UK: Mandatory life sentence tariff
01 November 2001
In dismissing the appeals of Anthony Anderson and John Hope Taylor (Anderson and Taylor v Secretary of State for the Home Department 200 EWCA Civ 1968) the Court of Appeal held that the Home Secretary, in fixing the tariff necessary for retribution and deterrence before which a mandatory life sentence prisoner could be considered for release on licence, was not acting in breach of the fair trial provisions of Article 6.1 of the European Convention on Human Rights. The appeal followed the earlier dismissal by the Queens Bench Divisional Court of their applications for judicial review of the decisions of the Home Secretary setting the tariff period before which they might be considered for release on licence. The Divisional Court had been sympathetic to the argument that tariff setting is a classic sentencing exercise which should be a judicial function, but felt unable to apply Article 6 as a result of previous European Court decisions, most notably Wynne v UK, which held that the mandatory life sentence authorised life long punitive detention. These views were shared by the Court of Appeal, with Lord Chief Justices Simon Browne and Buxton explicitly stating that tariff fixing is a sentencing exercise. Simon Brown rejected submissions from the Home Secretary to the contrary, commenting that setting the tariff is, "in substance the fixing of a sentence, determining the length of the first stage of an indeterminate sentence-that part of which must be served in custody before any question of release can arise." (paragraph 57.) However, whilst the Court recognised that the situation in domestic law is not logical, two factors persuaded it that it had no power to allow the applications.
Firstly, the mandatory life sentence system has been upheld on numerous occasions by both Parliament and the House of Lords, despite criticism. The Lord Chief Justice felt therefore that this was an area where the Courts, including the ECthR, had shown deference to the will of Parliament. Secondly, the decision in Wynne had not been overturned or distinguished and was re-affirmed in V and T v UK as providing the basis for distinguishing between the sentences of detention at Her Majesty's Pleasure and the mandatory life sentence. Outside of its impact on prisoners, the view expressed that it is always appropriate to defer to EctHR decisions, rather than simply taking them into account as required by the Human Rights Act 1998 s2, has potentially serious implications for public law decision making more generally.<