Anderson, R (on the application of) v Secretary of State for the Home Department

Facts

Anderson had been convicted of murder and sentenced to the mandatory sentence of life imprisonment. Under section 29 of the Crime (Sentences) Act 1997 the Home Secretary decided the tariff, the minimum period to be served for retribution and deterrence before the Parole Board could consider release. The Home Secretary set the tariff of Anderson after taking the views of the trial judge and the Lord Chief Justice. Anderson claimed that this process violated his right under Article 6 to have the sentence determined by an independent and impartial tribunal. His case was heard with that of another prisoner, Taylor.

Issue

Whether the power of the Home Secretary to fix the tariff of a mandatory life prisoner was compatible with Article 6(1) of the Convention, taking account of the case law of the European Court of Human Rights on discretionary life prisoners and young offenders, and whether the House should make a declaration of incompatibility.

Held

Section 29 of the Crime (Sentences) Act 1997 was incompatible with Article 6(1), because the setting of the tariff is a sentencing exercise that must be carried out by an independent and impartial tribunal and not by a member of the executive. A declaration of incompatibility was made under section 4 of the Human Rights Act 1998.

Ratio

• The fixing of the tariff for a mandatory life sentence is a sentencing function, and the Home Secretary, as a member of the executive, is not an independent and impartial tribunal. The statutory power of the Home Secretary to fix the tariff is therefore incompatible with Article 6(1) of the Convention.
• Where primary legislation is incompatible with a Convention right and cannot be read compatibly, the court should make a declaration of incompatibility under section 4 of the Human Rights Act 1998, leaving it to Parliament to amend the law.

The judgments

Key reasoning

• Decisions of the European Court of Human Rights had established that the fixing of a punitive term of imprisonment is a judicial function in the case of discretionary life prisoners and of young offenders, and no sound distinction could be drawn for adults sentenced to mandatory life.
• The setting of the tariff determines the length of imprisonment that the prisoner must serve for punishment, and it is a sentencing exercise in substance, even though it is carried out after the formal sentence.
• A Secretary of State is a member of the executive, whose role in setting tariffs could be influenced by policy and public opinion, and he cannot be treated as independent of the executive or as impartial.

Where it fits in the module

In the modules on the Constitutional Reform Act 2005 and declarations of incompatibility, the case shows how Convention rights can lead the courts to insist on a stricter separation between executive and judiciary, which anticipates the changes in the Constitutional Reform Act. It also tests the use of section 4 as a remedy, and the practice of Parliament responding to declarations by legislating. Students should consider how far the decision rests on the Strasbourg case law and how far on a domestic constitutional principle.

Criticisms

• The decision treats the setting of a tariff as the same as a sentence, though it is carried out within a statutory framework with a role for the judges, and it has been argued that the executive involvement was a matter of public protection and policy rather than of punishment.
• The reliance on the case law of the European Court of Human Rights about discretionary life prisoners involves an extension by analogy to a different category of prisoner, and it can be argued that the House was ahead of Strasbourg on the point.
• A declaration of incompatibility did not change the position of the prisoner, who remained subject to the tariff unless Parliament acted, and this exposes the limited remedial effect of section 4.