Lichniak & Anor, R (on the application of) v Secretary Of State For Home Department [2001] EWHC Admin 294 (2nd May, 2001)

Neutral Citation Number: [2001] EWHC Admin 294 IN THE SUPREME COURT OF JUDICATURE QUEEN'S BENCH DIVISION (DIVISIONAL COURT) AND COURT OF APPEAL CRIMINAL DIVISION Royal Courts of Justice Strand, London, WC2A 2LL Wednesday 2 nd May 2001 B e f o r e : LORD JUSTICE KENNEDY MR JUSTICE GARLAND and MR JUSTICE RICHARDS - - - - - - - - - - - - - - - - - - - - - The Queen on applications of Daniella Lichniak and Glyn Pyrah v Secretary of State for the Home Department - and - R v Daniella Lichniak and Glyn Pyrah - - - - - - - - - - - - - - - - - - - - - (Transcript of the Handed Down Judgment of Smith Bernal Reporting Limited, 190 Fleet Street London EC4A 2AG Tel No: 020 7421 4040, Fax No: 020 7831 8838 Official Shorthand Writers to the Court) - - - - - - - - - - - - - - - - - - - - - Edward Fitzgerald QC and Phillippa Kaufmann (instructed by Bhatt Murphy for Lichniak and Pyrah) David Pannick QC and Mark Shaw (instructed by the Treasury Solicitor for the Home Secretary and the Crown) - - - - - - - - - - - - - - - - - - - - - Judgment As Approved by the Court Crown Copyright © LORD JUSTICE KENNEDY : This is the judgment of the court. 1. Each of these claimants seeks judicial review of a decision to impose a mandatory sentence of life imprisonment following their separate convictions for murder. They contend that section 1 of the Murder (Abolition of Death Penalty) Act 1965 is incompatible with Articles 3 and 5 of the European Convention on Human Rights. Section 1(1) of the 1965 Act so far as material provides that "... a person convicted of murder shall ..... be sentenced to imprisonment for life". Article 3 of the Convention reads - "No one shall be subjected to torture or to inhuman or degrading treatment or punishment." 2. Article 5 so far as material reads - "1. 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; ......" 3. Permission to apply for judicial review was granted by Scott Baker J on 23rd January 2001 when he also ordered that this court sit both as a Divisonal Court and as the Court of Appeal Criminal Division, which we have done. Circumstances of offences A. Lichniak 4. In January 1990, when she was 29 years of age, Daniella Lichniak was living with a man named Thomas. In the words of the trial judge Thomas "used her to go with him in his car to a local public house, and there to challenge the deceased man to a fight. She took a large carving knife from the car and while the two men were grappling with each other she fatally stabbed the deceased. Steven Thomas was also charged with murder, but acquitted by the jury on the basis that he was not party to a joint venture to use the knife." At her trial the jury had to consider the issues of intent and diminished responsibility. There was evidence that she was suffering from a chronic depressive anxiety state sometimes causative of sudden panic attacks. The judge in his report to the Secretary of State after the trial said - "I have no doubt that while the jury (in my view) rightly rejected her defence of diminished responsibility, she was in a state of chronic anxiety stress induced in part by the demands of four (including two very young) children, as well as a fairly stormy relationship with Thomas, with whom she had lived for 12 years and who had fathered all the children. I think that she became highly emotional on this occasion and took the knife and killed on an impulse - hence Thomas'acquittal." 5. Mr Fitzgerald QC submitted that there is evidence that she was a "battered wife" and, more important for present purposes, that she never did present any ongoing danger to society. The trial judge said - "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." 6. We see no reason to question that assessment. In her case the period of detention necessary to meet the requirements of retribution and general deterrence was fixed at 11 years. She served that period, and is now in an open prison awaiting a review of her case by the Parole Board.. B. Pyrah 7. In October 1996 Pyrah, who was then 41 years of age, had been drinking heavily. He heard and saw in the street a fracas which involved a woman being assaulted and pushed to the floor. Medical evidence indicated that he was sensitive to that kind of situation because as a child he had seen his mother being treated violently. He went up to the woman's assailant and punched him, knocking him to the ground. He then kicked him. The first and fatal kick was described as being like a penalty kick, and the injury sustained proved fatal. The trial judge described the incident as a tragic event, and said in his report to the Secretary of State - "In my view he does not present any danger to the community and there is no likelihood of him re-offending." 8. Subsequent medical reports have tended to confirm that assessment, which we see no reason to question. In his case the period necessary to meet the requirements of retribution and general deterrence was fixed at 8 years. The Basic submission. 9. Mr Fitzgerald's basic submission is that now that all mandatory life sentences are recognised to fall into two parts, namely first a penal element to meet the requirements of retribution and general deterrence (fixed by the Home Secretary after considering the views of the trial judge and the Lord Chief Justice) and, secondly, a subsequent period of detention justified on preventive grounds, life sentences should not be imposed where at the time of sentencing there is no foreseeable risk of the defendant being a danger to the public after he or she has served the penal element of the sentence. Referring to the European Convention Mr Fitzgerald argues that the mandatory life sentence has no clear penological objective. It violates article 5 because it is arbitrary, and article 3 because it is disproportionate. Before we turn to look at these submissions in more detail we must say something about the jurisdiction of this court. Jurisdiction. 10. Everyone agrees that the issues now raised need to be addressed, but there is a problem as to jurisdiction. Section 9(1) of the Criminal Appeal Act 1968 provides - "A person who has been convicted of an offence on indictment may appeal to the Court of Appeal against any sentence (not being a sentence fixed by law) passed on him for the offence ....." 11. Plainly on the face of it the sentence for murder is fixed by law, namely by section 1 of the 1965 Act, so it is not easy to see how we, sitting as a division of the Court of Appeal, can be vested with jurisdiction to hear an appeal against sentence. 12. The obvious alternative is the jurisdiction of the Divisional Court to hear an application for judicial review, but section 29(3) of the Supreme Court Act 1981 makes it clear that the jurisdiction of the Divisional Court in relation to the Crown Court relates only to matters other than the latter Court's jurisdiction "in matters relating to trial on indictment". Although the Crown Court is not named by either claimant as defendant, the decision under challenge in each case is the decision to impose a mandatory life sentence following conviction, which is plainly a matter relating to trial on indictment (see re Smalley [1985] AC 622 at 642E approved in re Ashton [1994] 1 AC 9 at 20A). Furthermore, as Mr Pannick QC for the defendant pointed out, the only relevant decision other than the one identified by the claimants would seem to be the decision of Parliament in 1965 and there is no challenge to that. If there were it would fall foul of what in R v Parliamentary Commissioner ex parte Al Fayed [1998] 1 WLR 669 was described by Lord Woolf MR at 670G as the court's "self-denying ordinance in relation to interfering with proceedings of Parliament". It would also now encounter the problem that whereas section 6(1) of the Human Rights Act 1998 makes it unlawful for a public authority to act in a way which is incompatible with a Convention right section 6(3) makes it clear that for the purposes of section 6 Parliament is not a public authority. On the other hand there is a question whether a declaration of incompatability could be made under section 4 without identifying an unlawful act under section 6. In R v Secretary of State for Employment ex parte Equal Opportunities Commission [1995] 1 AC 1 Lord Keith at 26 H accepted that a declaration of incompatibility could be made in relation to primary legislation in judicial review proceedings brought by a person with a sufficient interest. That of course was in relation to an EC issue and was before Parliament enacted the Human Rights Act, and in R v DPP ex parte Kebilene [2000] 2 AC 236 Lord Steyn at 371G emphasised the importance of human rights challenges in relation to criminal matters taking place "in the criminal trial or on appeal". 13. For present purposes we are satisfied that the most attractive route to jurisdiction is to have resort to section 3(1) of the 1998 Act which requires us to read and give effect to section 9(1) of the 1968 Act in a way which is compatible with Convention rights. If a statutory provision which requires the imposition of a sentence of life imprisonment is incompatible with the Convention then, at least until Parliament has had the opportunity to consider its response to the court's declaration of incompatibility, the sentence is not for the purposes of section 9(1) of the 1968 Act fixed by law; alternatively the exclusion of sentences fixed by law is itself subject to an implied exception where the statutory provision fixing the sentence is incompatible with the Convention. Accordingly we hold that this court, sitting as a division of the Court of Appeal, has jurisdiction to entertain these matters as appeals against sentence, since they raise arguable issues as to the compatibility of section 1 of the 1965 Act with the Convention. We in each case extend time and grant permission to appeal. That makes it unnecessary to consider further what if any jurisdiction we might have as a Divisional Court to entertain proceedings for judicial review. The Political History 14. Mr Fitzgerald submits that over the years since the abolition of capital punishment the justification put forward for mandatory life imprisonment in relation to offences of murder has changed. Originally it was directly related to the gravity of the crime. All murders were said to be so heinous that the offender must forfeit his liberty for the rest of his life. If it was restored to him that could only be a matter of grace, and he would have to remain on licence lest it proved unwise to have released him. But that approach is and always has been untenable because everyone knows that some crimes which do not attract mandatory sentences of life imprisonment are more heinous than many murders, and many murders, such as so-called mercy killings, are not offences calling for condign punishment, - as can be seen from the varying judicial recommendations as to the period of imprisonment to be served to meet the requirements of retribution and general deterrence. If life means life, then it is arbitrary and disproportionate, so it has come to be regarded as an indeterminate sentence, part penal and part preventative, for which there is no justification in circumstances where the offender is not expected to be a danger if released after he has served the penal element of his sentence, and this more modern approach, Mr Fitzgerald contends, offends against the long standing principle of domestic law that an indeterminate sentence should be "reserved for cases where the defendant is someone in respect of whom there is some relevant feature which cannot be determined at the time when the judge is passing the sentence". That was said by Lord Lane CJ in Basra [1989] 11 Cr App R (Sentencing) 527 at 529 in relation to discretionary life imprisonment, but, Mr Fitzgerald submits, the principle is of general application. 15. Before us the defendant still relies on a statement made by Mr Kenneth Baker as Home Secretary in the House of Commons on 25th June 1991 when he said- "At the core of the crime of murder is the intentional taking of another person's life - killing someone, with an intent to kill or to do grievous bodily harm. It is all very well to talk about mercy killings or so-called domestic murders, but the fact remains that in each case another person's life has been intentionally taken away. It is a crime where there can never be any possibility of the victim recovering or receiving redress or compensation. It is a crime of dreadful finality. I believe that the public perceive, rightly, a distinction between the seriousness of murder and that of other crimes. This justifies a unique penalty for those who commit it. The public have a right to expect that Parliament and the criminal justice system will take effective steps to punish those who commit this crime and to protect the public from offenders who have shown themselves capable of intentionally taking another person's life." 16. By way of contrast, in 1993 the Committee on the Penalty for Homicide, chaired by Lord Lane, summarised its first six conclusions thus - "(1) The mandatory life sentence for murder is founded on the assumption that murder is a crime of such unique heinousness that the offender forfeits for the rest of his existence his right to be set free. (2) That assumption is a fallacy. It arises from the divergence between the legal definition of murder and that which the lay public believes to be murder. (3) The common law definition of murder embraces a wide range of offences, some of which are truly heinous, some of which are not. (4) The majority of murder cases, though not those which receive most publicity, fall into the latter category. (5) It is logically and jurisprudentially wrong to require judges to sentence all categories of murderer in the same way, regardless of the particular circumstances of the case before them. (6) It is logically and constitutionally wrong to require the distinction between the various types of murder to be decided (and decided behind the scenes) by the Executive as is, generally speaking, the case at present." 17. In 1993 Mr Michael Howard, as Home Secretary, said that before any mandatory life sentence prisoner was released on licence he would 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." We are told by Mr Pannick that (c) has never been a determining factor, but the present Secretary of State follows the policy of his predecessors. 18. Mr Fitzgerald also referred us to a large body of material, including the Parliamentary debates underlying section 1 of the 1965 Act and later reports. "Justice", in a written intervention, provided the court with a history of the mandatory life sentence, crtiques of it, and the wider context of the position in other jurisdictions. We have taken all that material into account but do not consider it necessary to lengthen this judgment by a repetition of it. General approach 19. Mr Fitzgerald submits that under article 5 of the Convention the basic principle is that no one should be deprived of their liberty in an abitrary fashion, and that if a life sentence is imposed where there is no objective justification for that sentence then the sentence is both arbitrary and disproportionate. Under article 3 a sentence which is manifestly disproportionate can be an "inhuman and degrading" punishment. 20. For the defendant Mr Pannick's response is that these issues have been addressed by the European Court of Human Rights in V v United Kingdom and T v United Kingdom [1999] 30 EHRR 121, where the appellants had been sentenced to be detained during Her Majesty's pleasure. That too is a sentence which is automatically imposed where a defendant of the prescribed age is convicted of murder. It is imposed irrespective of the circumstances of the offence and of the offender. Some offenders may present no risk of future offending, and may have committed an offence less grave than other offences which do not require a mandatory indeterminate sentence from which the offender will only be released after serving a tariff period, when it is considered that he may safely be released, and on the basis that thereafter he will be at risk of recall for the rest of his life. In other words, Mr Pannick submits, for present purposes the cases of T and V are indistinguishable on their facts, and this court is required by section 2(1) of the 1998 Act to take into account the decisions of the European Court. Mr Fitzgerald submits that in T and V there was an important distinction, in that the two boys could not be regarded as presenting no danger if released at the end of their tariff period, and that is something which we must examine more closely in due course. 21. Mr Pannick goes on to submit that there was a very good reason why the European Court decided T and V as it did - namely because an indeterminate sentence (whether it be mandatory life imprisonment or detention during Her Majesty's pleasure) allows for and involves in practice an individualised assessment of tariff, risk and recall, so that it is neither degrading nor arbitrary. It may be that an assessment should not be made by the executive, but that is not something for consideration in this case. 22. One of the authorities on which Mr Fitzgerald places considerable reliance is the recent decision of this court in R v Offen [2001] 1 WLR 253 which concerned sentences of life imprisonment imposed after conviction of a second "serious offence" within the meaning to be ascribed to those words by section 2(5) or 2(6) of the Crime (Sentences) Act 1997. Such a sentence must be imposed save where there are "exceptional circumstances", and the court held that those words must be so construed as not to contravene the prohibition on inhuman and degrading treatment, or arbitrary and disproportionate punishment, to be found in articles 3 and 5 of the Convention. The government's intention was that the public should receive proper protection from persistent violent or sex offenders, and the court gave effect to that intention by indicating that in every case judges must assess the risk to the public, and use the words "exceptional circumstances" to ensure that no offender is sentenced to life imprisonment who does not constitute a significant risk to the public. Mr Pannick submits, rightly, that in Offen the court was not concerned with mandatory life sentences, and he submits that they are different because Parliament has decided that in the case of murder, by reason of the gravity of the offence, the punishment is to be an indeterminate sentence during which consideration will be given to tariff and risk, and after release there will be liberty only subject to licence. In rare cases a life sentence may mean life in prison, but such cases are very rare. So whereas in Offen this court was seeking to further the purposes of Parliament Mr Pannick submits that if Mr Fitzgerald's submissions are accepted we will be frustrating the clear intention of Parliament as to what the sentence should be in the case of murder, and also producing a curious distinction between our view of the legislation in relation to mandatory sentences in the case of adults, and the opinion of the European Court in relation to mandatory sentences in the case of young offenders. 23. Mr Pannick further submits that there are three principles established under the European Convention to which we must have regard. First, the relevant provisions of the Convention require a balance between the interests of the applicant and those of the community. In Soering v UK [1989] 11 EHRR 439 a West German national was seeking to avoid extradition to Virginia to face a charge of capital murder, and at paragraph 89 of its judgment the court said - "Inherent in the whole of the Convention is a search for a fair balance between the demands of the general interest of the community and the requirements of the protection of the individual's fundamental rights." 24. Secondly, the European Court in its approach to the Convention does not concentrate on formal procedures, but looks at the realities. In Van Droogenbroeck v Belgium [1982] 4 EHRR 443 , a case concerned with detention of a recidivist, the court said at paragraph 38 "one must look beyond the appearances and the language used and concentrate on the realities of the situation." Here, Mr Pannick submits, the claimants are putting too much weight on the language used when a judge sentences a defendant to life imprisonment, and not concentrating on the realities of the situation. 25. Thirdly, Mr Pannick reminds us that in Brown v Stott [2001] 2 WLR 817 Lord Bingham said at 834 H - "Judicial recognition and assertion of the human rights defined in the Convention is not a substitute for the processes of a democratic government but a complement to them. While a national court does not accord the margin of appreciation recognised by the European Court as a super-national court, it will give weight to the decisions of a representative legislature and a democratic government within the discretionary area of judgment accorded to those bodies." Other members of the Privy Council made observations to the same effect. That, he submits, is of particular relevance to a controversial issue of policy which has been the subject of repeated consideration by Parliament. 25. In his reply Mr Fitzgerald reminded us of an additional principle, that decisions of the European Court and Commission are made on their particular facts rather than reviewing national law in abstracto ( Hakansson and Sturesson v Sweden [1990] 13 EHRR 1, at paragraph 46) . Decisions need to be read with that in mind. Previous litigation 26. Mr Pannick submits that this case is the latest in a series of cases in England and in Strasbourg which have challenged various aspects of the requirement that a life sentence be imposed after a conviction for murder. Each challenge has failed because on each occasion the courts have said that Parliament is entitled to maintain its statutory requirement. In R v Secretary of State for the Home Department ex parte Doody [1994] 1 AC 531 the House of Lords upheld the right of the Secretary of State to set the tariff, Lord Mustill recognising at 556 H that the old reasoning in favour of life imprisonment as the appropriate sentence for a grave crime is "much weakened now that the indeterminate sentence is at a very early stage formally broken down into penal and risk elements." He further recognised that the discretionary and mandatory life sentences may now be converging, and continued at 559 F - "It may be - I express no opinion - that the time is approaching when the effect of the two types of life sentence should be further assimilated. But this is a task for 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." 27. As Mr Fitzgerald points out, that was said before the European Convention became part of English law, but the European Court did refer to Doody , and to the distinction between discretionary and mandatory life sentences, when deciding the next case in the series to which Mr Pannick refers, namely Wynne v UK [1994] 19 EHRR 333. There the applicant, having been convicted of murder and having served the tariff element of his life sentence, was complaining under article 5(4) of the absence of any provision to have the continued lawfulness of his detention reviewed by a court. In Thynne, Wilson and Gunnell v UK the European Court had recognised that right in the case of discretionary life prisoners, but at paragraph 33 of its decision in Wynne the court said - "This view was taken because of the very nature of the discretionary life sentence which, unlike the mandatory sentence, was imposed not because of the inherent gravity of the offence but because of the presence of factors which were susceptible to change with the passage of time, namely mental instability and dangerousness. A clear distinction was drawn between the discretionary life sentence which was considered to have a protective purpose and a mandatory life sentence which was viewed as essentially punitive in nature." 28. The submission was made to the court that the two types of sentence had tended to converge, but the court said in paragraph 35 - "However, the fact remains that the mandatory sentence belongs to a different category from the discretionary sentence in the sense that it is imposed automatically as the punishment for the offence of murder irrespective of considerations pertaining to the dangerousness of the offender. That mandatory life prisoners do not actually spend the rest of their lives in prison and that a notional tariff period is also established in such cases - facts of which the Court was fully aware in Thynne, Wilson and Gunnell - does not alter the essential distinction between the two types of life sentence." 29. In paragraph 36 the court expressly adhered to its previous finding that - "As regards mandatory life sentences, the guarantee of article 5(4) was satisfied by the original trial and appeal proceedings and confers no additional right to challenge the lawfulness of continuing detention or re-detention following revocation of the life sentence." 30. Of course, as Mr Fitzgerald points out, the court was there concerned with article 5(4) and whether Wynne was entitled to a review of his continued detention, but if it was realistically possible to attack the mandatory life sentence on the grounds now advanced it is a little surprising that the opportunity was not taken to do so. Mr Fitzgerald also points out that Wynne had been convicted of manslaughter after his release on licence under the original sentence for murder. How his dangerousness was assessed when he was originally sentenced to life imprisonment we do not know, but if an assessment was made it does not seem to have been regarded as critical by any one. 31. The third decision in Mr Pannick's series was R v Secretary of State for the Home Department ex parte Stafford [1999] 2 AC 38 where the House of Lords was concerned with a mandatory life sentence prisoner who had been recalled after committing non-violent offences whilst on licence. Counsel pointed out that many discretionary life sentence prisoners had committed offences more serious than those serving mandatory life sentences, and yet they were entitled to judicial review by the Parole Board of their continuing detention. As Lord Steyn said at 49 H - "Counsel's argument is in reality an appeal for a more rational system. The appeal to symmetry was rejected by the House of Lords in Doody .... And in Wynne v United Kingdom ..... the European Court of Human Rights held that the post-tariff phase of the detention of the mandatory life sentence prisoner does not attract the safeguards of article 5(4) of the European Convention for the Protection of Human Rights and Fundamental Freedoms. As matters stand at present the duality is embedded into our law by primary legislation." 32. Again Mr Fitzgerald submits that may have been so in July 1998, when Stafford was decided, but the incorporation of the Convention has effected a radical change. The difficulty with that argument is of course that for the European Court incorporation was and is of no significance, which brings us to the final case in Mr Pannick's series, T and V v United Kingdom to which we have already referred, and to which we will return. There reliance was placed both on article 3 and on article 5(1) and we now turn to look at the two articles separately. 33. Mr Fitzgerald submits that the mandatory life sentence is inhuman and degrading by reason of its disproportionality, in that it orders lifelong detention, is imposed irrespective of the individual circumstances of the offender or of the crime, is imposed on offenders of widely differing culpability, imposes a far greater punishment on those convicted of murder even in circumstances where the borderline between murder and manslaughter has only just been passed, and serves no useful penological purpose. Article 3 34. In Costello-Roberts v United Kingdom [1993] 19 EHRR 112 , a case about corporal punishment in a school, the European Court stated at paragraph 30 - "In order for punishment to be `degrading' and in breach of article 3, the humiliation or debasement involved must attain a particular level of severity and must in any event be other than that usual element of humiliation inherent in any punishment. Indeed article 3, by expressly prohibiting `inhuman' and `degrading'' punishment, implies that there is a distinction between such punishment and punishment more generally. The assessment of this minimal level of severity depends on all the circumstances of the case. Factors such as the nature and context of the punishment, the manner and method of its execution, its duration, its physical and mental effects and, in some cases, the sex, age and state of health of the victim must all be taken into account. " 35. In T and V the European Court considered whether that article could be invoked in relation to the sentence of detention during Her Majesty's pleasure passed on the two boys. It recorded the Commission's acceptance of the case for the government, saying at paragraph 95 - "[The Commission] referred to the Hussain v United Kingdom judgment where the Court held that the sentence of detention during Her Majesty's pleasure was primarily preventative, attracting the guarantees of article 5(4). It could not, therefore, be said that the applicant had forfeited his liberty for life or that his detention gave rise to a violation of article 3." 36. Mr Fitzgerald submits that the reference to Hussain v United Kingdom [1996] 22 EHRR 1 is significant because in that case, which also concerned a sentence of detention during Her Majesty's pleasure, the court had said at paragraph 53 that - "An indeterminate term of detention for a convicted young person, which may be as long as a person's life, can only be justified by considerations based on the need to protect the public." 37. The same point was repeated by the court in T and V at paragraph 96. Thus the context, submits Mr Fitzgerald, is an indeterminate sentence for which the only justification is preventive. 38. In T and V the court at paragraph 98 expressed its conclusion in relation to article 3, saying - "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 offenders continued detention or recall to detention following release where necessary for the protection of the public." 39. As Mr Pannick points out, there is nothing there to suggest that the sentence will only be legitimate if at the time of sentencing it is envisaged that the offender will present an ongoing risk. Indeed paragraph 99 begins - "The applicant has not yet reached the age in his sentence where he is able to have the continued lawfulness of his detention reviewed with regard to the question of dangerousness ...." 40. That would tend to suggest that so far as the European Court was concerned any assessment of dangerousness that may or may not have been made at the time of sentence was of no significance. Overall, the Court's conclusions are expressed in terms that indicate no objection under article 3 to a mandatory indeterminate sentence for murder. 41. The only other decision to which we need refer in relation to article 3 is the decision on admissibility of the European Commission in Bromfield on 1st July 1998 (Application No. 32003/96). There the applicant, aged 20, had been sentenced to custody for life after being convicted of murder. Dealing with his complaint in relation to article 3 paragraph 2 of the decision states - "The Commission recalls that there is no incompatibility with the Convention in the imposition of a life sentence as a security or retributive measure in a particular case or in a decision to keep a recidivist or habitual offender at the disposal of the Government ( Weeks v United Kingdom) . While in the cases concerning detention during Her Majesty's pleasure, the Court commented that a sentence pursuant to which young persons forfeited their liberty for the rest of their lives might raise issues under article 3 of the Convention (see Hussain ), the Commission considers that these remarks apply to sentences of life imprisonment imposed on children under the age of 18 to whom special considerations apply. It does not find that the imposition of a mandatory sentence of life imprisonment in respect of the offence of murder committed by young adults between the ages of 18 and 21 discloses treatment or punishment prohibited by article 3 of the Convention." 42. In our judgment the weight of the jurisprudence is overwhelming. Whatever one may think about the desirability of a change of policy it cannot be accepted that a mandatory sentence of life imprisonment for murder is incompatible with article 3. In reality, as Mr Pannick points out, the sentence is an indeterminate one - rarely will there be imprisonment for life. In other cases the penal element having been decided upon at a earlier stage, when that element has been served the Secretary of State may, if recommended to do so by the Parole Board, after consultation with the Lord Chief Justice and the trial judge if available, release the prisoner on licence (see section 29 of the Crime (Sentences) Act 1997). In practice the Secretary of State does refer cases to the Parole Board for consideration, and if a prisoner has been released on licence and is recalled he will have the opportunity to have his recall considered by the Parole Board (see section 31 of the 1997 Act). That is all part of what is involved in the mandatory life sentence, and in reality such a sentence, which includes the policy applied in relation to it, cannot be labelled inhuman or degrading. There is sufficient individualised consideration of the offender's case within the context of the sentence. Thus it is open to Parliament, acting within its discretionary area of judgment, to retain the sentence without violating article 3. Article 5 43. We turn now to the complaint in relation to article 5. Mr Fitzgerald submits that to have an indeterminate sentence for all murders is arbitrary. In some cases a lesser determinate sentence would suffice because culpability and the needs of retribution and deterrence can be evaluated at the end of the trial, and there is no discernible risk to warrant an indeterminate sentence. Furthermore, as such a sentence is at least in theory the most severe sentence available to an English judge it should not be imposed as a matter of course for murders where the gravity of the offence is less than the gravity of other crimes. It is arbitrary to impose a sentence that can neither be justified on preventive grounds nor justified on the basis of retributive proportionality. 44. This broad argument was considered by the European Court in T and V . The Commission had accepted the Government's submission that the indeterminate sentences imposed in that case were not unlawful or arbitrary, pointing out that- "Its purpose was to enable consideration to be given to the specific circumstances of the applicant's case, so that he would be detained only for so long as was necessary with regard to the need for punishment, rehabilitation and the protection of the community." 45. At paragraphs 104 and 105 of its judgment the Court continued - "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. It follows that there has been no violation of article 5(1) of the Convention in the present case." 46. Mr Pannick submits that if a sentence of detention during Her Majesty's pleasure which has to be imposed without regard to the circumstances of the offence or of the offender is not arbitrary, bearing in mind the Convention's proper concern for the young, how can it be said that in the case of an adult a mandatory sentence of life imprisonment is arbitrary? Its purpose, he submits, is 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, and even then for the rest of his life he will be liable to be recalled. That is not merely the effect of the sentence, it is the sentence. Continued application of the life sentence regime to the offender is entirely in conformity with the purpose of that sentence. For that reason, it cannot be arbitrary so as to be in breach of article 5. 47. In so far as Mr Fitzgerald submits that where there is not a discernible risk of re-offending it is wrong to impose an indeterminate sentence Mr Pannick responds by saying that such a submission falls outside the scope of article 5. In Weeks v UK [1987] 10 EHRR 293, a case concerned with the lawfulness of detention after recall, the European Court said at paragraph 50 that "it is not for the Court, within the context of article 5, to review the appropriateness of the original sentence". Even if that be wrong Mr Pannick submits, and we accept, that a sentence cannot be arbitrary for an adult when an equivalent sentence has been found not to be so in the case of a young offender, and when in each case the application of the sentence is individualised, and everyone knows that it will be individualised from the moment it is imposed. Although, as Mr Fitzgerald pointed out, decisions of the European Court are related to their own particular facts, the process of reasoning displayed by the European Court is of assistance, as illustrated by both counsel during the course of this case. The reasoning in the decided cases tells strongly against the claimant's case on article 5. Other Jurisdictions 48. Mr Fitzgerald drew our attention to the decision of the United States Supreme Court in Woodson v North Carolina [1976] 428 US 286, a death penalty case, but, as the court itself observed at 305 - "Death, in its finality, differs more from life imprisonment than a one hundred year prison term differs from one of only a year or two. Because of that qualitative difference, there is a corresponding difference in the need for reliability in the determination that death is the appropriate punishment in a specific case." 49. That passage makes the point that where fundamental rights are differently expressed (as in the US Constitution) and the background and issues in dispute are different, the decisions of a non-European Court may be of limited assistance, especially when, as is in the present case, the relevant issues have been copiously considered both here and in Strasbourg. For that reason we find it unnecessary to refer to the two decisions of the Inter-American Commission on Human Rights which we were invited to consider. The same applies to the decision of the High Court of Namibia in State v Vries [1996] 12 BCLR 1666 and to the decision of the High Court of Australia in Sillery v the Queen [1981] 55 ALJR 509, which turned on a question of statutory interpretation. 50. In R v Smith [1987] 1 SCR 1045 the Canadian Supreme Court held that a minimum sentence of 7 years for importing narcotics constituted cruel and unusual punishment, and thus contravened section 12 of the Canadian Charter of Rights and Freedoms, but, as Mr Pannick points out, there is a significant difference between such a sentence and an indeterminate sentence, the application of which is individualised as regards fixation of tariff, assessment of risk, and the liability to recall. Conclusion 51. The arguments put forward by Mr Fitzgerald are persuasive in favour of a change of policy, and may carry weight in a political debate, but in our judgment, as the law now stands, they do not enable this court to allow these appeals against sentence on the basis that the mandatory sentences imposed were incompatible with the European Convention. We therefore dismiss these appeals. © 2001 Crown Copyright BAILII: Copyright Policy | Disclaimers | Privacy Policy | Feedback | Donate to BAILII