United Kingdom House of Lords Decisions

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 [2001] EWHC Admin 294

OPINIONS OF THE LORDS OF APPEAL FOR JUDGMENT

IN THE CAUSE

ON 25 NOVEMBER 2002

[2002] UKHL 47

LORD BINGHAM OF CORNHILL

My Lords,

    1. The issue which arises on these appeals is agreed to be

"whether section 1(1) of the Murder (Abolition of Death Penalty) Act 1965 is incompatible with:

(1) article 3 of the European Convention on Human Rights (on the grounds that the mandatory life sentence for murder is arbitrary and/or disproportionate); and/or

(2) article 5 of the European Convention on Human Rights (on the grounds that the mandatory life sentence for murder is arbitrary)."

    2. Section 1(1) of the 1965 Act provides that those convicted of murder committed as adults should be sentenced to imprisonment for life. The thrust of the appellants' case can be shortly summarised: section 1(1) is arbitrary and disproportionate because it requires the same life sentence to be passed on all convicted murderers, whatever the facts of the case or the circumstances of the offender, and irrespective of whether they are thought to present a danger to the public or not. The Court of Appeal rejected the appellants' case and they now challenge that decision: [2002] QB 296; [2001] EWHC Admin 294.

    3. In January 1990 Ms Lichniak, who was 29, lived with a man named Thomas, with whom she had had 4 children, 2 of them very young. On the occasion in question Thomas used her to go with him in his car to a public house to challenge a man with whom he had had a quarrel. She took a large carving knife from the car and while the two men were grappling with each other she fatally stabbed the deceased. Thomas was charged with her but acquitted on the basis that he had not been party to a joint enterprise. She claimed that her responsibility had been diminished at the time of the incident, but the jury rejected this defence. The trial judge (Ognall J) thought this a right decision, but found that she had been in a state of chronic anxiety stress induced in part by the demands of her children and her stormy relationship with Thomas. The judge thought that she had become highly emotional on this occasion, and took the knife and killed on an impulse. The judge reported to the Home Secretary:

"She has no previous convictions, and I do not believe that upon release she is likely to commit offences of a kind making her a public danger".

    4. The judge advised that Ms Lichniak be detained for 10-12 years to meet the requirements of retribution and general deterrence. The Lord Chief Justice suggested a minimum of 10 years, but observed that the risk factor could not be discounted. The Home Secretary in April 1997 set a tariff of 11 years. She was released on licence in July 2001.

    5. In October 1996 Mr Pyrah, who was aged 41, was in a residential area with friends following an evening during which he had drunk heavily. He heard and saw in the street a fracas involving a woman being assaulted by a man. The woman was pushed to the ground. There was medical evidence that he had a particular sensitivity to such a situation because, as a child, he had witnessed his mother being treated violently. Upon seeing the fracas he approached the woman's assailant, punched him and knocked him to the ground, and there kicked his head. This first kick was described as being like a rugby penalty kick. It proved fatal. The trial judge (Smedley J) regarded the incident as a tragic event and when advising the Home Secretary drew attention to Mr Pyrah's good record and young family. He continued:

"In my view, he does not present any danger to the community and there is no likelihood of him re-offending..."

    6. Having seen Mr Pyrah in the dock and the witness box, the judge considered that a prison term well below the norm would be sufficient in this case and recommended a term of 10 years. The Lord Chief Justice agreed that a term significantly below the norm was indicated and was of the opinion that, on the exceptional facts, a term of 8-9 years would meet the requirements of retribution and general deterrence. The Home Secretary, after a delay of nearly 2 years, set a tariff term of 8 years.

    7. The nature and operation of the mandatory life sentence passed on convicted murderers (by which I mean adults convicted of murder in England and Wales) have been fully described in the opinions of the House in R (Anderson) v Secretary of State for the Home Department [2002] UKHL 46, in which the appeal was heard at the same time as the present appeals and in which judgment is also being given at the same time. I shall treat the opinions of the House in that appeal as read into this opinion, to the extent that they are relevant, and I shall take the conclusions of the House in that appeal as my starting point in these.

    8. If the House had concluded that on imposition of a mandatory life sentence for murder the convicted murderer forfeited his liberty to the state for the rest of his days, to remain in custody until (if ever) the Home Secretary concluded that the public interest would be better served by his release than by his continued detention, I would have little doubt that such a sentence would be found to violate articles 3 and 5 of the European Convention on Human Rights ("the convention") as being arbitrary and disproportionate. But Anderson, following earlier authority, makes plain that such is not the effect of the sentence. It is a sentence partly punitive, partly preventative. The punitive element is represented by the tariff term, imposed as punishment for the serious crime which the convicted murderer has committed. The preventative element is represented by the power to continue to detain the convicted murderer in prison unless and until the Parole Board, an independent body, considers it safe to release him, and also by the power to recall to prison a convicted murderer who has been released if it is judged necessary to recall him for the protection of the public. It is a sentence so characterised that the appellants must attack if their appeals are to succeed.

    9. In presenting his argument for the appellants Mr Edward Fitzgerald QC did not, as in Anderson, attack the role of the executive in the imposition and implementation of mandatory life sentences. Since, in the case of both appellants, the Home Secretary had fixed the tariff term within the bracket recommended by the judges, this line of attack could scarcely have advanced the appellants' interests. Instead, Mr Fitzgerald based his argument on the one striking feature common to both their cases: that in each of them the trial judge had concluded that the appellant was not at all likely on release to present any danger to the public. Had the judges enjoyed any discretion it was very unlikely that either would have imposed a life sentence (see Attorney-General's Reference (No 32 of 1996) (R v Whittaker) [1997] 1 Cr App R (S) 261; R v Chapman [2000] 1 Cr App R 77). Thus Mr Fitzgerald argued that, however appropriate the preventative aspects of the life sentence might be in the cases of those judged to be a continuing threat or potential threat to the public (and I did not understand him to criticise the appropriateness of preventative safeguards in such cases), it was arbitrary, disproportionate and excessive to impose those safeguards on those who, like the appellants, were judged to present no danger to the public.

    10. In support of his argument Mr Fitzgerald relied heavily on the decision of the Court of Appeal in R v Offen [2001] 1 WLR 253. That case concerned section 2 of the Crime (Sentences) Act 1997, which required a life sentence to be imposed on a person convicted of a serious offence (as defined in the section) committed after the commencement of the section if, at the time of committing that offence he was 18 or over and had previously been convicted in any part of the United Kingdom of another serious offence "unless the court is of the opinion that there are exceptional circumstances relating to either of the offences or to the offender which justify its not doing so". Parliament did not, when enacting this section, include any definition of "exceptional circumstances", nor did it provide that a life sentence need not be imposed on a defendant who did not appear to present a continuing danger to the public. The section had earlier (R v Buckland [2000] 1 WLR 1262 at 1268) been described as

"founded on an assumption that those who have been convicted of two qualifying serious offences present such a serious and continuing danger to the safety of the public that they should be liable to indefinite incarceration and, if released, should be liable indefinitely to recall".

    11. The central question in R v Offen, decided after the coming into force of the convention, was whether section 2 was compatible with articles 3 and 5 of the convention if it permitted or required the imposition of life sentences on those who did not appear to pose a threat to the safety of the public. The court concluded ([2001] 1 WLR 253 at 277, para 97):

"In our judgment, section 2 of the 1997 Act will not contravene Convention rights if courts apply the section so that it does not result in offenders being sentenced to life imprisonment when they do not constitute a significant risk to the public".

    12. Mr Fitzgerald argued by analogy that convicted murderers should not be sentenced to imprisonment for life unless they appeared to present a danger to the public or if it appeared that they did not. His criticism was focused not on the first, punitive, stage of the sentence but on the preventative safeguards which affect alike those who are dangerous and those who are not. Mr Fitzgerald complained of three features in particular. First, convicted murderers serving the tariff term of their mandatory life sentences cannot know whether they will be released at the end of it or not, and so (unlike prisoners serving determinate sentences) will spend years on end uncertain about their date of release. Secondly, at the end of the tariff term it is for the prisoner to show that it is safe to release him, the onus being on him. Thirdly, even when released the prisoner remains liable to recall for the rest of his days if he is thought to present a danger to the safety of the public. In the cases of those judged to be dangerous or potentially so, these safeguards served a valid penological purpose. But in the cases of those not judged to be dangerous the safeguards serve no valid penological purpose; they are arbitrary, excessive and disproportionate; and so they offend articles 3 and 5 of the convention.

    13. I do not regard this argument as either trivial or misconceived. The sentence of life imprisonment is now the most severe penalty for which the law provides. There is ground for concern if the sentence is imposed on those who, despite the seriousness of their crimes, could be adequately punished by a determinate sentence. Indeed, any mandatory or minimum mandatory sentence arouses concern that it may operate in a disproportionate manner in some cases. It was considerations of this kind which led the Supreme Court of Canada to conclude that a mandatory 7 year minimum sentence for importing drugs was incompatible with section 12 of the Canadian Charter of Rights and Freedoms, which guaranteed that no one should be subjected to cruel and unusual treatment or punishment: R v Smith (Edward Dewey) [1987] 1 SCR 1045. I am, however, persuaded by the arguments advanced by Mr David Pannick QC on behalf of the Home Secretary that Mr Fitzgerald's argument in these appeals should be rejected.

    14. First, sitting judicially, the House is concerned to decide not whether the mandatory life sentence for murder is desirable or necessary but whether it is lawful. Unless the sentence is shown to be unlawful, the appeals must fail. Secondly, the House must note that section 1(1) of the Murder (Abolition of Death Penalty) Act 1965 represents the settled will of Parliament. Criticism of the subsection has been voiced in many expert and authoritative quarters over the years, and there have been numerous occasions on which Parliament could have amended it had it wished, but there has never been a majority of both Houses in favour of amendment. The fact that section 1(1) represents the settled will of a democratic assembly is not a conclusive reason for upholding it, but a degree of deference is due to the judgment of a democratic assembly on how a particular social problem is best tackled: see Brown v Stott [2001] 2 WLR 817 at 834-835, 842; R (Mahmood) v Secretary of State for the Home Department [2001] 1 WLR 840 at 854-855, paragraph 33, and 856, paragraph 38. It may be accepted that the mandatory life penalty for murder has a denunciatory value, expressing society's view of a crime which has long been regarded with peculiar abhorrence.

    15. Thirdly, the mandatory life sentence is imposed only on those who have been proved to have taken a life or lives, as adults, with the intention of doing so or of causing serious physical injury and whose responsibility for their conduct was not found to be diminished. While, therefore, there will be those (of whom those who kill as an act of mercy, or battered wives, or those who overreact to a perceived threat may provide the best examples) who may reasonably be judged very unlikely to resort to violence again, the discussion inevitably takes place with reference to a person who is shown to have resorted to violence once, with fatal consequences to another. This in itself distinguishes this class of case from that to which section 2 of the 1997 Act applied, since it is clear that an offence may fall within the statutory definition of a serious offence and yet fall far short of serious crime, as was the case in R v Offen itself and as was the case in R v Buckland [2000] 1 WLR 1262 before it.

    16. Fourthly, and very importantly, I do not consider that the appellants' complaints are of sufficient gravity to engage articles 3 and 5(1) of the convention. Those articles protect very important rights: article 3 the right not to be subjected to torture or to inhuman or degrading treatment or punishment, article 5(1) the right not to be deprived of liberty save in accordance with a procedure prescribed by law and save in a number of specified cases, of which the first is lawful detention after conviction by a competent court. But the convention is concerned to prevent significant, not minor, breaches. It has been held that mistreatment must attain a certain level of severity to breach article 3: Tyrer v United Kingdom (1978) 2 EHRR 1, para 30; Costello-Roberts v United Kingdom (1993) 19 EHRR 112, paras 30-32. With reference to article 5, in determining the arbitrariness of any detention regard must be had to the legitimacy of the aim of detention and the proportionality of the detention in relation to that aim. So the significance of the appellants' complaints must be viewed in the context of their treatment as a whole. It is relevant to note, first of all, that each of the appellants was sentenced to a tariff term which reflected the judges' views of the bracket within which the term should fall. The appellants themselves may no doubt consider the term too long. The relatives of their respective victims may think it too short. But the appellants were not sentenced to an arbitrary, rule-of-thumb term of imprisonment. Those responsible did their best to match the respective terms to the particular facts and circumstances of each case. I accept that the appellants, while serving their tariff terms, could not be sure of release on their tariff expiry date. But they would probably be aware of the views of the trial judges. If they availed themselves of such courses as were on offer at their respective prisons and did nothing in prison or during home leaves to throw doubt on their ability to eschew acts of violence, they could confidently hope for favourable reports as the tariff expiry date approached. If their sentences were properly administered, reports would be prepared in sufficient time before the expiry date to permit the Parole Board to consider their cases and permit release on the tariff expiry date if the board so recommended. It appears that the procedure worked as it should in Ms Lichniak's case, confirming the trial judge's initial assessment which is strongly reinforced by additional material which was not before him. I doubt whether there is in truth a burden on the prisoner to persuade the Parole Board that it is safe to recommend release, since this is an administrative process requiring the board to consider all the available material and form a judgment. There is, inevitably, a balance to be struck between the interest of the individual and the interest of society, and I do not think it objectionable, in the case of someone who has once taken life with the intent necessary for murder, to prefer the latter in case of doubt. In any event, this is a defensible process: material going to show that a prisoner is not dangerous will be before the board, and if the board is thought to show an exaggerated degree of caution it can be challenged. I would again accept that a convicted murderer would very much prefer not to be subject, on leaving prison, to a life licence carrying the threat of indefinite recall. But a prisoner released, as Ms Lichniak has been, should be in no danger of recall in the absence of any resort to violence, and the 1997 Act provides (in section 32) that the propriety of any recall shall be the subject of independent assessment by the Parole Board.

    17. Fifthly, the Home Secretary is entitled to rely on the absence of any suggestion by the European Court in V v United Kingdom (1999) 30 EHRR 121 that the sentence of detention during Her Majesty's Pleasure, a sentence almost indistinguishable in substance from the mandatory sentence of life imprisonment, was incompatible with articles 3 and 5 of the convention. It is doubtless true, as Mr Fitzgerald said, that an argument based on lack of dangerousness could not be advanced in that case, but I think it noteworthy that the court appears to have had no concern about the sentence as such.

    18. I do not for my part think that the features of which the appellants complain, singly or cumulatively, are arbitrary, disproportionate or excessive to a point which would engage either of the convention articles relied on. I am in broad agreement with the reasons given by the Court of Appeal.

    19. For these reasons and also for the reasons given by my noble and learned friend Lord Hutton I would accordingly answer No to each of the questions posed at the outset of this opinion and would dismiss the appeals.

My Lords,

    20. I have had the advantage of reading in draft the speeches of my noble and learned friends Lord Bingham of Cornhill and Lord Hutton. For the reasons they give, with which I agree, I too would dismiss these appeals.

LORD STEYN

My Lords,

    21. For the reasons given by Lord Bingham of Cornhill and Lord Hutton, I too would dismiss the appeals.

LORD HUTTON

My Lords,

    22. These two appeals were heard at the same time as the appeal in R (Anderson) v Secretary of State for the Home Department, but unlike that appeal they do not relate to the question whether the fixing of the tariff for retribution and deterrence by the Home Secretary violates the right to a fair trial given by Article 6(1) of the European Convention on Human Rights ("the Convention"). The backgrounds to these two cases have been fully set out in the speech of my noble and learned friend Lord Bingham of Cornhill and, as he has explained, the Home Secretary set the tariff in both cases within the bracket recommended by the trial judge and the Lord Chief Justice, so that there would be no benefit to the appellants in attacking the action of the Home Secretary in fixing the tariffs.

    23. It is clear that the Parole Board considered that the appellant Lichniak would not constitute a risk to the public if she were released and on its recommendation the Home Secretary released her on licence relatively soon after she had completed the tariff period for retribution and deterrence which he had fixed at 11 years. The appellant Pyrah is still serving the tariff period of 8 years fixed by the Home Secretary in his case and it appears to be very probable that when he has served that period he will also be released on licence by the Home Secretary on the recommendation of the Parole Board as not constituting a risk to the public. Therefore the issue which arises on their appeals is whether the pronouncement of the sentence of life imprisonment by the trial judges on their convictions for murder as required by section 1(1) of the Murder (Abolition of Death Penalty) Act 1965 constituted a violation of their human rights declared in the Convention with the consequence that the House, pursuant to section 4(2) of the Human Rights Act 1998, should make a declaration that that subsection is incompatible with those Convention rights.

    24. The submission advanced by Mr Fitzgerald QC on behalf of the appellants was that the imposition of life sentences on them constituted a violation of their rights under Article 3 and Article 5 of the Convention. Article 3 provides that no one should be subjected to inhuman or degrading punishment. Article 5(1) provides:

"Everyone has the right to liberty and security of person. No one shall be deprived of his liberty save in the following cases and in accordance with a procedure prescribed by law;

(a)  the lawful detention of a person after conviction by a competent court;"

    25. The jurisprudence of the European Court makes it clear that for punishment to be inhuman or degrading it must attain a particular level of severity: see Costello-Roberts v United Kingdom (1993) 19 EHRR 112 para 30. However the jurisprudence of the European Court also establishes that punishment which is arbitrary and disproportionate can be regarded as inhuman: see Weeks v United Kingdom (1987) 10 EHRR 293 para 47. It also follows from the requirement in Article 5 that no one shall be deprived of his liberty save "in accordance with a procedure prescribed by law" that the infliction of arbitrary and disproportionate punishment will constitute a breach of that article: see Engel v Netherlands (1976) 1 EHRR 647, para 58. Therefore the argument advanced by Mr Fitzgerald that the imposition of life sentences on the appellants constituted breaches of Article 3 and 5 was concentrated on establishing that such sentences were arbitrary and disproportionate punishment in their cases.

    26. The main thrust of the argument was based on the fact that in each case the trial judge considered that there was no risk of the appellant being a danger to the public in the future, the trial judge in the Lichniak case reporting to the Home Secretary:

"She has no previous convictions, and I do not believe that upon release she is likely to commit offences of a kind making her a public danger",

and the trial judge reporting in the Pyrah case:

"In my view, he does not present any danger to the community and there is no likelihood of him re-offending ….".

The judgment of the European Court in Stafford v United Kingdom (Application no 46295/99) (28 May 2002) has established, as recognised by the opinions of the House in Anderson, that a mandatory sentence of life imprisonment consists at the outset of a period of years, the tariff period, which is served for retribution and deterrence, and after this period has expired there may be a second period during which the prisoner continues to be held in prison if his or her release would constitute a danger to the public. But in the present cases the trial judges considered that there would be no risk to the public in releasing the appellants at the end of the respective tariff periods. Therefore Mr Fitzgerald submitted that there was no necessity for the sentences to impose a further period of imprisonment for the protection of the public and accordingly the imposition of life sentences was arbitrary and disproportionate.

    27. I am unable to accept this argument because I consider that, as submitted by Mr Pannick QC on behalf of the Home Secretary, the European Court in V v United Kingdom (1999) 30 EHRR 121 has recognised that an indeterminate sentence, in its operation in practice, does not constitute an arbitrary and disproportionate punishment. The judgment of the Court in that case related to the sentence of detention during Her Majesty's pleasure imposed on a child convicted of the murder of a younger child. In considering the complaint that the sentence of detention during Her Majesty's pleasure was a violation of V's rights under Article 3 the Court stated, at para 98:

"98.  The Court recalls that States have a duty under the Convention to take measures for the protection of the public from violent crime. It does not consider that the punitive element inherent in the tariff approach itself gives rise to a breach of Article 3, or that the Convention prohibits States from subjecting a child or young person convicted of a serious crime to an indeterminate sentence allowing for the offender's continued detention or recall to detention following release where necessary for the protection of the public."

    28. In considering the complaint that the punishment was arbitrary and in breach of Article 5(1) the Commission stated, at paras 126 and 127:

"126.  The Commission notes that there is no dispute that the sentence imposed on the applicant complied, substantively and procedurally, with domestic law. It observes that the applicant's claims that it nonetheless discloses arbitrariness is based essentially on the non-discretionary nature of the sentence, which is fixed by law in respect of the offence of murder. The Commission does not consider that fixed term sentences in respect of particular offences can per se be regarded as incompatible with the requirements of Article 5, such being a common feature in many Contracting States. Further, even assuming that it could be held that Article 5(1)(a) required sentences of detention for convicted children to be geared exclusively to individual considerations of rehabilitation and prevention, the Commission is not satisfied that in this case there is insufficient relationship between the purpose of the detention and the type of sentence imposed. Detention during Her Majesty's pleasure is an indeterminate sentence, the decisive ground for continued detention, after the expiry of the tariff, being dangerousness to society. This, as the Government submits, depends on an examination of the individual circumstances of the particular child offender.

127.  The Commission concludes that the sentence imposed on the applicant does not disclose any unlawfulness or arbitrariness contrary to Article 5(1) of the Convention."

The Court stated, at paras 104 and 105:

"104.  The Court observes that the applicant was detained following conviction by a competent court: in other words, his detention falls within the scope of Article 5(1)(a) of the Convention. There can be no question but that the sentence of detention during Her Majesty's pleasure is lawful under English law and was imposed in accordance with a procedure prescribed by law. Moreover, it cannot be said that the applicant's detention is not in conformity with the purposes of the deprivation of liberty permitted by Article 5(1)(a), so as to be arbitrary.

105.  It follows that there has been no violation of Article 5(1) of the Convention in the present case."

    29. Therefore the Commission and the Court have recognised that when a child or young person is convicted of murder and sentenced to detention during Her Majesty's pleasure the convicted person is not detained indefinitely, but rather is only detained for the tariff period sufficient to satisfy the requirements of retribution and deterrence in the circumstances of the particular case, and that he will only continue to be detained after the expiration of the tariff period if it is necessary to do so in order to protect the public. Such a sentence is very similar to a mandatory sentence of life imprisonment imposed for murder in that the time spent in detention will consist of a period for punishment and on the expiration of that period the prisoner will be released unless it is necessary to continue to detain him in order to protect the public. Therefore I consider that the reasoning of the European Commission and the European Court in V v United Kingdom applies also to the cases of Lichniak and Pyrah and leads to the conclusion that the life sentences imposed on them were neither arbitrary nor disproportionate.

    30. Although the appellant Lichniak was released on licence after she had served the tariff period and it appears very probable that the appellant Pyrah will be released on licence when he has served the tariff period so that the point is not of direct relevance to their cases, it is appropriate to observe that the European Court has held in Stafford v United Kingdom that after the expiration of the tariff period the decision whether to continue the detention of a mandatory life prisoner in order to protect the public from risk must be taken by a judicial tribunal, the Court stating, in para 87 of its judgment:

"After the expiry of the tariff, continued detention depends on elements of dangerousness and risk associated with the objectives of the original sentence of murder. These elements may change with the course of time, and thus new issues of lawfulness arise requiring determination by a body satisfying the requirements of Article 5 (4). It can no longer be maintained that the original trial and appeal proceedings satisfied, once and for all, issues of compatibility of subsequent detention of mandatory life prisoners with the provisions of Article 5 (1) of the Convention."

    31. By a statement made on 17 October 2002 consequent on the Stafford judgment the Home Secretary has said that, as an interim measure, where the Parole Board favours the release of a mandatory life sentence prisoner who has served the tariff period he will normally accept such a recommendation: see Hansard (HC Debates), cols 915W - 916W, written answer. However it appears from the recent judgment of the European Court delivered on 26 September 2002 in Benjamin and Wilson v United Kingdom (Application no. 28212/95) that in order to comply with the requirements of Article 5(4) the decision to release after the mandatory life sentence prisoner has served the tariff period must be taken by an independent body with judicial procedures and safeguards rather than by the Home Secretary even if, in practice, he accepts the recommendation of the Parole Board to release.

    32. Although the opinion of the European Commission and the judgment of the European Court in V v United Kingdom appear to present a considerable obstacle to his submissions, Mr Fitzgerald advanced three particular reasons in support of his argument that the sentences of life imprisonment in these two cases were arbitrary. He submitted that when a life sentence is imposed on a convicted murderer the prisoner will not know whether he will be released at the end of the tariff period or whether he will continue to be imprisoned because the view is taken that his release would constitute a danger to the public. Furthermore Mr Fitzgerald submitted that at the end of the tariff period the onus will rest on the prisoner to satisfy the Parole Board that he would not be a danger to the public if he were released. Therefore he argued that it was arbitrary in cases such as those of the two appellants to sentence the prisoner to an indefinite sentence which might not end at the termination of the tariff period where (as was the position in these two cases) the trial judge, with his detailed knowledge of the facts of the case, considered that the prisoner would not be a risk to the public in the future.

    33. Mr Fitzgerald also submitted that the law should give the convicted person the opportunity at his trial to satisfy the trial judge that he would not be a risk in the future and to obtain a formal ruling from him to this effect which would determine that he should be released at the end of the tariff period for retribution and deterrence. He argued that to impose a life sentence on a prisoner who the judge considered would not be a risk to the public in the future was to impose an arbitrary punishment.

    34. In support of this submission Mr Fitzgerald relied on the judgment of the Court of Appeal in R v Offen [2001] 1 WLR 253 where consideration was given to section 2 of the Crime (Sentences) Act 1997 which required a court to impose a life sentence on a person convicted of a serious offence (as defined in section 2(5)) when he had previously been convicted of another serious offence, unless the court considered that there were exceptional circumstances related to either of the offences or to the offender which justified it in not doing so. The Court of Appeal held that there might well be a breach of Article 3 and Article 5 of the Convention if an offender was sentenced to life imprisonment under section 2 where he did not constitute a significant risk to the public, as a life sentence in such circumstances might well be arbitrary and disproportionate: see pages 276 D-F and 277 A-B.

    35. I am unable to accept the submissions advanced by Mr Fitzgerald. In my opinion it is not arbitrary to postpone to the end of the tariff period the decision whether a person who has committed a murder would be a danger to the public if released, rather than decide this at the time of his trial. It will not infrequently be the case that the behaviour of a prisoner during the time he is serving the tariff period, and his behaviour on home leave, will give clear indications whether or not he would be a danger to others if released on licence. Moreover I think it probable that the appellant Lichniak would have been reasonably confident that she would be released after the tariff period and that the appellant Pyrah can be reasonably confident of his release after he has served the tariff period. There is bound to be some uncertainty in respect of some prisoners as to whether they will be released at the end of the tariff period, and the degree of uncertainty will clearly vary depending on the circumstances of the murder and the background and personality of the prisoner, but I do not consider that such uncertainty can constitute treatment of such severity as to come within the ambit of inhuman punishment forbidden by Article 3 or can make the sentence of life imprisonment an arbitrary one.

    36. I further consider that the judgment of the Court of Appeal in R v Offen does not assist the appellants. The appellants are persons who have killed another person with intent to kill or cause really serious harm. The appellant Lichniak stabbed her victim with a large carving knife and the appellant Pyrah kicked the head of his victim with a kick like a rugby penalty kick. The nature of a murder, as in these two cases, is often such as to justify careful consideration being given, at the end of the tariff period, to the question whether it would be safe to release the prisoner. The judgment in R v Offen is distinguishable because the Court of Appeal were considering cases much less serious than murder, and in the case of Offen itself the offender had committed two robberies with a toy gun.

    37. Mr Fitzgerald advanced a further submission that the imposition of a life sentence was arbitrary because, if it were decided that a prisoner presented no risk to the public and he were released on licence, he was liable to recall to prison for the remainder of his life. I do not consider that there is substance in this submission. Section 32 of the 1997 Act gives protection against the arbitrary exercise of the power by providing that a prisoner who is recalled can make representations which are considered by the Parole Board, and if the Board directs or recommends his release the Home Secretary must give effect to that direction or recommendation. Moreover, as the European Commission stated in para 118 of its opinion in V v United Kingdom:

"The Commission does not find that the fact that release is subject to potential recall, which would be subject to similar procedural guarantees, discloses any element of inhuman or degrading treatment or punishment."

    38. Accordingly for the reasons which I have given, and also for the reasons given by Lord Bingham, I would dismiss these appeals.

    39. For the reasons given by my noble and learned friends Lord Bingham of Cornhill and Lord Hutton, I too would dismiss these appeals.

LORD SCOTT OF FOSCOTE

My Lords,

    40. For the reasons given by my noble and learned friends Lord Bingham of Cornhill and Lord Hutton, I too would dismiss the appeals.

LORD RODGER OF EARLSFERRY

My Lords,