CASE OF STAFFORD v. THE UNITED KINGDOM
Violation of Art. 5-1;Violation of Art. 5-4;Pecuniary damage - financial award;Non-pecuniary damage - financial award;Costs and expenses award
Luzius Wildhaber;Nicolas Bratza;Paul Mahoney;Simon Brown
10. In January 1967 the applicant was convicted of murder. He was released on licence in April 1979. His licence required him to cooperate with his probation officer and to remain in the United Kingdom unless his probation officer agreed to his travelling abroad. 11. Soon after release the applicant left the United Kingdom in breach of his licence and went to live in South Africa. In September 1980 his licence was revoked and thereafter he was continuously “unlawfully at large”. 12. In April 1989 the applicant was arrested in the United Kingdom, having returned from South Africa in possession of a false passport. Possession of a false passport led to a fine. He remained in custody, however, due to the revocation of the life licence. He made written representations to the Parole Board against the 1980 decision to recall him to prison but the Board rejected those representations and recommended a further review in July 1990. 13. In November 1990 the Board recommended the applicant's release subject to a satisfactory release plan. This recommendation was accepted by the Secretary of State. In March 1991 the applicant was released on life licence. 14. In July 1993 the applicant was arrested and remanded in custody on counterfeiting charges. On 19 July 1994 he was convicted on two counts of conspiracy to forge travellers' cheques and passports and sentenced to six years' imprisonment. 15. In September 1994 the Parole Board recommended revocation of the applicant's life licence and further review at the parole eligibility date of his six-year sentence. The Secretary of State accepted the Board's recommendation, revoking the licence under section 39(1) of the Criminal Justice Act 1991 (“the 1991 Act”). The applicant made written representations, but the Board maintained its decision. 16. In 1996 the Parole Board conducted a formal review of the applicant's case and recommended his release on life licence. It said: “This case is exceptional in that it is a recall one and he has previously made a successful transition from prison to the community without violent reoffending ... It is felt that the risk of serious reoffending in the future is very low. Recent reports of progress in prison have been favourable and no untoward incidents have been reported; positive links with his family have been maintained. In view of these facts, it is now felt that he could be released safely and appropriately into the community. The Panel took the view after lengthy consideration that nothing further would be gained by a period in open conditions, and the successful return to the community, bearing in mind all risk factors, would be best facilitated by returning to his family directly.” 17. By letter of 27 February 1997 to the applicant, the Secretary of State rejected the Board's recommendation in the following terms: “... [The Secretary of State] notes with concern the circumstances surrounding your two recalls to prison ... Both these occasions represent a serious and grave breach of the trust placed in you as a life licensee and demonstrate a lack of regard for the requirements of supervision. Against this background the Secretary of State is not yet satisfied that if released on licence for a third time, you would fully comply with the conditions of your life licence. He notes that you have spent the past 3 1/2 years in closed prison conditions and therefore have not on this occasion followed the normal progression of life sentence prisoners. This involves a period in open conditions, giving you the opportunity to demonstrate sustained good behaviour and responsibility in a less secure environment; and to experience the full range of resettlement activities in preparation for release. For these reasons, the Secretary of State considers that you should be transferred to an open prison for a final period of testing and preparation. Your next formal review by the Parole Board will begin 2 years after your arrival there.” 18. On 10 June 1997 the applicant was granted leave to seek judicial review of the Secretary of State's decisions to reject the Board's recommendation for immediate release and to require him to spend a further two years in open conditions before the next review. 19. On 1 July 1997, but for the revocation of his life licence, the applicant would have been released from prison on the expiry of the sentence for fraud, pursuant to provisions whereby prisoners serving determinate sentences of more than four years were released after serving two-thirds of their sentence (section 33 of the 1991 Act). 20. The Secretary of State acknowledged in the proceedings that there was not a significant risk that the applicant would commit further violent offences, but asserted that he could lawfully detain a post-tariff mandatory life prisoner solely because there was a risk that he might commit further non-violent imprisonable offences. 21. On 5 September 1997 Mr Justice Collins quashed the Secretary of State's decision of February 1997, holding that it was beyond his power to detain a post-tariff life prisoner other than on the basis that there existed an unacceptable risk that he might commit a future offence involving a risk to the life or limb of the public. 22. On 26 November 1997 the Court of Appeal allowed the Secretary of State's appeal, holding that section 35(2) of the 1991 Act conferred a broad discretion on the Secretary of State to direct the release of mandatory life prisoners and his decision not to release the applicant was in accordance with the previously stated policy whereby the risk of reoffending was taken into account, such risk not having been expressed as being limited to offences of a violent or sexual nature. Lord Bingham CJ stated, however: “The applicant is now serving the equivalent of a determinate sentence of about five years, albeit in open conditions. This term has not been imposed on him by way of punishment, because he has already served the punitive terms which his previous, very serious, offences have been thought to merit. The term has not been imposed because he is thought to present danger to the public, because that is not suggested. It is not submitted that the term imposed bears any relation to the gravity of any future imprisonable offence which the applicant might commit or that such term is needed to ensure future compliance with the terms of his life licence. While a powerful case can be made for testing in open conditions a mandatory life prisoner who has been institutionalised by long years of incarceration in closed conditions, such a case loses much of its force in the case of a man who has, since serving the punitive term of his life sentence, demonstrated his capacity for living an independent and apparently lawful life by doing so for a number of years. The imposition of what is in effect a substantial term of imprisonment by the exercise of executive discretion, without trial, lies uneasily with ordinary concepts of the rule of law. I hope that the Secretary of State may, even now, think it right to give further consideration to the case.” 23. Lord Justice Buxton, concurring with the latter remarks, added: “The category of imprisonable offence is extremely wide, and can encompass many matters that are wholly unrelated, both in nature and seriousness, to the reasons for the life sentence prisoner being within the power of the State in the first place. I also find it uncomfortable that the criterion should be used as the justification for continued imprisonment. We were told in argument that the test of imprisonable offence, rather than of fault of a purely moral or social nature, was used because faults of the latter nature would be unconnected with the original reasons for the subject's incarceration; but in reality this lack of connection exists, or at least is strongly threatened, by the imprisonable offence criterion also. ...” 24. On 16 December 1997 the applicant was moved to open conditions. 25. By letter dated 21 January 1998, the Secretary of State decided that the applicant should spend only six months in open conditions before his next review. 26. On 23 July 1998 the House of Lords dismissed the applicant's appeal against the Court of Appeal's decision. In his speech, with which the rest of the judges agreed, Lord Steyn held that section 35(2) of the 1991 Act conferred a wide administrative discretion on the Secretary of State to decide upon the release on licence of mandatory life prisoners and that there was no fundamental common-law principle of retributive proportionality which restrained him from detaining a mandatory life prisoner by reference to a risk that he may in future commit a serious but non-violent offence. He expressly repeated Lord Bingham's concern that the imposition of a substantial term of imprisonment by exercise of administrative discretion was hard to reconcile with ordinary concepts of the rule of law. 27. On 22 December 1998 the applicant was released on licence by the Secretary of State. 28. Murder carries a mandatory sentence of life imprisonment under the Murder (Abolition of Death Penalty) Act 1965. A person convicted of other serious offences (such as manslaughter or rape) may also be sentenced to life imprisonment at the discretion of the trial judge where there are exceptional circumstances which demonstrate that the offender is a danger to the public and it is not possible to say when that danger will subside. Where an offender is under 18 years of age when the offence of murder is committed, he or she is sentenced to detention during Her Majesty's pleasure (section 53(1) of the Children and Young Persons Act 1933). 29. As at 31 December 2001 there were 3,171 male and 114 female mandatory life prisoners, 228 men and 11 women serving a sentence of detention during Her Majesty's pleasure and 1,424 male and 25 female discretionary life prisoners. 30. Over the years, the Secretary of State has adopted a “tariff” policy in exercising his discretion whether to release offenders sentenced to life imprisonment. This was first publicly announced in Parliament by Mr Leon Brittan on 30 November 1983 (Hansard (House of Commons Debates) cols. 505-07). In essence, the tariff approach involves breaking down the life sentence into component parts, namely retribution, deterrence and protection of the public. The “tariff” represents the minimum period which the prisoner will have to serve to satisfy the requirements of retribution and deterrence. The Home Secretary will not refer the case to the Parole Board until three years before the expiry of the tariff period, and will not exercise his discretion to release on licence until after the tariff period has been completed (per Lord Browne-Wilkinson, R. v. Secretary of State for the Home Department, ex parte V. and T. [1998] Appeal Cases 407, at pp. 492G-493A). 31. According to section 34 of the Criminal Justice Act 1991 (“the 1991 Act”), the tariff of a discretionary life prisoner is fixed in open court by the trial judge after conviction. After the tariff has expired, the prisoner may require the Secretary of State to refer his case to the Parole Board, which has the power to order his release if it is satisfied that it is no longer necessary to detain him for the protection of the public. 32. A different regime, however, applied under the 1991 Act to persons serving a mandatory sentence of life imprisonment (now replaced by the Crime (Sentences) Act 1997 (“the 1997 Act”), sections 28-34). In relation to these prisoners, the Secretary of State decides the length of the tariff. The view of the trial judge is made known to the prisoner after his trial, as is the opinion of the Lord Chief Justice. The prisoner is afforded the opportunity to make representations to the Secretary of State, who then proceeds to fix the tariff and is entitled to depart from the judicial view (R. v. Secretary of State for the Home Department, ex parte Doody [1994] 1 Appeal Cases 531; and see the Home Secretary, Mr Michael Howard's, policy statement to Parliament, 27 July 1993, Hansard (House of Commons Debates) cols. 861-64). 33. In the judicial review proceedings in Ex parte V. and T. (cited above), the House of Lords gave consideration, inter alia, to the nature of the tariff-fixing exercise. 34. Lord Steyn held: “The starting-point must to be inquire into the nature of the power to fix a tariff which the Home Secretary exercises. Writing on behalf of the Home Secretary the Home Office explained that: 'The Home Secretary must ensure that, at all times, he acts with the same dispassionate fairness as a sentencing judge.' The comparison between the position of the Home Secretary, when he fixes a tariff representing the punitive element of the sentence, and the position of the sentencing judge is correct. In fixing a tariff the Home Secretary is carrying out, contrary to the constitutional principle of the separation of powers between the executive and the judiciary, a classic judicial function. Parliament entrusted the underlying statutory power, which entailed a discretion to adopt a policy and fix a tariff, to the Home Secretary. But the power to fix a tariff is nevertheless equivalent to a judge's sentencing power.” 35. Lord Hope held: “But the imposition of a tariff, which is intended to fix the minimum period in custody is, in itself, the imposition of a form of punishment. This has, as Lord Mustill observed in R. v. Secretary of State for the Home Department, ex parte Doody at p. 557A-B, the characteristics of an orthodox judicial exercise, which is directed to the circumstances of the offence and those of the offender and to what, having regard to the requirements of retribution and deterrence, is the appropriate minimum period to be spent in custody. The judge, when advising the Secretary of State about the tariff, must and does confine his attention to these matters ... If the Secretary of State wishes to fix a tariff for the case – in order to replace the views of the judiciary with a view of his own about the length of the minimum period – he must be careful to abide by the same rules ...” 36. In Ex parte Pierson [1998] Appeal Cases 539, Lord Steyn stated, in a case concerning mandatory life prisoners: “In public law the emphasis should be on substance rather than form. The case should not be decided on a semantic quibble about whether the Home Secretary's function is strictly 'a sentencing exercise'. The undeniable fact is that in fixing a tariff in the individual case the Home Secretary is making a decision about the punishment of the convicted man. In any event, a majority holding in Ex Parte V. concludes the matter ... This point is therefore settled by the binding authority of a decision of the House.” 37. A whole life tariff may be set in appropriate cases. In R. v. the Home Secretary, ex parte Hindley [2001] 1 Appeal Cases, where a provisional tariff of thirty years had been replaced by a whole life tariff, Lord Steyn held that “life-long incarceration for the purposes of punishment is competent where the crime or crimes are sufficiently heinous”. The decision of the Secretary of State to apply a whole life tariff in her case was found in the circumstances to be lawful. He had been entitled to revise his view of the tariff, which had initially been based on incomplete knowledge of her role in the three murders upon which she had faced trial and in ignorance of her involvement in two other murders, matters which came to light later. According to information provided by the Government, there were twenty-two mandatory life prisoners with whole life tariffs at 31 December 2001. 38. At the relevant time, the Criminal Justice Act 1991 provided in section 35(2): “If recommended to do so by the [Parole] Board, the Secretary of State may, after consultation with the Lord Chief Justice together with the trial judge if available, release on licence a life prisoner who is not a discretionary life prisoner.” This is in contrast to the position for other life prisoners, where the Parole Board now has the power of decision – pursuant to the provisions of the 1991 Act for discretionary life prisoners and pursuant to the 1997 Act for detainees during Her Majesty's pleasure. Where, however, a mandatory life prisoner was recalled to prison, the Parole Board did have a power to direct the Secretary of State to release the prisoner immediately (section 39(5) of the 1991 Act, now section 32(5) of the 1997 Act). 39. On 27 July 1993 the Secretary of State made a statement in Parliament explaining his practice in relation to mandatory life prisoners. The statement emphasised that before any mandatory life prisoner is released on life licence, the Secretary of State “will consider not only (a) whether the period served by the prisoner is adequate to satisfy the requirements of retribution and deterrence and (b) whether it is safe to release the prisoner, but also (c) the public acceptability of early release. This means that [he] will only exercise [his] discretion to release if [he is] satisfied that to do so will not threaten the maintenance of public confidence in the system of criminal justice.” 40. In determining the principles of fairness that apply to the procedures governing the review of mandatory life sentences, the English courts have recognised that the mandatory sentence is, like the discretionary sentence, composed of both a punitive period (“the tariff”) and a security period. As regards the latter, detention is linked to the assessment of the prisoner's risk to the public following the expiry of the tariff (see, for example, R. v. Parole Board, ex parte Bradley (Divisional Court) [1991] 1 Weekly Law Reports 135, and R. v. Parole Board, ex parte Wilson (Court of Appeal) [1992] 2 All England Law Reports 576). 41. In R. v. Secretary of State for the Home Department, ex parte Doody ([1993] 3 All England Law Reports 92), the House of Lords observed that, in contrast with the position as regards discretionary life sentences, the theory and practice in respect of mandatory life sentences were out of tune. In his speech, with which the other judges agreed, Lord Mustill explained that the policy whereby murder was treated as an offence so grave that the proper penal element of the sentence was detention for life was inconsistent with the practice adopted by successive Secretaries of State that a mandatory life sentence included a “tariff” period to reflect the requirements of retribution and deterrence. He added: “The discretionary and mandatory life sentences, having in the past grown apart, may now be converging. Nevertheless, on the statutory framework, the underlying theory and current practice, there remains a substantial gap between them. It may be – I express no opinion – that the time is approaching when the effect of the two types of sentence should be further assimilated. But this is a task of Parliament, and I think it quite impossible for the courts to introduce a fundamental change in the relationship between the convicted murderer and the State, through the medium of judicial review.” 42. On 10 November 1997 the Secretary of State made the following parliamentary statement, inter alia: “I take the opportunity to confirm that my approach on the release of adults convicted of murder once tariff has expired will reflect the policy set out in the answer given on 27 July 1993. In particular, the release of such a person will continue to depend not only on the expiry of tariff and on my being satisfied that the level of risk of his committing further imprisonable offences presented by his release is acceptably low, but also on the need to maintain public confidence in the system of criminal justice. The position of a prisoner subject to a mandatory life sentence continues to be distinct from that of a prisoner serving a discretionary life sentence, a decision on whose final release is a matter for the Parole Board alone.” 43. It was noted by the Court of Appeal in R. (Lichniak and Pyrah) v. Secretary of State for the Home Department [2001] 3 Weekly Law Reports (judgment of 2 May 2001) that the criterion of public acceptability of release identified by the Home Secretary (point (c) in paragraph 39 above) had never been a determining factor, although the current Home Secretary followed the policy of his predecessors. 44. On 2 October 2000 the Human Rights Act 1998 came into force, permitting the provisions of the Convention to be relied on in domestic proceedings. 45. In Lichniak and Pyrah (cited above), the two applicants challenged the imposition on them for murder of a mandatory life sentence, arguing that this was disproportionate and arbitrary and contrary to Articles 3 and 5 of the Convention. In dismissing their appeals, the Court of Appeal found that the mandatory sentence of life imprisonment was in reality an indeterminate sentence, rarely involving imprisonment for life, and as such could not be labelled inhuman and degrading. Nor was it arbitrary as in each case the sentence was individualised from the moment it was imposed. The purpose of the mandatory life sentence was, according to the Government's counsel, “to punish the offender by subjecting him to an indeterminate sentence under which he will only be released when he has served the tariff part of his sentence, and when it is considered safe to release him ... That is not merely the effect of the sentence, it is the sentence”. Lord Justice Kennedy also cited in his judgment the conclusions of the Committee on the Penalty for Homicide, chaired by Lord Lane, issued in 1993: 46. In R. (Anderson and Taylor) v. Secretary of State for the Home Department, two prisoners who had been convicted of murder complained that the Home Secretary had fixed a tariff superior to that recommended by the judiciary – twenty years instead of fifteen years and thirty years instead of sixteen years. They relied on Article 6 § 1 of the Convention, alleging that it was incompatible for the executive to carry out what was in fact a sentencing exercise. The Divisional Court dismissed their claims. The Court of Appeal rejected their appeals on 13 November 2001. In doing so, the appellate judges considered the nature of the tariff-fixing exercise for mandatory life prisoners and the significance of Strasbourg case-law. Lord Justice Simon Brown held, inter alia: “... I accept of course that the mandatory life sentence is unique. But not all the offences for which it is imposed can be regarded as uniquely grave. Rather the spectrum is a wide one with multiple sadistic murders at one end and mercy killings at the other. Lifelong punitive detention will be appropriate only exceptionally. As for 'broader considerations of a public character', it is difficult to understand quite what these are. Regard must not be had to 'public clamour' – see [V.]. There is, of course, 'the need to maintain public confidence in the system of criminal justice' (see the Home Secretary's statement to Parliament on 10 November 1997). To my mind, however, this can and should be catered for in the fixing of the tariff. The retributive element of the tariff should reflect the public's moral outrage at an offence. Surely the maintenance of public confidence in the system cannot require longer incarceration than that which properly reflects society's entitlement to vengeance. Sometimes, I recognise that will require a whole life tariff. But why should not the judges determine that? ... [A]s to retrospectively increasing the tariff ... [t]he same problem could presumably arise in a discretionary life sentence case. In truth, however, it begs rather than answers the question whether the initial fixing of the tariff is properly to be regarded as an exercise in sentencing. In short I find none of Mr Pannick's arguments convincing. Neither singly nor cumulatively do they seem to me to provide a principled basis for treating tariff-fixing in mandatory life cases differently from the similar exercise required for discretionary life prisoners and Her Majesty's pleasure detainees. In all three cases the exercise is in substance the fixing of a sentence, determining the length of the first stage of an indeterminate sentence – that part of it which (subject only to the need for continuing review in Her Majesty's pleasure cases) must be served in custody before any question of release can arise ...” 47. Although he was of the view that the existing mandatory life sentence regime breached Article 6 § 1 and Article 5 § 4, he, and the other two judges, considered that the Strasbourg case-law (in particular, Wynne v. the United Kingdom, judgment of 18 July 1994, Series A no. 294-A) had to be regarded as determinative of the Convention issues in the case. He noted that the European Court of Human Rights was about to re-examine the position in Stafford and, although considering that the final decision should be the Court's, stated that he would be surprised if the present regime for implementing mandatory life sentences survived that re-examination. 48. In Scotland, the Convention Rights (Compliance) (Scotland) Act 2001 now provides that in the case of mandatory life sentences the trial judge fixes the “punishment part” of the sentence, on the expiry of which the Parole Board decides on possible release on licence. The test applied to determine suitability for release is identical to that applied to discretionary life prisoners in England and Wales, namely, that the Parole Board is satisfied that the prisoner does not present a substantial risk of reoffending in a manner which is dangerous to life or limb or of committing serious sexual offences. 49. In Northern Ireland, the Life Sentences (Northern Ireland) Order SI no. 2564 provides that the trial judge decides on the tariff for a mandatory life prisoner and that release post-tariff is determined by Life Sentence Review Commissioners (with a status and functions very similar to those of the Parole Board operating in England and Wales). The test applied by the Commissioners is one of protection of the public from “serious harm”, this term meaning the risk of harm from violent or sexual offences. 50. Justice, a human rights and law reform organisation founded in 1957, submitted written comments regarding domestic law and practice, following the leave granted to it by the President of the Court to intervene as a third party (see paragraph 7 above). Its submissions may be summarised as follows. 51. The mandatory life sentence imposed by the 1965 Act (see paragraph 28 above) applied to all convictions for murder, covering a whole bundle of offences of vastly differing degrees of culpability, ranging from brutal serial killings to the mercy killing of a beloved partner. It could not be said that murder was a uniquely heinous offence. The mandatory application of life sentences therefore made the arrangements for release all the more critical in terms of fairness and just deserts. Access to regular judicial review once the tariff expired had been extended to discretionary life prisoners and child murderers and the Secretary of State could no longer set tariffs in these cases. Similar provisions were now being extended to mandatory life prisoners in both Scotland and Northern Ireland under legislation to ensure compliance with human rights. 52. There had been substantial criticism of the current system. In 1989, a Select Committee of the House of Lords, appointed to report on murder and life imprisonment, recommended the abolition of the mandatory life sentence. In 1996 the Home Affairs Select Committee of the House of Commons took evidence and deliberated on the same issues. Their report (Murder: The Mandatory Life Sentence) recommended that the tariff and release decisions be removed from the Home Secretary and left with the trial judge and Parole Board. Lord Lane, formerly Lord Chief Justice, chaired a Committee on the Penalty for Homicide, which also produced a critical report in 1993. 53. The diversity of circumstances that could lead to a murder conviction meant that murderers as a class of offender did not pose special problems of dangerousness. They had a lower recidivism rate than discretionary life prisoners and the general prison population. The system of tariff-fixing was not easily understood by the prisoners concerned and was subject to delays and uncertainty, both of which factors impinged on the quality of work with life prisoners at the crucial early stages of their sentences. 54. The United Kingdom had more serving life prisoners than the rest of Europe together, which was attributable primarily to the mandatory life sentence for murder. While some countries, such as Germany, France and Italy, had mandatory life sentences, these were only applied where there were aggravating factors or for a particular type of murder. Article 77 of the Statute for the International Criminal Court provided that a life sentence could only be ordered “when justified by the extreme gravity of the crime and the individual circumstances of the convicted person”.