McfEtrich, R (on the application of) v Secretary of State for the Home Department

On 27 February 1995 the claimant pleaded guilty in the High Court in Edinburgh to murder. The judge, Lord Abernethy, sentenced him to life imprisonment. The victim was the claimant’s wife from whom, at the time of the offence, he was separated. In September 1997, at his request, the claimant was transferred to prison in England under s.26(1) of the Criminal Justice Act 1961 (“the 1961 Act”).

Following transfer the Secretary of State for the Home Department consulted the trial judge, the Lord Justice Clerk, acting on behalf of the Lord Justice General, and the Lord Chief Justice of England and Wales. The trial judge recommended a tariff of eight years, with which the Lord Justice Clerk agreed. However, the Lord Chief Justice said:

“If this defendant had been convicted of murder in England and Wales, on the facts summarised in the Scottish reports, I would expect a tariff somewhat longer than eight years to be recommended. Plainly this was a case in which there was a highly fraught emotional background arising out of the disputes concerning the children and the accusations made against the defendant, and that background would to some extent be recognised as mitigating the gravity of the offence. But this was a very savage attack on the deceased, carried out with a knife which it appears the defendant had taken with him to her address. On the facts as summarised, and having regard to the defendant’s plea of guilty, I would expect a tariff term in England and Wales to be fixed at 10 – ll years. I question whether a shorter term would be thought to meet the requirements of retribution and general deterrence.”

On l5 September 2000 the Secretary of State set a tariff of 12 years. He said:

“The Secretary of State does not accept that a tariff of 8 years, as recommended by the trial judge and the Lord Justice General, is sufficient to satisfy the requirements of retribution and deterrence for your offence. He has attached weight to the fact that you carried out a savage attack on your wife with a knife which you had taken with you to the scene. He has also attached weight to the fact that the attack took place in front of your elder son. The Secretary of State has also attached weight to the fact that, by going to your wife’s new home and there killing her, you abused the information as to her whereabouts that came to you through the legal process in relation to custody of your son.

Having regard to all the circumstances of your case, the Secretary of State has concluded that a tariff of 12 years is necessary to satisfy the requirements of retribution and deterrence for your offence.”

On 18 September 2002 the claimant’s solicitors wrote asking for an urgent review, submitting that a tariff of eight years should be imposed in line with the trial judge’s recommendation, supported by the Lord Justice Clerk and that in any event the tariff should not exceed the maximum of ll years recommended by the Lord Chief Justice.

In a letter dated 4 October 2002 the Secretary of State rejected those representations. The tariff was therefore maintained at 12 years. The claimant seeks judicial review, both of the original decision to set the tariff at 12 years and of the subsequent decision to maintain it.

The relevant provisions of s.26 of the 1961 Act, as amended, are as follows:

“(1)

The responsible Minister may, on the application of a person serving a sentence of imprisonment or detention in any part of the United Kingdom, make an order for his transfer to another part of the United Kingdom or to any of the Channel Islands or the Isle of Man, there to serve the remainder of his sentence, and for his removal to an appropriate institution there.

(2)

Where a person has been sentenced to imprisonment or detention in any part of the United Kingdom or in any of the Channel Islands or the Isle of Man, the Secretary of State may, without application in that behalf, make an order for his transfer to any part of the United Kingdom, there to serve the remainder of his sentence, as the case may be, and for his removal to an appropriate institution in that part of the United Kingdom.

(3)

…

(4)

Subject to the following provisions of this section, a person transferred under this section to any part of the United Kingdom or to any of the Channel Islands or the Isle of Man there to serve his sentence or the remainder of his sentence, shall be treated for the purposes of detention, release, supervision, recall or otherwise, as if that sentence (and any other sentence to which he may be subject) had been an equivalent sentence passed by a court in the place to which he is transferred.”

By virtue of article 5(6) of the Crime (Sentences) Act 1997 (Commencement No. 2 and Transitional Provisions) Order 1997 S.I. 1997/2000, these provisions remain in force in respect of any person who on l October 1997 was in part of the United Kingdom by virtue of an order made under Part 3 of the 1961 Act, for so long as that order has effect. The claimant was, as I have said, transferred to England in September 1997.

The release of mandatory life prisoners in England and Wales is governed by s.29 of the Crime (Sentences) Act 1997 which provides that:

“(1)

If recommended to do so by the Parole Board, the Secretary of State may, after consultation with the Lord Chief Justice together with the trial judge if available, release on licence a life prisoner who is not one to whom s.28 above applies.

(2)

The Parole Board shall not make a recommendation under subsection (1) above unless the Secretary of State has referred the particular case, or the class of case to which that case belongs, to the Board for its advice.”

This section replaced s.35(2) and (3) of the 1991 Act, which was in identical terms.

The offence of murder falls into a special category for, unlike other offences, the sentence is prescribed by law. Under section 1 of the Murder (Abolition of Death Penalty) Act 1965 the sentence is life imprisonment. The position is no different in Scotland from England. In practice, however, only a small proportion of those convicted of murder remain in prison for the rest of their life. The prisoner serves a minimum period in prison to reflect retribution and deterrence in respect of the crime (known as the tariff). Thereafter he continues to be detained until such time as he is regarded as safe to be released on life licence.

The claimant’s underlying complaint is that he will serve a longer tariff in England than he would have served had he remained in prison in Scotland. Thus he would have been eligible for parole on an earlier date had he remained in Scotland. This, it is submitted, violates his rights under Article 7 of the European Convention on Human Rights and Fundamental Freedoms (“the ECHR”). The two decisions fixing and maintaining a tariff of 12 years are unlawful.

The tariff is ordinarily fixed by the Secretary of State soon after the trial and following recommendations from the trial judge and the Lord Chief Justice. Towards the end of the tariff element of his sentence, the prisoner’s case is referred by the Secretary of State to the Parole Board for its consideration. Save in exceptional cases, a prisoner will not be released on life licence unless he has first spent a period of at least two years being tested in open conditions. Hence the first reference to the Parole Board is usually about two years before the tariff has expired.

At the time with which this case is concerned, i.e. prior to the implementation of the Convention Rights (Compliance) (Scotland) Act 2001 the procedure for mandatory life prisoners in Scotland was different from that in England. In Scotland, prior to 2001, the position of mandatory life prisoners was governed by section 1 of the Prisoners and Criminal Proceedings (Scotland) Act 1993, which was similar in effect to section 29 of the 1997 Act in England and Wales. However, the material difference in procedure was that there was no formal tariff-setting process either by the judge or the Secretary of State for Scotland. A Preliminary Review Committee (PRC) recommended to the Scottish Ministers the date for the first review by the Parole Board of an adult mandatory life prisoner’s suitability for release on life licence. This committee, which was non-statutory, met in private and was set up by the Secretary of State for Scotland to review all mandatory life sentence cases in Scotland at about the end of the fourth year of the sentence. The PRC was chaired by a senior civil servant and comprised the Chairman of the Scottish Parole Board, the High Court Judge who at the time was a member of the Board, a psychiatrist member of the Board and a senior member of the Scottish Prison Service. The issue for the PRC to consider was when the prisoner’s suitability for release should first be considered by the Board and consideration was given to the seriousness of the murder, assessment of risk and the prisoner’s response to custody. In assessing each case the PRC took into account a wide range of information, including the trial judge’s comments and any minimum recommendation made by him, the prisoner’s own representations and any previous consideration by the PRC. There were normally two meetings of the PRC each year, each considering some 20 cases. In each case a recommendation would be made to Scottish Ministers. The prisoner would be notified of this and invited to make any further representations before a decision was taken whether to accept the Committee’s recommendation as to the timing of the first review by the Parole Board.

Once a case was referred to it by the Scottish Ministers, the Parole Board carried out a review of the prisoner’s suitability for release on life licence, focussing on the issue of risk to the public. It then made a recommendation to Ministers whether or not the prisoner should be released. Ministers then looked to the judiciary for advice as to whether or not the requirements of justice and deterrence would be satisfied if the prisoner was released in accordance with the Board’s recommendation. The prisoner was then informed of the recommendation and the judiciary’s views and invited to make representations before the Scottish Ministers took their decision.

The position in Scotland changed under the Convention Rights (Compliance) (Scotland) Act 2001 with the introduction of a judicial tariff-setting process (see the schedule to the 2001 Act, Part l paras 12 and 13). As at March of this year the Scottish courts had set tariffs in approaching 95% of the cases of adult mandatory life sentence prisoners, in Scotland, the average tariff being just over 13 years.

From the above it will be appreciated that at the time with which this case is concerned both jurisdictions had a tariff setting system but the mode of operation was different. The material difference between the English procedure and the Scottish procedure was that in England the tariff was set very soon after the sentence was passed, so that the prisoner knew from very early in his sentence the minimum period he would have to serve before release on life licence. In Scotland the prisoner did not have that knowledge until well into his sentence. However, the point taken by Mr Southey, who has appeared for the claimant, is, he submits, one of substance rather than procedure and it is that Scottish life prisoners generally and Mr McFetrich in particular generally serve shorter periods in custody for retribution and deterrence (the tariff) than those in England. Mr Southey submits that this is plainly illustrated by the fact that in the present case both the trial judge and the Lord Justice Clerk recommended a tariff of eight years whilst the Lord Chief Justice recommended one of l0 or ll. In the claimant’s case he was transferred to England under s.26(1) of the 1961 Act before the PRC reviewed his case. Thus he came with no tariff set and his tariff was set by the Secretary of State after he had been transferred to England.

On the face of it the wording of section 26(4) appears clear. The prisoner is to be treated as if he had been sentenced by a court in the place to which he is transferred. In other words the claimant is to be treated as if his life sentence had been passed by a judge sitting in a court in England. Furthermore, the subsection is drafted to cover all aspects of the sentence. This is clear from the words “treated for the purposes of detention, release, supervision recall or otherwise.” The section is looking beyond merely the detention element of the sentence. In the case of a life sentence release, supervision and recall are all potentially relevant matters. A life sentence lasts for the whole of the prisoner’s life. After he is released he remains subject to the terms of his life licence. There is more to a life sentence than just the tariff element for retribution and deterrence. Ms Davies, who has appeared for the Secretary of State, emphasises that in setting the tariff he was doing precisely what the section required him to do, treat the claimant as if he had been sentenced by a court in England. Had he not followed the ordinary practice he would have been in breach of section 26.

Mr Southey’s argument is that the phrase ‘equivalent sentence’ in section 26(4) must be read as meaning the sentence of life imprisonment and the tariff, because under section 3 of the Human Rights Act 1998 legislation has to be read and given effect to in accordance with the ECHR and any other interpretation gives rise to a risk of non compliance with Article 7. I am unable to read the subsection in this way. It will be seen that the subsection refers to “an equivalent sentence passed by a court in the place to which he is transferred.” The words ‘passed by a court’ are in my view important. The only sentence that can be passed for murder is one of life imprisonment. The claimant was a mandatory lifer in Scotland. Once he is transferred, he is to be treated for the purposes described in the section as if his life sentence had been imposed by a court in England. The tariff is not a creature of statute: see Lord Bingham in R (Anderson) v Home Secretary [2003] 3 WLR 1800, 1804G – 1805H. Mr Southey’s argument runs up against other difficulties because no tariff was ever set in Scotland. His case never reached the PRC and it is impossible to know what its decision would have been had it done so. Mr Southey’s answer to this is that there was nothing to prevent the Secretary of State from routing the case through the PRC and the Secretary of State for Scotland. Such a course however seems to me to be completely at odds with the plain wording of the section.

Mr Southey’s argument really I think comes to this. When a prisoner transfers from one jurisdiction to another he brings his tariff with him and in a case such as the present one where no tariff has been set it should be set in the transferring country even after transfer. Thus Mr McFetrich’s case should have gone to the PRC and then the Secretary of State for Scotland with the result that he would have had a lesser tariff than 12 years. But this seems to me to run counter to the section. The problem is that the inter relationship between the PRC, Scottish ministers and the Scottish Parole Board is different from that between the Secretary of State and the Parole Board in England.

Mr Southey was forced to accept in argument that as a domestic construction point he really had no pre Human Rights Act argument on section 26(4). He could only get his argument on its feet on the basis that the subsection had to be read compliantly with Article 7.

I turn therefore to consider whether the circumstances of this case have violated Article 7. In order to establish a violation of Article 7 the claimant must show that a heavier penalty has been imposed on him than the one that was applicable at the time he committed the offence. By s.l of the Murder (Abolition of Death Penalty) Act 1965, the penalty for murder is mandatory life imprisonment. That was so at the time the offence was committed and has remained so ever since. The position is the same in Scotland as in England. Article 7 is concerned with retrospectivity and the word “penalty” is in my view referring to the whole penalty rather than to its constituent elements. The penalty is a life sentence and the fact that some prisoners, perhaps the vast majority, are released during their lifetime does not prevent the sentence from being a life sentence. Even after release the sentence continues for the prisoner is on licence for the rest of his life and liable to recall to prison. If he is recalled to prison he will inevitably serve a greater period in custody than the original tariff.

A sentence of life imprisonment is different from a determinate sentence because it contains separate elements aimed (i) at retribution and deterrence and (ii) at the protection of the public. It is, in my judgment, however, not possible to equate the period to be served for retribution and deterrence (the tariff) with the penalty for the offence. Put slightly differently, Article 7 is not concerned with the machinery for carrying out the penalty but rather with the penalty itself. Release on licence (parole) relates to the execution of the sentence but the actual sentence remains life imprisonment. The penalty of life imprisonment is unaffected by the tariff-setting process. The tariff-setting process does not spell out the actual period to be served it sets the minimum period. The actual period served by the prisoner will depend on when it is safe to release him and whether, having been released, he is recalled.

Support for this approach is to be found in the European jurisprudence. In Welch v United Kingdom (1995) 20 EHRR 247, the applicant was convicted in 1988 of drug offences committed in 1986. The judge passed a sentence of imprisonment and imposed, pursuant to an Act that came into force in l987, a confiscation order. The court said at paragraph 27 that the concept of penalty in Article 7 was an autonomous Convention concept and that to render the protection of Article 7 effective the court had to remain free to go behind appearances and assess for itself whether a particular measure amounted in substance to a “penalty” within the meaning of the provision. The court said at paragraph 34:

“Finally, looking behind appearances at the realities of the situation, whatever the characterisation of the measure of confiscation, the fact remains that the applicant faced more far-reaching detriment as a result of the order than that to which he was exposed at the time of the commission of the offences for which he was convicted.”

Perhaps of greater significance is H v United Kingdom (Application 11653-85), where the Commission rejected the application as manifestly ill-founded. The Commission said at paragraph 3:

“3.

The Commission recalls that the applicant was sentenced to life imprisonment in 1973 for committing a murder in the course of a robbery. It is clear that the penalty for this offence at the time it was committed was life imprisonment and thus no issue under Art. 7 (art. 7) arises in this respect.

4.

Furthermore, in the opinion of the Commission, the “penalty” for purposes of Art. 7, para 1 (art. 7-1), must be considered to be that of life imprisonment. Nevertheless it is true that as a result of the change in parole policy the applicant will not become eligible for release on parole until he has served 20 years’ imprisonment. Although this may give rise to the result that his imprisonment is effectively harsher than if he had been eligible for release on parole at an earlier stage, such matters relate to the execution of the imprisonment as opposed to the “penalty” which remains that of life imprisonment. Accordingly, it cannot be said that the “penalty” imposed is a heavier one than that imposed by the trial judge.”

In the present case the claimant faced a sentence of life imprisonment for the murder he committed in Scotland. He still faced that sentence following his transfer to England. How long an individual life sentence prisoner actually services in custody depends on many factors, one of them being the tariff he is given. The fact that there is some evidence that at the material time tariffs generally were somewhat lower in Scotland is in my view nothing to the point.

Mr Southey relies on Anderson in support of his proposition that tariff is to be equated to penalty. In Anderson the Secretary of State had fixed a longer tariff than that recommended by the judiciary and this was challenged by an application for judicial review on the ground that in fixing the tariff the Secretary of State had acted incompatibly with Article 6(1) of the ECHR. It was argued on behalf of Mr Anderson that fixing the tariff for a convicted murderer was legally indistinguishable from the imposition of sentence. Lord Bingham accepted this at paragraph 24, saying:

“It is clear beyond doubt that the fixing of a convicted murderer’s tariff, whether it be for the remainder of his days or for a relatively short time only, involves an assessment of the quantum of punishment he should undergo.”

Lord Steyn said at paragraph 52:

“A decision fixing the tariff in an individual case is unquestionably a decision about the level of punishment which is appropriate. Mellifluous words cannot hide this reality.”

Anderson was a case concerning not Article 7 but Article 6. The House of Lords decided that in fixing the tariff the Secretary of State was performing a sentencing function and that in doing so he had breached Mr Anderson’s rights under Article 6 to have a sentence imposed by an independent and impartial tribunal. Anderson was concerned only, however, with the punitive element of the sentence, namely fixing the tariff for retribution and deterrence, the minimum period to be served. It was not concerned with the whole sentence, namely the mandatory life sentence that had been imposed by the trial judge and it is the whole sentence, including that element imposed to protect the public for the rest of the defendant’s life, that is in reality the penalty referred to in Article 7.

Some help in construing Article 7 is in my judgment to be found in looking at its purpose. The mischief that Article 7 is designed to prevent is the imposition by the State of (i) criminal liability for an act which did not attract such liability at the time it was committed or (ii) a penalty greater than the maximum permitted when the offence was committed. In the present case not only has the maximum penalty remained unchanged, the penalty has throughout been mandatory life imprisonment. As the European Court of Human Rights said in Coёme and others v Belgium application 32492/96 et al at page 43:

“The court must therefore verify that at the time when the accused prisoner performed the act which led to him being prosecuted and convicted there was in force a legal provision which made that act punishable, and that the punishment imposed did not exceed the limits fixed by that provision……..”

That test is met in the present case. The tariff is but an element of the sentence, the minimum period that person must serve. The court has to look at the penalty that could have been imposed and compare it with what was actually imposed. In this case they were the same, life imprisonment. As was pointed out in argument, when the offence was committed the tariff was both unknown and incapable of being known. The same would be true in the case of a determinate sentence. When the offender commits the offence he knows or can ascertain, the maximum penalty but he cannot know what actual penalty will be imposed.

In the course of argument Mr Justice Pitchford made the point that it is difficult to identify any retrospectivity in the present case. All that has happened is that the claimant has, at his own request moved to England. The situation can tested in this way. Suppose the Secretary of State after the tariff has been set at say 12 years, discovers that the prisoner has committed another murder under a different name and increases the tariff from 12 years to 20 years. Where is a breach of Article 7 in such circumstances? The appropriate comparison is between the actual penalty and what could have been imposed when the offence was committed. In each instance in the present case the answer is life imprisonment.

After the conclusion of the hearing Mr Southey drew the court’s attention to R (Uttley) v Secretary of State for the Home Department [2003] EWHC 950. He submits it supports his argument. Moses J had to consider whether the application of statutory provisions requiring a prisoner to be released on licence, that were not applicable at the date of the offence, violated Article 7. The claimant had been sentenced to 12 years’ imprisonment for various sex offences. Moses J held that they did not. He said at paragraph 8:

“The essential question is whether the statutory imposition of the licence constituted the imposition of a penalty greater than that which would have been imposed at the time he committed the offences.”

He said it was plain that the purpose of a licence was to enable a long-term prisoner to stay out of trouble, both for his own benefit and for the benefit of the community and so that he did not again lose his liberty. He said at paragraph 15:

“I conclude that the nature and purpose of the licence are such that they dominate the factors which go to the conclusion as to whether the imposition of a licence is a penalty or not. The imposition of a licence is designed to protect the public once an prisoner is released, and assist in preventing the prisoner from committing further offences.”

Mr Southey submits that the logical conclusion from this is that a tariff is a penalty because any detention following breach of licence is preventative and not part of a penalty. I am unable to read the decision in this way. Uttley was a determinate sentence case. It was not concerned with tariff. The difference in the present case is that Mr McFetrich was sentenced to life imprisonment.

In short, my conclusion on the Article 7 issue is that the penalty envisaged in Article 7(1) in the case of murder committed by an adult is the mandatory sentence of life imprisonment. The general level of tariff for particular types of murder has changed from time to time, so has the level of sentence for many offences where there is a maximum determinate sentence. An obvious example is causing death by dangerous driving, but that in my view is nothing to the point. The claimant, when he committed the offence, was liable to the penalty of life imprisonment and so he was when the Secretary of State fixed a 12 year tariff. There is no breach of Article 7.

There are other practical problems about the claimant’s argument. No tariff was ever in fact fixed by Scottish ministers. The very highest the argument can be put is that the Scottish judges were recommending a tariff of 8 years which was lower than that recommended by the Lord Chief Justice and that therefore it is likely, if the claimant had remained in Scotland, that he would have served a shorter period in custody before being considered for parole. The truth is that in Scotland his case never reached the PRC and one simply does not know at what stage his case would have been referred to the Scottish Parole Board. Also, although there is a difference between the judicial recommendations and the tariff imposed, this is no different from any case in which the Secretary of State does not accept the judicial recommendations as to tariff (see e.g. Anderson where the judges recommended 15 years and the Secretary of State imposed 20 years).

In the course of argument Ms Davies made the following points, each of which seems to me to present a difficulty for Mr Southey’s contention that Article 7 has been violated.

All this, so it seems to me, leads to the conclusion that the highest the claimant can put his case is that if he had remained in Scotland there is a possibility that he would in fact have served a shorter period for retribution and deterrence than will be the case with a 12 year tariff in England. But that is a long way from the imposition of a heavier penalty than the one that was applicable when he committed the killing.

Mr Southey’s main line of attack was against the Secretary of State’s decision in October 2002 not to review the tariff of 12 years that he had set in September 2000. The reason for this was that the tariff had been set shortly before the Human Rights Act 1998 came into force, which was on 2 October 2000 and he was faced with the obstacle of section 22(4). That obstacle was in my view insuperable. With the 2002 decision he has a different problem. There he has to show that the Secretary of State in maintaining the tariff acted incompatibly with Convention rights. The short answer is that there was no violation of Article 7, which is the only right in focus. Had there been a violation, section 6(1)(a) would have prevented the Home Secretary’s action from being categorised as unlawful because the true meaning of section 26(4) of the 1961 Act is such that he could not have acted differently.

Although there were at the material time different tariff settings arrangements in place in Scotland from those in England and although there is evidence that some mandatory life sentence prisoners were likely to receive a somewhat shorter tariff in Scotland than in England, there has been no violation of Article 7 of the ECHR. The Secretary of State was entitled, indeed obliged, by virtue of section 26(4) of the 1961 Act to set the tariff in the manner that he did. The true penalty imposed on the claimant was one of life imprisonment. That was the penalty to which he was liable when he committed the murder and that was the sentence that was imposed upon him. In my judgment the claim for judicial review must fail.

I agree.