B, R (on the application of) v Secretary Of State For Home Department [2002] EWCA Civ 1149 (11 July, 2002)

Neutral Citation Number: [2002] EWCA Civ 1149 C/2002/0494 IN THE SUPREME COURT OF JUDICATURE IN THE COURT OF APPEAL (CIVIL DIVISION) ON APPEAL FROM THE HIGH COURT OF JUSTICE QUEEN'S BENCH DIVISION DIVISIONAL COURT (Lord Justice Keene and Mr Justice Forbes) The Royal Courts of Justice Strand London WC2 Thursday 11th July, 2002 B e f o r e : LORD JUSTICE LAWS ____________________ THE QUEEN on the application of B - v - SECRETARY OF STATE FOR THE HOME DEPARTMENT Defendant/Respondent ____________________ MR S KADRI QC and MR R HOWAT (instructed by Messrs Glaisyers Solicitors, Birmingham B4 6DZ) appeared on behalf of the Applicant THE RESPONDENT did not appear and was not represented ____________________ HTML VERSION OF JUDGMENT ____________________ Crown Copyright © LORD JUSTICE LAWS: This is a renewed application for permission to appeal against the decision of the Divisional Court given on 27th February 2002 constituted by Keene LJ and Forbes J. On that occasion the court dismissed the applicant's application for judicial review of a decision of the Secretary of State, originally communicated by letter of 27th April 2001, when he exercised on behalf of Her Majesty the Royal prerogative of mercy by the grant of three years, but no more, remission against concurrent sentences of 15 years' imprisonment then being served by the applicant. Remission had been sought on his behalf in consideration of what was said to have been valuable and substantial assistance given by the applicant to the police and prison authorities as an informer and potential witness. It is not necessary to describe the details of what he said and did, for this application goes to the general approach taken by the Secretary of State to the decision-making process in this context. I refused permission to appeal on consideration of the papers on 23rd May 2002. The applicant's solicitors contended that the Secretary of State ought to have regard to decisions of the Court of Appeal, Criminal Division, relating to the discount against sentence to be given by the sentencing court in relation to assistance given by a defendant before he is sentenced. The solicitors, in light of decided cases in the Criminal Division, sought a reduction in the applicant's case of between half and two-thirds of the sentence passed. In his decision letter of 27th April 2001 the Secretary of State replied thus: "In your letter, you seek to draw an analogy in the amount of remission awarded to your client with the discount given to defendants by the courts when that assistance has been given to the authorities pre-sentence, and you quote the cases of Sinfield , King and Sivan . The Home Secretary, however, in making his recommendation to Her Majesty is not acting in a judicial capacity; he is not making a sentencing decision, and the factors he is required to take into account are very different from those which would be relevant at a plea in mitigation. It has not been Home Office practice to seek to align remission for assistance after sentence with the discount that would have been given for similar assistance before sentence. Therefore any discount which the trial judge might have applied is not a factor which the Home Secretary must have regard to when deciding how much of a reduction to recommend. It follows from this that the decision to award three years remission to your client still stands." Thereafter the applicant's solicitors made further representations, including certain material concerning two other cases on which they rely. Keene LJ in the Divisional Court described the Secretary of State's response thus: "... by letter dated 15th February 2002 he gave his response. In it he referred to the seriousness of the applicant's offences and then set out factors said to distinguish the two other cases relied on by the applicant from his own case. Those factors included the giving of information in advance of conviction in the other cases. The letter concluded by saying that the Home Secretary believed the three years' remission to be a significant reduction in the sentence of the court and to be an appropriate award for the applicant's help." I do not think it can now be doubted that the courts possess the jurisdiction to review a prerogative decision such as this. The quality or intensity of review is another matter. It was submitted below that the exercise of the prerogative of mercy was a matter of high policy, reviewable only for breach of natural justice or error of law. The Divisional Court held that it was subject to review on ordinary public law principles. I am content to assume for the purpose of this application, without deciding, that that is right. Then Keene LJ said this (paragraph 29): "It seems to me that the Secretary of State was entitled to say, as he did, that judicial decisions in cases of pre­sentence assistance were not truly relevant to the exercise of the prerogative of mercy where that assistance is rendered after sentence has been passed. The courts have themselves drawn a very clear distinction between pre­sentence assistance and post­sentence assistance. Normally credit by way of a reduction in sentence will only be given where there is a plea of guilty and the assistance is given before sentence. The Court of Appeal, Criminal Division, has emphasised on several occasions that reductions cannot be expected where the assistance is only rendered between the passing of sentence by the trial judge and the hearing of an appeal." He then proceeded to cite authority and continued as follows (in paragraph 35): "It seems to me that the situation faced by the Secretary of State in recommending the exercise of the prerogative of mercy because of such assistance post­sentence, and the situation faced by the courts when dealing with pre­sentence assistance cases, are wholly different. The reductions in sentence made by a trial court or by the Court of Appeal in cases of pre­sentence assistance are really no guide to the Secretary of State because in those cases remorse on the part of the offender about his offence is an important element in the reduction. That is early remorse. It is very difficult to see how the Secretary of State can use the outcome of such cases as a guide in the different situation with which he has to deal. The cases are not truly comparable. Of course, in a very general way the decided cases show that the offender's remorse, the aim of encouraging offenders to help the authorities and the desire to recognise the risk to such informants, may as facts often merit a significant reduction in sentence, but they do not help on quantifying the reduction. I find it impossible to see how they could help the Secretary of State in quantifying the reduction that ought to be made." He proceeded accordingly, for his part, to dismiss the application. Forbes J added a short judgment of his own, asserting (paragraph 42) that Mr Kadri's submission for the applicant was based on a fallacy: "... the fallacy being to equate the post­conviction remorse of a prisoner with the willingness of an accused person to admit his guilt at an early stage and to provide assistance before sentence. In my view, those two situations cannot properly be equated and it follows from that that the submission falls to the ground." Mr Kadri asserts that most of the assistance given by the applicant in this case was based on information he only obtained post-sentence, so of course he was unable to give the assistance earlier. He relies also on a decision of the Court of Appeal, Criminal Division, in a case called Ogden in which, as I understand it, his learned junior was involved, when the court reduced apparently of its own motion a sentence of 12 years on account of assistance given by the appellant after sentence and before appeal. Ogden in fact had been convicted after a not guilty plea. His application for leave to appeal against conviction was apparently withdrawn. Mr Kadri says that this decision in the Court of Appeal, Criminal Division, really undermines the logic of the reasoning in the Divisional Court in the present case. I have to say with deference to Mr Kadri that in my judgment this application is misconceived. The Administrative Court was not sitting as a Court of Appeal over a decision of the Secretary of State. It was there only to review the legality of the Secretary of State's decision on public law principles. Whatever one makes of Ogden in the criminal court, or for that matter the timing of the assistance given in this present case, it is as I see it impossible to say that the general approach taken by the Secretary of State to situations of this kind is in some way perverse or unlawful for any reason. The Secretary of State was perfectly entitled to adopt the policy he did. I would not necessarily go so far as did Keene LJ and Forbes J in holding that the cases in the criminal courts where a discount has been given for assistance before sentence are not capable of being some guide to the Secretary of State. I would prefer to base myself on the proposition that it is simply a matter for the Secretary of State whether he regards such material as of assistance to him or not. It cannot be said that there is any taint of illegality in his choosing not to track the decisions of the Court of Appeal, Criminal Division. In short, it seems to me that his policy generally and its application in this case, where after all a substantial reduction of some three years was given, were entirely lawful. I wish to add this, to reflect something I said in refusing permission on paper. I think that Mr Kadri's case contains an implicit invitation to the courts to impose on the Secretary of State an apparatus of guideline or other sentencing decisions of the courts with the prospect of judicial review if he does not follow them or at least reflect them. That I think would be wholly contrary to the public interest. There is nothing to be gained by the development of an edifice of jurisprudence in relation to the Secretary of State's policy as regards remission of sentence. I would dismiss this application. ORDER: Application for permission to appeal refused. 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