§ Lord Brougham and Vaux
asked Her Majesty's Government:
Whether they are now in a position to add to the Answer given by Lord Ferrers at col. 597 on 20th July 1993 concerning the judgment in the case of Regina v. Secretary of State for the Home Department ex parte Smart, Pegg, Doody and Pierson on 24th June 1993.
The current procedures governing the release of persons convicted of murder and sentenced to mandatory life imprisonment are described in statements made in 1983 and 1987 by the then Home Secretaries, the then Member for Richmond (Yorks) and my right honourable friend the Member for Witney respectively. Under those procedures, shortly after a person has received a mandatory life sentence, the Secretary of State invites the judiciary to give their 119WA views on the period to be served to satisfy the requirements of retribution and deterrence. The judiciary's views presently comprise the advice of the trial judge and the Lord Chief Justice. Their advice is one factor among others which the Secretary of State considers before he sets the date for the first review by the parole board of the case for releasing the prisoner on licence. This review is timed to take place three years before the expiry of the minimum period which the Secretary of State considers necessary to satisfy the requirements of retribution and deterrence or, where that period is 20 years or more, 17 years after sentence.
At present, a prisoner is not told the contents of the judicial recommendation, nor the length of the period which the Secretary of State has determined to be the minimum necessary to satisfy the requirements of retribution and deterrence. However, where the period so determined is less than 20 years, the prisoner can deduce its length by adding three years to the date which he is given for his first review; and where it is 20 years, he can deduce its length from the terms of the notice informing him that his first review will take place 17 years after sentence. But where the period is more than 20 years, the prisoner is not able to establish its total length.
The House of Lords judgment requires the Home Secretary to inform the prisoner of the recommendations made by the judiciary as to the period necessary to satisfy the requirements of retribution and deterrence and of the substance of any opinions expressed by the judiciary which are relevant to his decision as to the appropriate minimum period to be served to satisfy those requirements. In addition, the Home Secretary is required to afford to the prisoner the opportunity to submit written representations. Although he is not required to adopt the judicial advice, he must give reasons where he or a Minister acting under his authority, decide to depart from it.
We propose to give effect to this judgment by informing all persons who are now serving a mandatory life sentence and any persons who may subsequently be so sentenced, as soon as is reasonably practicable, of the substance of the judicial recommendations which were made in their case as to the period to be served by them in order to satisfy the requirements of retribution and deterrence. We are consulting the Lord Chief Justice about the precise way in which this will be done.
In addition, we have decided to disclose to both existing and future mandatory life sentence prisoners the Secretary of State's decision, taken after consideration of the judicial advice, on the appropriate period in question.
In accordance with the judgment, reasons will be given to the prisoner for any departure from the judicial view.
As the judgment makes clear, successive Secretaries of State have been willing to consider any written representations by prisoners as to the minimum period to be served by them to satisfy the requirements of retribution and deterrence. In future, prisoners will be 120WA afforded the opportunity to submit such written representations at the beginning of the sentence and before my right honourable friend has formed a view as to the minimum period for retribution and deterrence.
We take this opportunity to emphasise that the view which my right honourable friend, or a Minister acting under his authority, takes at the beginning of a mandatory life sentence, of the period necessary to satisfy the requirements of retribution and deterrence is an initial view of the minimum period necessary to satisfy those requirements. It therefore remains possible for my right honourable friend, or a future Secretary of State, exceptionally to revise that view of the minimum period, either by reducing it, or by increasing it where he, or a successor to his office, concludes that, putting aside questions of risk, the minimum requirements of retribution and deterrence will not have been satisfied at the expiry of the period which had previously been determined.
Before taking a decision to increase this minimum period, the Secretary of State would inform the prisoner that he was minded to take this action and afford him the opportunity to submit written representations as to why the period should not be increased. Any such representations would then be taken into account before any new decision was made. If it were decided to increase the period in question, the prisoner would be informed of the length of the new period and given the reasons for the increase.
Finally, a mandatory life sentence prisoner should not assume that once the minimum period fixed for retribution and deterrence has been satisfied he will necessarily be released if it is considered that he is no longer a risk. In this respect, the position of a prisoner subject to a mandatory life sentence is to be contrasted with that of a prisoner serving a discretionary life sentence. As the then Minister of State, the right honourable Member for Mitcham and Morden, stated in Another Place on 16th July 1991 during debates on the Criminal Justice Bill:
In a discretionary case, the decision on release is based purely on whether the offender continues to be a risk to the public. The presumption is that once the period that is appropriate to punishment has passed, the prisoner should be released if it is safe to do so. The nature of the mandatory sentence is different. The element of risk is not the decisive factor in handing down a life sentence. According to the judicial process, the offender has committed a crime of such gravity that he forfeits his liberty to the State for the rest of his days— if necessary, he can be detained for life without the necessity for subsequent judicial intervention. The presumption is, therefore, that the offender should remain in custody until and unless the Home Secretary concludes that the public interest would be better served by the prisoner's release than by his continued detention. In exercising his continued discretion in that respect, the Home Secretary must take account, not just of the question of risk, but of how society as a whole would view the prisoner's release at that juncture. The Home Secretary takes account of the judicial recommendation, but the final decision is his."— (House of Commons Official Report, cols. 311-2).
We wish to make it clear that, in so far as the judgment of the House of Lords considered that there was an inconsistency between the practice established by the then Home Secretary, the Member for 121WA Richmond (Yorks), in 1983 and the above quoted statement by the right honourable Member for Mitcham and Morden, we wholly endorse the latter as a description of the way my right honourable friend currently exercises his discretion to release mandatory life sentence prisoners and intends to do so in future.
Accordingly, before any such prisoner is released on licence, my right honourable friend will consider not only, (a) whether the period served by the prisoner is adequate to satisfy the requirements of retribution and deterrence and, (b) whether it is safe to release the prisoner, but also (c) the public acceptability of early release. This means that he will only exercise his discretion to release if he is satisfied that to do so will not threaten the maintenance of public confidence in the system of criminal justice.
Everything that I have said about the practice of the Secretary of State in relation to mandatory life sentence prisoners applies equally to persons who are, or will be, detained during Her Majesty's Pleasure under section 53(1) of the Children and Young Persons Act 1933, as well as to persons who have been, or will be, sentenced to custody for life under section 8 of the Criminal Justice Act 1982.