Title of Case comment: Your Life Sentence in Whose Hands?

Completion date: 8 June 2002

Stafford had been sentenced to life imprisonment for murder and released. He remained, of course, on licence for life. He committed an offence of fraud, for which he was sentenced. At the expiry of that sentence, he argued that he was entitled to be released. The Home Secretary disagreed, keeping him in prison under the powers he had to determine his release. The European Court were required to deal with two questions: first, whether it was in accordance with Article 5(1) of the European Convention on Human Rights that Stafford should have been further detained after the expiry of his sentence for fraud; secondly, whether it was in accordance with Art. 5(4) that the decision should be made by the Home Secretary rather than, as in the case of discretionary life prisoners, the Parole Board.

It is well accepted that in both discretionary and mandatory life sentences, there are two elements: punitive (retribution and deterrence) and preventive (risk of future harm). The former is represented in the tariff. The tariff is fixed by the Courts in the case of discretionary life sentences, but, in the case of mandatory life sentences, it is subject to the Home Secretary overriding the Courts’ determination. Similarly, there is a distinction in relation to the release of a life prisoner after the expiry of the tariff. In relation to discretionary life prisoners and (following T and V v UK) juvenile mandatory life prisoners, it is the Parole Board who makes the decision. In relation to adult mandatory life prisoners, it is the Home Secretary who ultimately makes the decision. The latter distinction exists as a result of European jurisprudence. In relation to discretionary life sentences, the European Court had held in 1990 in Weeks and Thynne, Gunnell and Wilson that because the period of any detention after the tariff period had expired was based upon risk and dangerousness, the assessment involved in determining any further detention period was susceptible to change as circumstances changed. It followed, the Court held, that the assessment was a judicial one, and had therefore to be decided by the Parole Board rather than the Home Secretary, because of the judicial safeguards built into the Parole Board. However, in relation to mandatory life sentences, the Court had taken a different view in Wynne v UK (1994), holding that such sentences were different in character from discretionary life sentences because the mandatory life sentence actually meant a sentence for life. The subject was being re-visited here. The Government sought to maintain the distinction. First, they sought to maintain that there was some sort of causal connection between the original offence of murder and the later offence, whilst on licence, of fraud. The Court rejected this, since the basis of continued detention was dangerousness, and fraud did not qualify as dangerous. Secondly, the Government sought to maintain that mandatory life imprisonment really was a life sentence. The Court rejected that, overruling its own judgement in Wynne which it said was materially no different from the present case. In passing, it is a very good example of the ECHR being a living instrument. Thirdly, the Government sought to rely upon a third element in addition to the punitive and preventive elements, namely, the public acceptability of release in order to preserve public confidence in the judicial system, although the Government asserted that it had never in fact relied on this third element. In any event, the Court roundly rejected this further ground as having no part to play. Having been released from his life sentence, Stafford must have exhausted the punitive element of his sentence and, the fraud not being dangerous, there was no causal connection between that and the original murder. Consequently, the Court held that there had been a violation of Art 5(1) in his further detention once he had also completed his sentence for the fraud.

Art. 5(4) requires that there be a process by which a detainee can challenge the lawfulness of his detention. Much of the reasoning for the Court’s decision in relation to this aspect was dealt with when it was dealing with Art. 5(1). In short, the Court held that, since the tariff represented the punitive element, the Home Secretary’s role in the fixing of that tariff was a sentencing exercise not, as the Government maintained, an administrative implementation of the sentence of the Court. Since the extent of the dangerousness associated with the original murder may change with time, any determination of whether the prisoner should continue to be detained was a judicial exercise and was not satisfied by the decisions made when he was originally sentenced. Because the Parole Board had not been able to make a determination about his release, he had not had the benefit of a judicial determination in light of the changed circumstances. (In fact, the Parole Board had recommended his release, but this had been rejected by the Home Secretary). It followed that not only had the actual decision to keep Stafford in prison been in violation of Art 5(1), but also that the process by which that decision was made by the Home Secretary was in breach of Art 5(4). It is this latter finding of the Court which is in fact more significant, because it means that the process will now have to change. Mandatory life prisoners will no longer be treated in this regard any differently from discretionary life prisoners.

The question of the Home Secretary fixing the tariff in the first place was not for consideration in this case. However, the principles which the Court considered en route to its decisions in this case raise the significant prospect of the Court being asked to visit that particular subject directly in the not too distant future. It is difficult to see how the role of the Home Secretary in fixing the tariff can survive for very long.