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Cite as: [2000] 2 WLR 730, [2000] COD 173, [2001] 1 AC 410, [2000] UKHL 21, [2001] AC 410, [2000] 2 All ER 385, [2000] Prison LR 71

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Secretary of State For The Home Department, Ex Parte Hindley, R v. [2000] UKHL 21; [2000] 2 All ER 385; [2000] 2 WLR 730 (30th March, 2000)

HOUSE OF LORDS

Lord Browne-Wilkinson Lord Nicholls of Birkenhead Lord Steyn Lord Hutton Lord Hobhouse of Wood-borough

OPINIONS OF THE LORDS OF APPEAL FOR JUDGMENT

IN THE CAUSE

REGINA

v.

SECRETARY OF STATE FOR THE HOME DEPARTMENT, EX PARTE HINDLEY

(APPELLANT)

ON 30 MARCH 2000

LORD BROWNE-WILKINSON

My Lords,

I have read in draft the speech of my noble and learned friend, Lord Steyn. I agree with it completely and for the reasons which he gives would dismiss this appeal.

LORD NICHOLLS OF BIRKENHEAD

My Lords,

I have had the advantage of reading a draft of the speech of my noble and learned friend Lord Steyn. I agree that, for the reasons he gives, this appeal should be dismissed.

LORD STEYN

My Lords,

Myra Hindley is serving mandatory sentences of life imprisonment for murder. On 3 February 1997 the previous Secretary of State for the Home Department (Mr. Michael Howard) decided, and communicated to Hindley, that in her case the tariff necessary to satisfy the requirements of retribution and deterrence would be a whole life tariff, i.e. detention for the whole of her natural life. By a letter dated 19 November 1997 the present Home Secretary (Mr. Jack Straw) indicated that, subject to consideration of whether it might be appropriate to reduce Hindley's tariff because of exceptional progress she might have made in prison 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 case".

In the meantime Hindley had commenced judicial review proceedings seeking an order quashing the decision of the Secretary of State for the Home Department to impose on her a "whole life" tariff. On 18 December 1997 the Divisional Court dismissed her application: Reg. v. Secretary of State for the Home Department, Ex parte Hindley [1998] QB 751. She appealed against this decision. On 5 November 1998 the Court of Appeal dismissed her appeal but gave her leave to appeal to the House of Lords: Reg. v. Secretary of State for the Home Department, Ex parte Hindley [2000] QB 152. There is now before the House the appeal of Hindley which raises for the consideration of the House the arguments which were rejected by the courts below. The context in which the issues arise is set out in the detailed and careful judgments.

Hindley is entitled to the full measure of the protection of the law and is therefore entitled to have her arguments examined afresh and with care by the House.

The genesis of the whole life tariff

It is necessary to explain briefly the background to the whole life tariff. By a statement made to the House of Commons on 30 November 1983 the Home Secretary (Mr. Leon Brittan) introduced a tariff system for prisoners serving mandatory life sentences: Hansard (H.C. Debates), cols. 505-507. This system involved the setting of a term by the Home Secretary which must be served by a mandatory life sentence prisoner before his or her release could be considered. Subject to the requirement that the Home Secretary must take decisions on tariff matters in accordance with fair procedures, the House of Lords accepted in Reg. v. Secretary of State for the Home Department, Ex parte Doody [1994] 1 AC 531 that the tariff system is in principle compatible with the statutory powers of the Home Secretary: see section 61(1) of the Criminal Justice Act 1967. In 1988 the Home Secretary (Mr. Douglas Hurd) first imposed a whole life tariff. Since that date such a tariff has been imposed on 30 occasions. At present 23 prisoners, including Hindley, is subject to such a tariff.

On 7 December 1994 the previous Home Secretary (Mr. Michael Howard) explained his policy of imposing in some cases a whole life tariff: Hansard (House of Commons Debates), cols. 234-235. On 10 November 1997 the present Home Secretary (Mr. Jack Straw) explained his policy in respect of such cases: Hansard (H.C. Debates), cols. 419-420. It will be necessary to return to the extant policy of the present Home Secretary.

The Issues:

By primary legislation Parliament has created fundamentally different regimes for the release of mandatory life sentence prisoners and discretionary life sentence prisoners. It is important to bear in mind that this case is only concerned with the regime applicable to mandatory life sentence prisoners, and with only one facet of the tariff system applicable to such prisoners, namely the whole life tariff.

The issues before the House fall into two categories. First, there are arguments to be considered that the Secretary of State's policy of imposing whole life tariffs on some mandatory life sentence prisoners is in principle unlawful. Under this heading the primary point is whether a whole life tariff is inconsistent with the statutory concept of life imprisonment. The remaining points challenge the policy of the Secretary of State on the general grounds that it fetters his discretion; it excludes all consideration of such cases by the Parole Board; and is inconsistent with the tariff system which is said to require expression of the tariff in a term of years.

Secondly, Hindley challenges the imposition of a whole life tariff on her as being unlawful on various public law grounds.

Unlawfulness of whole life tariffs

The first ground put forward raises a point of statutory interpretation. Counsel for Hindley submitted that when in 1965 Parliament enacted section 1(1) of the Murder (Abolition of Death Penalty) Act 1965, which in the case of murder replaced the sentence of death by a mandatory sentence of life imprisonment, the substitute sentence did not mean a lifelong period of imprisonment. It contemplated that, if the prisoner was not a risk to others, he or she would be released after a finite period of imprisonment. Counsel for Hindley pointed to the statement in the Report of the Royal Commission on Capital Punishment (1949-1953) that there is no recorded case in which it has been decided that a life sentence prisoner shall be kept in penal servitude until he dies: p. 226, para. 644. On the other hand, before 1965 persons convicted of heinous murders were sentenced to death and executed. The correctness of the legal submissions of counsel must be tested against the language of the statutory provisions. In 1965 Parliament was legislating against the background of a tolerably clear meaning of "life imprisonment." One does not need to go further back than section 27 of the Prison Act 1952. It provided as follows:

(2) The Secretary of State may at any time by order recall to prison a person released on licence under this section

..."

Section 27 shows that as a matter of law a sentence of life imprisonment was understood to authorise the detention of a person sentenced to life imprisonment for an indeterminate period which is only brought to an end by the death of the prisoner or if and when the Secretary of State in the exercise of his discretion decides to release him or her. Section 1 of the Act of 1965, read with section 27 of the Act of 1952, did not exclude the possibility that life sometimes might mean life. It is therefore impossible to conclude that life imprisonment in the statute meant a finite period short of the natural life of the prisoner. It is true that section 27 of the Act of 1952 was subsequently repealed and replaced from time to time by other provisions. In 1967 section 27 of the Prison Act 1952 was repealed by the Criminal Justice Act 1967 and replaced by a new provision: section 61(1). In 1991 the latter provision was replaced by section 35 of the Criminal Justice Act 1991. In 1997 a new provision was introduced by section 29 of the Crime (Sentences) Act 1997. It is however unnecessary to discuss the legislative amendments of 1967, 1991 and 1997 since it is not suggested that in any material respect the concept of life imprisonment acquired a different meaning through these changes.

One must therefore concentrate on the language of section 1(1) of the Act of 1965, read with section 27 of the Act of 1952. It yields no support for the argument of counsel for the appellant. Counsel sought to rely on the provisions of section 1(2) of the Act of 1965 which authorise a judge to make a recommendation for a minimum period to be served by a defendant convicted of murder. But this provision cannot sustain the argument. After all, the judge has a discretion to make or not to make a recommendation. If the judge thought that no fixed term was sufficient in terms of the need of deterrence and retribution he was entitled on that ground to refuse to make a recommendation. This is not altogether surprising. In the Divisional Court Lord Bingham of Cornhill C.J. observed that he could "see no reason, in principle, why a crime or crimes, if sufficiently heinous, should not be regarded as deserving lifelong incarceration for purposes of pure punishment": at 769B. I respectfully agree. Looking at the matter more broadly there is therefore no reason to give to the concept of life imprisonment anything but the contextual meaning of the legislation. I would reject the restrictive interpretation put forward on behalf of Hindley.

The second argument is that the Secretary of State's policy in respect of whole life tariffs unlawfully fetters his discretion. The following passage in the policy statement of the Secretary of State of 10 November 1997 is relevant:

including

Ambiguities inherent in this statement were exposed in oral argument. On instructions counsel for the Secretary of State volunteered and gave assurances to the House that this statement means that the Secretary of State is prepared to reconsider and review any whole life tariff decision from time to time even in the absence of exceptional progress. In these circumstances counsel for the Secretary of State submitted that the policy of imposing a whole life tariff merely involves the expression of the current view of the Secretary of State that the requirements of retribution and deterrence make it inappropriate ever to release such a prisoner. It does not rule out reconsideration. The Secretary of State envisages the possibility of release in the event of exceptional progress in prison; and, even in absence of such progress, the Secretary of State is prepared to reconsider any whole life tariff decision from time to time. Given this clarification on behalf of the Secretary of State I would hold that it is impossible to say that the Secretary of State has unlawfully fettered his discretion.

The third contention is that the policy of the Secretary of State excludes consideration by the Parole Board of whole life tariffs. Acting under his powers under section 35 of the Act of 1991 the Secretary of State gave directions to the Parole Board in 1993. Those directions make it clear that the role of the Parole Board is to advise on risk, not on tariff. The lawfulness of the directions is not challenged. The Secretary of State is not obliged to refer cases involving whole life tariffs to the Parole Board. In any event, in the case of Hindley the Secretary of State has the recommendation by the Parole Board given in early 1997 advising that Hindley should be transferred to open prison conditions with a further review two years later. This was the most favourable recommendation Hindley could have hoped for. The Secretary of State rejected this recommendation and it was within his power to do so. Reverting to the general position affecting whole life tariffs, it is not possible to say that the Secretary of State is acting unlawfully by not referring such cases to the Parole Board.

The last submission is that the policy of imposing whole life tariffs is inconsistent with the notion of a tariff which requires expression in a term of years. This is an appeal to legal logic. But there is nothing logically inconsistent with the concept of a tariff by saying that there are cases where the crimes are so wicked that even if the prisoner is detained until he or she dies it will not exhaust the requirements of retribution and deterrence.

In my view therefore the four grounds of attack on the system of imposing, where considered appropriate, whole life tariffs must be rejected.

Unlawful treatment of Hindley

The second part of the appeal raises the question whether in the particular circumstances of Hindley's case the imposition of a whole life tariff on her was unlawful.

The first ground put forward is that the imposition on Hindley of a whole life tariff amounted to "an increase in the 1985 tariff". This was a reference to an internal decision made by the Secretary of State (Mr. Leon Brittan) in March 1985. The argument is that the decision was contrary to legal principle and unlawful. For this argument counsel for Hindley relied on statements of the law enunciated by Lord Hope of Craighead and myself in Reg. v. Secretary of State for the Home Department, Ex parte Pierson [1998] AC 539 to the effect that it is contrary to principle for the Secretary of State to increase retrospectively a tariff fixed by himself (or a predecessor) and communicated to a prisoner. But Lord Browne-Wilkinson and Lord Lloyd of Berwick denied the existence of such a principle. And Lord Goff of Chieveley made no clear ruling on this point. For my part it is unnecessary in this case to resolve the conflict which emerged in Pierson. The argument fails on the facts. The decision made by the Secretary of State in March 1985 was expressed to be "provisional" and was not either directly or indirectly communicated to Hindley. She was unaware of it until 1994 when she was told of the provisional decision and was also told that in 1990 the Secretary of State (Mr. Waddington) reconsidered the tariff in her case and decided that it should be on whole life tariff. The argument based on observations in Pierson fails at the threshold. But counsel for Hindley made a more far reaching submission. He argued that the principle stated by Lord Hope of Craighead and myself in Pierson can be broadened to apply to a provisional and uncommunicated decision. There is no principled basis for this argument and I would reject it. Moreover, there is a second and independent reason why on the facts the argument of counsel for Hindley cannot succeed. The view of the Secretary of State in 1985 was based on an incomplete knowledge of the role of Hindley in the three murders upon which she faced trial and in ignorance of her involvement in two other murders. Until 1987 Hindley concealed her role. In that year she made confessions about her greater involvement in the course of police interviews. Through her advisers she asked the Secretary of State to consider her account of her involvement in the five murders under the influence and intimidation of Brady. In this context the Secretary of State was entitled to look at the whole of the available evidence. In deciding on her tariff the Secretary of State was not entitled to increase it as retribution and deterrence for murders of which she had not been convicted. But in deciding what was proper retribution and deterrence for the murders of which she had been convicted he was entitled to take into account that she committed them knowing the fate of Brady's earlier victims. Even if a tariff had been fixed and communicated in 1985, fairness in a public law sense would not have entitled Hindley to rely on the earlier decision taken in ignorance of material facts. For these reasons I would reject the arguments about an increase of sentence on the particular facts of the case.

The second argument is that the Secretary of State gave no weight to the appellant's expectation of a finite time to her tariff. Counsel for Hindley relied on the doctrine of substantive legitimate expectations, as explained in Reg. v. North East Devon Health Authority, Ex parte Coughlan [1999] Lloyds L.R. 305. There are dicta in In re Findlay [1985] A.C. 318 which appear to run counter to counsel's argument on substantive legitimate expectations. Counsel invited the House to hold that Findlay is distinguishable or, alternatively, that it was wrongly decided. Counsel for the Secretary of State has however persuaded me that on the facts of this case these legal issues do not arise for decision. Hindley did not know her tariff date until after 1994. She was never given any assurance about her tariff. She was told to make no assumption one way or the other about when she may be released. She had no reasonable basis for any expectation that she would be released at any particular time. There is no scope for applying the doctrine of legitimate expectations. Counsel for Hindley also relied on a principle prohibiting the retrospective fixing of sentence which he derived from the judgment of Hoffmann L.J. (now Lord Hoffmann) in Reg. v. Secretary of State for the Home Department, Ex parte McCartney, The Times, 25 May 1994; Court of Appeal (Civil Division) Transcript No. 667 of 1994. This case concerned discretionary life sentence prisoners. Under the applicable legislation the trial judge fixed the tariff. But there were transitional provisions which required the Secretary of State to fix the tariff for discretionary lifers who had been sentenced before the new judicialised regime came into force. In that context it is understandable that the Secretary of State had to observe the same standards as the judge. The case is therefore distinguishable. In any event, counsel for Hindley argued that the observations of Lord Hoffmann rest on a twin footing, namely unfairness to a prisoner in the retrospective fixing of a sentence and the danger of the retrospective adjustment of a sentence in the light of public response to a sentence. Both parts of this rationale are inapplicable to the provisional and uncommunicated decision of the Secretary of State. I would reject the reliance on McCartney.

The third contention is that the imposition of the whole life tariff was conditioned by an increase in tariffs from 1988 onwards. I would accept that there has been an increase in tariffs since that date and 1988 certainly marks the first imposition of the whole life tariff. The wisdom of this shift in penal policy is not a matter that arises for decision. It is sufficient to say that I do not accept that the adoption of a more severe policy by the last three Home Secretaries was per se beyond the statutory powers granted to them by Parliament.

The fourth issue is whether the Secretary of State failed to address the arguments put to him against an increase in Hindley's case and failed to indicate whether he accepted her account that she acted under threats and intimidation throughout. The Secretary of State indicated that he proceeded on the assumption (without deciding) that the alleged facts put forward in mitigation by Hindley were correct. There were grounds on which he could have questioned those assertions. It might have been open to him to question the reliability of Hindley's statements in mitigation as being self-serving and unreliable. The Secretary of State did not adopt this course. He made an assumption in favour of Hindley. This was a perfectly rational decision which affords Hindley no justifiable ground of complaint.

The last point is that in this case a whole life tariff is disproportionate. Counsel for Hindley argued that in the light of her age at the time of the murders (22 to 23 years), the dominance of Brady over her and that she has now spent 34 years in prison, there is now no justifiable basis for maintaining a whole life tariff in her case. On the other hand, even in the sordid history of crimes against children the murders committed by Hindley, jointly with Ian Brady, were uniquely evil. Hindley invited the Secretary of State to take into account her wider involvement with Brady as explained in her interviews with the police in 1987. She did so in order to emphasise the mitigation on which she relies but against that must be considered the aggravating circumstances. The Secretary of State was therefore entitled to take into account that the two murders of which she had been convicted in 1965 were the culmination of a series of five murders committed by her and Brady. They abducted, terrified, tortured and killed their victims before burying their bodies on Saddleworth Moor. Hindley was a woman of competent understanding. The argument that she was not the "actual killer" must be put in perspective. Her role in the murders was pivotal. Without her active participation the five children would probably still be alive today. The pitiless and depraved ordeal of the victims, and the torment of their families, place these crimes in terms of comparative wickedness in an exceptional category. If it be right, as I have held it to be, that life long incarceration for the purposes of punishment is competent where the crime or crimes are sufficiently heinous, it is difficult to argue that this case is not in that category. In my view the decision of the Secretary of State to maintain a whole life tariff in the case of Hindley is lawful.

Conclusion

I would reject the arguments advanced on behalf of Hindley and dismiss the appeal.

LORD HUTTON

My Lords,

I have had the advantage of reading in draft the speech of my noble and learned friend, Lord Steyn. I agree with it and for the reasons he gives I would dismiss this appeal.

LORD HOBHOUSE OF WOODBOROUGH

My Lords,

My Lords, I too agree that this appeal should be dismissed. Since I agree with the substance of the reasons given by my noble and learned friend, Lord Steyn and in view of the judgments given in the Court of Appeal, I will only add a footnote.

Myra Hindley was convicted in May 1966 and sentenced as required by the Murder (Abolition of Death Penalty) Act 1965 to life imprisonment. This was a mandatory life sentence. It is subject to a discretionary executive power vested in the Home Secretary at any time to direct her release on licence. At the time this power was contained in section 27 of the Prison Act 1952. There have been various re-enactments of this power but its essentials have remained the same. In so far as the statutory provisions define the scope of the discretion given to the Home Secretary in respect of mandatory life sentences, they underline that he is under no obligation to direct the release of any person who has been sentenced to life imprisonment as a convicted murderer. He is not under any statutory obligation to refer their case to the Parole Board nor is he under any statutory obligation to accept a recommendation of the Parole Board. The discretion is his alone.

However during the years since 1966 there have been changes in the structures and practices relating to life sentence prisoners, mandatory and discretionary. These developed in a piecemeal fashion giving rise to a number of contradictions and, as has been recognised in the present litigation, illegalities. The history has been summarised in the speech of my noble and learned friend and on other occasions, including in the speech of Lord Mustill in Reg. v. Secretary of State for the Home Department, Ex parte Doody [1994] 1 AC 531. The developments were of two types. First, Home Secretaries by a series of ministerial statements gradually introduced an extra-statutory scheme distinguishing between mandatory and discretionary life sentences and between periods of incarceration required respectively for the purpose of retribution and deterrence and for the purpose of the protection of the public. Secondly, as regards discretionary life prisoners, these developments have been put onto a statutory basis and the discretion of the Home Secretary has been superceded; the regime is now under the control of the judiciary and the Parole Board. As regards mandatory life prisoners, the regime remains extra-statutory with the discretion and decision whether to release remaining with the Home Secretary. The policy, therefore, in this regard still has to be found in ministerial statements which have frequently followed judicial decisions when his decisions or policies have been challenged resulting in their judicial review.

The current statement of policy is that contained in the written answer given by Mr. Straw on 10 November 1997 following the decision of your Lordships' House in Reg. v. Secretary of State for the Home Department, Ex parte Pierson [1998] AC 539. It refers to earlier statements and brings together a number of points - the distinction between retribution and deterrence and risk, the obligation to act fairly and give an opportunity to make representations, the fact that a tarriff always remains open to review, the fact that a whole life tarriff will also be reviewed at appropriate intervals. The distinction between mandatory and discretionary life sentences is maintained and the ultimate need to maintain public confidence in the system of criminal justice stressed.

The feature of this policy and its more recent predecessors which the appellant has attacked is the whole life tarriff. The attack fails for the reasons given by my noble and learned friend. The Home Secretary has retained the residual discretion. He does accept the obligation to keep the exercise of his discretion under review and to act fairly. He is acting within the statutory powers given to him. He is not applying improper criteria. The previous illegalities and inconsistencies of policy have been resolved.

The other grounds of appeal relied upon relate to the application of the policy to the appellant and the decisions which the Home Secretary made concerning her culminating with that of Mr. Straw dated 19 November 1997 affirming a full life tarriff for her. I agree with your Lordships that this aspect of the appellant's case fails on the facts. It has, therefore, not been necessary to consider the submissions made by Mr. Fitzgerald seeking to criticise the speech of Lord Scarman in In re Findlay, In re Hogben [1985] A.C. 318 and those of Lords Browne-Wilkinson and Lloyd of Berwwick in Ex parte Pierson and nothing I have said should be taken as an acceptance of those criticisms. Nor has it been necessary to consider the reliance which Mr. Fitzgerald placed upon the valuable judgment delivered by Sedley L.J. in Reg. v. North and East Devon Health Authority, Ex parte Coughlan presently only reported in the specialist series [1999] Lloyds Rep. Med. 305, 306.

One point which did concern me at one stage of the argument was whether the Home Secretary had appropriately responded to the confessions which Myra Hindley made in 1987. Normally a willingness to confess would be mitigation which would justify making an assessment more favourable to the defendant. However in the present case, the new information which she provided concerning her knowledge of the earlier killings showed that a more serious view had to be taken of her participation in the crimes for which she had been tried, convicted and sentenced. The Home Secretary was entitled in the light of this additional information which she had provided and asked him to take into account to take the view that the offences of which she had been convicted were more serious than had previously been thought.

Myra Hindley's appeal must fail and be dismissed as your Lordships have proposed.