Practice and Procedure


PUBLISHED July 10, 2003

The Secretary of State for the Home Department could not be construed as "a court" within the meaning in para.2(1) sch.2 Criminal Appeal Act 1968 and therefore had had power to set a higher tariff than had originally been imposed following a conviction for murder after a re-trial. The secretary of state had not erred in taking into account the decision in R v Secretary of State for the Home Department, ex parte Anderson (2003) 1 AC 837 and forthcoming legislation when refusing to review the tariff of two life prisoners.Applications for judicial review of the decisions of the Secretary of State for the Home Department ('S') to refuse to review the tariffs of the claimants ('C', 'R' and 'H') who were all serving mandatory life sentences for murder. C was convicted in 1997 and S subsequently set a tariff of 11 years' imprisonment. Following an unsuccessful appeal against conviction, a tariff of 15 years' imprisonment was set. On the present conjoined applications C argued that: (i) following R v Secretary of State for the Home Department, ex parte Anderson (2002) UKHL 46 the imposition by S of a tariff under s.29 Crime (Sentences) Act 1997 was indistinguishable from the imposition of a sentence by a court; (ii) therefore para.2 sch.2 Criminal Appeal Act 1968 applied where such a tariff had been set; and (iii) accordingly, S had no power to set a higher tariff following conviction on a re-trial than had been imposed following the original trial. In the cases of R and H tariffs of nine years' and ten to twelve years' imprisonment, respectively, had been set. Both had sought reviews of their tariffs under s.29 of the 1997 Act on the basis of their exceptional conduct, which S had refused. R and H argued that: (a) the basis of S's decision had been that it had been further decided in Anderson (supra) that the fixing of a tariff by the executive was incompatible with Art.6(1) of the European Convention on Human Rights; however (b) there was a distinction between setting a tariff and re-setting it on a review; (c) in any event, the legislation which might remove the effect of s.29 had not been enacted and in those circumstances the decision of S to take that future legislation into account when refusing to exercise his discretion was erroneous; and (d) S had unlawfully fettered his discretion.HELD: (1) Paragraph 2(1) of sch.2 to the 1968 Act referred to "the court" when dealing with sentences. It was impossible to construe those words as applying to S when applying a tariff. Accordingly, that provision could not apply where S had set a tariff. (2) Further, that conclusion did not prejudice C because he was not due for release until 2011. (3) As regards R and H, there was no distinction between setting or re-setting a tariff. (4) Following Anderson (supra), S had no discretion to review any tariff under s.29 of the 1997 Act without breaching Art.6(1) of the Convention. (5) It was inconceivable that if the new legislation was enacted as it had been proposed that the court would not be able to take into account exceptional progress in prison and S had expressly confirmed that that was the case. (6) Accordingly, the court was entirely unpersuaded that S had taken an improper approach in adopting a policy of declining to review tariffs in the light of the forthcoming legislation. (7) S had therefore clearly not fettered his discretion and there were no proper grounds of legal challenge.Applications refused.