R. (on the application of Anderson) v Secretary of State for the Home Department: The Case of the Impartial Sentencer

R. (on the application of Anderson) v Secretary of State for the Home Department
[2003] H.R.L.R. 7
House of Lords

25 November 2002

 

Brief Summary:

The appellant appealed the Home Secretary's decision to increase his tariff (the amount of time served before the appellant would be eligible for parole) to five years more than recommended by the Lord Chief Justice.  The appellant argued that allowing the Home Secretary, a member of the executive and not the judiciary, to determine his tariff violated Article 6 of the European Convention on Human Rights.  The House of Lords held that the Home Secretary was not impartial and, therefore, Article 6 was violated.  They issued a Declaration of Incompatibility.

 

The Facts:

The appellant was convicted in 1988 of two unrelated murders. In accordance with s.1(1) of the Murder (Abolition of Death Penalty) Act 1965, the trial judge imposed a mandatory sentence of life imprisonment. The trial judge and the Lord Chief Justice recommended a tariff (the amount of time served before the appellant would be eligible for parole) of 15 years to be served by the appellant. Pursuant to his powers under s.29 of the Crime (Sentences) Act 1997, the Home Secretary rejected the judicial advice and fixed the tariff at 20 years. The appellant sought judicial review of the decision of the Home Secretary to increase the judicially recommended tariff and argued that the Home Secretary's role in fixing the tariff was incompatible with Art.6 (right to a fair trial) of the ECHR.

The Holding:

The court first noted that the determination of any criminal charge against a person included the fixing of the term of imprisonment which he would serve after he has been convicted of the charge.  In fixing a convicted murderer's tariff, the Home Secretary, having taken advice from the trial judge, Lord Chief Justice and departmental officials, assessed the term of imprisonment which the convicted murderer should serve as punishment for his crime or crimes. According to the court, the fixing of the tariff of a convicted murderer was legally indistinguishable from the imposition of sentence and, to ensure compatibility with Art.6, should be fixed by an independent and impartial tribunal.

 However, the Home Secretary was not independent of the executive and was not a tribunal. Article 6(1) requires effective separation between the courts and the executive and requires that judicial functions, such as sentencing, may only be discharged by the courts. Therefore it was incompatible with Art.6 for the Home Secretary to fix the tariff of a convicted murderer.

As a result, the court decided that the appropriate course pursuant to s.4 of the Human Rights Act 1998 was to declare s.29 incompatible with the right under Art.6 to have a sentence imposed by an independent and impartial tribunal in that the Home Secretary was acting so as to give effect to s.29 when he himself decided on the minimum period which must be served by a mandatory life sentence prisoner before he was considered for relief on life licence.

 

Villain?

The appellant was convicted of two murders.  Hard to see how he is not a villain.