Case Facts
In this case, the claimant, Anderson, had been convicted of murder and sentenced to a mandatory life sentence. Both the trial judge and the Lord Chief Justice recommended a minimum term of 15 years to satisfy the requirements of retribution and general deterrence. However, acting under s 29 Crime (Sentences) Act 1997, the Secretary of State set Anderson's tariff at 20 years — five years longer than the judicial recommendation. Under that statutory scheme, the Parole Board could not consider Anderson for release on life licence until he had completed the tariff set by the Secretary of State, and no recommendation for release could be made unless the Secretary of State had first referred the case to the Board.
As Anderson was approaching the end of the judicially recommended 15-year period, he sought judicial review of the Secretary of State's decision to fix a longer tariff, arguing that the Secretary of State's exercise of the tariff-fixing power was incompatible with Article 6(1) of the European Convention on Human Rights — as incorporated into domestic law by the Human Rights Act 1998 — which guarantees the right to have a sentence determined by an independent and impartial tribunal.
The Divisional Court dismissed Anderson's application for judicial review. The Court of Appeal affirmed that decision. Anderson then appealed to the House of Lords, which granted permission for the appeal to proceed.
Held
The House of Lords allowed the appeal. It held that the Secretary of State's power under s 29 Crime (Sentences) Act 1997 to fix the tariff for mandatory life sentence prisoners convicted of murder was incompatible with Article 6(1) of the Convention. The Secretary of State was not an independent and impartial tribunal for the purposes of Article 6(1), and his involvement in fixing the tariff — even if he did no more than confirm the judges' recommendation — was therefore unlawful. The House rejected the argument advanced on behalf of the Secretary of State that, in fixing the tariff, he was merely administering a sentence already imposed rather than imposing a sentence himself. The House held that fixing the tariff was a sentencing exercise involving an assessment of the quantum of punishment.
The House of Lords further held that it was not possible, under s 3 Human Rights Act 1998, to read s 29 Crime (Sentences) Act 1997 in a manner compatible with the Convention. To do so would not constitute legitimate judicial interpretation but would amount to what the court described as "judicial vandalism", going well beyond any interpretative process sanctioned by s 3 Human Rights Act 1998.
The only available remedy was accordingly a declaration of incompatibility pursuant to s 4 Human Rights Act 1998. The House of Lords declared that s 29 Crime (Sentences) Act 1997 was incompatible with the right under Article 6 of the Convention, as set out in Schedule 1 to the Human Rights Act 1998, to have a sentence imposed by an independent and impartial tribunal.
Ratio Decidendi
The ratio of this decision is that the complete functional separation of the judiciary from the executive is fundamental to the rule of law, and that any person who is not independent of the executive cannot constitute an "independent and impartial tribunal" within the meaning of Article 6(1) of the Convention. Because the Secretary of State, as a member of the executive, inevitably lacked the independence required by Article 6(1), his exercise of the tariff-fixing power under s 29 Crime (Sentences) Act 1997 was incompatible with the Convention, regardless of the merits of any particular tariff decision he made.
Where a statutory provision cannot be read compatibly with a Convention right through the interpretative obligation in s 3 Human Rights Act 1998, the appropriate remedy for the court is a declaration of incompatibility under s 4 Human Rights Act 1998. Such a declaration does not invalidate the offending legislation, but it signals to Parliament that legislative reform is required.
Following this decision, Parliament enacted the Criminal Justice Act 2003, which transferred the tariff-fixing power for mandatory life sentence prisoners from the Secretary of State to the judiciary, giving direct legislative effect to the declaration of incompatibility.
Obiter Dicta
Not applicable.