England and Wales High Court (Administrative Court) Decisions

1. THE LORD CHIEF JUSTICE: The applicant (Myra Hindley) is a mandatory life sentence prisoner now detained at Durham prison. She moves with leave to challenge two decisions and two policy statements. These are:

2. The applicant contends that these decisions and policy statements were unlawful.

3. On the evening of 6 October 1965 Edward Evans, aged 17, left his home to go to a football match. On the following day the applicant's brother-in-law telephoned the police to say that he had witnessed a murder in the house where Ian Brady and the applicant were living in Hattersley. The police visited and searched the house. They found the body of Edward Evans, trussed up in a polythene bag in a bedroom of the house. Lying near the body was another polythene bag containing a blood-stained axe. Post mortem examination showed a number of irregular head wounds and widespread bruising of the neck, shoulders, back, hands and arms. Most of the right side of the skull had been fractured. Death had been caused by cerebral contusion and haemorrhage, hastened by strangulation with a ligature.

4. Both Brady and the applicant were arrested. On 15 October 1965 the police found two suitcases in the left luggage office at Manchester Central station. The suitcases contained pornographic books and books on torture, diaries belonging to Brady and the applicant, photographs and negatives and two recording tapes. The photographs included some of a young girl, naked except for shoes and socks, in obscene poses; there was a scarf tied round her mouth. One of the tapes was a recording of a young girl who was crying that she was being coerced to put something in her mouth and to take her hand away so that she could be photographed. She asked not to be undressed and pleaded to be allowed to go home to her mother. The voice of a woman was audible telling the victim to put something in her mouth. The child's voice on the tape was that of Lesley Ann Downey (aged 10) who had disappeared on 26 December 1964 after going to a fair-ground with a friend. On 16 October 1965 her naked body was found in a shallow peat grave on Saddleworth Moor. Her clothing, shoes and a string of beads were buried beside her. Part of the body had been eaten by animals, but sufficient remained to show that there was no gross injury or ligature to account for her death. Suffocation or smothering were thought to be possible causes of death. The woman's voice on the tape was the applicant's.

5. On 21 October 1965 another body was found in a shallow grave on Saddleworth Moor. It was that of John Kilbride, who had disappeared on 23 November 1963 after leaving home at 1 p.m. to go to the cinema. He had been aged 12 at the time. His body, when discovered, was clothed, but the trousers and underpants were pulled down to mid-thigh and the underpants appeared to have been knotted at the back. There was no ligature on the neck or obvious sign of injury, and because of the degree of decomposition it was not possible to ascertain the cause of death.

6. Brady and the applicant were charged with the murder of these three children. They pleaded not guilty. On 6 May 1966, at Chester Assizes, Brady (then aged 27) was convicted of all three murders and sentenced to three terms of life imprisonment as required by law. He did not appeal. The applicant was convicted of murdering Edward Evans and Lesley Ann Downey, and was sentenced to two terms of life imprisonment. She was acquitted of murdering John Kilbride, but was found guilty of being an accessory after the fact to that murder and for that offence was sentenced to 7 years' imprisonment. She was then aged 23. On the case presented by the Crown, Brady was the initiator of these crimes, and the actual killer; the applicant was cast as his willing accomplice, corrupted and dominated by him.

7. These crimes, and the ensuing trial, received intense publicity, and aroused deep public enmity towards both Brady and the applicant.

8. This court is now asked to rule on the lawfulness of decisions and policy statements made by successive Home Secretaries. That is its only task. It is no part of our function to decide whether the applicant should be released from prison, or whether she should remain in prison; or, if she is to remain in prison, to decide for how long she should remain. Our task, and our only task, is to review the lawfulness of what successive Home Secretaries have decided and announced as their policy.

9. When passing sentence on Brady and the applicant, the trial judge (Fenton Atkinson J) made no recommendation under section 1(2) of the Murder (Abolition of Death Penalty) Act 1965. But on 8 May 1966 he wrote to the then Home Secretary in these terms:

10. In response to the Permanent Under-Secretary at the Home Office, Lord Widgery CJ on 2 March 1978 wrote:

11. On 24 January 1979, the then Home Secretary (Mr Rees), asked to make a statement about the prospects of release from prison of Brady and the applicant, said that the joint committee of Home Office and Parole Board representatives had felt unable to recommend a date for the first formal review of these cases. He continued:

12. It was nearly three years later, on 12 January 1982, when Lord Lane CJ wrote to the Permanent Under-Secretary at the Home Office:

13. In a written Parliamentary answer given on 29 January 1982, the Home Secretary (Mr Whitelaw) indicated that the cases of Brady and the applicant had recently been considered by the joint committee, which had decided to make no recommendation for consideration of the cases by a local review committee; this was the essential preliminary to a formal review by the Parole Board. Instead, the joint committee had recommended that it should itself look again at both cases in another three years. The Home Secretary stated that he had accepted the committee's advice, and that accordingly, barring unforeseen developments, nothing would be done to initiate a formal review of either case before further consideration by the joint committee in January 1985.

14. In a written Parliamentary answer given on 30 November 1983 the Home Secretary (Mr Brittan) outlined his policy on release of mandatory life sentence prisoners. He said that sexual or sadistic murderers of children could normally expect to serve at least 20 years, and that there would be cases where the gravity of the offence required a still longer period. He outlined new procedures to separate consideration of the requirements of retribution and deterrence from consideration of risk to the public. On the former question he would look to the judiciary for advice, and he would himself decide the date of the first reference of a case to a Local Review Committee, following the initial consultation with the judiciary. This review would normally take place three years before expiry of the period necessary to meet the requirements of retribution and deterrence (often called the tariff or punitive term). On the latter question, he would look to the Parole Board for advice. But the discretion whether to release or not remained with him. He said that "except where a prisoner has committed an offence for which he has received a further custodial sentence, [a] first formal review date will not be put back".

15. When, after the lapse of three years, the question of reviewing the sentences of Brady and the applicant again fell for consideration, Lord Lane CJ was again consulted. In a letter of 10 January 1985, he informed the Home Office that his view remained the same. But he emphasised that the suggested period of 25 years' in the applicant's case was indeed a minimum.

16. Having received this letter from Lord Lane, the then Home Secretary (Mr Brittan) considered the appropriate tariff term to be served by the applicant and reached the provisional conclusion that this should be 30 years. In the case of Brady, his provisional view was that the tariff term should be 40 years. The evidence is that it was very unusual for a tariff term to be described as provisional, and that this would only be done in a most serious case. On 1 March 1985 the Home Secretary (Mr Brittan) made a Parliamentary statement on his policy of referring to the Parole Board cases of life sentence prisoners who had already spent long periods in custody. In this statement he said:

17. The applicant cannot recall seeing the text of this statement.

18. The applicant's case, and that of Brady, were duly considered by the Parole Board, which declined to recommend their release. At a meeting on 17 May 1985, the Board decided not to review her case until a further 5 years had elapsed, and not to review Brady's case for a further 10 years. The applicant was not at this stage told that her tariff term had been provisionally fixed at 30 years, nor could she calculate this from the date of her first formal Parole Board review. This date only meant that her tariff was at least 20 years.

19. In detailed confessions made by the applicant to the Greater Manchester police between February and August 1987 the applicant described her involvement in the two murders of which she had been convicted, making clear that she had been instrumental in luring both victims to their deaths. She also admitted complicity in the killing of three other children, John Kilbride, Keith Bennett (murdered in June 1964) and Pauline Reade (murdered in July 1963). She also gave a detailed account of the manner in which she had been dominated, intimidated, and suborned by her co-defendant Brady, with whom she had at the time been deeply in love. She described how she had been drugged and assaulted by Brady; how she had told a girlfriend of her fear of him; how he had made threats against her and her family; how she had applied for a job in Germany in order to get away from him. This account was accepted by the police as in all essentials correct.

20. In July 1987 the Home Secretary (Mr Hurd) announced revised procedures for reviewing the possible release dates of mandatory life sentence prisoners. The applicant's case was considered at a meeting in the Home Office on 26 July 1990. The Home Secretary (Mr Waddington) then concluded that a careful study of her case and the view taken in other similar cases led inexorably to the conclusion that a whole life tariff was indicated for her. He indicated that this view should be formally put to the Parole Board as that taken by ministers.

21. There the applicant's case rested until, on 27 July 1993, the Home Secretary (Mr Howard) gave his Parliamentary response to the House of Lords' decision in R v Secretary of State for the Home Department ex parte Doody [1994] 1 AC 531. In the course of his answer he said:

22. In accordance with the House of Lords' decision, the Home Secretary announced his intention in future to disclose to life sentence prisoners the Secretary of State's decision on tariff, with the recommendations made by the judges and, if the Secretary of State had departed from those recommendations, his reasons for doing so. He continued:

23. The Home Secretary went on to emphasise that before any mandatory life sentence prisoner was released on licence he would consider (among other things) whether the period served by the prisoner was adequate to satisfy the requirements of retribution and deterrence.

24. On 5 December 1994, solicitors acting for the applicant wrote to the Home Secretary (Mr Howard) seeking to persuade him that the period of nearly 30 years which the applicant had then served in custody was sufficient to satisfy the requirements of retribution and deterrence in respect of the two offences of which she had been convicted. Reliance was placed in particular on the lesser responsibility of the applicant, as compared with Brady, for the commission of these crimes; on Brady's personal domination and intimidation of her at the time; on the applicant's full disclosure of her role to the police in 1987; and on her exceptional progress during her period in prison. At this stage the applicant did not know what the judges had recommended or what ministers had decided in relation to her tariff term. On 7 December 1994, however, the Home Secretary (Mr Howard) announced his policy in relation to prisoners serving a whole life tariff. He said:

25. This is the first policy statement challenged in these proceedings.

26. Following this announcement, on 15 December 1994, the Home Office sent the applicant an important letter seeking to comply with the House of Lords' decision in Doody. In this letter, the applicant was told of the recommendations made by the judges, of the provisional 30-year tariff set in January 1985, and of the decision in July 1990 to impose a whole life tariff. The letter said:

27. The applicant was invited to make representations if she wished to ask for her whole life tariff to be reduced to a shorter determinate term.

28. On 24 November 1995 solicitors for the applicant wrote to the Parole Board, enclosing detailed representations on the applicant's behalf drafted by leading counsel and a letter by the applicant herself, and also enclosing a number of reports from highly reputable sources urging that the applicant was no longer a danger to the public and should be released. A statement from the police, substantially accepting the applicant's account of her involvement, was included. On 19 January 1996 the applicant's solicitors wrote to the Home Secretary enclosing representations to him on the length of the applicant's tariff and on her application for release on parole. The Home Secretary (Mr Howard) gave his response just over a year later, on 3 February 1997, when the applicant was informed that he had carefully considered the representations submitted on her behalf and had set her tariff afresh at whole life. His reasons were attached to the decision, and read:

29. This is the first decision which is the subject of challenge in these proceedings.

30. On 4 March 1997 the applicant was informed that the Parole Board had not recommended her release on licence, but had recommended her transfer to open prison conditions with a further review two years thereafter. The opinion of the Parole Board, disclosed to the applicant, was:

31. The applicant was informed that the Home Secretary was minded to reject the recommendation of the Parole Board on the ground that, since the applicant had a whole life tariff, there was no purpose in transferring her to open conditions in order to prepare her for release. The applicant's solicitors responded promptly, informing the Home Office on 11 April 1997 that the lawfulness of the applicant's whole life tariff was challenged, and urging that the applicant was no longer a risk to society and should be released.

32. On 10 November 1997 the Home Secretary (Mr Straw) made a statement in Parliament giving his response to the decision of the House of Lords in R v Secretary of State for the Home Department ex parte Pierson [1997] 3 WLR 492, and also wrote to the applicant's solicitors. In his statement the Home Secretary made clear that he would continue the practice of his predecessor in setting and reviewing tariffs of adult murderers. He said:

33. This is the second policy statement challenged in these proceedings.

34. In the letter, the applicant's solicitors were invited to make any representations relating to her progress in prison which they thought might warrant a reduction in her tariff term. This invitation was repeated in a letter to the applicant's solicitors of 19 November 1997, in which they were informed that subject to consideration of whether it might be appropriate to reduce the applicant's tariff because of her exceptional progress in prison (on which the Home Secretary would not form a concluded view until the applicant had had a fair opportunity to make any further written representations she might wish), he saw no reason to depart from the conclusion of his predecessor that a whole life tariff was appropriate in all the circumstances of the applicant's case, applying the policy statement announced on 10 November 1997. The decision communicated in this letter is the second decision challenged in these proceedings.

35. In a written Parliamentary answer given on 1 December 1997 to a question about his reasons for deciding to keep the applicant in prison for the rest of her life the Home Secretary (Mr Straw) said that, having looked at the papers considered by his predecessor, he saw no reason to depart from his decision, although he would be willing to consider any representations which he might receive on the reduction of the applicant's whole life tariff.

36. Mr Fitzgerald QC for the applicant argued that it was unlawful for a whole life tariff to be set in any case, that is, for a decision to be made that the term to be served by a mandatory life sentence prisoner for purposes of retribution and deterrence (irrespective of risk considerations) should be the term of a person's natural life. Such a tariff, he submitted, was inconsistent with the intentions and expectations of those who enacted the abolition of the death penalty in 1965, with the practice adopted in the years following abolition and with the procedures for parole introduced in 1967.

37. I cannot for my part accept that argument. I can see no reason, in principle , why a crime or crimes, if sufficiently heinous, should not be regarded as deserving life-long incarceration for purposes of pure punishment. One can readily accept that in requiring a sentence of imprisonment for life on those convicted of murder Parliament did not intend the sentence to mean what it said in all, or even a majority, of cases, but there is nothing to suggest that Parliament intended that it should never (even leaving risk considerations aside) mean what it said. When, in section 29 of the Crime (Sentences) Act 1997, Parliament again conferred a wide discretion on the Home Secretary to release mandatory life sentence prisoners, it did so in the knowledge (from Mr Howard's statement of 7 December 1994) that some such prisoners were subject to whole life tariffs. Successive Lord Chief Justices have regarded such a tariff as lawful, and I share their view.

38. Mr Fitzgerald was, in my opinion, on stronger ground in arguing that a whole life tariff with no provision for account to be taken of exceptional circumstances, such as exceptional progress in prison, was unlawful. A Home Secretary cannot of course bind his successors, so even if he fixes a whole life tariff in a particular case and decides never to look at the case again, he cannot prevent his successors doing so. But, more importantly, he may not unlawfully fetter his own discretion. Section 61 of the Criminal Justice Act 1967, section 35 of the Criminal Justice Act 1991 and section 29 of the Crime (Sentences) Act 1997 conferred a very broad discretion on the Home Secretary. He is free to formulate and follow a policy, and for administrative reasons it is necessary for him to do so. But he must not adopt a policy which admits of no exceptions, whatever the facts of the case.

39. If authority be needed for that proposition, it may be found in In re Findlay [1985] AC 318. In his 1983 statement Mr Brittan had indicated, with reference to mandatory life sentence prisoners, that prison governors would be told to report at once any exceptional development requiring action and that the procedures adopted would ensure that the Home Secretary could consider any special circumstances or exceptional progress which might justify changing a prisoner's review date. It was argued that the Home Secretary had unlawfully fettered his discretion. This argument was rejected. At page 336E Lord Scarman, giving the decision of a unanimous House, said:

40. Following this approach, it appears to me that Mr Howard did, in his Parliamentary statement of 7 December 1994, unlawfully fetter his discretion, since he expressly said that the purpose of periodical reviews would be solely to consider whether the whole life tariff should be converted to a tariff of a determinate period and should be confined to the considerations of retribution and deterrence. By that he must be taken to have meant that no consideration would be given to factors such as exceptional progress in prison. The applicant's challenge to that statement of policy is in my judgment made good. The statement of Mr Straw on 10 November 1997 did, however, remedy this defect, since he then stated that so far as the potential for a reduction in tariff was concerned he would be open to the possibility that in exceptional circumstances, including for example exceptional progress by the prisoner whilst in custody, a review and reduction of the tariff might be appropriate. I accordingly conclude that the policy now in force is legally unobjectionable on this ground.

41. Mr Fitzgerald argued that it was unlawful for a Home Secretary to increase a tariff term once set. In setting a tariff the Home Secretary was, to all intents and purposes, in the position of a sentencing judge. He was accordingly unable to increase a tariff once set, just as a judge is in general unable to increase a sentence passed in court. To increase a sentence or a tariff term is contrary to principle, unfair to the defendant or prisoner, prejudicial to the appearance of justice and liable to undermine confidence in the integrity of the sentencing or tariff-fixing process.

42. Mr Pannick for the Home Secretary resisted this argument. He relied on the broad discretion conferred on the Home Secretary in the legislative provisions already referred to. He pointed out that the process of fixing a tariff and consulting the judges before doing so was an entirely extra-statutory procedure, one which successive Home Secretaries had chosen to adopt although not bound to do so. It was for the Home Secretary to decide, within the bounds of legality, how his discretion would be exercised. It was properly exercised by setting, and also in a proper case by increasing, a tariff. He had made a public announcement of his policy. Parliament had enacted section 29, without circumscribing the Home Secretary's discretion, in full knowledge of his publicly stated policy of increasing tariffs in exceptional circumstances.

43. Both Mr Fitzgerald and Mr Pannick were to a large extent repeating before us arguments which they had already advanced in R v Secretary of State for the Home Department ex parte Pierson [1997] 3 WLR 492, and both sought to draw support from their Lordships' speeches in that case.

44. Lord Steyn and Lord Hope of Craighead both held, adversely to the Home Secretary, that since he was exercising what was in all essentials a sentencing function he had acted unlawfully in effectively increasing Pierson's tariff term. To that extent, these speeches are undoubtedly helpful to the applicant. But Mr Pannick submitted to us that both Lord Steyn and Lord Hope founded their statements of principle on the condition that the tariff had been fixed and communicated to the prisoner. Here, Mr Pannick argued, the applicant's tariff term of 30 years' (which Mr Howard and Mr Straw were said to have unlawfully increased) had been neither fixed nor communicated to the applicant. It is accordingly necessary for us to ask whether the suggested condition was indeed a condition of the principle stated in their Lordships' speeches and, if so, whether a 30 year tariff had indeed been fixed in the applicant's case and communicated to her.

45. The speeches of Lord Steyn and Lord Hope are of some length, and their full effect cannot be easily summarised or conveyed by selective quotation. It is, however, noteworthy that at the outset of his speech Lord Steyn said (at page 515D):

46. He referred (at page 516G) to a general principle of the common law that a lawful sentence pronounced by a judge may not retrospectively be increased. At page 517G he said:

47. Having concluded that the Home Secretary, in making a decision on punishment, is subject to the normal constraints binding on a sentencing judge, Lord Steyn concluded that the Home Secretary did not have the power to increase a tariff lawfully fixed, and was not entitled to introduce a power to increase tariffs. In his conclusion (at page 523A) Lord Steyn said:

48. Lord Hope in his speech traced the history in some detail, and drew a distinction between the Home Secretary's discretion in relation to release and his role in relation to fixing the measure of punishment. Referring to the Home Secretary, he said at page 532H:

49. He observed at page 533G:

50. He expressed his conclusion in this way at page 533H:

51. Reading these passages, drafted with obvious care and precision, I find it impossible to regard the conditions of fixing the tariff and communicating it to the prisoner as other than fundamental to the conclusion which their Lordships reached. This conclusion is in no way surprising. Great importance was attached to the analogy between a sentencing and a tariff-fixing function, and in the ordinary way a judge passing sentence tells the defendant then and there, and as clearly as he can, what the sentence is. The principle of fairness on which their Lordships relied finds its primary rationale in the need for a sentenced defendant to know, once and for all, where he stands.

52. Mr Fitzgerald submitted that a 30 year tariff was fixed for the applicant by Mr Brittan in 1985. If "provisional" meant anything, it only meant that the tariff could be revised downwards. Mr Pannick submitted that the 1985 decision meant what it said: a tariff was fixed provisionally because it was not fixed definitely. If the Home Secretary had only wanted to reserve a right to revise the tariff downwards, he had no need to make a provisional determination since no one had ever doubted his power and right to revise a tariff downwards. The provisional determination enabled him to revise the length of the term either upwards or downwards.

53. The 1985 decision must be considered in context. At that time the Home Secretary cannot have intended or contemplated that his decision would be communicated to the applicant. He envisaged that a local review committee would consider the applicant's case, but probably defer a review for five years. He had not, as Mr Howard later did, asserted a power to increase a tariff once set, and had indeed made plain that he would not increase a tariff once a first formal review date had been given. He cannot have supposed it necessary to reserve a right to reduce a tariff term. The evidence shows that the provisional fixing of a tariff was an exceptional step. The natural inference is that the tariff was set provisionally at 30 years because the Home Secretary recognised that it might be judged appropriate to imprison the applicant for a longer period than that. Certainly that is the natural inference in relation to Brady, whose tariff was provisionally set at 40 years, since up to then every one who had expressed a view had favoured life-long imprisonment in his case. The expression "provisional" must mean the same in each case. In my judgment, Mr Brittan reached a provisional conclusion that the applicant's tariff term should be 30 years because he wished to reserve the right for himself or his successors to revise that term whether upwards or downwards. The tariff term was not "fixed" or "set" at that time.

54. It is quite plain that the provisional tariff term of 30 years was never communicated to the applicant, and she does not suggest that it was. She says that she believed she had a tariff of determinate length, and was encouraged by the Parole Board decision of May 1985 to review her case in five years' time but not to review Brady's for 10. What she understood was that her tariff term was one of 30 years or less. She did not understand it to be more than 30 years, and had never been led to believe that she had a whole life tariff. She was not aware of any mandatory life sentence prisoner with a whole life tariff. All this may be readily accepted. But the fact remains that the tariff term was not communicated to her. We do not know what she would have been told had she then been given any indication of the length of her tariff term. All the official communications and statements that we have seen were careful to avoid giving any indication of how long she should expect to remain in prison. In 1989 she wrote to the Home Office pleading to be told her tariff date. She was not told.

55. In the light of the law as declared in R v Secretary of State for the Home Department ex parte Doody [1994] 1 AC 531, it is plain that the applicant should have been told of any decision on her tariff term, of any departure from the judicial recommendations and of the Home Secretary's reasons for departing from the judicial recommendations. It is hard on the applicant that she should be prejudiced by the Home Secretary's failure to do what the law now says he should have done. But it is difficult to see how the applicant can be in a better position than the two mandatory life sentence prisoners whose cases were considered in In re Findlay . They had never had tariffs set, but were grossly disadvantaged by a change of policy which led to their prospective release dates being significantly postponed. Their challenges to the implementation of that change of policy did not succeed. At page 338D, Lord Scarman said:

56. It would seem to me that this remains good law.

57. If the foregoing conclusions are correct, it is unnecessary to consider whether, as Mr Pannick briefly suggested, it is open to the Home Secretary to rely on the possibility left open by Lord Steyn and Lord Hope, that there were here exceptional circumstances which justified an increase in a tariff previously set and communicated. The exceptional circumstance relied on was the revelation by the applicant in her 1987 confession that she had been involved to a greater extent than previously appreciated in the two murders of which she had been convicted, and that those two murders were the culmination of a series of five murders of which the applicant had known when luring to their deaths the victims she had been convicted of killing.

58. In their speeches in Pierson, Lord Browne-Wilkinson and Lord Lloyd of Berwick accepted the Home Secretary's argument that it was within the wide statutory discretion conferred upon him to increase a tariff term once set. Their speeches are wholly supportive of the Home Secretary's argument in this application, and it was not suggested that they gave assistance to the applicant.

59. We heard much argument about the proper understanding of the speech delivered in Pierson by Lord Goff of Chieveley. He referred to four parliamentary statements of policy by successive Home Secretaries, and recounted the facts giving rise to the challenge by that applicant. He attached importance to the fact that Mr Brittan had not in November 1983 asserted any power to increase a tariff term once set, and had indeed made it plain that such an increase would not be made. At page 500G he said:

60. Lord Goff concluded that Mr Howard's policy statement of 27 July 1993 did not, properly read, cover the case of any prisoner whose tariff term had been set before the making of that policy statement. He drew attention to Mr Howard's assertion that the view taken by him or another minister under his authority at the beginning of a mandatory life sentence was an initial view of the tariff term, and observed that in the case of Pierson the view taken by the former Secretary of State had plainly not been an initial view. He accordingly concluded that Mr Howard's statement was inapplicable to that applicant. At page 501H Lord Goff said:

61. It would seem from this last passage that Lord Goff accepted the right of the Home Secretary to increase a tariff previously set, in accordance with a policy duly adopted and formerly announced, subject to any argument a prisoner might be able to found on legitimate expectation. If this is so, it would appear that a majority of their Lordships accepted the lawfulness of such a power in principle. But in any event, if my analysis of the speeches of Lord Steyn and Lord Hope is correct, the principle which they upheld would not apply to a case such as the present if I am right to conclude that the 30 year tariff term was not fixed and communicated to the applicant. This approach to the role of the Home Secretary in relation to mandatory life sentence prisoners is in my view wholly consistent with the analysis of that role made by the House of Lords in In re Findlay and Doody.

62. The whole life tariff determination made by Mr Waddington in July 1990 plainly violated the procedural requirements laid down by the House of Lords in Doody, and if that decision were of continuing effect it would be quashed. It was, however, overtaken by later decisions, and it is not suggested that the whole life tariff determinations made by Mr Howard in February 1997 and Mr Straw in November 1997 were similarly flawed. There is accordingly no available challenge on this ground open to the applicant.

63. In criticising the decisions of Mr Howard and Mr Straw as irrational, Mr Fitzgerald relied on a large number of matters. He drew attention particularly to the factual background and the evidence that the applicant had been drugged and assaulted, that threats had been made against her and her family, that she had been psychologically dominated by an older man, and that she had found herself in a situation from which she had been unable to escape without the risk of herself being prosecuted for murder at a time when the capital penalty was still in force. Mr Fitzgerald emphasised that the applicant was the only woman (other than Rosemary West) subject to a whole life tariff, and the only person so subject who had not been the actual murderer. He referred to others who had themselves committed crimes as bad as or worse than those of the applicant who had received shorter tariff terms. He pointed out that the applicant's responsibility and degree of criminality had from the outset been regarded as less than that of Brady, and he drew attention to the great disparity between the minimum term of 25 years recommended by Lord Lane and the term which the applicant might now, on a whole life tariff, have to serve.

64. These are all very relevant matters for consideration. So also is the fact that the applicant was convicted of two horrific and macabre murders of young victims which, since she was the driver of the car used when the victims were lured to their deaths and when their bodies were buried on the moors, could not have been committed without her. The tapes which recorded the ordeal of Lesley Ann Downey recorded also the participation of the applicant. These two murders were the culmination of a series of five, of which she had knowledge when taking part in them.

65. It is relevant to recall that the initial view of Lord Lane, with his vast experience, was that the applicant, like Brady, should never be released. On reflection he modified his view to some extent. When doing so he did not know the full details later revealed: he was accordingly ignorant of the extent to which the applicant had been intimidated, coerced and suborned; but he was also unaware that three young victims had to the applicant's knowledge been previously abducted, put to death and buried on the moors at the time when she committed the two murders of which she was convicted. The whole life tariff fixed by Mr Howard and Mr Straw did indeed represent a great increase on the 25 year minimum term recommended by Lord Lane, but this is a highly judgmental matter on which reasonable minds may differ.

66. Mr Fitzgerald raised, but did not press, an argument that if a whole life tariff was appropriate for Brady, who on any showing was the instigator and prime executor of these crimes, it could not be appropriate also for the applicant as the lesser offender. But this must be wrong. If Brady satisfied by a wide margin the criterion for imposing the maximum penalty permitted at law, that does not lead to the conclusion that the applicant did not satisfy it.

67. Mr Fitzgerald criticised the applicant's whole life tariff as reflecting a retrospective judgment on her criminality, wrongly taking account of experience since the date of her conviction. It would, I accept, be wrong to punish the applicant for the conduct of others during the years of her confinement. But there is nothing to suggest that the Home Secretaries have wrongly taken account of later experience to pass a retrospective judgment. Murders of this kind were as roundly condemned in 1965 as they are today. The letters written much nearer the time reflect this condemnation. This is not in truth an irrationality argument.

68. The threshold of irrationality for purposes of judicial review is a high one. This is because responsibility for making the relevant decision rests with another party and not with the court. It is not enough that we might, if the responsibility for making the relevant decision rested with us, make a decision different from that of the appointed decision-maker. To justify intervention by the court, the decision under challenge must fall outside the bounds of any decision open to a reasonable decision-maker. As Lord Hailsham LC, observed in In Re W ( an infant ) [1971] AC 682 at 700, in quite a different context:

69. It was argued for the applicant that the decisions of Mr Waddington in 1990 and Mr Howard and Mr Straw in 1997 defeated the applicant's legitimate expectation that she would not serve a term of more than 30 years. Since the 30 year determination was provisional and never disclosed to her, I cannot for my part accept that she had any such legitimate expectation. I can readily accept that she expected to serve a fixed term of years and did not expect this to exceed 30 years, but I cannot accept that this expectation was founded on any statement made by or on behalf of any of the Home Secretaries who have played a part in this history. If, however, that conclusion is wrong, the applicant's argument in my judgment founders on the passage in the speech of Lord Scarman in In re Findlay at page 338D which has already been quoted. The terms of Mr Straw's parliamentary statement of 10 November 1997 have met the point on which Lord Goff based his decision in Pierson, as I understood Mr Fitzgerald to acknowledge.

70. Mr Fitzgerald relied on the very full representations made to the Home Secretary on behalf of the applicant and complained that the Home Secretary had not given adequate reasons for concluding, despite those representations, that a whole life tariff was appropriate. In particular, Mr Fitzgerald relied on the applicant's account of Brady's role in commission of these crimes, his relationship with her, and his threats, intimidation and coercion which induced her to act as she did. He argued that it was wholly unclear from the Home Secretary's response of 3 February 1997 whether he accepted the factual truth of those representations or not, and his reasons left it unclear whether he had even understood the points being made on the applicant's behalf. His statement in the reasons that he had taken into account the applicant's description to the Greater Manchester police of her involvement in the offences of which she had been convicted and of how she had come under the influence of Brady meant no more, Mr Fitzgerald argued, than that he had read the materials put before him. The Home Secretary's reasons were defective, and those deficiencies could not be made good by the affidavit of an official sworn after the event.

71. The Home Office letter of 3 February 1997 said that the Home Secretary had carefully considered the representations submitted on the applicant's behalf. If one accepts that statement, and there is no basis for rejecting it, one cannot conclude that the Home Secretary failed to understand the points being made on the applicant's behalf, which indeed were very clearly and cogently expressed. When it was stated, in the reasons given, that the Home Secretary had taken into account the applicant's description of her involvement and of how she had come under the influence of Brady, it was clearly intended to convey that this material had been weighed in the balance by the Home Secretary when making his decision. If he had rejected this account - which, in the absence of other evidence, he could scarcely have done - he would not have taken it into account. In an affidavit of 17 July 1997 sworn on behalf of the Home Secretary, Mr T C Morris deposed:

72. This confirms that the natural reading of the Home Secretary's reasons is the correct reading. The affidavit does not in my view add to what is stated in the reasons themselves.

73. The duty of the Home Secretary was to tell the applicant why he considered it appropriate to fix a whole life tariff in her case and why he considered that a term longer than the minimum recommended by Lord Lane was called for. It was not incumbent on him to reply, as if in a pleading, to each point made for the applicant. Did he make clear the grounds for his decision? In my view he did, basing himself on the premeditated murders of two young victims and the pitiless part the applicant had played in them, with knowledge on her own admission that three young people had previously been abducted, put to death and buried on the moors. He attached importance, in particular, to the appalling circumstances in which Lesley Ann Downey had been tortured and killed. The Home Secretary did not accept that the minimum period of 25 years recommended by Lord Lane was adequate to reflect the gravity of the applicant's offences and concluded that a whole life tariff was necessary to satisfy the requirements of retribution and deterrence in her case. The question whether one agrees or disagrees with that conclusion does not arise. Some would agree, others disagree. I cannot, however, accept that the applicant was left in doubt why the Home Secretary had reached the view he did and I do not think any useful purpose would be served by requiring further detail of his thinking. Since, for reasons already given, Mr Brittan had not set a 30 year tariff in 1985 it was not in my view incumbent on Mr Howard to give his reasons for regarding that term as an inadequate punishment, but in effect he did so.

74. Mr Straw has adopted the decision of his predecessor, implicitly adopting the reasons then given. He was not in my view under a duty to give any additional reasons.

75. This application is of great importance to the applicant as also to those who continue to suffer from her crimes. But I part from the case uneasily conscious that the issues which may really underlie the case are not before us. There is room for serious debate whether the task of determining how long convicted murderers should serve in prison as punishment for their crimes should be undertaken by the judiciary (as in the case of discretionary life prisoners) or, as now, by the executive. That is, in large measure, a political and constitutional question. It is not a question for decision by this court. The applicant clearly feels that she is held hostage to public opinion, condemned to pass the rest of her life in prison, although no longer judged a danger to anyone, because of her notoriety and the public obloquy which would fall on any Home Secretary who ordered her release. But the applicant has, no doubt wisely, made no accusation that any Home Secretary has acted in bad faith, or has exercised his discretion under section 61 of the 1967 Act or section 35 of the 1991 Act or section 29 of the 1997 Act for any improper or ulterior purpose, or has taken account of any irrelevant or improper consideration. Had such a charge been made, we should have had to consider it, and any evidence in rebuttal, and also to consider the extent to which, if at all, the Home Secretary may properly take account of public opinion. But this challenge has not been made, and we must confine our decision to the grounds argued before us. Whether the applicant has made exceptional progress in prison and whether, if so, any modification of her current tariff term is appropriate, are questions which the Home Secretary will consider, in the light of any representations made, once the present challenge is finally resolved.

76. MR JUSTICE HOOPER: I agree with both judgments.

77. MR JUSTICE ASTILL: I agree and wish only to add two points.

78. First, I respectfully agree with my Lord The Lord Chief Justice that the policy of the previous Home Secretary was unlawful.

79. The Home Secretary adopted that policy in his 10 November statement to the House of Commons following the judgment in Pierson. He added:

80. In my judgment, it is that addition which rescues his policy from illegality. If it was at any time to be removed or if only token regard was to be paid to it the Home Secretary's present policy would revert to the illegality of the previous policy. It is also my view that the Home Secretary when rejecting considerations of "exceptional circumstances" should give clear reasons for doing so.

81. Second, I also agree that the then Home Secretary, in his document entitled "Statement of Reason for Setting Tariff at Whole Life" gave adequate reasons for his decision. However, in my view, barely so. He stated that he had taken into account the description given by the applicant to the Greater Manchester Police of her involvement in the offences and of how she came under the influence of Brady. The Home Secretary did not explain his reasoning beyond "taking those matters into account". It is at least advisable that a Home Secretary should give more detailed reasons for his decision to reject submissions made to him by an applicant.

82. MR PANNICK: I am grateful to your Lordships. Mr Fitzgerald and I are agreed, subject to your Lordship's agreement, that there should be no order for costs save for legal aid taxation as the applicant has had the benefit of legal aid.

83. THE LORD CHIEF JUSTICE: We shall make that order. Yes.

84. MR PANNICK: My Lord, can I raise two matters? The first relates to page 40 of the judgment which deals with the points that remain to be considered by the Home Secretary, that is whether there has been any exceptional progress and if so whether that should justify a reduction in tariff. Your Lordship's judgment contemplates that that issue will be considered only once the present proceedings having been finally resolved. My Lord, can I make it clear that if the applicant wishes that issue to be considered in the near future, the Home Secretary will consider it and will determine it. It is a matter entirely for the applicant whether or not she wants that matter now to be considered.

85. THE LORD CHIEF JUSTICE: I was seeking, Mr Pannick, to express what I understood to be the agreement between the parties.

86. THE LORD CHIEF JUSTICE: Thank you. It is helpful that you state that publicly.

87. MR PANNICK: My Lord, the other matter relates to what appears on the front page of the Daily Mail this morning.

88. MR PANNICK: Your Lordship will have seen that, the headline being "Hindley Freedom Bid is Quashed". It is stated to be an exclusive and I know that my friend has concern that it suggests, wrongly, that the applicant's lawyers have been involved in some leaking of the draft judgment. My friend is anxious to make it clear to the court that that is not the case. I have no reason to doubt what the applicant's lawyers say.

89. Your Lordships may well be concerned about this matter. If your Lordships have concern I would respectfully suggest that the appropriate way to proceed is for your Lordships to consider whether this is an appropriate matter to be referred to the Attorney General for him to consider whether this is a contempt of court for the newspaper to publish material of this sort, which appears to be based upon advanced knowledge of the text of the handed down judgment, that being an interference in the due administration of justice, which must include, I would suggest, the ability of the court to hand down judgments in advance of their being delivered, so that the lawyers concerned know what the court is going to say the next day without the risk of it being published in newspapers before judgement is given.

90. If your Lordships have concern I would respectfully suggest that that is an appropriate way to proceed. Your Lordships may think that that step should only be taken once the newspaper concerned has had an opportunity through counsel to address your Lordships as to why that step should not be taken.

91. MR FITZGERALD: My Lord, I can give the court an absolute assurance that neither I, nor my junior, nor my instructing solicitor has spoken to any member of the press about this judgment in advance of today's hearing. In addition, I can assure your Lordships that our client was not informed until this morning. So, my Lord, on the face of it they are suggesting that we have broken an embargo quite improperly and that we are in contempt of court. My Lord, my instructing solicitor will be taking the matter up with them obviously because that is defamatory. But it is a matter for your Lordships whether it is appropriate that in the interests of justice steps should be taken.

92. THE LORD CHIEF JUSTICE: Mr Fitzgerald, it seemed to me quite as likely that the involvement of your clients had been as a result of it being put to them on behalf of another party.

93. MR FITZGERALD: My Lord, none of us have spoken --

94. THE LORD CHIEF JUSTICE: That is not an accusation against your client. It would be perfectly proper for him to respond if it were put to him by a reporter.

95. MR FITZGERALD: My Lord, it was not put to us because none of us spoke to any reporters. We would all have refused to speak to any reporters about this. What one then sees is that the families are then approached and it is put to them what the judgment is and they are asked for a comment. My Lord, all I can say is that it is not the first time in the history of these proceedings that journalists have attributed remarks to lawyers which have never been made by them, and about this case.

96. My Lord, all I can say is that there was no breach of the embargo by any of us or by our client who did not know about this matter until this morning. My Lord, I do not want to get bogged down into this matter, but that is the fact of the matter. If your Lordships wish to take it further, I can assure you that they are inventing what we say.

97. My Lord, that leaves the question of leave to appeal and we do apply for leave to appeal.

98. THE LORD CHIEF JUSTICE: Yes. What do you say about that, Mr Pannick?

99. MR PANNICK: There are no submissions I want to make.

100. THE LORD CHIEF JUSTICE: My Fitzgerald, we have had the opportunity of considering this matter among ourselves on the assumption that you would make that application. Our judgment is that we should grant leave to appeal. We grant that application recognising the vast importance of the matter, in particular to your client, but also to others interested in this and similar cases. We furthermore feel that it would be a difficult task for any single Lord Justice on perusal of the papers to form a judgment as to whether to give leave or not and that we are better placed to make a decision. The one caveat that we would wish to make quite clear is that we would not wish the grant of leave to be interpreted as a sign of uncertainty on our part about the conclusion. Often it would be said: if the court at first instance were not in doubt it would not have granted leave. We would not wish that inference to be drawn.

101. MR FITZGERALD: My Lord, I am obliged.

102. THE LORD CHIEF JUSTICE: Very well. Legal aid taxation, otherwise no order for costs. We grant leave to appeal.

103. THE LORD CHIEF JUSTICE: The court has been very greatly concerned that the confidential terms on which the text of this judgment was made available in advance appear not to have been observed. In accordance with usual practice, two sealed envelopes were collected by counsel's chambers yesterday afternoon. Each envelope contained three copies of the text: one each for leading and junior counsel and one for the instructing solicitor on each side. The texts made available bore a stamp which said "Draft judgment to be handed down on 18.12.97 at ten o'clock; confidential to counsel and their instructing solicitors, but the substance may be communicated to clients not more than one hour before the giving of judgment". The distribution was in accordance with the procedure adopted some years ago when it ceased to be the practice to read judgments aloud in full in open court. The procedure was adopted to enable the parties' legal advisers to read and absorb the judgment in advance so as to put them in a position to make any submissions which might fall to be made as a result of the judgment.

104. This scheme has operated very well up to now and was specifically intended to prevent any report of a judgment or decision appearing in the media before the date and time at which the judgment was delivered. It is utterly unacceptable for the parties involved in particular to learn of a decision of this kind through a newspaper article or a television announcement.

105. The article to which counsel has drawn our attention appeared in a newspaper this morning, very strongly suggesting that the effect of this judgment has been divulged to press reporters. There are three theoretically possible sources of such disclosure: the court itself, the applicant and the respondent. So far as I have been able to ascertain, there is nothing whatever to suggest any lack of security within the court. It appears that that theoretical possibility can be ruled out. If it can, then it would appear that one of the legal advisers representing either the applicant or the respondent has disclosed in some way the effect of this judgment. While I have my own suspicions, it would be entirely wrong to voice them in the absence of firm evidence.

106. I would be grateful, Mr Fitzgerald, if you, and also Mr Pannick, would do everything you can to ascertain from those sitting behind you how this leak can have occurred. The court would be extremely sorry to have to accept, in high profile cases such as this, that the parties' legal advisers cannot be trusted to honour the very simple condition on which the text is made available in advance. But perhaps in future we shall have to work on that assumption. In the meantime it would be helpful if both of you would explore the matter so far as is possible for you respectively.

107. We shall consider what, if any, further action to take having received such information as you are able to give us.