|Judgments - Regina v Secretary of State for the Home Department (Respondent) Ex Parte Anderson (Fc) (Appellant)
HOUSE OF LORDS
Lord Bingham of Cornhill Lord Nicholls of Birkenhead Lord Steyn Lord Hutton Lord Hobhouse of Woodborough Lord Scott of Foscote Lord Rodger of Earlsferry  EWCA Civ 1698
OPINIONS OF THE LORDS OF APPEAL FOR JUDGMENT
IN THE CAUSE
SECRETARY OF STATE FOR THE HOME DEPARTMENT
EX PARTE ANDERSON (FC)
ON 25 NOVEMBER 2002
 UKHL 46
LORD BINGHAM OF CORNHILL
1. This appeal concerns the sentencing, punishment and detention of adults convicted of murder in England and Wales and, in particular, the power now exercised by the Home Secretary to decide how long they should spend in prison for purposes of punishment. The question arises, as one of law not policy, whether that is a power which, compatibly with the European Convention on Human Rights ("the convention"), the Home Secretary may properly exercise, and the answer must turn on how, on a proper legal analysis, exercise of that power is properly to be regarded. This opinion is concerned only with adults convicted of murder in England and Wales (whom I shall call "convicted murderers") save where express reference is made to other classes of offender or other jurisdictions.
2. I preface this opinion by recording three propositions, none of which is controversial. First, a convicted murderer is a person who has taken a life or lives with the intention either of doing so or of causing serious physical injury. Contrary to widespread public belief, such a person need not have intended to kill and may have intended not to kill. It is enough that he intended to cause serious physical injury if death resulted. Secondly, the crime of murder so defined embraces acts of widely varying culpability, including horrific and brutally sadistic conduct at one end of the spectrum and "almost venial, if objectively immoral" conduct at the other: R v Howe  AC 417, 433G, per Lord Hailsham of St Marylebone LC; Ong Ah Chuan v Public Prosecutor  AC 648, 674 per Lord Diplock; Report of the Royal Commission on Capital Punishment 1949-53 (1953, Cmd 8932, p 6, para 21); House of Lords Select Committee on Murder and Life Imprisonment (1989, HL Paper 78-I, p 13 para 27); Report of the Committee on the Penalty for Homicide chaired by Lord Lane (Prison Reform Trust, 1993, p 21). Thirdly, judges have never in modern times enjoyed any discretion in passing sentence on a convicted murderer. Until 1957 the sentence was one of death. Under the Homicide Act 1957 death continued to be the sentence mandatorily passed on those convicted of capital or multiple murders (sections 5 and 6), while other convicted murderers were mandatorily sentenced to imprisonment for life (sections 7 and 9(1)). By the Murder (Abolition of Death Penalty) Act 1965 it was provided that convicted murderers should be sentenced to imprisonment for life (section 1(1)).
3. For the past century at least there has been some divergence between the sentence passed and the sentence carried out, perhaps because of the inclusive definition of murder and the broad range of conduct it covers. Statistics published by the Royal Commission on Capital Punishment show that of murderers convicted and sentenced to death between 1900 and 1949 (when no defence of diminished responsibility was available) 91% of women and 39% of men were reprieved (Report, p 326). Of those reprieved, twice as many served terms of imprisonment of under 5 years (in some cases terms of less than a year) as served terms of over 15 years (Report, pp 316-317). Since 1965 only a small minority of convicted murderers have spent the remainder of their lives in prison: that minority has included some whose crimes have been held to be so heinous as to merit lifelong imprisonment; it has also included some who have served such terms of imprisonment as their crimes have been held to merit for purposes of punishment but whom it has not been thought safe to release.
4. So long as courts were required to pass sentence of death on convicted murderers or convicted capital murderers, it was natural to regard those reprieved as saving their lives at the price of forfeiting their liberty to the state for life (although the terms of imprisonment to which capital sentences were commuted were on occasion very short indeed: the death sentences passed on the defendants in R v Dudley and Stephens (1884) 14 QBD 273 were commuted to sentences of 6 months' imprisonment). It was also natural to regard release, if ordered, as an act of executive indulgence. It seems clear that a similar view was taken of the mandatory life sentence passed on all convicted murderers following effective abolition of the death penalty in 1965.
5. Section 61(1) of the Criminal Justice Act 1967 conferred a discretion on the Home Secretary to release on licence a convicted murderer serving a sentence of life imprisonment if recommended to do so by the newly created Parole Board. In a written answer given in the House of Commons on 30 November 1983 the then Home Secretary (Mr Leon Brittan QC) made a statement concerning his exercise of this discretion (Hansard (HC Debates), 30 November 1983, cols 505-507). In this he made two announcements relevant for present purposes: first, that he would continue to look to the judiciary for advice on the time to be served to satisfy the requirements of retribution and deterrence and to the Parole Board for advice on risk; and secondly, that the new procedures he was announcing would separate consideration of the requirements of retribution and deterrence from consideration of risk to the public. Over the years since 1983 the procedures then introduced have been clarified, refined and formalised.
6. A power to release convicted murderers was again conferred on the Home Secretary by section 35(2) and (3) of the Criminal Justice Act 1991, and is now conferred (in terms substantially identical to those of the 1991 Act) in section 29 of the Crime (Sentences) Act 1997, which provides
This section, no doubt deliberately, gives little indication of the procedures which in practice follow imposition of a mandatory life sentence on a convicted murderer, although for some years now those procedures have been well understood and routinely followed in practice.
7. The first stage is directed to deciding how long the convicted murderer should remain in prison as punishment for the murder or murders he has committed. This is what Mr Brittan meant when he referred to "retribution and deterrence", although deterrence should be understood as meaning general deterrence; deterrence of the particular convicted murderer is embraced in the notion of retribution. In determining the appropriate measure of punishment in a particular case all the traditional factors may, and should so far as appropriate, be taken into account: pure retribution, expiation, expression of the moral outrage of society, maintenance of public confidence in the administration of justice, deterrence, the interests of victims, rehabilitation and so on. The term of imprisonment appropriate in a particular case is subject to no minimum, and no maximum; it may in a case of sufficient gravity extend to the whole life of the convicted murderer (R v Secretary of State for the Home Department, Ex p Hindley  QB 751 at 769;  1 AC 410 at 416).
8. In the first instance, advice on the appropriate punitive term of imprisonment, which has become known as "the tariff", is given by the trial judge, who will have a detailed knowledge of the facts of the case and of the offender and, if the charge was contested, will have had an opportunity to assess the conduct of the convicted murderer, albeit in the artificial context of a criminal trial. The trial judge, in giving his advice, will review the factors which in his expert judgment go to mitigate and aggravate the offence and will approach his task in very much the same way as if he were sentencing a defendant other than a convicted murderer. The trial judge's advice is passed to the Lord Chief Justice of the day, who does not enjoy the trial judge's immediacy of exposure to the facts of the case or the offender but who does, through the frequency with which he is consulted, obtain an overall view denied to any individual trial judge and who thus has the opportunity to give advice reflecting some uniformity of approach to classes of case and particular considerations. As is plain from the language I have used, the role of the trial judge and the Lord Chief Justice is that of advisers or makers of recommendations. The power of decision rests with the Home Secretary (or a junior Home Office minister) who, having received the written advice of officials in his department, will decide how long the particular convicted murderer should remain in prison to meet the requirements of retribution and general deterrence. In recent years the Home Secretary has set a period in line with the judicial recommendations in a large majority of cases, but in a small minority of cases the period set has been either longer or shorter than the judges have recommended. This is the process, colloquially known as "fixing the tariff", with which this appeal is centrally concerned, and I shall return to it.
9. This procedure was followed in the case of the appellant, Mr Anthony Anderson. In September 1986 the appellant murdered a 60 year old man in obviously poor health who had allowed the appellant into his house. Once in the house the appellant punched and kicked the victim who suffered a cardiac arrest and died. The appellant stole some of the victim's property. In May 1987 the appellant murdered a 35 year old homosexual who had invited the appellant back to his house after a chance meeting. The appellant attacked and kicked his victim, who died from his injuries, and stole his property. The appellant denied both murders but was convicted before Kenneth Jones J and a jury at the Central Criminal Court. The trial judge considered that the appellant had deliberately picked on vulnerable victims and recommended that he serve a minimum term of 15 years for both murders. The Lord Chief Justice made the same recommendation. The Home Secretary set the term at 20 years. The appellant sought judicial review of the Home Secretary's decision to increase the judicially recommended tariff, but was unsuccessful in the Queen's Bench Divisional Court (Rose LJ, Sullivan and Penry-Davey JJ) on 22 February 2001 ( EWHC Admin 181) and his appeal against this decision was rejected by the Court of Appeal (Lord Woolf CJ, Simon Brown and Buxton LJJ) on 13 November 2001 ( 2 WLR 1143;  EWCA Civ 1698). He now appeals to the House.
10. It is necessary to allude to two further features of the mandatory life sentence imposed on convicted murderers, each of them very important. Both are safeguards directed towards securing the protection of the public. The first safeguard becomes operative when (as happens sooner or later in all but a few cases) the convicted murderer approaches the end of his punitive or tariff term. His case will then be referred to the Parole Board which will consider whether it is necessary for the protection of the public that the convicted murderer should continue to be confined. If the board concludes that it is necessary, the Home Secretary has no power under section 29 to release that convicted murderer. If the board recommends that the convicted murderer be released on licence the Home Secretary may (after consultation with the Lord Chief Justice) order his release, and will ordinarily do so, although the statute does not even then oblige him to do so.
11. In a written answer given on 27 July 1993 (Hansard (HC Debates), 27 July 1993, cols 861-864) the then Home Secretary (Mr Michael Howard QC), referring to the release of convicted murderers, stated:
In a written answer on 10 November 1997 (Hansard (HC Debates), 10 November 1997, cols 419-420) the Home Secretary (Mr Jack Straw) addressing the same subject, stated:
As already indicated, the need to maintain public confidence in the administration of criminal justice is a matter of which account is routinely taken when deciding how long a convicted murderer should remain in prison, as it is in the case of other serious offences. No issue arises in this appeal on Mr Howard's head (c) (the public acceptability of early release) upon which, the House was told, reliance has never in practice been placed. One must however question whether it could ever be lawful to continue to detain a convicted murderer who had served the punitive term judged necessary to meet the requirements of retribution and general deterrence and whose release was not judged by the Parole Board to present any significant risk of danger to the public.
12. The mandatory life sentence imposed on a convicted murderer provides a second safeguard applicable after he has served his tariff term and after he has been released by the Home Secretary on the recommendation of the Parole Board following consultation with the Lord Chief Justice. His release is not unconditional but is subject to a licence which, unless revoked, endures for the remainder of his life. But his licence may be revoked and he may be recalled to prison if his continued release is thought to threaten the safety of the public: section 32 of the Crime (Sentences) Act 1997 entrusts the final decision on revocation and recall to the Parole Board.
13. I return to the fixing of the convicted murderer's tariff term by the Home Secretary, described in paragraph 8 above. The true nature of that procedure must be judged as one of substance, not of form or description. It is what happens in practice that matters: Van Droogenbroeck v Belgium (1982) 4 EHRR 443 at 456, para 38. What happens in practice is that, having taken advice from the trial judge, the Lord Chief Justice and departmental officials, the Home Secretary assesses the term of imprisonment which the convicted murderer should serve as punishment for his crime or crimes. That decision defines the period to be served before release on licence is considered. This is a classical sentencing function. It is what, in the case of other crimes, judges and magistrates do every day. In arguing on behalf of the Home Secretary that his fixing of a convicted murderer's tariff was not a sentencing function, Mr David Pannick QC drew attention to two options open to the Home Secretary but not, as was rightly said, to a sentencing judge. He may shorten the convicted murderer's tariff term if he makes exceptional progress in prison. He may increase the convicted murderer's tariff term if fresh facts come to light, not known when the tariff term was fixed and revealing his conduct as graver than previously appreciated. There are obvious difficulties about this latter course if the length of the tariff term has already been disclosed to the convicted murderer (as in R v Secretary of State for the Home Department, Ex p Pierson  AC 539) and if the fresh facts are not admitted, but it may be accepted for present purposes that these differences exist. They are however minor differences and do not begin to outweigh the very striking similarities between the fixing of a tariff term and the imposition of an ordinary custodial sentence.
14. The Home Secretary also relied on a more general argument concerning the nature of the mandatory life sentence. A convicted murderer, it was said, had committed a crime of such gravity that he forfeited his life to the state, giving rise to a presumption that he would remain in prison until and unless the Home Secretary concluded that the public interest would be better served by the convicted murderer's release than by his continued detention. In fixing the tariff the Home Secretary was administering a sentence already imposed, not imposing a sentence. This view of the mandatory life sentence was advanced by the Minister of State (Mrs Angela Rumbold) on 16 July 1991 (Hansard (HC Debates), 16 July 1991, cols 309-310), and was endorsed by Mr Howard in his written answer of 27 July 1993 already referred to. In R v Secretary of State for the Home Department, Ex p Doody  1 AC 531, however, the House (in an opinion of Lord Mustill, with the concurrence of Lord Keith of Kinkel, Lord Lane, Lord Templeman and Lord Browne-Wilkinson) recognised this theory of the sentence as inconsistent with the practice followed since the statement of Mr Brittan in 1983 and left it entirely out of account in resolving the issues in the case (page 557).
15. Since 1983 the Home Secretary's role in the administration of life sentences has been the subject of repeated challenges, both in our domestic courts and before the European Commission and the European Court of Human Rights. Some of these challenges have concerned defendants sentenced to imprisonment for life in the exercise of the sentencing judge's discretion for offences other than murder: R v Secretary of State for the Home Department, Ex p Handscomb (1987) 86 Cr App R 59; Weeks v United Kingdom (1987) 10 EHRR 293; Thynne, Wilson and Gunnell v United Kingdom (1990) 13 EHRR 666. Such sentences are now governed by section 28 of the Crime (Sentences) Act 1997: in short, the sentencing judge decides how long a defendant shall serve in prison for punitive purposes; on expiry of that period, the defendant may require the Home Secretary to refer his case to the Parole Board; if the board is satisfied that it is no longer necessary for the protection of the public that the defendant should be confined, the Home Secretary must release him on licence. Some of the challenges have concerned youthful murderers sentenced to be detained during Her Majesty's Pleasure: Hussain v United Kingdom; Singh v United Kingdom (1996) 22 EHRR 1; R v Secretary of State for the Home Department, Ex p Venables and Thompson  AC 407; V v United Kingdom (1999) 30 EHRR 121. The third of these cases held that the Home Secretary had acted in breach of article 6(1) of the convention in setting the applicant's tariff, since this was a sentencing exercise which was required to be carried out by an independent and impartial tribunal and the Home Secretary, as a member of the executive, was not an independent and impartial tribunal. Some of the challenges have concerned convicted murderers serving (or recalled to serve) mandatory life sentences: In re Findlay  AC 318; R v Secretary of State for the Home Department, Ex p Doody  1 AC 531; Wynne v United Kingdom (1994) 19 EHRR 333; R v Secretary of State for the Home Department, Ex p Pierson  AC 539; Raja v United Kingdom (Application No 39047/97, 20 May 1998); R v Secretary of State for the Home Department, Ex p Stafford  2 AC 38; R v Secretary of State for the Home Department, Ex p Hindley  QB 751;  QB 152;  1 AC 410; Stafford v United Kingdom (Application No 46295/99, 28 May 2002). Among these cases are those most directly germane to the present appeal.
16. In Doody the House accepted (at p 558) that mandatory life sentences were "very different" from discretionary life sentences and regarded the fixing of a convicted murderer's tariff as appropriately carried out by the Home Secretary and his junior ministers. Not surprisingly, the European Court relied heavily on this authoritative ruling in Wynne, holding that as a convicted murderer Wynne was not entitled to the protection which would have been appropriate had he been a discretionary life prisoner. The application in Raja was rejected by the European Commission as manifestly ill-founded on the ground that tariff-fixing was an administrative procedure governing the implementation, not the determination, of the sentence, with the result that article 6(1) of the convention did not apply to it. This decision reflected Strasbourg jurisprudence as it then stood. The House of Lords' decision in Stafford, rejecting an appeal for symmetry between the treatment of convicted murderers and discretionary life sentence prisoners in reliance on Doody ( 1 AC 531 at 559) and Wynne ((1994) 19 EHRR 333), regarded the dichotomy as embedded in our domestic law by primary legislation ( 2 AC 38 at 49-50). In Hindley the House of Lords understood the sentence of life imprisonment to authorise the detention of the person sentenced for an indeterminate period brought to an end by the death of the prisoner or the Home Secretary's decision (if and when made) to release him ( 1 AC 410 at 416).
17. There was material in these judgments to support the Home Secretary's view of the mandatory life sentence as involving the forfeiture of the convicted murderer's life to the state and his view of his own role as involving not the imposition of a sentence but the administrative implementation of a sentence already passed. But these views were inconsistent with the steadily growing recognition of the tariff-fixing exercise as involving the imposition of a sentence and with the procedures followed in the fixing of the tariff. In the present case, both Sullivan and Penry-Davey JJ in the Queen's Bench Divisional Court would, if unconstrained by authority, have held that the fixing of a tariff amounts to the imposition of a sentence and is accordingly governed by article 6(1) of the convention:  EWHC Admin 181, paras 42, 48-49, 54. Similar views were expressed in the Court of Appeal by Simon Brown and Buxton LJJ:  2 WLR 1143, paras 57, 82. The stage was thus set for reconsideration by the European Court of its own case law on mandatory life sentences, particularly its decision in Wynne (1994) 19 EHRR 333. This task it undertook in a careful and comprehensive way in Stafford v United Kingdom (Application No 46295/99, 28 May 2002), expressing its conclusions in paragraphs 78-80 of the judgment:
79 The Court considers that it may now be regarded as established in domestic law that there is no distinction between mandatory life prisoners, discretionary life prisoners and juvenile murderers as regards the nature of tariff-fixing. It is a sentencing exercise. The mandatory life sentence does not impose imprisonment for life as a punishment. The tariff, which reflects the individual circumstances of the offence and the offender, represents the element of punishment. The Court concludes that the finding in Wynne that the mandatory life sentence constituted punishment for life can no longer be regarded as reflecting the real position in the domestic criminal justice system of the mandatory life prisoner. This conclusion is reinforced by the fact that a whole life tariff may, in exceptional cases, be imposed where justified by the gravity of the particular offence. It is correct that the Court in its more recent judgments in T and V, citing the Wynne judgment as authority, reiterated that an adult mandatory life sentence constituted punishment for life (T v the United Kingdom, cited above, § 109, and V v the United Kingdom, cited above, § 110). In doing so it had, however, merely sought to draw attention to the difference between such a life sentence and a sentence to detention during Her Majesty's pleasure, which was the category of sentence under review in the cases concerned. The purpose of the statement had therefore been to distinguish previous case-law rather than to confirm an analysis deriving from that case-law.
80 The Government maintained that the mandatory life sentence was nonetheless an indeterminate sentence which was not based on any individual characteristic of the offender, such as youth and dangerousness and therefore there was no question of any change in the relevant circumstances of the offender that might raise lawfulness issues concerning the basis for his continued detention. However, the Court is not convinced by this argument. Once the punishment element of the sentence (as reflected in the tariff) has been satisfied, the grounds for the continued detention, as in discretionary life and juvenile murderer cases, must be considerations of risk and dangerousness. Reference has been made by Secretaries of State to a third element - public acceptability of release - yet this has never in fact been relied upon. As Lord Justice Simon Brown forcefully commented in the case of Anderson and Taylor (see paragraph 46), it is not apparent how public confidence in the system of criminal justice could legitimately require the continued incarceration of a prisoner who had served the term required for punishment for the offence and was no longer a risk to the public. It may also be noted that recent reforms in Scotland and Northern Ireland equate the position of mandatory life prisoners in those jurisdictions to that of discretionary life prisoners in England and Wales in respect of whom continued detention after expiry of tariff is solely based on assessment of risk of harm to the public from future violent or sexual offending."
18. It was argued for the Home Secretary that the House should not follow this judgment, which was criticised as erroneous and lacking in reasoning to justify and explain the court's departure from its previous ruling. I cannot accept this argument. While the duty of the House under section 2(1)(a) of the Human Rights Act 1998 is to take into account any judgment of the European Court, whose judgments are not strictly binding, the House will not without good reason depart from the principles laid down in a carefully considered judgment of the court sitting as a Grand Chamber: R (Alconbury Developments Ltd) v Secretary of State for the Environment, Transport and the Regions  2 WLR 1389 at 1399, para 26. Here, there is very strong reason to support the decision, since it rests on a clear and accurate understanding of the tariff-fixing process and the Home Secretary's role in it. The court advanced ample grounds for its change of opinion: among them were the judgments already referred to in the present case; and the court noted that in R (Lichniak and Pyrah) v Secretary of State for the Home Department  QB 296 the Home Secretary had sought to resist an attack on the mandatory life sentence as arbitrary by contending that an individualised tariff was set and that after the expiry of that tariff the prisoner could expect to be released once it was safe to release him, a departure from the contention that a mandatory life sentence represented a punishment whereby a prisoner forfeited his liberty for life (para 77). In ruling on the rights of the appellant under article 6(1) of the convention, I am satisfied that the House should, in accordance with the will of Parliament expressed in the Human Rights Act 1998, seek to give effect to the decision of the European Court in Stafford.
19. In the agreed issue formulated for decision by the House attention was focused on the conduct of the Home Secretary in this case in setting the appellant's tariff substantially higher than that recommended by the trial judge and the Lord Chief Justice, and Mr Edward Fitzgerald QC devoted part of his argument to this aspect. He had good forensic reason for doing so. The appellant has served almost 15 years in prison. Were the judicial recommendations to be effective, he would be approaching the stage at which the Parole Board would consider whether it was safe to release him on licence. As it is, because of the higher tariff set by the Home Secretary, he has 5 years to serve before reaching that stage. So it would best serve the appellant's interest if the Home Secretary's increase were invalidated and the judicial recommendations stood. But the principles which Mr Fitzgerald must invoke to attack the setting of the tariff by the Home Secretary at a level higher than that recommended by the judges preclude consideration of the issues on so narrow a basis. As became clear in argument, the decision of the House must rest on a broader basis of principle.
20. Mr Fitzgerald's argument for the appellant involved the following steps:(1)
I must review these steps in turn.
21. Step (1) is correct. The right to a fair trial by an independent and impartial tribunal is guaranteed by article 6(1) of the convention. It is one of the rights which the United Kingdom committed itself to protect when it ratified the convention and it is one of the most important rights to which domestic effect was given by the Human Rights Act 1998.
22. Step (2) is also correct. Strasbourg authority supporting the proposition is to be found in Ringeisen v Austria (No 1) (1971) 1 EHRR 455; Eckle v Germany (1983) 5 EHRR 1, paras 76-77; Bromfield v United Kingdom (Application No 32003/96, 1 July 1998, p 10); V v United Kingdom (1999) 30 EHRR 121 at pp 185-186, para 109. It makes good sense that the same procedural protections should apply to the imposition of sentence as to the determination of guilt.
23. Step (3) is a logical consequence of steps (1) and (2). But the point was clearly expressed by the Supreme Court of Ireland in Deaton v Attorney-General and the Revenue Commissioners  IR 170 at 182-183:
24. Examination of the facts has already led me to accept the correctness of step (4): see paragraphs 17-18 above. The clearest authoritative statement of this proposition is in paragraph 79 of the European Court's judgment in Stafford, quoted in paragraph 17 above. But earlier authorities had laid the foundations for that conclusion: R v Secretary of State for the Home Department, Ex p Doody  1 AC 531 at 557; R v Secretary of State for the Home Department, Ex p Venables and Thompson  AC 407 at 490, 526, 537; R v Secretary of State for the Home Department, Ex p Pierson  AC 539 at 585; R (Anderson) v Secretary of State for the Home Department  2 WLR 1143, paras 57, 67 (the present case in the Court of Appeal). It is clear beyond doubt that the fixing of a convicted murderer's tariff, whether it be for the remainder of his days or for a relatively short time only, involves an assessment of the quantum of punishment he should undergo.
25. If it be assumed that steps (1) to (4) are correct, step (5) necessarily follows from them.
26. The correctness of step (6) was accepted on behalf of the Home Secretary, and rightly so. The European court has interpreted "independent" in the context of article 6(1) of the convention to mean "independent of the parties to the case and also of the executive": V v United Kingdom (1999) 30 EHRR 121, at 186-187, paragraph 114. Far from being independent of the executive, the Home Secretary and his junior ministers are important members of it. I need not linger on this point, since it is not controversial. Plainly, the Home Secretary is not independent of the executive and is not a tribunal.
27. Step (7) follows logically from the preceding steps and must be accepted. In R v Secretary of State for the Home Department, Ex p Stafford  1 WLR 503 at 518 the Court of Appeal expressed concern at the imposition of what was in effect a substantial term of imprisonment by the exercise of executive discretion, which in its view lay uneasily with ordinary concepts of the rule of law. This concern was echoed in the House of Lords ( 2 AC 38 at 51), and again by the European Court (Stafford v United Kingdom (Application No 46295/99, 28 May 2002) in paragraph 78 of its judgment quoted in paragraph 17 above. In Benjamin and Wilson v United Kingdom (Application No 28212/95, 26 September 2002) the European Court took a step further: it held that the Home Secretary's role in the release of 2 "technical lifers" was objectionable because he was not independent of the executive and he could not save the day by showing that he always acted in accordance with the recommendation of the mental health review tribunal (paragraph 36). The European Court observed (paragraph 36):
The European Court was right to describe the complete functional separation of the judiciary from the executive as "fundamental", since the rule of law depends on it.
28. Thus I accept each of Mr Fitzgerald's steps (1) to (7) save that, in the light of Benjamin and Wilson v United Kingdom (Application No 28212/95), it must now be held that the Home Secretary should play no part in fixing the tariff of a convicted murderer, even if he does no more than confirm what the judges have recommended. To that extent the appeal succeeds.
29. The conclusion that the Home Secretary should play no part in the fixing of convicted murderers' tariffs makes for much greater uniformity of treatment than now exists. The tariff term to be served by a discretionary life sentence prisoner is already determined by the trial judge in open court (subject to the accused's right of appeal under section 9 of the Criminal Appeal Act 1968 and the Attorney General's right to apply to refer a sentence to the court as unduly lenient under section 36 of the Criminal Justice Act 1988) and the Parole Board decide whether it is safe to release the prisoner at the end of that tariff term. The Home Secretary has no role. The result of V v United Kingdom (1999) 30 EHRR 121 was to make plain that the Home Secretary should not fix the tariff of a young murderer ordered to be detained during Her Majesty's Pleasure. In Scotland, following an audit conducted by the Scottish Executive to identify procedures operating there which might fall foul of the convention, the Convention Rights (Compliance) (Scotland) Act 2001 was enacted: this provides that those convicted of murder in Scotland should be treated in very much the same way as discretionary life sentence prisoners, with no intervention by the executive. Similar arrangements have been adopted in Northern Ireland, doubtless with the same object of complying with the convention. It is the Home Secretary's role in relation to convicted murderers which has become anomalous.
30. The question of relief therefore arises. Section 29 of the Crime (Sentences) Act 1997, quoted in paragraph 6 above, appears to stand in the way of the appellant. It is unrepealed primary legislation. Mr Fitzgerald contended that it was possible to read and give effect to section 29 in a manner compatible with the convention, and that the House should do so in exercise of the interpretative power conferred by section 3(1) of the Human Rights Act 1998. Mr Pannick contended that, even if the House were to accept Mr Fitzgerald's argument summarised in paragraph 20 above, the only relief which the appellant could obtain would be a declaration of incompatibility under section 4 of the 1998 Act. On this point I am satisfied that Mr Pannick is right. As observed in paragraph 6 above, Parliament did not attempt to prescribe the procedures to be followed in fixing the tariff of a convicted murderer. But some things emerge clearly from this not very perspicuous section. The power to release a convicted murderer is conferred on the Home Secretary. He may not exercise that power unless recommended to do so by the Parole Board. But the Parole Board may not make such a recommendation unless the Home Secretary has referred the case to it. And the section imposes no duty on the Home Secretary either to refer a case to the board or to release a prisoner if the board recommends release. Since, therefore, the section leaves it to the Home Secretary to decide whether or when to refer a case to the board, and he is free to ignore its recommendation if it is favourable to the prisoner, the decision on how long the convicted murderer should remain in prison for punitive purposes is his alone. It cannot be doubted that Parliament intended this result when enacting section 29 and its predecessor sections. An entirely different regime was established, in the case of discretionary life sentence prisoners, in section 28. The contrast was plainly deliberate. In section 1(2) of the Murder (Abolition of Death Penalty) Act 1965, Parliament was at pains to give judges a power to recommend minimum periods of detention, but not to rule. That was for the Home Secretary. To read section 29 as precluding participation by the Home Secretary, if it were possible to do so, would not be judicial interpretation but judicial vandalism: it would give the section an effect quite different from that which Parliament intended and would go well beyond any interpretative process sanctioned by section 3 of the 1998 Act (In re S (Minors) (Care Order: Implementation of Care Plan)  2 WLR 720 at 731-732, para 41).
31. For these reasons and also for the reasons given by my noble and learned friends Lord Steyn and Lord Hutton I would accordingly allow the appeal to the extent already indicated with costs in the House and below and make a declaration of incompatibility in terms which have been agreed between the parties:
LORD NICHOLLS OF BIRKENHEAD
32. I have had the advantage of reading in draft the speeches of my noble and learned friends Lord Bingham of Cornhill, Lord Steyn and Lord Hutton. For the reasons they give, with which I agree, I too would allow this appeal.
I. The Question.
33. The question is whether decisions about the term of imprisonment to be served by convicted murderers, sentenced to mandatory life imprisonment, should be made by the Secretary of State for the Home Department, a member of the executive, or by independent courts or tribunals.
34. The House has before it the appeal of Anthony Anderson, who was convicted in 1988 of two unrelated murders committed in 1986 and 1987. The appellant committed the two murders in the same way, that is by kicking his victims to death in the course of theft. In accordance with section 1(1) of the Murder (Abolition of Death Penalty) Act 1965 the trial judge imposed, as the law required and still requires, sentences of life imprisonment.
35. Since the abolition of the death penalty in 1965 successive statutes have entrusted to the Home Secretary the power to decide when a mandatory life sentence prisoner may be released. From 1983 successive Home Secretaries have applied a policy of fixing by way of a tariff the part of a mandatory sentence of life imprisonment which must be served by a prisoner to satisfy the requirements of retribution and deterrence before the risk of releasing him can be considered. Throughout this period Home Secretaries have looked to the trial judge and the Lord Chief Justice for advice on the tariffs to be served in individual cases, reserving to themselves the power to fix the tariff.
36. The trial judges and the Lord Chief Justice recommended a tariff of 15 years to be served by the appellant. The Home Secretary rejected the judicial advice and fixed the tariff at 20 years. For the appellant the challenge to the Home Secretary's decision is important. The judicially recommended tariff is about to lapse. If the tariff set by the Home Secretary is lawful the process of the Parole Board considering whether, from a point of view of risk, the appellant can be released must be postponed for at least another five years.
II. The Framework.
37. The Home Secretary's power to control the release of mandatory life sentence prisoners derives from section 29 of the Crime (Sentences) Act 1997. It reads:
(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."
Since 1965 the statutory precursors of this provision have been section 61 of the Criminal Justice Act 1967 and section 35(2) and (3) of the Criminal Justice Act 1991. In R v Secretary of State for the Home Department, Ex p Doody  1 AC 531 Lord Mustill, speaking for a unanimous House, observed about this regime (at 559B):
The two stages to which Lord Mustill referred were, of course, the fixing of the tariff and, after the lapse of the tariff period, a decision on whether from the point of view of risk the prisoner could be released.
38. Given that the primary focus of this case is the Home Secretary's power of fixing the tariff, it is of some relevance to set out how the system worked and still works. On 17 July 1995 the Home Secretary explained the position to the House of Commons (Hansard (HC Debates), col 1353). He said:
The whole of the report, apart from opinions about the risk, is disclosed to the prisoner, together with any other relevant papers, such as details of previous convictions, which will be put to Ministers in due course. This means that in practice, the prisoner sees everything that is relevant to the setting of the tariff.
The prisoner is given the opportunity to make any representations he wishes on the judicial recommendations and the other contents of the report. It is, however, made clear to him that the judicial views are advisory and that the tariff will be set by the Secretary of State. The prisoner's representations, along with the judicial report, are then submitted to Ministers, who make the decision on tariff. This is communicated to the prisoner.
If, after considering the judicial advice and the prisoner's representations, I decide that a tariff higher than that recommended by the trial judge is required for deterrence and retribution, the prisoner is given detailed reasons for that decision and these reasons are, of course, open to scrutiny by the courts by way of judicial review.
To summarise, the prisoner is aware of the judicial view and has the opportunity to make representations. He is then told of the tariff set. If there is any departure from the judicial advice, he is given detailed reasons. Once the prisoner has been informed of the tariff, we are prepared to disclose both the tariff and the judicial recommendation in individual cases to anyone who asks. The process cannot therefore be described as secretive - it could hardly be more open."
There have been subsequent ministerial statements on this subject but as far as the executive is concerned the 1995 statement is still controlling. It is to be noted that within the institutional constraints of a decision taken by a member of the executive, a concerted attempt was made to model the fixing of the tariff on a quasi judicial procedure. The procedure highlights the analogy between the role of the Home Secretary, when he fixes a tariff representing the punitive element of the sentence, and the role of a sentencing judge. Not surprisingly the Home Office described the duty of the Home Secretary as follows: "[The Home Secretary] must ensure that, at all times, he acts with the same dispassionate sense of fairness as a sentencing judge": R v Secretary of State for the Home Department, Ex p Venables  AC 407, 526B.
39. In a series of decisions since Doody in 1993 to which I will refer later, the House of Lords has described the Home Secretary's role in determining the tariff period to be served by a convicted murderer as punishment akin to a sentencing exercise. In our system of law the sentencing of persons convicted of crimes is classically regarded as a judicial rather than executive task. Our constitution has, however, never embraced a rigid doctrine of separation of powers. The relationship between the legislature and the executive is close. On the other hand, the separation of powers between the judiciary and the legislative and executive branches of government is a strong principle of our system of government. The House of Lords and the Privy Council have so stated: Attorney-General for Australia v The Queen and the Boilermakers' Society of Australia  AC 288, 315; Liyanage v The Queen  1 AC 259, 291; Hinds v The Queen  AC 195; Duport Steels Ltd v Sirs  1 WLR 142, 157B. It is reinforced by constitutional principles of judicial independence, access to justice, and the rule of law. But the supremacy of Parliament is the paramount principle of our constitution. Whatever arguments there were about the precise nature of the Home Secretary's role in controlling the release of convicted murderers, Parliament had the power to entrust this particular role to the Home Secretary. It did so unambiguously by enacting section 29 of the 1997 Act and its precursors. While a series of House of Lords' decisions have revealed concerns about the compatibility of the operation of the system with the rule of law, the lawfulness in principle of the Home Secretary's role was not in doubt.
40. The question is now whether the Home Secretary's decision-making power over the terms to be served by mandatory life sentence prisoners is compatible with a later statute enacted by Parliament, namely the Human Rights Act 1998 by which Parliament incorporated the European Convention on Human Rights into the law of the United Kingdom. Article 6(1) of the Convention, so far as it is material, provides:
Article 6(1) requires effective separation between the courts and the executive, and further requires that what can in shorthand be called judicial functions may only be discharged by the courts: Ringeisen v Austria (1971) 1 EHRR 455, p 490, para 95; V v United Kingdom (1999) 30 EHRR 121, pp 186-187, para 114. In Millar v Dickson  1 WLR 1615, Lord Hope of Craighead captured the flavour of the European jurisprudence by holding, at p 1633, para 41:
Even in advance of the formal incorporation of the Convention the interpretation and application of article 6(1) has brought about substantial changes in our law. Since the coming into operation of the Human Rights Act on 2 October 2000 this process has accelerated. Thus the judicial systems of Scotland and England and Wales had to be reorganised to take into account a decision of a Scottish court which held that temporary sheriffs were not sufficiently independent: Millar v Dickson  1 WLR 1615.
41. The relevant developments for present purposes include the following. First, as a result of a decision of the European Court of Human Rights in Thynne, Wilson and Gunnell v United Kingdom (1990) 13 EHRR 666 Parliament made the judiciary and the Parole Board alone responsible for decisions about the release of discretionary life sentence prisoners. The Home Secretary was not perceived to be independent. Parliament reformed the law by enacting section 34 of the Criminal Justice Act 1991. In the result the Home Secretary no longer controls release of a category of life sentence prisoners which includes some of the most dangerous prisoners in our prisons. Secondly, a parallel development followed in respect of young persons sentenced to detention during Her Majesty's Pleasure. As a result of the decision of the ECHR in V v United Kingdom (1999) 30 EHRR 121, the tariff system in respect of juveniles had to be reorganised. Ministers lost their power to set the tariff: Practice Statement (Juveniles: Murder Tariff)  1 WLR 1655; see further Practice Statement (Crime: Life Sentences)  1 WLR 1789. Again, the reason for this development was that the Home Secretary could no longer be regarded as independent for the purposes of performing this function.
42. Thirdly, the coming into force in 1999 of the Scotland Act 1998, to which was scheduled the Human Rights Act, led to legislation by the Scottish Parliament effectively to eliminate the role of the executive in Scotland in fixing terms to be served by mandatory life sentence prisoners: Convention Rights (Compliance) (Scotland) Act 2001. The reason for this legislation was the apprehension that the executive's role would be in conflict with article 6(1): Policy Memorandum relating to the Bill introduced in the Scottish Parliament on 10 January 2001. For the same reason the role of the executive in controlling the periods to be served by mandatory life sentence prisoners in Northern Ireland was brought to an end: the Life Sentences (Northern Ireland) Order 2001 (S1 2001/2564 (NI 2)). These developments have increased the doubts about the Home Secretary's remaining role in England and Wales about the one class of life sentence prisoners over whom he still exercises control.
43. Until recently, however, there was a justification in European jurisprudence for the Home Secretary's retention of the power to fix the tariff in respect of mandatory life sentence prisoners. It derived from the ruling in Wynne v United Kingdom (1994) 19 EHRR 333 to the following effect (p 347, para 35):
As a result of two recent decisions of the European Court of Human Rights this prop of the Home Secretary's position has now, in terms of European jurisprudence, been knocked out.
44. In Stafford v United Kingdom, (Application no 46295/99), 28 May 2002, the Grand Chamber of the ECHR reviewed developments which in its view led to the conclusion that (p 20, para 78) -
Referring to the Wynne judgment the court observed (p 21, para 79):
The decision in Stafford has recently been reinforced by a Chamber of the ECHR in Benjamin and Wilson v United Kingdom (Application no 28212/95). The applicants were discretionary life sentence prisoners who were detained in a mental hospital. The case concerned the applicants' right to a review of their detention in hospital as required by article 5.4 of the Convention. The power to order release lay with the Secretary of State who asserted that he adopted a practice of following the recommendation of the mental health review tribunal. The court ruled (p 9, para 36):
In other words, a member of the executive may not play any part in such a decision.
III. A Ministerial Statement.
45. Following the decision in Stafford the following statement was made in the House of Commons on behalf of the Home Secretary on 17 October 2002, (Hansard (HC Debates), cols 915W-916W, written answer):
If, at the end of the review process, the Parole Board favours the release of a mandatory life sentence prisoner once the minimum period has been served the Home Secretary will normally accept such a recommendation.
The Stafford judgment affects only the process by which the decision is made on whether to release mandatory life sentence prisoners. It does not relate to the period of detention which such prisoners must serve to satisfy the requirements of retribution and deterrence, or Parole Board reviews that take place before the end of that period. There will usually be no change to the dates set for Parole Board reviews of prisoners who have served that period. Those prisoners serving whole life tariffs do not have their cases referred to the Parole Board."
It will be observed that in part at least the Home Secretary has already given effect to the Stafford judgment.
IV. The Proceedings Below.
46. The appellant, and another mandatory life sentence prisoner, challenged decisions of the Home Secretary fixing tariffs in their cases. These cases were heard and determined before the decisions of the ECHR in Stafford and Benjamin. The Divisional Court unanimously dismissed the application:  EWHC Admin 181. Two members of the Court (Sullivan and Penry-Davey JJ) reached their decisions with reluctance but felt constrained by the then extant Wynne decision to reach this result. The Court of Appeal dismissed an appeal. Again, the Wynne decision was decisive. Simon Brown and Buxton LJJ were highly critical of that decision and dismissed the appeal with great reluctance: R (Anderson) v Secretary of State for the Home Department  2 WLR 1143. The appellant (Anderson), but not Taylor, now appeals to the House of Lords.
V. A Cautionary Note.
47. This appeal raises the question whether the period of imprisonment to be served by a mandatory life sentence prisoner as punishment should be determined by the executive or the judiciary. It does not concern the question how individual cases should be approached. On the hypothesis, however, that the appeal in Anderson succeeds, it is important to guard against misunderstanding in one respect. If the role of the executive in setting the tariff should cease it does not follow that life imprisonment for murder may never, even in the worst cases imaginable, literally mean detention for life. In the Divisional Court in R v Secretary of State for the Home Department, Ex p Hindley  QB 751, 769, Lord Bingham of Cornhill CJ 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." On appeal to the House of Lords, and with the agreement of Lord Browne-Wilkinson, Lord Nicholls of Birkenhead, and Lord Hutton, I expressed myself in similar terms: R v Secretary of State for the Home Department, Ex p Hindley  1 AC 410, 416H. The following passage is part of the ratio of that case (at p 417H):
In Stafford the ECHR observed "that a whole life tariff may, in exceptional cases, be imposed where justified by the gravity of the particular offence": p 21, para 79. If in future the judiciary and the Parole Board are given the sole responsibility for the system there may still be cases where the requirements of retribution and deterrence will require life long detention.
VI. The Issues on the Appeal.
48. It is manifest, and conceded by the Home Secretary, that if the fixing of tariff is appropriately to be classified as a judicial function under article 6(1), it follows that the existing system is in breach of article 6(1) since the Home Secretary, as a member of the executive, is undoubtedly not independent within the meaning of article 6(1). There are therefore two principal issues, namely:
(1) Whether the fixing of the tariff is to be classified as a "determination of
[a] criminal charge" within the meaning of article 6(1);
VII. Is Tariff Fixing A Judicial Function?
49. The language of article 6(1) is general. It simply provides that the determination of a criminal charge must be made by an independent tribunal. Its purpose is however not in doubt. First only a court or an independent tribunal may decide on the guilt or otherwise of an accused person. The executive have no role to play in the determination of guilt. Secondly, only a court or independent tribunal may decide on the punishment of a convicted person. Again, the executive have no role to play in the determination of punishment.
50. One can readily accept that it is sometimes difficult to categorise a particular function as judicial or non-judicial. The Australian experience, admittedly in a federal system, is instructive. It is recognised that there are functions which, by their very nature, may be exercised only by courts and, on the other hand, there are other functions which by their very nature are inappropriate for such exercise. Between these functions there lies a "borderland" in which functions may be exercised either by the executive or the courts: Allan N Hall, "Judicial Power, The Duality of Functions and the Administrative Appeals Tribunal" (1994) 22 Federal Law Review 13, 21; see also Enid Campbell, "The Choice Between Judicial and Administrative Tribunals and The Separation of Powers" (1981) 12 Federal Review 24. In R v Trade Practices Tribunal, Ex p Tasmanian Breweries Pty Ltd (1970) 123 CLR 361, 394 Windeyer J explained the difficulty of defining the judicial function as follows:
Nevertheless it has long been settled in Australia that the power to determine responsibility for a crime, and punishment for its commission, is a function which belongs exclusively to the courts: G.F.K Santow, "Mandatory Sentencing: A Matter For The High Court?" (2000) 74 Australian LJ 298, 300 and footnotes 17 and 18. It has been said that "the selection of punishment is an integral part of the administration of justice and, as such, cannot be committed to the hands of the executive": Deaton v Attorney-General and Revenue Commissioners  IR 170, 183; see also In re Tracey (1989) 166 CLR 518, 580; Chu Kheng Lim v Minister for Immigration, Local Government and Ethnic Affairs (1992) 176 CLR 1, 27; Nicholas v The Queen (1998) 193 CLR 173, 186-187, per Brennan CJ. The underlying idea, based on the rule of law, is a characteristic feature of democracies. It is the context in which article 6(1) should be construed.
51. The power of the Home Secretary in England and Wales to decide on the tariff to be served by mandatory life sentence prisoners is a striking anomaly in our legal system. It is true that Parliament has the power to punish contemnors by imprisonment. This power derives from the medieval concept of Parliament being, amongst other things, a court of justice: see Erskine May: Treatise On The Law, Privileges, Proceedings and Usages of Parliament, 22nd ed (1997), p 131 et seq. Subject to this qualification, there is in our system of law no exception to the proposition that a decision to punish an offender by ordering him to serve a period of imprisonment may only be made by a court of law: Blackstone's Commentaries on the Laws of England, 2001, vol. 1, republished by Cavendish Publishing Ltd, para 137. It is a decision which may only be made by the courts. Historically, this has been the position in our legal system since at least 1688. And this idea is a principal feature of the rule of law on which our unwritten constitution is based. It was overridden by Parliament by virtue of section 29 of the 1997 Act. Now the duty to decide on the compatibility of that statutory provision with article 6(1) has been placed by Parliament on the courts under the Human Rights Act.
52. One then asks how a decision of the Home Secretary on the tariff should be classified. Counsel for the Home Secretary submits that the mandatory life sentence is imposed as punishment, which covers the whole of the offender's life subject only to the discretionary power of the Home Secretary to release him. He argues that the setting of a tariff by the Home Secretary is "an administrative procedure" relating to the implementation of the sentence. He contends that it is not the imposition of a sentence for the purposes of article 6(1). This argument sits uneasily, as the ECHR pointed out in Stafford (pp 9-10, para 45), with a description of a mandatory life sentence given by counsel for the Home Secretary in the Court of Appeal in R (Lichniak and Pyrah) v Secretary of State for the Home Department  QB 296. He submitted that the purpose was:
The persuasiveness of the advocacy of counsel for the Home Secretary cannot hide the fragility of the argument presented. Under the existing practice the views of the trial judge and Lord Chief Justice on tariff have no effect on the term to be served. On the other hand, the tariff fixed by the Home Secretary has, subject to article 6(1), definitive legal consequences. It is conclusive as to the minimum period to be served before the question of release in the light of considerations of risk can be considered. For example, when the Home Secretary rejected in the case of the appellant the judicial advice of a tariff of 15 years and fixed a tariff of 20 years he took a dispositive decision as to the level of punishment by way of imprisonment, which is required, and notified the prisoner accordingly. A decision fixing the tariff in an individual case is unquestionably a decision about the level of punishment which is appropriate. Mellifluous words cannot hide this reality.
53. Counsel for the Home Secretary relied on statements in House of Lords decisions over the last 9 years. One must keep in the forefront of one's mind that these cases were decided at a time when article 6(1) was not part of domestic law. Primary legislation entrusted the decision as to the release of mandatory life sentence prisoners to the Home Secretary. This factor shaped the debates. Thus in the last of those cases, Hindley  1 AC 410, the House declined to hear argument on article 6(1) which was due to become part of our law on 2 October 2000. On the other hand, in Doody  1 AC 531 and Venables and Thompson  AC 407 (by a majority decision) it was held that the Home Secretary's decision on the tariff to be applied was closely analogous to an ordinary sentencing exercise. These decisions were important since in Doody they led to fairness requirements being imposed on the Home Secretary's role and in Venables and Thompson to the restraint that the Home Secretary, who had yielded to public clamour about sentencing, must attempt to act like a judge. In both cases the House of Lords concluded that legal consequences flow from the categorisation of the Home Secretary's function as akin to that of a sentencing judge. The decision in R v Secretary of State for the Home Department, Ex p Pierson  AC 539 is an important stepping stone in the evolution of this branch of the law. But it yields no clear ratio decidendi. The decision of the House of Lords in R v Secretary of State for the Home Department, Ex p Stafford  2 AC 38 was again predicated on the existing law and practice. It is, however, noteworthy that the House, at p 51, unanimously endorsed an observation by the Court of Appeal to the following effect  1 WLR 503, 518:
On balance the logical force to be derived from the earlier dicta in House of Lords in favour of the Home Secretary's present position is minimal.
54. In any event, the dicta in the House of Lords have been overtaken by the comprehensive and closely reasoned decision of the ECHR in Stafford, which is reinforced by the decision of the ECHR in Benjamin. Counsel for the Home Secretary submitted that there have been no relevant changes in domestic law and practice which justified the decision in Stafford. He argued that the ECHR misunderstood the effect of a mandatory life sentence. He said that the reasoning in Wynne remains intact. I would reject these arguments. The decision of the ECHR is, if I may say so, a coherent and inescapable one. The ECHR rightly attached importance to the similarities between the position of discretionary life sentences, detention during Her Majesty's Pleasure, and mandatory life sentences. With evident approval the ECHR quoted, at p 11, para 46, from the judgment of Simon Brown LJ in the Court of Appeal  2 WLR 1143, 1161:
The ECHR carefully took account of criticisms of the reasoning in Wynne in the judgments in the Court of Appeal in Anderson. The conclusion that the reasoning in Wynne is no longer supportable was inevitable. Moreover, the effective elimination by legislation in Scotland and Northern Ireland of the role of the executive in mandatory life sentence cases was regarded as important. And the ECHR was rightly influenced by the evolution and strengthening of the principle of separation of powers between the executive and judiciary which underlies article 6(1).
55. I would therefore reject the criticisms directed at the Stafford decision.
56. It follows that section 29 of the 1997 Act and the Home Secretary's practice in setting the tariff is incompatible with article 6(1).
57. Once this position has been reached the question arises what the impact is on the Home Secretary's remaining powers. In the Court of Appeal Simon Brown LJ answered this question as follows  2 WLR 1143, 1154, para 33:
I too regard these conclusions as unavoidable.VIII. The Remedy.
58. The question of what remedy is appropriate must be considered under the framework of the Human Rights Act 1998. So far as material the relevant provisions are the following. Section 6 of the Human Rights Act 1998 states:
(2) Subsection (1) does not apply to an act if -
(a) as the result of one or more provisions of primary legislation, the authority could not have acted differently; or
(b) in the case of one or more provisions of, or made under, primary legislation which cannot be read or given effect in a way which is compatible with the Convention rights, the authority was acting so as to give effect to or enforce those provisions."
Section 1(1) of the 1998 Act defines "the Convention rights" as including article 6 of the European Convention on Human Rights. Section 3(1) of the 1998 Act states:
Section 4 so far as material provides:
(2) If the court is satisfied that the provision is incompatible with a Convention right, it may make a declaration of that incompatibility.
(3) - (5) . . .
(6) A declaration under this section ('a declaration of incompatibility') -
(a) does not affect the validity, continuing operation or enforcement of the provision in respect of which it is given; and
In this way Parliamentary sovereignty was preserved.
59. Counsel for the appellant invited the House to use the interpretative obligation under section 3 to read into section 29 alleged Convention rights, viz to provide that the tariff set by the Home Secretary may not exceed the judicial recommendation. It is impossible to follow this course. It would not be interpretation but interpolation inconsistent with the plain legislative intent to entrust the decision to the Home Secretary, who was intended to be free to follow or reject judicial advice. Section 3(1) is not available where the suggested interpretation is contrary to express statutory words or is by implication necessarily contradicted by the statute: In re S (Minors) (Care Order: Implementation of Care Plan)  2 WLR 720, 731-732, para 41 per Lord Nicholls of Birkenhead. It is therefore impossible to imply the suggested words into the statute or to secure the same result by a process of construction.
60. It follows that there must be a declaration of incompatibility. Counsel for the Home Secretary submitted the following draft declaration to the House:
Counsel for the appellant accepted, on the hypothesis that his argument on interpretation was rejected, that such a declaration would be appropriate. I am content to make a declaration in these terms.
61. For the reasons given by Lord Bingham of Cornhill and Lord Hutton, as well as the reasons I have given, I would make the order which Lord Bingham proposes.
62. There is much public interest in the length of time which a person convicted of murder should serve in prison and in the parts which the Home Secretary and the judiciary should play in deciding on the duration of that period, and the public interest is particularly intense in respect of very heinous murders which give rise to great public anger and concern. It is therefore important to observe that under the system which has operated in the past, whereby the Home Secretary decides when a prisoner sentenced to life imprisonment for murder will be released, the vast majority of convicted murderers are released from prison by the Home Secretary after a period of years and, in many cases, long before the end of their lives. It is only in very exceptional cases that a murderer is so wicked and evil or remains such a danger to the public that there are grounds for deciding that he or she should never be released and should remain in prison until death. Therefore, as Lord Mustill stated in R v Secretary of State for the Home Department, Ex p Doody  1 AC 531, 549H, in the great majority of cases when a judge sentences a person to imprisonment for life, the sentence does not mean what it says. Everyone who has any knowledge of the penal system knows that most convicted murderers will be released from prison before, and perhaps long before, the end of their lives.
63. In considering the issue of the release of prisoners convicted of murder it is also relevant to observe that in enacting the Human Rights Act 1998 Parliament has provided, in effect, that the rights given by the European Convention on Human Rights ("the Convention") are to be incorporated into the domestic law of the United Kingdom. But Parliament has also made it clear in that Act that it remains supreme and that if a statute cannot be read so as to be compatible with the Convention, a court has no power to override or set aside the statute. All that the court may do, pursuant to section 4 of the 1998 Act, is to declare that the statute is incompatible with the Convention. It will then be for Parliament itself to decide whether it will amend the statute so that it will be compatible with the Convention. Therefore if a court declares that an Act is incompatible with the Convention, there is no question of the court being in conflict with Parliament or of seeking or purporting to override the will of Parliament. The court is doing what Parliament has instructed it to do in section 4 of the 1998 Act.
64. The facts in this appeal and the proceedings in the Queen's Bench Divisional Court and the Court of Appeal have been fully set out in the opinion of my noble and learned friend Lord Bingham of Cornhill. Lord Bingham has, in addition, described the system which has evolved whereby the trial judge and the Lord Chief Justice each makes a recommendation to the Home Secretary as to the length of time which a convicted murderer should serve in prison in order to satisfy the requirements of retribution and deterrence (which has been termed "the tariff"), and how the Parole Board then considers whether the prisoner should remain in prison after he has served the tariff period in order to protect the public from risk or whether it should recommend his release. But under the provisions of section 29 of the Crime (Sentences) Act 1997 the power to decide on the length of the tariff and when a prisoner should be released is vested in the Home Secretary. Section 29 provides:
65. Therefore the Home Secretary has power to disregard the recommendations of the trial judge and the Lord Chief Justice and to decide himself on the length of the tariff. This has happened in the present case. The trial judge and the Lord Chief Justice recommended a tariff of 15 years as the period which the appellant should serve to meet the requirements of retribution and deterrence, but the Home Secretary fixed the tariff at 20 years.
66. The appellant challenges the decision of the Home Secretary on the ground that a member of the executive, a government minister, should not decide the length of the period which he should serve in prison for the purposes of retribution and deterrence. He submits that for the Home Secretary, and not a judge or a judicial body, to decide on the length of the tariff period is to violate his rights under Article 6(1) of the Convention which provides:
67. Two matters are clear and are not in dispute. One is that "the determination of . any criminal charge" against a person includes the fixing of the term of imprisonment which he will serve after he has been convicted of the charge: see Engel v Netherlands (1976) 1 EHRR 647, paras 82 and 83. The other is that the Home Secretary, being a member of the executive, is not "an independent and impartial tribunal established by law".
68. The argument of Mr Fitzgerald QC on behalf of the appellant can be summarised as follows:
69. In his reply to Mr Fitzgerald's argument Mr Pannick QC, for the Home Secretary, relied on the express provisions of section 1(1) of the Murder (Abolition of Death Penalty) Act 1965 which provides:
Mr Pannick submitted that the sentence of imprisonment for life made mandatory by section 1(1) of the 1965 Act is the punishment for the murder committed by the defendant, it is the sole sentencing exercise and the setting of the tariff is not a sentencing exercise but an administrative procedure carried out for the implementation of the punishment and therefore does not constitute a breach of Article 6(1).
70. Before turning to consider the judgments of the European Court in which similar arguments have been considered, it is relevant to refer to the speech of Lord Mustill (in which the other members of the House concurred) in R v Secretary of State for the Home Department, Ex p Doody  1 AC 531. In that case, which was heard before the enactment of the Human Rights Act 1998, Lord Mustill recognised the force of the argument that the fixing of the tariff element (which he described as "the penal element") was a sentencing exercise and he stated, at p 557A:
However Lord Mustill declined to hold that the practice whereby the Home Secretary fixed the tariff period was unlawful and, in considering the difference between a mandatory life sentence and a discretionary life sentence for a serious crime (other than murder) such as rape, he stated, at p 559D:
71. In Wynne v United Kingdom (1994) 19 EHRR 333 the European Court considered a complaint by a prisoner that there had been a breach of Article 5(4) of the Convention which provides:
In that case the prisoner had received a mandatory life sentence for murder and after his release on licence he killed another person and was convicted of manslaughter and received a discretionary life sentence. His licence was also revoked so that he was detained in prison pursuant to both life sentences. The Court referred in para 33 of its judgment to its judgment in Thynne, Wilson and Gunnell v United Kingdom (1990) 13 EHRR 666 where it had drawn a clear distinction between a discretionary life sentence which was considered to have a protective purpose and a mandatory life sentence which was viewed as essentially punitive in nature and stated, at paras 35 and 36:
72. However in Stafford v United Kingdom (Application no 46295/99), (28 May 2002) when considering allegations of breaches of Articles 5(1) and 5(4) of the Convention, the Court departed from its judgment in Wynne and held that the mandatory life sentence does not impose imprisonment for life as a punishment and that the fixing of the tariff by the Secretary of State was a sentencing exercise. The Court stated, at para 79 of its judgment:
73. Under section 2(1) of the Human Rights Act 1998 a United Kingdom court is required to take a decision of the European Court into account, but it is not obliged to follow it. Mr Pannick submitted that the House should not follow the judgment of the European Court in Stafford but rather should follow the judgment in Wynne. He submitted that the Court in Stafford had misunderstood the law in England and that there was, in truth, no development whereby the English courts had moved away from the position taken by the House of Lords in Doody and that, notwithstanding that the fixing of the penal element was looking much more like an orthodox sentencing exercise, the English courts still recognised that section 1(1) of the 1965 Act required them to hold that the entire life sentence was the punishment imposed for the crime of murder.
74. I am unable to accept that submission and I consider that the European Court was right to hold in Stafford that the mandatory life sentence pronounced by a judge when a defendant is convicted of murder does not impose imprisonment for life as a punishment and that the fixing of the tariff for punishment and deterrence is a sentencing exercise. I would so hold for the following reasons.
75. First, in considering whether there has been a violation of a convention right the European Court looks at the substance of the action which has been taken and not at its formal categorisation in domestic law, it looks behind appearances at the realities of the situation: see Welch v United Kingdom (1995) 20 EHRR 247, para 34. Viewing the issue in this way it is clear that the reality is that when the Home Secretary fixes the tariff he is deciding the punishment which the murderer should receive for his crime.
76. Secondly, I consider the European Court was right to observe in paragraph 78 of its judgment that, whilst the abolition of the death penalty in 1965 and the giving of power to the Home Secretary to release a convicted murderer sentenced to life imprisonment was a major and progressive reform at the time, the Home Secretary's continuing role in fixing the tariff has become increasingly difficult to reconcile with the concept of the separation of powers between the executive and the judiciary, which is an essential element of a democracy.
77. Thirdly, the correctness of the view that the fixing of the tariff is a sentencing exercise which should be carried out by a judge or judicial tribunal and not an administrative exercise to be carried out by a government minister is shown by the recent legislation in Scotland and Northern Ireland which provides that a judge will fix the tariff element of the sentence where a defendant is convicted of murder. Thus Article 5 of The Life Sentences (Northern Ireland) Order 2001 (SI 2001/2564 (NI 2)) under the heading "Determination of tariffs" provides:
Article 6 of the Order provides that it shall be the duty of the Secretary of State to release a life prisoner on licence as soon as he has served the tariff element of his sentence and the Life Sentence Review Commissioners have directed his release. Part I of the Convention Rights (Compliance) (Scotland) Act 2001 contains similar provisions relating to life sentence prisoners and the long title of the Scottish Act states that it is an Act "to amend certain enactments relating to the sentencing and release of life prisoners which are or may be incompatible with the European Convention on Human Rights". This legislation in Scotland and Northern Ireland shows the manner in which similar changes could be made in England.
78. Therefore I am of opinion that this House should follow the judgment of the European Court in Stafford and hold that the fixing of the tariff by the Home Secretary is a sentencing exercise so that the performance of that function by him constituted a breach of the appellant's rights under Article 6(1) of the Convention. It is relevant to observe that all three members of the Court of Appeal, who delivered their judgments  2 WLR 1143 before the European Court gave judgment in Stafford, would also have held that the fixing of the tariff is a sentencing exercise (see per Lord Woolf CJ at p 1149 G-H, Simon Brown LJ at p 1161 B-C, and Buxton LJ at p 1163 A-B) if they had not considered that they should follow the earlier jurisprudence of the European Court in cases such as Wynne v United Kingdom.
79. The question then arises as to the relief to which the appellant is entitled. Section 3 of the Human Rights Act 1998 provides:
Section 4 provides:
80. It is clear from the wording of section 29 of the Crime (Sentences) Act 1997 that Parliament intended that the decisions as to the length of the tariff period and as to when a prisoner serving a mandatory life sentence should be released from prison were to be taken by the Home Secretary and not by the judiciary or by the Parole Board. The Home Secretary is not obliged to accept the recommendation of the judiciary as to tariff. The Parole Board may recommend to the Home Secretary that a life prisoner should be released on licence, but it cannot make such a recommendation unless the Home Secretary has referred the particular case to it. Moreover even if it makes such a recommendation the Home Secretary is not obliged to accept it; Parliament has given him the power to decide that the prisoner should not be released.
81. Therefore having regard to the clear provisions of section 29, I do not consider that it is possible, pursuant to section 3 of the 1998 Act, to interpret section 29 so as to take away from the Home Secretary the power to decide on the length of the tariff period and to give it to the judiciary. For this House to do so would be for it to engage in the amendment of a statute and not in its interpretation, and section 3 does not permit the House to engage in the amendment of legislation: see per my noble and learned friend Lord Nicholls of Birkenhead in In re S (Minors) (Care Order: Implementation of Care Plan)  2 WLR 720, para 39.
82. Section 6 of the Human Rights Act provides:
Mr Fitzgerald submitted that the House should not make a declaration of incompatibility but rather should make a declaration that in accordance with his duty under section 6(1) of the 1998 Act not to act incompatibly with the appellant's rights under Article 6(1), the Home Secretary must not fix as his tariff a term of years longer than that recommended by the judiciary. I am satisfied that this submission must be rejected because in forming his own view whether to accept the recommendation of the judiciary as to tariff or to fix a longer tariff period and when to refer a case to the Parole Board, the Home Secretary is acting in accordance with the intention of Parliament expressed in section 29. In deciding for himself when to release a prisoner the Home Secretary is, for the purposes of section 6(2)(b) "acting so as to give effect to" section 29.
83. Therefore I consider that the House should make a declaration of incompatibility pursuant to section 4(2) of the 1998 Act in the terms proposed by Lord Bingham.
84. Accordingly for the reasons which I have given, and also for the reasons given by Lord Bingham and Lord Steyn, I would allow the appeal and make the declaration of incompatibility.LORD HOBHOUSE OF WOODBOROUGH My Lords,
85. For the reasons given by my noble and learned friends Lord Bingham of Cornhill and Lord Hutton, I too would make the declaration proposed.
LORD SCOTT OF FOSCOTE
86. I have had the opportunity of reading in advance the opinions of my noble and learned friends Lord Bingham of Cornhill, Lord Steyn and Lord Hutton and for the reasons they give, with which I agree, I would make the order proposed by Lord Bingham.
LORD RODGER OF EARLSFERRY
87. I have had the privilege of reading the speeches of my noble and learned friends Lord Bingham of Cornhill, Lord Steyn and Lord Hutton in draft. For the reasons they give I too would allow the appeal and make the declaration which Lord Bingham proposes.