R (Anderson) v Secretary of State for the Home Department [2002] UKHL 46

Key point

  • Legislation cannot be read down under s3(1) HRA where the incompatibility is due to “necessary implication”
  • s29 Crime (Sentences) Act 1977, which give the Secretary of State the power to decide on the minimum period which must be served by a mandatory life sentence prisoner, is incompatible with the European Convention on Human Rights Article 6(1)

Facts

  • Anderson (the appellant), murdered a 60-year-old man in 1986, a year later he murdered a 35 year old homosexual man and stole their properties
  • Anderson was convicted of murder at the central criminal court
  • Under s29 Crime (Sentences) Act 1997, the Home Secretary has the discretionary power to release on licence a convicted murderer serving a sentence of life imprisonment if recommended, after consulting the trial judge and Lord Chief Justice
  • The trial judge and the Lord Chief Justice, recommended that he serve a minimum term of 15 years for both murders
  • However, Home Secretary set the term at 20 years, exercising his discretion under s29
  • Anderson sought judicial review of the Home Secretary’s decision on the basis that s29 was incompatible with Article 6(1) ECHR (right to a fair trial by an independent and impartial tribunal), as the Home Secretary was not ‘an independent tribunal’ within the meaning of Article 6(1)
  • His claim was rejected by the lower courts, and he now appeals to the House of Lords

Held (House of Lords)

  • Appeal allowed; a declaration of incompatibility against s29 Crime (Sentences) Act 1997 was made under s4 Human Rights Act 1998

Lord Bingham

Compatibility of s29 with Article 6(1)

  • Pursuant to the Human Rights Act 1998, the court should give effect to decision of the European Court of Human Rights in Stafford v UK (Application No 46295/99, 28 May 2002), which held that the role of the Secretary of State in fixing the tariff and in deciding on a prisoner’s release following its expiry, has become increasingly difficult to reconcile with the notion of separation of powers between the executive and the judiciary
  • “The European Court observed (paragraph 36):”This is not a matter of form but impinges on the fundamental principle of separation of powers and detracts from a necessary guarantee against the possibility of abuse…” The European Court was right to describe the complete functional separation of the judiciary from the executive as “fundamental”, since the rule of law depends on it.” [27]
  • The following propositions were upheld at [20] – [27]:
    1. Under article 6(1) of the convention a criminal defendant has a right to a fair trial by an independent and impartial tribunal.
    2. The imposition of sentence is part of the trial.
    3. Therefore sentence should be imposed by an independent and impartial tribunal.
    4. The fixing of the tariff of a convicted murderer is legally indistinguishable from the imposition of sentence.
    5. Therefore the tariff should be fixed by an independent and impartial tribunal.
    6. The Home Secretary is not an independent and impartial tribunal.
    7. Therefore the Home Secretary should not fix the tariff of a convicted murderer.
  • s29 of the Crime (Sentences) Act 1997 is thus incompatible with Article 6 of the European convention on Human Rights

s3 HRA

  • A rights compatible interpretation would not be “judicial interpretation but judicial vandalism” because it would give an effect quite different from the one intended by Parliament: [30]

Lord Steyn

s3 HRA

  • “It would not be interpretation but interpolation inconsistent with the plain legislative intent to entrust the decision to the Home Secretary, who was intended to be free to follow or reject judicial advice” and “section 3(1) is not available when suggested interpretation is contrary to express statutory words or is by implication necessarily contradicted by the statute”: [59]
  • “it would give the section an effect quite different from that which Parliament intended and would go well beyond any interpretative process sanctioned by section 3”: [30]

Lord Hutton

s3 HRA

  • For the court to take away the Secretary of State’s power to decide the length of the tariff period would be “amendment of a statute and not interpretation, section 3 does not permit the House to engage in amendment of legislation”: [81]

Commentary

  • Considering the decision made by the European court, on mandatory life sentences, and article 6(1) of the convention, the power to affix the tariff by the Home Secretary, would negate the principle of separation of powers and the right to a fair trial by impartial and independent tribunal
  • The Court was nonetheless not required to follow the decision of the European Court: [73]
  • It is not possible anymore to have a life sentence that means imprisonment for life in a literal way