Published: Wed, 07 Mar 2018
R (Anderson) v Secretary of State for the Home Department  UKHL 46;  4 All ER 1089
Prisoners; mandatory life sentence; right to hearing
Anderson received mandatory life sentences after having been convicted of two murders. The Secretary of State set a longer than recommended period for Anderson’s release on licence.
Under s. 29 of the Crime (Sentences) Act 1997, the Secretary of State could decide, on advice by the trial judge, the Lord Chief Justice and departmental officials, the minimum period necessarily to be served by a prisoner before he was released on licence. Anderson argued that his tariff should have been decided by the judiciary (like the cases of those sentenced to discretionary life sentences) and that the Secretary of State, deciding his tariff as a member of the executive, breached his right to a fair and independent hearing under Article 6 of the ECHR (scheduled in the Human Rights Act 1998). The Court of Appeal found that Parliament deliberately left the discretion to fix mandatory life sentence tariffs in the Secretary of State’s hands. The European Court of Human Rights subsequently held that there was no material difference between mandatory and discretionary life sentences in terms of tariff fixing.
The House of Lords allowed Anderson’s appeal, stating that the Secretary of State’s procedure for fixing the tariff for mandatory life sentence prisoners – namely that he dealt with the question as a matter of reality and not of form – effectively made him perform a judicial function. While the European Court’s decisions are not binding on domestic courts, in this case, the decision finding no material difference between mandatory and discretionary life sentences in terms of tariff should be applied as it rested on an accurate understanding of tariff-fixing. Tariff fixing was legally the same as sentencing and thus, should be covered by Article 6. Consequently, as a member of the executive, the Secretary of State should not have fixed the claimant’s tariff, so s. 29 of the 1997 Act was declared incompatible with the Human Rights Act 1998.
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