He huffs and he puffs

In November last year, to the relief of the Government, Myra Hindley died. Hindley, who had served 36 years, was the most high-profile victim of a series of Administrations which, in pursuit of electoral success, have taken up tabloid-inspired positions on the sentencing of murderers. A few days later, the Law Lords delivered a landmark decision in the case of Anthony Anderson, a double murderer who had brought an application for judicial review of the terms of his sentence against the Home Office. Had Hindley lived, the Lords’ judgment in Anderson’s favour might also have led to her release from prison, where she was serving a mandatory life sentence.

The Anderson ruling took away from the Home Secretary the power to make the ultimate decision as to how long a mandatory life prisoner should serve; instead, it became one for the courts and the parole board. It was this judgment, based on the provisions of the Human Rights Act 1998, together with the subsequent tabloid outrage, that provoked David Blunkett’s latest strike against the criminal justice system. He announced that legislation would soon be introduced severely to restrict judicial participation in determining the length of sentences for murderers, a group whose harsh treatment is considered by the Labour Party far too valuable a political currency to be left to the perceived lenience of the judiciary.

In April this year, Blunkett proposed that Parliament should impose a ‘framework’ for judges to follow when determining how long an offender should spend in prison. The legislation will say that for the ‘sexual, sadistic’ murder of children or terrorist murder, life will mean life in all cases, as opposed to the current practice of a minimum 20-year term. For the murder of a policeman, a prison officer or for racially motivated murder, the minimum term will be 30 years. Other murders will have a 15-year starting point, ‘on which judges can build’.

These fixed terms of imprisonment are a direct snub to Lord Woolf, the Lord Chief Justice, who last year published a directive for judges recommending 15 years as the minimum term for the most serious categories of murder. The proposed new legislation allows judges only a vestigial role. If they wish to deviate from the new framework, they will have to give a full justification of their decision in open court – a kind of Maoist shaming ritual. The effect of the new law will be that individual cases will cease to be treated as such: murderers will be condemned as a class.

On one level, Blunkett’s crass proposals can be seen simply as giving Sun and Express readers what they want. But that would be to let him and New Labour off the hook. More significant and sinister issues have become apparent during the course of this dispute. New Labour didn’t get where it is today by being soft on those who offer resistance to the Project. In the absence of an effective Opposition with which to brawl, the Government is picking fights elsewhere; and the judiciary is being punished for daring to entertain jurisprudential notions which do not accord with those endorsed by the Sun. We are witnessing the extraordinary spectacle of a Labour Home Secretary legislating against judges because they are too liberal.

The Anderson case is worth considering in some detail. As well as demonstrating Blunkett’s love of headlines, it is one of the most conspicuous illustrations we have had so far of the developing antagonism between two of the three components of our unwritten constitution: the judiciary and the executive. In passing, and most distastefully, it also shows the continuity between the policies of the grotesque Home Secretaries of the Thatcher years – Brittan, Waddington, Howard et al – and those of the nominally left-wing incumbent.

As a crime, murder is rarely examined with dispassion, and it will come as no surprise to discover that it involves complexities, ignored by the Home Secretary and the tabloid press, which are crucial to any informed discussion of the role of judges and politicians in dealing with those convicted of homicide. According to the legal definition, a murderer does not need to have intended to kill in order to commit murder. He or she (though murderers are almost always men) may even have intended not to kill, but only to cause serious physical injury. The category of ‘murder’ includes acts which vary hugely in their levels of culpability: from the premeditated ‘sexual, sadistic’ killing of a child to hitting over the head with a chair someone who dies a month later because of an undiagnosed weakness of the skull; from the contract killing of an organised crime boss to the administration of an overdose of drugs to a terminally ill patient. All these actions can attract a mandatory life sentence.

This is in sharp contrast to the sentencing regime available to judges for those found guilty of a range of offences – manslaughter, rape, grievous bodily harm – which attract the other form of life sentence, discretionary life. When, as is frequently the case, a murder charge is reduced to one of manslaughter, the trial judge may select from a range of sentences, including a fixed prison term, a hospital order or life imprisonment. Those who kill and are convicted of manslaughter by reason of diminished responsibility, for example, are no less dangerous than those convicted on a full murder charge, yet judges have discretion in one instance and not in the other. In view of anomalies such as this, in 1989 the House of Lords Select Committee on Murder and Life Imprisonment recommended the abolition of the mandatory sentence for murder.

This recommendation has not been found acceptable by vote-hungry governments, however. ‘When capital punishment was abolished,’ Blunkett has said, ‘it was intended that a strong, rigorous alternative needed to be introduced and maintained,’ the implication being that before 1957 all murderers were executed and that after abolition, during some unspecified golden age, every murderer received a whole life sentence. His assertion loses some of its force when you look at the figures. Statistics published by the Royal Commission on Capital Punishment show that of the murderers sentenced to death between 1900 and 1949, when the defence of diminished responsibility became available, 91 per cent of women and 39 per cent of men were reprieved. Of those reprieved, twice as many served terms of imprisonment of less than five years as served terms of more than 15.

Blunkett’s attack on the judiciary is not based on reference to inconvenient facts, however. He has also said that he shares ‘public concern that some very serious criminals seem to be serving a relatively short spell in prison’, even though his own department has recently found that a higher proportion of criminals are being sent to prison today than at any time since the 1950s, and that the average length of sentence has increased from 15 months then to 22 months now. Yet more than half of those questioned as part of a British Crime Survey focusing on public attitudes to the punishment of criminals reckoned that average sentences were a third shorter than they actually are. It is disappointing that the Home Secretary isn’t dispelling these misperceptions with the same vigour with which he is currently ratcheting up the level of public hysteria over crime.

In modern times, the type of sentence to be passed for murder by the judges has been prescribed by statute. Until 1957, the sentence was one of death. Under the Homicide Act of 1957 the death sentence was passed for capital or multiple murders while other types of murder received a life sentence. By the Murder (Abolition of Death Penalty) Act 1965, it was provided that convicted murderers should be sentenced to life imprisonment. Since then successive statutes have given the Home Secretary the power to decide on the release date of a convicted murderer. In 1983, Leon Brittan applied a policy of fixing a minimum number of years to be served, a ‘tariff’ which satisfies the requirements of retribution and deterrence.

At the time of Anderson’s appeal, the Home Secretary’s power to control the release of mandatory life-sentence prisoners was governed by Section 29 of the Crime (Sentences) Act 1997, which was the latest expression of the sentencing procedure that had evolved since the abolition of hanging. According to this, after a murderer had been convicted, the trial judge made a recommendation as to the length of sentence that should be served. The judge was uniquely well placed to do this: he had a detailed knowledge of the facts of the case and of the offender. He then submitted his recommendation to the Lord Chief Justice for review. The Lord Chief Justice provided advice based on his knowledge of cases drawn from the whole of the jurisdiction, so encouraging a uniformity of approach to sentencing across this class of crime.

The two judicial opinions were then submitted to the Home Secretary, who alone had the power to fix the tariff. He was entitled to ignore both recommendations. In Anderson’s case, both judges recommended a tariff of 15 years; the Home Secretary imposed a sentence of 20. In 1995, Michael Howard explicitly referred to the quasi-judicial nature of his role: ‘The prisoner is aware of the judicial view and has the opportunity to make representations. He is then told of the tariff set. If there is any departure from the judicial advice, he is given detailed reasons.’ It was a confident admission that the executive was usurping the function of the judges.

How did the situation arise in which a minister could become a sentencer? Although, in our system of law, the sentencing of those convicted of crime has always been regarded as a judicial rather than an executive function and the separation of powers as a touchstone of our political freedoms (hence the constitutional questions thrown up by the Anderson case), our unwritten constitution has never in fact embraced a rigid doctrine of the separation of powers, and the relationship between the legislature and the executive is at times so close as to make them almost indistinguishable. On the other hand, the separation of powers between the judiciary and the legislative and executive branches of government has been a bulwark protecting civil liberties. It can be trumped, however, by the doctrine of the supremacy of Parliament. Whatever arguments there might be concerning the Home Secretary’s exact role in the sentencing of murderers, Parliament had the power to decree that it was so.

But then, in 2000, the Human Rights Act, which gave effect to the European Convention on Human Rights (ECHR) in UK law, came into force. For the first time, a notion of the special protection of human rights based on references to a higher legal order than that presided over by Parliament had been allowed to enter British constitutional theory. To that limited extent, Parliamentary sovereignty was impugned and traditional constitutional relationships re-ordered: the Act enables the courts to take action when the Convention is breached, by endowing them with strong interpretative powers, for example. However, it also retains the status quo where Parliamentary sovereignty is concerned. Because we continue to adhere to that doctrine, the Act has much less force here than under the written constitutions of other countries, where courts are able to strike down legislation seen as unconstitutional. The most potent sanction available to the British courts is to declare an incompatibility if it is found that a law has contravened the Convention. The Act has enabled the judiciary to enter into competition with the executive and the legislature, but without giving the courts any means definitively to resolve an issue. It has just enough effect to be a significant irritant to government but not so much as to cut through the debris of our traditional constitutional arrangements.

It is against this background that the Law Lords had to deal with the highly politicised question of Anderson’s appeal. The appeal hinged on whether the Government’s power to determine the length of prison sentences served by murderers was compatible with the Human Rights Act. In delivering their judgments, the Lords reviewed many sources, including domestic and European authorities and their application of the ECHR, as well as Commonwealth case law and legislation.

Article 6(1) of the Convention provides that ‘in the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law.’ In 1990, as a result of the European Court of Human Rights’ decision in Thynne, Wilson and Gunnell v. UK, a case involving a psychotic rapist, Parliament made the judiciary and parole board alone responsible for decisions concerning the release of discretionary life prisoners. In accordance with Article 6(1), the Strasbourg Court decided that the Home Secretary was not an ‘independent and impartial tribunal’ when setting a tariff. As a result, the executive can no longer control the date of release for a category of prisoners that includes some of the most dangerous criminals. The Strasbourg judges arrived at the same decision in respect of people under 18 years of age detained at Her Majesty’s Pleasure, resulting in the same response from Parliament as in the Thynne, Wilson and Gunnell case. Meanwhile, recent changes in the law in Scotland and Northern Ireland mean that ministers there now play no role in the sentencing of murderers. There has been no suggestion that those convicted under these new regimes are receiving lenient sentences.

In the Anderson judgment Lord Steyn dealt with this particular canard in relation to mandatory life prisoners. He noted that if the role of the Home Secretary in setting the tariff were to end, ‘it does not follow that life imprisonment for murder may never, even in the worst cases imaginable, mean detention for life.’

This Government’s insistence that the involvement of the Home Secretary in the tariff-fixing process is legitimate was fatally weakened last year by the judgment of the European Court of Human Rights in the case of Stafford v. UK. Stafford, a murderer, had been released from prison on licence. In 1994 the Conservative Home Secretary revoked the licence because Stafford committed criminal offences after release, though these were unrelated to the original crime. As a result, Stafford was sent back to prison. In 1996 the parole board recommended his release. This was rejected by the Home Secretary. The European Court ruled that this period of continued detention was unlawful. In effect, it amounted to the imposition of a sentence without trial. Before this decision, it had been successfully argued that a mandatory sentence could be differentiated from a discretionary one, so the executive could still intervene in the mandatory sentencing process. In Stafford’s case the European Court came to the sensible conclusion that there was no distinction between mandatory and discretionary life prisoners as regards the fixing of the tariff. ‘The continuing role of the Secretary of State in fixing the tariff and in deciding on a prisoner’s release following its expiry,’ it commented in the course of affirming this position, ‘has become increasingly difficult to reconcile with the notion of separation of powers between the executive and the judiciary.’

This view was reinforced by the decision of the European Court in the case of Benjamin and Wilson v. UK. Benjamin and Wilson were prisoners serving discretionary life sentences who were detained in a mental hospital. The power to order their release lay with the Secretary of State, who contended that he had adopted a practice of rubber-stamping whatever the Mental Health Review Tribunal recommended. The Court stated:

Although both parties appear to agree that the Secretary of State, following entry into force of the Human Rights Act 1998, would not be able lawfully to depart from the Tribunal’s recommendation, this does not alter the fact that the decision to release would be taken by a member of the executive and not by the Tribunal. 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.

In Anderson’s case, the Government conceded that the Home Secretary, as a member of the executive, was definitely not ‘independent’ for the purposes of Article 6(1). The issue before the House of Lords was therefore whether the fixing of the tariff element of a mandatory life sentence was to be classified as the ‘determination of a criminal charge’. If so, was this a judicial function? If it was, it followed that the tariff could no longer be fixed by the executive.

Buoyed by the judgment from Strasbourg and the example set by the rest of the UK, Lord Steyn asked whether the fixing of the tariff was a judicial function and concluded that it was:

First, only a court or an independent tribunal may decide on the guilt or otherwise of an accused person . . . Secondly, only a court or independent tribunal may decide on the punishment of a convicted person . . . The underlying idea, based on the rule of law, is a characteristic feature of democracies . . . The power of the Home Secretary in England and Wales to decide on the tariff to be served by mandatory life sentence prisoners is a striking anomaly in our legal system.

The Home Secretary’s arguments in the House of Lords centred on the contention that the setting of a tariff is an administrative rather than a judicial function. This sits rather uncomfortably with the image of Lord High Executioner which Blunkett assiduously cultivates. Unsurprisingly, their Lordships found the Government’s arguments difficult to swallow. (‘The persuasiveness of the advocacy of counsel for the Home Secretary cannot hide the fragility of the argument presented.’) The appeal on behalf of Anderson was allowed.

The court made a declaration of the incompatibility of Section 29 of the Crime (Sentences) Act 1997 with the Convention. ‘If a court,’ Lord Hutton said, ‘declares that an Act is incompatible with the Convention, there is no question of the court being in conflict with Parliament or of seeking to override the will of Parliament. The court is doing what Parliament has instructed it to do in Section 4 of the 1998 Act.’ It is, he said, ‘for Parliament itself to decide whether it will amend the statute’. Here it is possible to see the judges as disingenuous – in order to sugar the pill, they are maintaining the fiction of an unassailable Parliamentary sovereignty. For while it is true that, strictly speaking, Parliament has the final say and can choose to ignore the declaration, in reality a finding of a breach of the Convention has a highly persuasive effect. It is not only the roles of the executive and the legislature that are being reordered.

And so, in the face of a finely argued and well-presented judgment, the Home Secretary sulked off, like a bully who has met his match. If he could not have the power, then neither could the judges. Instead of amending the legislation in line with that in Scotland or Northern Ireland, or even taking the opportunity to examine the validity of the distinction between mandatory and discretionary life sentences, he announced the tough new ‘sentencing principles’, which exclude the possibility of judicial meddling as far as is feasible, and which may themselves be in breach of the Human Rights Act. ‘I am putting the situation back to what most sensible people thought it should be, which is that Parliament lays down the rules, the judges apply them,’ he huffed.

At best, Blunkett’s attitude can be interpreted as that of a man struggling to get to grips with the fluidity of concept that is a feature of Britain’s unwritten constitution. He appears to hold the archaic view that the sovereignty of Parliament is unquestionable, and that the executive may use a wide discretionary power, the regulation of which depends on the inherent sense of fair play of ministers and civil servants. These are notions derived from the rusting hulk of a Victorian ideal which depended for its effective functioning on a rigidly hierarchical state.

At worst, the spat is a sign that the Government is, in the words of a Bar Council spokesman, ‘trying to institutionalise the grip of the executive around the neck of the judiciary . . . We will gradually erode the separation of powers, which is something that for hundreds of years has been seen as a strength in our democracy.’ It is difficult not to agree that Blunkett’s actions appear to have less to do with a failure to appreciate the subtleties of constitutional checks and balances than with a deliberate garnering of power at whatever cost.

We have only to look at the initiatives announced in the wake of the decision to impose the new legislation to see our worst fears confirmed. Hot on its heels has come the suggestion of a Sentencing Guidelines Council, on which will sit, among others, victims of crime and police officers, two groups not renowned for their objectivity when it comes to crime and punishment. Its greatest effect will be to neuter the Sentencing Advisory Panel, a judicial body that already co-ordinates sentencing practice but will now be subservient to the newly formed council. Worse still is Blunkett’s suggestion that prosecutors be given unprecedented powers to comment in court on the sentence to be passed. This is an exasperatingly ill-conceived, populist measure. It utilises a courtroom technique that worked well in Nazi Germany but should have no place in the criminal justice system of a liberal democracy.

While Blunkett is trying his hardest to keep the masses happy by providing them with scapegoats, the judges are increasingly loath to accept their old role as friends of the political establishment. This is a welcome shift which may go some way to off-setting the darkly authoritarian tendencies of New Labour.

Every other country in the European Union, the ten prospective new entrants and major members of the Commonwealth such as India and Australia have written constitutions which define clearly and precisely the balance of power between the legislature, executive and judiciary. At a time when it has never been easier for the state to act oppressively in the name of freedom, it would be Blunkett’s most significant, albeit unintentional, achievement if his intemperate rants and his introduction of repressive legislation made us seriously question whether we are still prepared to rely on the reasonableness of those who govern us for protection against the abuse of power. It would be rash to wait until murderers are no longer the only people whose human rights are under threat.