offends even further if the Home Secretary is, as Mr Pannick submitted, not even required to apply the section 34(2) criteria but can take into account other matters such as current public confidence in the way the criminal justice system deals with the IRA. The applicant has been in prison since 1976 and cannot be held responsible for what the IRA had been doing since that date."
"… I turn next to the transitional provisions, which apply to sentences passed before the 1991 Act came into force … when certifying a period under para 9(1) the Home Secretary must adopt an identical approach: he must put himself in the position of the sentencing court and ask what period it would have fixed had s 34 been in force at the time of the sentence (see the Court of Appeal decision in R v Secretary of State for the Home Dept, ex p McCartney (1994) Times, 25 May,  CA Transcript 667. "
"Every court in dealing with a child or young person who is brought before it … as an offender … shall have regard to the welfare of the child or young person …".
The Court, when sentencing the appellant and his co-accused, was dealing with prisoners who were no longer young persons.
We consider that Section 48 does not require the Court to take into account the age of the convicted person when he committed the offence if he was not a child or young person when the Court was dealing with him for the purpose of sentencing him. Section 73(1) which provides that the juvenile offender shall be sentenced to be detained during the pleasure of the [Secretary of State] does not require the Court to treat the offender as a juvenile at the time of sentencing, if he has attained eighteen years of age.
They will be assessing whether there were aggravating features which rendered the offender's culpability exceptionally high or where the victim was in a particularly vulnerable position. Matters to be considered will include whether:
(a) the killing was `professional' or a contract killing;
(b) the killing was politically motivated;
(c) there were sectarian motives for the killing;
(d) the killing was racially motivated or the victim was targeted because of his or her sexual orientation;
(e) the killing was done for gain, eg in the course of a burglary or robbery;
(f) the victim was providing a public service;
(g) the victim was a child or was otherwise vulnerable;
(h) there was evidence of sadism, gratuitous violence or sexual maltreatment, humiliation or degradation of the victim before the killing;
(i) extensive and/or multiple injuries were inflicted on the victim;
(j) the offender committed more than one murder;
(k) the fact that the killing was planned;
(l) the use of a weapon, especially a firearm;
(m) concealment of the body, destruction of the crime scene and/or dismemberment of the body;
(n) the fact that the murder was the culmination of cruel and violent behaviour by the offender over a period of time;
(o) the offender's previous record and failures to respond to previous sentences to the extent that these are relevant to culpability rather than to risk.
Mitigating factors will include:
(a) an intention to cause grievous bodily harm rather than to kill;
(b) spontaneity and lack of premeditation;
(c) the offender's age;
(d) clear evidence of remorse or contrition at the time of sentence;
(e) a timely plea of guilty;
(f) the manner in which the case has been defended eg by not challenging the evidence for the prosecution.
We take these matters from the English Practice Statement of 27 August 2002 conscious that it has not been adopted in Northern Ireland. It will be for the Lord Chief Justice and the trial judge to consider whether they are appropriate and, of course, these are not intended to be exhaustive.
(i) The summing-up or judgment of the trial judge and the judgment on appeal (if any). The judiciary may ask for other material available to the trial judge such as the pathologist's report or medical evidence given at the trial; there is no discernible point in sending "the court papers from the time of conviction", other than the documents which relate to sentencing;
(ii) Details of all convictions and sentences imposed at or before the date the life sentence was imposed and documents relating to any application to appeal or any appeal which are relevant to the factors which the judiciary have to take into account;
(iii) The date of committal to prison and length of time served at the time of referral under Article 11(1);
(iv) Any written representations (or submissions) made on behalf of the prisoner or the victim's family; it would be inappropriate to place any limit on these, but they should be told that the judiciary is likely to ignore irrelevant representations;