Case No: C3/2003/2323/QBACF

Neutral Citation No: [2004] EWCA Civ 33
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
QUEEN’S BENCH DIVISION (ADMINISTRATIVE COURT)
(Mr Justice Henriques)
Royal Courts of Justice
Strand, 
London, WC2A 2LL

Tuesday 3rd February 2004

Before:

LORD JUSTICE SIMON BROWN
LORD JUSTICE KEENE
and 
LORD JUSTICE SCOTT BAKER
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Between:

	THE QUEEN
(on the application of Fowzi Bedavi Nejad)	Applicant	
	- and -		
	THE SECRETARY OF STATE FOR THE HOME DEPARTMENT	Respondent	

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(Transcript of the Handed Down Judgment of
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Tim Owen Esq, QC & P Bowen Esq (instructed by Messrs Irwin Mitchell) for the Applicant
Ms Eleanor Grey (instructed by The Treasury Solicitor) for the Respondent

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Judgment
Lord Justice Simon Brown:
1.	Whose view as to sentence should prevail in those few remaining cases calling for the exercise of the transitional power arising under paragraph 9(1) of Schedule 12 to the Criminal Justice Act 1991 (“the 1991 Act”):  the Secretary of State’s or the Lord Chief Justice’s?  That essentially is the question arising for decision on the present application.  Before, however, I set out the provision itself and indicate by reference to authority the particular nature of the judgment it calls for, let me first sketch in the factual context in which the issue arises.  I can do so comparatively briefly.
2.	The applicant is an Iranian citizen aged 46.  He was one of a group of six heavily-armed men who on 30 April 1980 seized control of the Iranian Embassy in Princes Gate, London and held 26 people hostage.  The terrorists demands included the release of 91 prisoners in Iran and they threatened to kill the hostages if these demands were not met.  During the six days of the siege, two hostages were murdered, although not, I should at once make clear, by the applicant.  On the evening of 5 May 1980 members of the SAS regiment famously stormed the building and released the remainder of the hostages.  They killed five of the hostage takers.  The applicant was the only survivor.
3.	The applicant was, of course, arrested and held in custody pending trial.  On 13 January 1981 at the Central Criminal Court, he pleaded not guilty to murder but guilty to charges of conspiracy to murder, false imprisonment and possessing firearms with intent to endanger life.  On 22 January 1981, whilst giving evidence in his own defence at trial before Park J and a jury, he pleaded guilty in addition to the manslaughter of the two murdered hostages.  He was sentenced to five concurrent discretionary life sentences.
4.	On 3 August 1985 Park J as the trial judge recommended that the applicant serve a minimum period of detention of 20 years:
“Nejad gave evidence through an interpreter.  His plea to manslaughter was accepted before he had been cross-examined.  I thus had no opportunity for making any opinion as to the reliability of his evidence about the precise part he played during the occupation.  Nevertheless, he was a terrorist and actively participated in most of the events that happened.  For the purpose of general deterrence, the period of detention for such a person, in my opinion, ought not to be less than 20 years.”
5.	On 2 September 1985 the Lord Chief Justice (then Lord Lane) commented:
“I would put the minimum at 25 years rather than 20.”
6.	On 30 July 1992 the then Home Secretary set the punitive part of the discretionary life sentence (colloquially known as the “tariff”) at 25 years, information communicated to the applicant’s solicitors by letter dated 14 October 1996 inviting representations.
7.	For reasons which are unexplained, a number of years then passed until 7 March 2002 when the applicant’s solicitors made a number of representations and invited the Home Secretary to reduce the tariff on the ground that fresh evidence was now available which constituted important mitigation and which, it was said, had it been known to the trial judge and the Lord Chief Justice, would have led them to recommend a lower tariff.
8.	The Secretary of State referred the matter back to the Lord Chief Justice (by then Lord Woolf of Barnes) who advised as follows:
“I consider that if the material which is now available had been available to my predecessor, he would have selected a tariff of 22 years or less, and a tariff of 22 years in my view does also fully reflect now the period required for retribution and deterrence in this case.”
9.	That advice notwithstanding, the Home Secretary on 31 March 2003 informed the applicant of his decision not after all to reduce the original 25 year tariff, and on 7 April 2003 stated his reasons for maintaining it as follows:
“The Secretary of State has reconsidered the relevant part (tariff) of your life sentence which was certified in 1992 as 25 years under Section 34 of the Criminal Justice act 1991, in accordance with the recommendation made by the Lord Chief Justice.
In considering whether to re-certify your tariff, the Secretary of State has carefully considered the nature of your offences;  the detailed representations made by solicitors on your behalf on 7 March 2002;  the views of the judiciary in 1985, and the recommendation for a reduction in tariff to 22 years, made by the Lord Chief Justice, Lord Woolf, on 24 April 2002.
The Secretary of State notes the very serious nature of your offences (namely conspiracy to murder, two counts of manslaughter, false imprisonment and possession of firearms with intent to endanger life) and the circumstances in which they were committed.
There is no independent evidence to show that you did not voluntarily join the armed conspiracy which led to the deaths of two innocent victims, or that you at any time attempted to remove yourself from active involvement in the taking and holding of the hostages, which led to two deaths.
The Secretary of State is not persuaded in these circumstances that the representations made provide sufficient grounds for taking a different view from that taken by Lord Lane, that the appropriate period to be served in custody for the punishment of your offences should be 25 years.  Accordingly, the Secretary of State has decided not to re-certify your tariff, such that the 1992 certification of 25 years is maintained.”
10.	In reaching his decision the Secretary of State was exercising the powers accorded to him under paragraph 9 of Schedule 12 to the 1991 Act (as he had earlier done when first setting the tariff in 1992).  Paragraph 9(1) provides:
“9(1)	This paragraph applies where, in the case of an existing life prisoner, the Secretary of State certifies his opinion that, if ‑
(a)	section 34 of this Act had been in force at the time when he was sentenced;  and
(b)	the reference in subsection 1(a) of that section to a violent or sexual offence the sentence for which is not fixed by law were a reference to any offence the sentence for which is not so fixed,
the court by which he was sentenced would have ordered that that section should apply to him as soon as he had served a part of his sentence specified in the certificate.”
11.	I need not set out s34 of the 1991 Act.  Its essential effect was to transfer from the Home Secretary to the sentencing court the power to set the tariff part of a discretionary life sentence, in order words to determine the punitive element to be served before the prisoner comes to be considered for release on life licence by the Parole Board.  (The whole purpose of this part of the 1991 Act, perpetuated in succeeding legislation, was to judicialise the release process for discretionary life prisoners.  Not only did the Secretary of State relinquish his tariff setting power to the sentencing judge, but also the Parole Board’s function - acting as the “court” for the purposes of Article 5 of ECHR - was upgraded from that of merely recommending the prisoner’s release to actually directing it.)
12.	Section 34 of the 1991 Act, however, applied only to offenders who were sentenced after the Act came into force.  Those, like the applicant, whose discretionary life sentences had been imposed before that date, fell to be dealt with under the transitional provisions contained in Schedule 12 to the Act.  Under paragraph 9 of Schedule 12 the Home Secretary retained his power to certify the appropriate tariff period - a power , it is agreed, exercisable from time to time so that the Secretary of State may modify the tariff when, as here, the prisoner makes representations seeking its reduction.
13.	It is common ground that the Home Secretary’s function when certifying under paragraph 9 is to put himself into the position of the sentencing judge - as it was put in argument before us, to second-guess what the trial judge would himself have certified as the tariff period under s34.  That was decided by this court in R -v- Secretary of State for the Home Department ex parte McCartney (transcript dated 19 May 1994, unreported), an important decision with regard to the present application, as I shall shortly come to explain.
14.	First, however, I must complete the history of this litigation.
15.	On 4 July 2003 the applicant issued his claim form seeking to challenge the Home Secretary’s decision on 7 April 2003 refusing to reduce the tariff period below 25 years.  Various grounds of challenge were advanced.  The most important, however, was that it was irrational or otherwise impermissible for the Home Secretary, having consulted the Lord Chief Justice on the appropriate tariff in the light of the applicant’s fresh evidence and representations, then not to follow his advice.
16.	Permission to move for judicial review was refused by Henriques J following an oral hearing on 22 October 2003.  The Secretary of State conceded that paragraph 9 of Schedule 12 is incompatible with Article 6(1) of ECHR.  So much, indeed, is indisputable - see most recently the decision of the ECtHR in Easterbrook -v- United Kingdom (00048015/99 12 June 2003).  But that, ran the argument, entitled the applicant to no more than a declaration of incompatibility:  Parliament had clearly conferred the responsibility for setting the appropriate tariff upon the Home Secretary and it was not possible to read down the power so as to make the provision compatible with Article 6.  The Secretary of State’s decision was accordingly not to be adjudged unlawful under s6 of the Human Rights Act 1998.
17.	Henriques J accepted that argument.  He noted that it is “the Secretary of State’s opinion as to what the court by which he was sentenced would have ordered which is certified by the Secretary of State” and concluded that “it would be an unlawful fetter of the defendant’s discretion if he were simply to rubber stamp [the Lord Chief Justice’s] view”.  He observed that “Material capable of mitigating a sentence may commend itself to one decision maker, but not to another”, and held that “the Secretary of State is perfectly entitled, indeed obliged, to reach his own opinion”.
18.	Permission to appeal against that judgment and to apply for judicial review was granted by Laws LJ on the documents on 3 November 2003.  He reserved to this court the hearing of the substantive application and ordered it to be expedited given that the tariff period will expire on 5 May 2005 (the 25th anniversary of the applicant’s remand in custody).  Although, I may add, we duly heard the appeal as a matter of urgency, it speedily became apparent that, whatever the tariff period, the applicant’s release is singularly unlikely to be directed before that date.  On the referral of his case to the Parole Board in June 2003 the Board was unable to support a move to open conditions, instead recommending that courses be taken to reduce risk.
19.	It is convenient at this stage to return to the case of McCartney, first to understand what the real issues arising there were, and then to see how this court resolved them.  Although the facts of McCartney were a little complicated, for present purposes they can be summarised as follows.  McCartney was a member of the IRA who in 1976 was convicted of a number of grave offences including the attempted murder of three police officers for which he was sentenced to three concurrent discretionary life sentences.  Also in 1976 a number of other IRA bombers, known as the Dowd group, were convicted of grave offences for which they too were sentenced to discretionary life imprisonment.  Their cases had been linked to McCartney’s and at one time had actually been considered for trial together.  In 1985 the Lord Chief Justice, Lord Lane, was consulted upon the appropriate tariff periods in each case.  For McCartney he recommended a minimum period of detention of 25 years.  For the Dowd group he said that life should mean life.  Following the introduction of the transitional provisions contained in the 1991 Act the Home Secretary in McCartney’s case simply adopted Lord Lane’s recommendation of 25 years without consulting the judiciary afresh.  With regard to the Dowd group, however, he had no option but to consult the judiciary afresh:  as already noted, Lord Lane had not for that group originally decided upon a determinate tariff period.  The new Lord Chief Justice, Lord Taylor, was therefore consulted and he recommended for the Dowd group a tariff period of 20 years, a recommendation accepted by the Home Secretary and thus certified by him under paragraph 9.
20.	Mr McCartney’s solicitors were not surprisingly concerned at the discrepancy between the two cases and so made representations that the Home Secretary should now reduce McCartney’s certified tariff.  The Secretary of State, however, refused to do so and instead reaffirmed his earlier decision, consistently with Lord Lane’s advice, to certify the tariff at 25 years.  The Secretary of State in his decision letter accepted that the circumstances of McCartney’s offences were very similar to those which had led to a 20 year tariff for the Dowd group, but “concluded that he had, regrettably, made an error of judgment in accepting the Lord Chief Justice’s advice in those cases that 20 years was the appropriate tariff”.  He “did not believe, in all the circumstances, that the tariff which he now considers too low set in the cases of Dowd and others should be perpetuated in another case”.
21.	As already indicated, McCartney decided that the Secretary of State is required by paragraph 9 to fix as the tariff the equivalent fixed term sentence which the court itself would have imposed at the date when sentence was passed if there had not been a risk element justifying life imprisonment.  That, however, had not previously been the Secretary of State’s understanding of his role.  His case, rather, was that on the true construction of paragraph 9 he was entirely free to set the tariff period in accordance with his own views of what was appropriate at the date when sentence was passed, unrelated to sentence in comparable cases passed at that time.  And that, indeed, had been the approach he had adopted.  The argument on his behalf was recorded by Hoffmann LJ as follows:
“Mr Pannick says that Parliament cannot be supposed to have required the Secretary of State to form an opinion as to what determinate sentence would have been passed by the sentencing court if a discretionary life sentence had not been imposed.  For one thing, there is no right answer to that question.  All one can say with certainty is that the sentence would have been within a certain range.  And for another the best people to answer that question would be the judiciary.  But paragraph 9 does not entrust the decision to the judiciary.  It requires the opinion of the Secretary of State.”
22.	Hoffmann LJ was unimpressed with that argument.  He pointed out that almost all discretionary life prisoners would already have had a tariff fixed on the advice of the judiciary in accordance with the 1987 Home Secretary’s policy statement (Mr Hurd’s statement following the Divisional Court’s judgment in Hanscomb [1988] 86 Cr App R 59 that in discretionary life cases he would thereafter accept judicial views on tariff) and continued:
“Only in cases in which for some reason no tariff had yet been fixed, or in which there was some doubt as to whether the judges had applied the correct criteria, or some relevant new circumstances had emerged, would the Secretary of State need to look any further.  Thus the Secretary of State was the appropriate person to entrust with what in most cases would be the virtually administrative task of certifying the tariff periods already on the books.  There was no need for Parliament to require the judges to fix them all over again.  Only in those cases in which the existing advice was for one reason or another inadequate, would the obvious first step be for the Secretary of State to consult the judiciary again, in accordance with existing practice.  Having done so, he would then have the best material on which to advise.  All of this fits in perfectly well with the object of the exercise being to determine what tariff would have been fixed at the trial if section 34 had been in force.”
23.	Stuart-Smith LJ similarly rejected Mr Pannick’s argument.
“It is true that the Secretary of State cannot be expected to be expert in the range of determinate sentences current at the time of sentence.  But he can ask for advice from the Lord Chief Justice, as he did in the case of the Dowd group and eventually in the appellant’s case.”
24.	Having held in the result that the Secretary of State had misdirected himself in law and applied the wrong test it became strictly unnecessary for the court then to deal with the prisoner’s alternative argument, his contention that, even assuming that the Secretary of State had been free to fix a tariff figure according to his own judgment and perceptions of deterrence and retribution, he was bound, as a matter of law, to accept the figure of 20 years set by Lord Taylor.  Stuart-Smith LJ nevertheless expressed his view upon the argument:
“The Divisional Court was correct in my judgement to hold that, if the Secretary of State’s construction of paragraph 9(1) was right, he was not bound as a matter of law to accept the tariff set by Lord Taylor.  If this was itself out of line with comparable determinate sentences passed at the time he might have good reason to depart from it.  Nor need he accept the tariff in a comparable case if it could be said to be too lenient adopting the same criterion.  But in my view it was Wednesbury unreasonable of the Secretary of State in this case to reject the opinion of Lord Taylor.  It cannot be said that 20 years is out of line or too lenient when compared with determinate sentences passed at the relevant time and it cannot be said that the sentences in Dowd were too lenient adopting the same criterion.”
25.	What, of course, Stuart-Smith LJ was there saying was that, even if the Home Secretary had been right in contending that he was free to set the tariff in accordance with his own views of what was appropriate without regard to sentences passed in comparable cases at the time, he would still not have been entitled to reject (it would, indeed, have been Wednesbury unreasonable for him to reject) the Lord Chief Justice’s opinion as to the correct tariff unless that opinion itself were “out of line with [ie “too lenient” having regard to] comparable determinate sentences passed at the time”.
26.	Given, of course, the true nature of the Home Secretary’s task under paragraph 9(1) as determined in that case, it might be thought even more obvious that he could not properly depart from the tariff recommended by the Lord Chief Justice save for “good reason”.  One may ask, indeed, is not a recognition that this must be so clearly implicit in the argument advanced by Mr Pannick in support of the Home Secretary’s construction of paragraph 9 (misconstruction though in the event it was held to be)?  As Mr Pannick was submitting (see paragraph 21 above), if the tariff to be determined under paragraph 9 was to be based on “what determinate sentence would have been passed by the sentencing court if a discretionary life sentence had not been imposed”, “the best people to answer that question would be the judiciary”.
27.	How, then, does Ms Grey for the Secretary of State seek to meet this apparently powerful argument?  Her starting point is that with regard to tariff setting - and, indeed, tariff revising, as here - there will often be room for two views, neither of which can properly be characterised as unreasonable, and that this, indeed, was the position here.  As the judge below said:  “Material capable of mitigating a sentence may commend itself to one decision maker, but not to another”.  This part of the argument I am inclined to accept:  the Lord Chief Justice could himself perfectly properly have taken the same view of the mitigating material as ultimately the Home Secretary took and no-one would have thought his opinion irrational.  Equally, to my mind, it must be assumed for the purposes of the present challenge (since the contrary had not been pleaded or argued below) that Lord Lane’s original tariff of 25 years was itself an appropriate figure to recommend - although Mr Owen QC for the applicant would, if free to do so, have wished to question that assumption.
28.	The necessary next stage of Ms Grey’s argument, however, is altogether more difficult.  She submits, and of course has to submit, that, assuming there to be room for two views here as to the value of this fresh material and thus the appropriate tariff to determine on review, it is the Secretary of State’s opinion which must prevail.  He is perfectly entitled to depart from the Lord Chief Justice’s view, not because he thinks that it is out of line with the sentences to which it must be compared, but simply because he prefers his own view of what sentence a court would have thought fit to impose.  It is, in short, Ms Grey’s submission that the Secretary of State does not need “good reason to depart from” the tariff as advised by the Lord Chief Justice.  The decision is his.  That, she submits, is what Parliament has stipulated for:  had it been intended to give the last word to the judiciary under Schedule 12 (as under the rest of the 1991 Act), Parliament would have so provided.  Instead the opinion to be certified is that of the Secretary of State.
29.	Skilfully and attractively though the argument was presented, I for my part cannot accept it.  Rather it seems to me that although Parliament was according to the Secretary of State the actual task of certifying the tariff, it was intending this certificate to be based on a judicial expression of view.  What the Secretary of State has to certify is what “the court … would have ordered”.  And as Hoffmann LJ stated in McCartney (see paragraph 22 above) “in most cases [the Secretary of State will be discharging] the virtually administrative task of certifying the tariff periods already on the books”, and in the remaining cases his “obvious first step” would be “to consult the judiciary again” whereupon “he would then have the best material on which to advise” (the best material on which, in other words, to certify).
30.	It is not suggested that the Secretary of State in the present case had any “good reason to depart” from the Lord Chief Justice’s advice - advice given, one may note, in terms indicating that, but for the fact that the applicant had already by then been detained for 22 years, he might well have recommended a lower tariff still.  Rather the Secretary of State felt at liberty simply to adopt his own different view of the matter.  I do not think he was entitled to do so.  I would accordingly allow this application.
Lord Justice Keene:
31.	I have had the opportunity of reading in draft the judgments of Simon Brown and Scott Baker LJJ, with both of which I agree.
Lord Justice Scott Baker:
32.	I have had the advantage of reading in draft the judgment of Simon Brown L.J and I agree with it. My mind changed during the course of argument. It is important to look carefully at the wording of paragraph 9 of Schedule 12. The exercise required of the Secretary of State is certification and the yardstick is what the court by which the appellant was sentenced would have ordered. The question that has to be answered, therefore, is very much one that falls within the expertise and experience of the judiciary and it is unsurprising that the Secretary of State looked to the Lord Chief Justice for advice before certifying. His act of certification seems to me to require following the advice that he has sought and been given unless the circumstances indicate some good reason to the contrary. No such good reason is apparent.
33.	Certification under paragraph 9 is a different exercise from the classic exercise of a power with which administrative lawyers are familiar, where the decision maker is at liberty, without interference by the courts, to take any decision within the reasonable band open to him. It is thus not the correct approach for the court to say that sentencing is an imprecise exercise and the Secretary of State could perfectly reasonably conclude that 25 years was an appropriate tariff as against 22 years. Rather, the question is whether there was any reason for not following the advice and, plainly, there was not. 
34.	In the event the outcome of this appeal is likely to be wholly academic. The appellant’s 25 year tariff expires in May 2005 and he is presently still in closed conditions. It is most unusual for a life sentence prisoner to be released on life licence without first spending a period (normally at least two years) in open conditions where his release plan can be tested and explored and it can be demonstrated that he can be safely released back into the community.
35.	The papers before the court indicate a disturbing inactivity on the part of the Secretary of State. It is wholly unacceptable for the appellant’s case to have been put before a panel of the Parole Board in June 2003 without a single report that was less than a year old. The inevitable result of this was that the Board could not be satisfied that the level of risk was sufficiently low to justify a move to open conditions and was accordingly unable to make such a recommendation. A delayed move to open conditions may well result in a delayed release. Further, although the Lord Chief Justice wrote to the Secretary of State with his advice on 10 May 2002 it was not until 31 March 2003 that the Secretary of State’s decision was communicated to the appellant’s solicitors.
36.	The 22 year tariff period advised by the Lord Chief Justice has now expired and urgent attention should be given to the appellant’s future. The first question is whether the Secretary of State proposes to deport him and if so to what country? If not, the appellant and his advisers will no doubt wish to consider a release plan so that when and if the Parole Board regards the risk as sufficiently low he can be released on life licence. What is plain is that the appellant’s period in custody should not be allowed to increase as a consequence of further inactivity on the part of the Secretary of State.
37.	I agree that the application for judicial review should succeed.
Lord Justice Keene:
38.	I agree.
Lord Justice Scott Baker
39.	I also agree.
Order: Appeal allowed; the application for judicial review is allowed; the Secretary of State’s decision dated 7th April 2003 is quashed; the respondent to pay the appellant’s costs of the appeal and of the application for judicial review here and below; to be assessed if not agreed; detailed assessment of the appellant’s pubic funding costs; liberty to apply.
(Order does not form part of the approved judgement)