CO/1354/2003, 1919/2003, 2297/2003 

Neutral Citation Number: [2003] EWHC 1789 Admin
IN THE HIGH COURT OF JUSTICE 
QUEEN'S BENCH DIVISION  
DIVISIONAL COURT 
Royal Courts of Justice 
Strand
London WC2 

Thursday, 10th July 2003
 
B E F O R E:

LORD JUSTICE ROSE
(Vice President of the Court of Appeal, Criminal Division) 

MR JUSTICE HENRIQUES 
 
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ANDREW DOUGLAS COLE
PHILIP ROWLAND 
STEVEN HAWKES 
(CLAIMANTS)

-v- 

SECRETARY OF STATE FOR THE HOME DEPARTMENT
(DEFENDANT) 
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Computer-Aided Transcript of the Stenograph Notes of 
Smith Bernal Wordwave Limited
190 Fleet Street  London EC4A 2AG
Tel No: 020 7404 1400 Fax No: 020 7831 8838
(Official Shorthand Writers to the Court)
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MR J TILLYARD QC appeared on behalf of the CLAIMANT, COLE
MR H SOUTHEY appeared on behalf of the CLAIMANTW, ROWLAND and HAWKES 
MISS K GALLAFENT appeared on behalf of the DEFENDANT
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J U D G M E N T 
(As Approved by the Court) 
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Crown copyright©
Thursday, 10th July 2003
1.	LORD JUSTICE ROSE:  These three applications are brought with the permission of Collins J, who ordered that they be heard expeditiously.  The members of this court would have preferred to take time to consider their judgments, but, for a variety of reasons, not least the pressing timescale of events to which I shall shortly come, this has not been feasible.
2.	The claimants are all serving a mandatory term of life imprisonment for murder.  They challenge the Secretary of State's refusal to review the tariff, or minimum term for purposes of retribution and deterrence, which they have each been ordered to serve, following the decision of the House of Lords in Anderson [2003] 1 AC 837, and pending legislation by Parliament in the Criminal Justice Bill.  It is anticipated that this Bill will receive Royal Assent in November of this year and its transitional provisions will come into effect two weeks later.
3.	Before turning to the competing submissions in relation to each of the claimants, it is convenient first to set out the statutory provisions and other materials which are relevant to these claims.
4.	Section 28 of the Crime (Sentences) Act 1997 makes provision for the release on licence of discretionary lifers and those under 18 at the time of their offence.  Section 29 is in these terms: 
"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".
5.	There is no legislative basis for determining the period for which a convicted murderer should remain in prison for the purposes of retribution and deterrence.  By virtue of section 29, it is for the Secretary of State to decide this.
6.	In Anderson, the House of Lords made a declaration under section 4 of the Human Rights Act that section 29, in conferring powers in relation to the length of imprisonment and the release of mandatory lifers on the Secretary of State, and member of the executive, was incompatible with the right to a fair hearing and an independent and impartial tribunal under Article 6.1 of the European Convention on Human Rights, since tariff-fixing was legally indistinguishable from the imposition of a sentence.
7.	On 25th November 2002, the day on which the House of Lords gave their opinions in Anderson, the Secretary of State made a statement to the Press.  The relevant parts, for present purposes, are as follows: 
"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".
8.	A letter was sent from the Lifer Unit to Governors and Lifer Managers.  The relevant part is in these terms:  
"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".
9.	That document goes on to refer to a question and answer briefing attached to it, and I read the presently relevant part: 
"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".
10.	Lifer Unit did indeed write to those affected in January 2003, referring to the existing tariffs remaining unchanged, and the legislation, which was to be introduced and which was expected to come into force in November.  The letter ended with an indication that it was expected later in the year that the Prison Service would indicate the starting date for the new arrangements and the address to which any application for reduction in tariff should be made.
11.	The evidence of Mr Morris, the Head of the Tariff Section in the Lifer Unit, exhibited the Secretary of State's statement and the other documents to which I have just referred.  Mr Morris also said at paragraphs 5 to 10 of his statement: 
"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".
12.	The Criminal Justice Bill had amendments published to it in May of this year.  It makes provision for cases where a life sentence is passed by a court, in circumstances fixed by law, after the commencement of the Bill, and the Bill proceeds to identify starting points for the tariff in such cases of whole life, 30 years and 15 years.  It lists aggravating and mitigating factors to be taken into account, whereby the tariff is to be determined.  
13.	I will refer later to the terms of the Bill in relation to transitional cases.  It suffices for the moment to say that they provide for High Court review of the existing tariffs of prisoners.
14.	It is also necessary, in relation to Cole's application, to refer to the terms of the Criminal Appeal Act 1968, Schedule 2, paragraph 2, which says: 
"(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".
15.	I turn to the individual complainants.  
16.	First, Cole.  He was first convicted of a double murder in 1997.  The trial judge recommended a tariff of 15 years; the Lord Chief Justice, 10 to 11 years; the Secretary of State fixed 11 years.  He appealed successfully against his conviction.  His conviction was quashed.  A retrial was ordered and, on the retrial, he was again convicted.  Again, the trial judge recommended 15 years; the Lord Chief Justice, 14 to 15 years; and the Secretary of State, 15 years.  That 15-year period is due to expire in May 2011.  
17.	Since August 2000, Cole has been in Broadmoor.  Between September 2001 and the end of 2002, there were attempts made in correspondence on Cole's behalf to persuade the Secretary of State to say that the tariff should be 11 years, rather than 15.  
18.	On 4th October 2002, Mr Morris, the Head of the Tariff Section, wrote to Cole's solicitor, indicating that the Lord Chief Justice had been consulted for his views on the case: 
"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". 
19.	The judgment referred to was Lea [2002] EWCA Crim 215, to which I shall return.
20.	On 6th December 2002, Mr Morris wrote again to Cole's solicitors, saying that the Minister had confirmed Mr Cole's tariff at 15 years on 18th November.  The letter goes on to refer to the decision in Anderson and the proposed provisions in the Criminal Justice Bill, and concludes by inviting agreement that no further action would be taken at that stage.
21.	On behalf of Cole, Mr Tillyard, QC, stresses that he is not inviting the Secretary of State to review his decision.  He has reviewed it and, submits Mr Tillyard, has got it wrong.  In setting the tariff at 15 years, the Secretary of State was passing sentence in contravention of Schedule 2, paragraph 2 of the Criminal Appeal Act 1968.  
22.	Fixing a tariff, he says, is, in the light of Anderson, legally indistinguishable from imposing a sentence.  Accordingly, this court should intervene and either quash the decision and impose a tariff of 11 years, as was suggested in the initial claim form, or, as was more favoured in submission to this court, make a declaration that the tariff should not be more than 11 years.  Mr Tillyard relied on certain passages in the judgment of Lord Woolf in Lea, to which I now turn. 
23.	In paragraph 22, Lord Woolf said, by reference to Schedule 2, paragraph 2: 
"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".
24.	At paragraph 32, Lord Woolf said: 
"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".
25.	It is to be noted that the case of Lea was an Attorney General's reference in relation to an allegedly unduly lenient sentence.
26.	Mr Tillyard submits the words "the court", in Schedule 2, paragraph 2, are not defined in the Act.  The crucial matter is the sentence, not who passed it.  The Secretary of State was, therefore, acting as the court within the Act.  The Article 6 right to a fair trial includes a fair sentence.  Parliament in the 1968 Act has said what would not be fair on a retrial.  
27.	The final form of the Criminal Justice Bill is unknown, but, under those provisions, Mr Tillyard submits, it will be necessary to ask the High Court to exercise a discretion to reduce the tariff, which will be unattractive if the original decision by the Secretary of State was itself unlawful, particularly as 11 years does not figure among the identified starting points in the proposed legislation, which, as I have said, are whole life, 30 years and 15 years.
28.	As Miss Gallafent, for the Secretary of State, points out, Cole's case is dependent on the submission that "the court", in Schedule 2, paragraph 2, can be construed as including the Secretary of State.  She accepts that, in Anderson, fixing a tariff was equated with imposing a sentence, in the context of the applicability of Article 6.  But, she says, it does not follow that Schedule 2, paragraph 2 applies to the Secretary of State.  
29.	She accepts that, in 1968, Parliament was not concerned with tariff-fixing by the Secretary of State.  But it is, she says, impossible to construe the words "the court before which he is convicted" as embracing the Secretary of State.  It is impossible so to construe the section under the Human Rights Act, section 3, because once "court" is read as including "Secretary of State", the provision ceases to be compliance with Article 6.  Nor can the word "tariff" be read into Schedule 2.  
30.	Furthermore, she submits, the reference in paragraph 17 of Lord Bingham's speech in Anderson to paragraph 79 of the European Court of Human Rights judgment in Stafford v United Kingdom 35 EHRR 1121, makes clear the distinction between the element of punishment and a sentence of life imprisonment.  
31.	The only sentence that the court can pass is life imprisonment.  Article 6 requires a fair and impartial tariff-setting procedure, but it does not confer rights as to the level of sentence.  
32.	The Secretary of State's decision, in setting, rather than recommending, a tariff, can be subjected to judicial review, but is not challengeable for undue leniency, as is a sentence of the court prior to retrial, which was the focus in Lea.
33.	There is, therefore, she submits, no reason why Schedule 2 should apply to a tariff set by the Secretary of State.  In any event, she submits, even if Schedule 2, paragraph 2 does apply to the Secretary of State, this is a matter for consideration by the High Court after November, in the light of the anticipated legislation.  There is, she submits, no basis for this court now to require the Secretary of State to set an 11-year tariff.
34.	For my part, I accept Miss Gallafent's submissions.  It is, to my mind, quite impossible to construe Schedule 2, paragraph 2 of the 1968 Act as applying to the Secretary of State.  I do not accept that, with the prospect of High Court review, Cole is presently at any disadvantage.  
35.	He is not due to be released until 2011.  The High Court can be expected to take into account the terms of Lord Woolf's judgment in Lea, and the fact that judicial review of the Secretary of State's decision has been sought here.  I would, accordingly, dismiss Cole's application.
36.	I turn to the applications of Rowland and Hawkes, for both of whom Mr Southey appears.
37.	The history in relation to Rowland is that he was convicted at a trial in February 1997.  The trial judge recommended a tariff of 9 years; the Lord Chief Justice, 10 years.  In November 1997, the Secretary of State fixed 9 years, which is due to expire in November 2005.  
38.	I mention in passing that, until last year, Rowland had erroneously been told that the tariff period would expire in 2004.
39.	There are before this court, although, necessarily, from their dates, they were not before the Secretary of State when he made his decision, reports on Rowland made between March and May of this year, which show that he has been making very good progress.
40.	He has done considerable work on offending behaviour.  He shows significant remorse.  The risk of him re-offending has been considerably reduced, and he is part of a Listeners scheme, all of which, submits Mr Southey, make it arguable that he has made exceptional progress, within the criteria identified in paragraph 10 of Mr Morris' statement.
41.	He is presently at an open prison, and working four days a week outside the prison and one day on an Open University degree course in the prison.
42.	Following the Secretary of State's statement on 25th November 2002, representations were made on Rowland's behalf on 11th December that his tariff be reduced, because of exceptional progress.
43.	On 23rd December, the Tariff Section of the Prison Service indicated the Secretary of State's refusal to consider the tariff, in the light of the coming legislation.  On 24th January, in a further letter, it was repeated that there would be no consideration by the Secretary of State of existing tariffs, in the light of Anderson, and Rowland's representations were returned to his solicitors.
44.	There followed a letter before action, and then, on 18th February, the Tariff Section of the Prison Service wrote saying that the Minister was unable to reconsider the tariff, in the light of the coming legislation, and, in any event, it was said, it was unlikely that the tariff would have been reduced in relation to Rowland by more than one year.
45.	So far as Hawkes is concerned, he was convicted in May 1997.  The trial judge recommended a tariff of 10 to 12 years; the Lord Chief Justice endorsed this, though adding that his recommendation would fall at the lower end of the bracket indicated by the trial judge.  In August 1998, the Secretary of State fixed the tariff at 10 years, which is due to expire in August 2006.
46.	In July 2002, representations were made to the Secretary of State for a reduction, in view of what was said to be exceptional progress.  
47.	In September 2002, a Member of Parliament wrote to the Secretary of State, seeking a speedy determination within six months, because of the sad decline in health of Hawkes' mother.
48.	On 23rd October, the Undersecretary of State in the Home Office replied, saying that, because of the mother's health, consideration of the case would be given some priority.
49.	On 13th December, the Tariff Section of the Prison Service wrote saying that, because of the decision in Anderson, the Secretary of State would no longer consider applications for reduction in tariff, and a review would be carried out once the legislation was in force and in the latter part of 2003.
50.	On 13th February, there was a letter before action, and, a few days later, the Tariff Section of the Prison Service said that the undertaking given in relation to priority being given was on the basis that only the Secretary of State had power to reduce the tariff.
51.	Regret was expressed that that undertaking could no longer be fulfilled, as it was said that, as reductions on the grounds of exceptional progress, or exceptional circumstances, were for one year, or, occasionally, two years, it was highly unlikely that there would be any reduction for more than two years.
52.	Mr Southey does not suggest that Hawkes' progress is comparable to that of Rowland, or that Hawkes has any substantial case for establishing exceptional progress.
53.	Mr Southey points out that paragraph 5 of Mr Morris' statement to some extent softens the earlier assertion on behalf of the Secretary of States that, since Anderson, he had no discretion to review.
54.	The Secretary of State's approach to both these claimants, submits Mr Southey, was flawed because he was wrong to take into account, in the way he did, the proposed legislation.  He misdirected himself in relation to human rights, and he unlawfully fettered his discretion.
55.	As to the draft legislation, Mr Southey submits that the Secretary of State is not entitled to rely on its terms, which may not reach the statute book.  
56.	Alternatively, if he is so entitled, it is open to this court to examine the correctness of the Secretary of State's interpretation of the legislation.  Because the terms of the legislation may change before enactment, the Secretary of State cannot know what the legislation ultimately will mean and, therefore, he is, in his approach to it, undermining the democratic process.
57.	Mr Southey referred to ex parte Smedley [1985] 1 QB 657, in which a degree of judicial control by the courts was asserted in relation to a draft Order in Council, compatibly with non-encroachment on the functions of Parliament.  
58.	Mr Southey does not suggest that the presently contemplated legislation is ultra vires, but, he submits, the court can express a view as to what the legislation means, without expressing a view as to how Parliament should legislate.
59.	The Criminal Justice Bill, if enacted, will repeal section 29 of the Crime Sentences Act 1997, and the Schedule of the Bill dealing with the transitional cases provides, in paragraph 3(1)(a), that the High Court, where the Secretary of State has notified a minimum period, must order the application of the early release provisions when a part of the sentence, not greater than the notified minimum, has been served.
60.	The factors to be taken into account, identified in paragraph 4(1) and (2), relate to the seriousness of the offence, time served in reduction of sentence under section 67 of the Criminal Justice Act 1967, and the recommendations of the trial judge and the Lord Chief Justice.
61.	There is, submits Mr Southey, no express reference to progress in prison.  Similarly, the parts of the Criminal Justice Bill, identifying the starting points at whole life, 30 years and 15 years, do not, among the mitigating factors, include progress in prison.  Therefore, submits Mr Southey, the Bill can be said, implicitly, to exclude such progress from consideration.
62.	As to human rights, Mr Southey submits that review is not the same as setting of tariff, and, if a tariff is reduced on review by the Secretary of State, there cannot be any further violation of Article 6.  
63.	Mr Southey relies on paragraph 79 in the judgment in Stafford, which refers to initial tariff-fixing as being a sentencing exercise.  The acceptance in Anderson of the seven steps in counsel's argument related to initial tariff-fixing, not review.  
64.	Mr Southey referred to the Golder case, paragraph 57, in submitting that the overriding function of the Convention is protecting individual rights effectively.  He also relied on R v Broadcasting Standards Commission, Ex Parte BBC [2001] QB 885, 17, where Lord Woolf, then Master of the Rolls, resisted "the use of the Convention to cut down the protection which a statute would otherwise provide".  Accordingly, submits Mr Southey, the Secretary of State has misconstrued what the Convention requires.
65.	Furthermore, the Secretary of State has said in his public statement that he has no discretion, whereas section 29, until repealed, is still lawfully in force.
66.	The representations made on behalf of the claimants were returned to them.  The Secretary of State has, submits Mr Southey, contrary to British Oxygen v Ministry of Technology [1971] AC 610, shut his ears to these representations and applications.  Mr Southey also referred to ex parte Hindley [2001] 1 AC 410. 
67.	Progress in prison has be taken into account under the old regime, in relation to serving prisoners, but, submits Mr Southey, it may not be under the new Act.  So, there will be some prisoners who have already had their tariff reconsidered because of progress.  There will be some with distant release dates, who will be able to apply to the High Court, and there will be a third category, like the present applicants, with comparatively short periods still to be served, who may be denied the benefit of the progress which they have made in prison.
68.	Rowland, bearing in mind the Secretary of State's concession that a two-year reduction is possible in some cases, might, if the Secretary of State acts now to review his tariff, by November of this year, be in a position to have his case considered by the Parole Board.
69.	Mr Southey accepted, in his reply, that Hawkes might well be able to avail himself of the compassionate release scheme, which is, of course, entirely separate from the tariff review provisions with which we are presently directly concerned.
70.	For the Secretary of State, Miss Gallafent pointed out that, of the grounds before the Single Judge, only fetter on discretion remains.  Mr Southey's first and second complaints about reliance on the proposed legislation, and the human rights aspect, are new.
71.	As to taking the proposed legislation into account, Miss Gallafent submits that it would be bizarre for the Secretary of State not to take it into account.  Following Anderson, the Secretary of State was right to remove himself from having any discretion, and this could only be achieved by the repeal of section 29 and the introduction of a new Convention-compliant regime.  
72.	After November, the Secretary of State will have no role.  In the meantime, she submits, Anderson could not be clearer.  There is simply no room to argue that any exercise of discretion by the Secretary of State under section 29 will not violate Article 6.  Anderson was based on the crucial distinction between the Executive and the Judiciary, and the role of the Secretary of State, as giving rise to a violation of Article 6.  Anderson was not concerned with the level of punishment, but the means by which it is set.  
73.	She referred to the speeches of Lord Bingham at paragraphs 27 to 28, Lord Steyn at paragraph 54, and Lord Hutton at paragraphs 76 and 77.
74.	Reviewing tariff, she submits, is not a different creature from setting tariff.  This seems to have been the view of Home Secretary Straw in his statement to the House of Commons on 10th November 1997, after ex parte Pearson.  
75.	Miss Gallafent submits there is no substantive distinction between setting and resetting.  Whether, on review, a tariff is increased or decreased, there is a new tariff set.  As section 29 is incompatible with Article 6, there cannot be an exercise of any discretion by the Secretary of State without a breach of the Convention.
76.	She further submits that paragraph 8 of Mr Morris' statement shows that there has been no improper speculation by the Secretary of State about the draft legislation.  He accepts that the final form is for Parliament.  There is no flaw in his understanding of the legislation.  
77.	She distinguished Smedley because the question here is different: namely, whether the Secretary of State erred in having regard to prospective legislation.  
78.	It is here common ground what the legislative proposals are.  The lists of factors in the Bill are non-exhaustive, and the Secretary of State expressly contemplates (see paragraph 8 of Mr Morris' statement) that the court can take into account exceptional circumstances, including exceptional progress in prison.
79.	She submits that, if the Secretary of State were, in the interim, to undertake a review, but made no reduction in the tariff, there would be an obvious complaint of a breach of Article 6.  
80.	Whether such a review might benefit the complainant, she submits, misses the point.  Article 6 is a procedural provision, not concerned with levels of punishment.  Accordingly, for the Secretary of State presently to review a tariff would breach Article 6. 
81.	As to the Golder case, Miss Gallafent submits there can be no breach of the principle, relied on by Mr Southey, by the Secretary of State saying he will not, so far as possible, act in a way which breaches Article 6.  
82.	As to ex parte BBC, the Secretary of State is not seeking to cut down protection provided by statute.  He is adopting a policy so that he acts only in the most exceptional circumstances, identified in paragraph 5 of Mr Morris' statement, and that does not cut down the protection afforded by the Convention.
83.	She submits that ex parte Hindley is expressly limited only to whole life tariff cases.  (See the speech of Lord Steyn at page 417.)
84.	With regard to Rowland, Miss Gallafent said, on instructions, that, although representations on his behalf had been returned, they would have been looked at to see if they should have been considered.  Nothing in the evidence, she submits, requires consideration of his case before November of this year.  
85.	The evidence before the court shows no more than that he may have been in an exceptional category.  Even if he establishes exceptional progress, of the 23 prisoners who have had a tariff reduction on this ground since November 1997, 17 were reduced by one year and 6 by two years.  Accordingly, if the question of this court's discretion to grant relief arises, no prejudice to Rowland is shown.
86.	In my judgment, there is no distinction to be drawn between setting and resetting a tariff.  The House of Lords in Anderson have ruled that such an exercise, if carried out by the Secretary of State, breaches Article 6.  
87.	Whatever views, as a judge, I may hold about the wisdom of the starting points for tariffs, and some of the other provisions in the Criminal Justice Bill, it is for Parliament to decide the final form of this draft legislation.
88.	It seems to me to be inconceivable, in human terms, that, if the legislation is enacted, as presently contemplated, in relation to prisoners serving a notified tariff, exceptional progress in prison will not be taken into account on the intended High Court review.  
89.	The Secretary of State's express acceptance of this is to be found, as I have said, in paragraph 8 of Mr Morris' statement.  It is unnecessary, for the purposes of this judgment, and it would be inappropriate, to explore the various avenues at common law, and under the Convention, where support for legal challenge to any other approach might readily be found.
90.	Meanwhile, despite Mr Southey's powerful submissions, for my part, I am entirely unpersuaded that, in adopting the interim policy, which has led him to decline to review the tariffs of Rowland and Hawkes, the Secretary of State has taken an improper approach to the draft legislation, or to the Convention, or that he has unlawfully fettered his discretion.
91.	Indeed, were he presently to intervene in relation to tariff, other than in a wholly exceptional case, there would, in the light of Anderson, in my judgment, be an inescapable breach by him of Article 6.  
92.	It is not shown, to my mind, that Rowland or Hawkes is a wholly exceptional case.  I would dismiss their applications.
93.	MR JUSTICE HENRIQUES:  I agree. 
94.	LORD JUSTICE ROSE:  Yes, Mr Tillyard.
95.	MR TILLYARD:  My Lord, two matters.  Firstly, may I invite your Lordships to grant permission to appeal to the Court of Appeal in relation to the finding in the case of Cole? 
96.	LORD JUSTICE ROSE:  On what basis?  What is the point which is arguable, Mr Tillyard?
97.	MR TILLYARD:  Finding that Mr Cole's position does not come within paragraph 2, as to whether that is a breach of his Article 6 rights, and, if it is a breach of his Article 6 rights, whether the court can and should read into paragraph 2 the words "court, including the Secretary of State" in relation to this very limited consideration of the fixing the tariff, following a retrial.
98.	LORD JUSTICE ROSE:  You want us to deal with that point first?
99.	MR TILLYARD:  If your Lordship would.
100.	LORD JUSTICE ROSE:  No, Mr Tillyard.  We refuse permission to appeal.  We do not take the view that that point is arguable.   
101.	MR TILLYARD:  My Lord, I am obliged.  
102.	The other matter is an uncontroversial matter, I hope.  In relation to costs, I see seek a direction that there be taxation of the claimant's costs, in accordance with the Legal Services -- 
103.	LORD JUSTICE ROSE:  Have you lodged the necessary certificate with the court?  Presumably, you have a representation order, do you? 
104.	MR TILLYARD:  My Lord, yes.
105.	LORD JUSTICE ROSE:  Has it been lodged with the court? 
106.	MR TILLYARD:  My Lord, my instructing solicitor is not here.  Hopefully, it has.
107.	LORD JUSTICE ROSE:  It has.  Certainly.  
108.	Anything else?
109.	MR SOUTHEY:  My Lord, may I rise about several matters? 
110.	LORD JUSTICE ROSE:  Yes. 
111.	MR SOUTHEY:  Firstly, in relation to my client's case, I also seek leave to appeal.  
112.	The point that I would seek leave to appeal on is the judgment of your Lordships regarding Article 6 and regarding the approach that, effectively, any review of the matter of tariff is not -- violates Article 6, rather.  
113.	That in, my submission is the point.
114.	LORD JUSTICE ROSE:  No, Mr Southey, we do not give permission to appeal on that.  We do not believe it to be arguable.
115.	MR SOUTHEY:  Thank you.  
116.	Secondly, in relation to the same case -- I obviously ask in relation to both my clients' cases -- I ask for assessment purposes for Community Legal Service? 
117.	LORD JUSTICE ROSE:  Certainly.  Has your certificate been lodged? 
118.	MR SOUTHEY:  I understand so, and believe so.   
119.	LORD JUSTICE ROSE:  You hope so? 
120.	MR SOUTHEY:  I do have my solicitor behind me.
121.	LORD JUSTICE ROSE:  Yes.  So be it.
122.	MR SOUTHEY:  My Lord, the third point that I ought perhaps to mention in relation to the case is the matter of Braithwaite.
123.	LORD JUSTICE ROSE:  Yes.
124.	MR SOUTHEY:  My Lord, clearly, your Lordship's judgment will have an impact on that case.  It is in some respects a different case regarding discretion.  I do not know if your Lordships are aware of the factual background to Mr Braithwaite's case? 
125.	LORD JUSTICE ROSE:  The Secretary of State fixed 20 years, the Lord Chief Justice and trial judge having recommended 15, and he has actually served 17.
126.	MR SOUTHEY:  That is right, my Lord.  He is in the unusual position of being in that period between the judicial recommendation and the subsequent decision of the Secretary of State.
127.	The point that is made in that case is that, although of course it is accepted, because Anderson makes it clear, that the Secretary of State is entitled to maintain his position, and maintain the 20-year tariff, because of the fact that he is in this position, where, in his case, he is now not only the victim of Article 6, in the sense that he did not have any judicially-set tariff, but he also a victim of Article 6 because the level of his tariff exceeds that recommended by the judiciary.  
128.	In those circumstances, the Secretary of State ought to have conducted a review to consider whether he could still justify that position, which, as I say, I accept the Secretary of State is entitled to do, following Anderson, but he ought to have carried it out.  
129.	Essentially, in this respect, we are arguing that, given your Lordship's judgments, that, although there may be procedural terms regarding Article 6, the more substantive (inaudible) the Secretary of State ought to have balanced one Article 6 violation against another and considered what to do, which again he has refused to do.
130.	My Lord, as a consequence, that point perhaps, although it is a slightly more difficult one to argue, I would submit that it is a point that is still open to me.  But, obviously, there may need to be directions as to how the matter proceeds.  
131.	Obviously, having been listening to your Lordship's judgments, I have not been able to take instructions from my instructing solicitors, but -- 
132.	LORD JUSTICE ROSE:  Clearly, of course, consideration will have to be given to the judgment.  Realistically, is there any prospect of the paperwork being in order before October?
133.	It hardly counts as vacation business, I think.
134.	MR SOUTHEY:  My Lord, in terms of the paperwork being -- I would ask that it is regarded as vacation business.  I accept that there would be difficulties getting it in order for a hearing before the start of the vacation.
135.	LORD JUSTICE ROSE:  The argument in relation to urgency for vacation business would be very, very confined, would it not?  You would have to proceed on the basis that the matter should be determined by the court during August and September, when, if the legislation goes through by the end of November, other routes will be open.
136.	I am not ruling on the matter one way or another.  I am really just thinking randomly aloud.
137.	MR SOUTHEY:  My Lord, the concern in this case is that, as things stand -- I do not want to overdramatise the position -- but every day that passes is another day. 
138.	LORD JUSTICE ROSE:  I fully understand that.  
139.	MR SOUTHEY:  Yes, my Lord.  It is on that basis, and only that basis.
140.	LORD JUSTICE ROSE:  I know nothing of the detail of the case.  Is he at an open prison and working out of the prison five days a week? 
141.	MR SOUTHEY:  My Lord, from memory, he is not. 
142.	But that is the reason, that, quite simply, that he has not had what he is at present going through for parole review, and the policy of the Secretary of State is that you do not go to open conditions until you have had your first review. 
143.	LORD JUSTICE ROSE:  Certainly.  He has not had his first review.
144.	MR SOUTHEY:  At the moment, he is going through it, I understand.  He is in Category C.
145.	LORD JUSTICE ROSE:  He is Category C, but he needs to be Category D.
146.	MR SOUTHEY:  Yes, he needs to be Category D and he needs a parole review for that to happen.
147.	LORD JUSTICE ROSE:  Do we know when the review decision will be given, or not?
148.	MR SOUTHEY:  My Lord, no.  We are not clear in terms of the date.
149.	The reason I make the point about Category C is that, effectively, he has made as much progress as he can in these circumstances, although, obviously, in most cases, a prisoner would be expected to spend time in open conditions before release.   
150.	LORD JUSTICE ROSE:  Certainly. 
151.	MR SOUTHEY:  In his particular case, we would say that he has made as much progress as he can do and if in fact his tariff is to be refused, he would then be entitled to (inaudible) which is all the Parole Board can consider at the moment.
152.	LORD JUSTICE ROSE:  Mr Southey, can we focus on what you are actually asking us to do? 
153.	MR SOUTHEY:  My Lord, yes.
154.	Clearly, the other thing I ought to draw to the court's attention is that it is not a permission granted in relation to this matter.
155.	LORD JUSTICE ROSE:  In relation to Fitzgerald, is it? 
156.	MR SOUTHEY:  Braithwaite.   
157.	LORD JUSTICE ROSE:  I am sorry, Braithwaite, yes. 
158.	MR SOUTHEY:  Permission has not actually been granted.  It is procedural timetable, and, as I say, I am sure my instructing solicitors will intervene, but what I was going to suggest is that we amend our grounds within a week, with a view to it going before a judge on consideration of the papers.  The Secretary of State will then have a week to respond and then, with a view to it going before a judge shortly after that on the papers.
159.	LORD JUSTICE ROSE:  Presumably, a transcript of this judgement will be needed for the purposes of the Single Judge? 
160.	MR SOUTHEY:  My Lord, that must be right. 
161.	LORD JUSTICE ROSE:  I will make an order for expedition, so far as is possible.
162.	MR SOUTHEY:  Yes.  I think probably at this stage, given where we are, my Lord, that is all we can ask for at this stage, that we have an abridged timetable for revision, and matters go before a judge on the papers, and also obviously to consider whether this is vacation business in his view, as soon as possible.
163.	LORD JUSTICE ROSE:  Miss Gallafent.
164.	MISS GALLAFENT:  My Lord, the position of the Secretary of State was that yesterday (inaudible) grounds for resisting the claim.  If my learned friend is to amend, of course, we will need an opportunity to amend in the light of the revisions to the Crown's -- in the light of your Lordship's judgment.
165.	LORD JUSTICE ROSE:  Is the timetable you propose as unreasonable a week for his amended grounds and another week for your amended response? 
166.	MISS GALLAFENT:  No, my Lord. 
167.	LORD JUSTICE ROSE:  Then we will direct that.  
168.	That is, I think, as far as we can go probably, is it not, Mr Southey? 
169.	MR SOUTHEY:  My Lord, yes. 
170.	MISS GALLAFENT:  Might I just mention my solicitor yesterday, on their desk, as it were, arrived another case that raises very similar points to the second ground in Braithwaite and that is where the tariff is set at a higher level than that recommended by the judiciary, and that is the case of Linda Calvi(?) v Secretary of State.  
171.	It would be sensible, clearly, if whether matters were combined and they may be dealt with on the papers.  
172.	LORD JUSTICE ROSE:  Is Mr Southey in that, or not? 
173.	MISS GALLAFENT:  No.  I am afraid it is one of the rare ones in which he is not.  
174.	I merely brought that to the court's attention, as it may be that we can write to the solicitors in that case, suggesting -- 
175.	LORD JUSTICE ROSE:  Yes.  I am grateful to you for drawing it to our attention. 
176.	Bearing in mind we do not have any papers and we know nothing about it, and there is nobody involved in the case in front of us, I do not think we can say anything very useful.
177.	MISS GALLAFENT:  Quite, but simply that, as it were, perhaps it may not be the only case, the case of Braithwaite --  
178.	LORD JUSTICE ROSE:  Yes, thank you.  Anything else.  Thank you very much.