QUEEN'S BENCH DIVISION
B e f o r e :
(Vice President of the Court of Appeal, Criminal Division)
MR JUSTICE HENRIQUES
|ANDREW DOUGLAS COLE|
|SECRETARY OF STATE FOR THE HOME DEPARTMENT||(DEFENDANT)|
Smith Bernal Wordwave Limited
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(Official Shorthand Writers to the Court)
MR H SOUTHEY appeared on behalf of the CLAIMANTW, ROWLAND and HAWKES
MISS K GALLAFENT appeared on behalf of the DEFENDANT
Crown Copyright ©
Thursday, 10th July 2003
"Power to release other life prisoners
(1) If recommended to do so by the Parole Board, the Secretary of State may, after consultation with the Lord Chief Justice together with the trial judge if available, release on licence a life prisoner who is not one to whom section 28 above applies.
(2) The Parole Board shall not make a recommendation under subsection (1) above unless the Secretary of State has referred the particular case, or the class of case to which that case belongs, to the Board for its advice".
"We will need to study the judgment carefully before finalising our proposals but I ... intend to legislate this Session, to establish a clear set of principles within which judges will fix minimum tariffs in the future. These principles will be debated and agreed by both Houses of Parliament, and in setting minimum sentences a judge must, in open court, give reasons if the term being imposed is inconsistent with these principles.
The judgment will affect only the issue of who actually sets the tariff in each individual case ...
In respect of the ruling in Anderson our firm intention is that once we have the new arrangements in place a judicial authority will be able to consider afresh the tariff for any murderer at present serving a life sentence in accordance with the framework I have described.
This is the new system we are outlining today which should become law, subject to Parliament, by autumn next year. We intend that any application by a serving prisoner for their tariff to be re-set would be heard under the new law".
"3. The Home Secretary will introduce new legislation to set out clear principles which courts will be expected to follow in fixing tariffs in future. The principles will include that for the most serious crimes a whole life tariff will normally be imposed. The new legislation should be in place before the end of 2003.
4. Tariffs for existing mandatory lifers remain unchanged. Once the legislation is passed it will be open to lifers to have their tariffs reset under the judicial arrangements. It is expected that tariffs will be reset on the basis of the new principles.
5. From the date of the judgment, 25 November 2002, Ministers will no longer set tariffs. Mandatory lifers who have not yet had a tariff fixed will now have to wait until the new legislation is in place to have their tariffs judicially set. Similarly Ministers will no longer consider representations about existing tariffs. Lifer Unit will write to the individual prisoners concerned in cases where the representation process has already started".
"Can I apply to have my tariff reset?
• Once the new legislation is in place you will be able to apply to have your tariff reset judicially.
Will my tariff then be reduced in line with the original recommendation?
• Not necessarily. When a new judicial tariff is set judges will be required to take into account new sentencing principles agreed by Parliament. It is possible in some cases that tariffs could be set higher than those originally fixed by Ministers. This will be for the new judicial body to decide.
Can I continue to make representations to Ministers about my tariff?
• No. As the House of Lords has decided that Ministerial tariff setting is incompatible with the ECHR Ministers will no longer consider any representations against the level of tariff.
I have already made representations about my tariff. What will happen to them?
• Because Ministers will no longer be setting tariff the representation process will be discontinued. Lifer Unit will be writing to those affected".
"5. The policy adopted by the Home Secretary is as set out in those documents. However, as has been made clear in these cases and others, the Home Secretary remains open to the possibility that he would review an existing tariff where wholly exceptional circumstances are shown. Such exceptional circumstances might include, for example, a prisoner whose tariff had not long to run who displays exceptional bravery in preventing the death or serious injury of a member of staff or fellow prisoner, or in preventing the spread of fire which would have otherwise caused extensive damage or loss of life.
6. On 7 May 2003 the Home Secretary introduced amendments to the Criminal Justice Bill to provide for minimum terms to be set by the High Court for all convicted murderers whose tariffs have not yet been set and, on application, for those who already have tariffs set by Ministers. The Criminal Justice Bill has completed its passage through the House of Commons and had its Second Reading in the House of Lords on 16 June 2003. It is currently anticipated that the Criminal Justice Bill will receive Royal Assent in November 2003, and the transitional provisions relating to existing mandatory life prisoners would commence two weeks thereafter.
7. In the meantime, the Home Secretary has adopted the policy that, save for exceptional cases, he does not wish to set or review any tariff on a basis that is not compliant with the ECHR and which would in any event shortly become reviewable again, in an ECHR compliant manner, under this legislation. The legislation was introduced at the earliest reasonable opportunity to give effect to the strong and unanimous decision of the House of Lords in Anderson.
8. Under the draft new legislation the High Court, when setting minimum terms, will be required to take a number of specified factors into account. The draft provisions do not require the High Court to take exceptional progress, or exceptional circumstances into account, and the Home Secretary has never intended that the courts should be obliged to do so. Rather, the draft legislation leaves it open to the courts to take into account exceptional circumstances, including exceptional progress in prison, in appropriate cases. It is currently proposed that this will be a matter for the courts, although of course the final form of the provisions is a matter for Parliament.
9. Twenty-seven prisoners have had their tariffs reduced on the grounds of exceptional circumstances since the policy was announced in November 1997. Out of these, 23 were reduced on the grounds of exceptional progress in prison (17 by one year and 6 by two years). Four were reduced on account of other exceptional circumstances (three by one year and one by two years).
10. The Home Secretary has never issued a definition of what constitutes progress in prison. Cases are considered on an individual basis and exceptional progress has to stand out clearly from the good progress in prison that is expected of all mandatory life sentence prisoners. In broad terms the Home Secretary would look for an exemplary work and disciplinary record in prison, genuine remorse, and successful engagement in work (including offence-related courses) that has resulted in substantial reduction in areas of risk. All these would have to have been sustained over a lengthy period and in at least two different prisons. To reach the threshold of exceptional progress there would also need to be some extra element to show that the lifer had done good works for the benefit of others. Examples would be acting as a Listener (helping vulnerable prisoners), helping disabled people use prison facilities, raising money for charities, and helping to deter young people from crime. Again there would need to be evidence of sustained involvement in at least two prisons over a lengthy period".
"(1) Where a person ordered to be retried is again convicted on retrial, the court before which he is convicted may pass in respect of the offence any sentence authorised by law, not being a sentence of greater severity than that passed on the original conviction".
"His view is that, but for the history of this case, a tariff of 15 years would be perfectly appropriate, considering that this was the savage murder of two people by stabbing in the female victim's own home and that their bodies were subsequently mutilated. The LCJ points out, however, that if a defendant is convicted after a re-trial, the court is not entitled to impose a higher sentence than that imposed at the first trial ... the reason being that, if a defendant, by appealing, were put at greater risk in regard to his sentence, his right of appeal would be inhibited. The LCJ questions whether there is any justification for not adopting the same approach to tariff setting as to sentencing after a re-trial and that, if not, it might be thought right to reduce the tariff to 11 years. The LCJ refers in his letter to a judgment of his on this point a copy of which I enclose for your information.
Once we receive any representations you may wish to make in the light of the LCJ's advice we will put the case to the Minister for a decision".
"The policy in that paragraph of the Schedule appears clear. The intention of the legislation is that if an offender is to be subjected to a retrial, he will be at jeopardy for being convicted again. But if he is convicted again, the policy is that he should not be in jeopardy of receiving a sentence of greater severity than that passed following the original conviction".
"The purposes is that when an offender has his conviction quashed, he should know that he is not going to receive a higher sentence than the sentence which was passed in respect of his original conviction. It achieves certainty for him in that regard. That is only fair if the process of a retrial is going to take place in relation to the conviction. It is right that he should have the opportunity to have a proper trial of the question of conviction; but in consequence of having successfully appealed against his first conviction and having had it quashed as justice entitles him to, he should not have the threat of hanging over him a heavier sentence than was imposed in respect of the original conviction ... If by appealing he laid himself open to a heavier sentence than originally imposed, his appeal may put him in jeopardy of a greater sentence. That would be the effect of the Attorney General's interpretation, and we do not consider that that is right. We do not consider that Parliament forgot to deal with the question of a retrial. We consider that Parliament thought it improper to interfere with that principle".