• In the case of R (Anderson) v Secretary of State for the Home Department [2002] UKHL 46, it was held that statutory provisions cannot be considered under the light of section 3(1) of the Human Rights Act if the incompatibility results from a necessary implication.
  • The Secretary of State’s power to decide on the minimum period which should be served by a compulsory life sentence prisoner under section 29 of the Crime (Sentences) Act 1977 contravenes Article 6 of the European Convention on Human Rights.

Facts of the Case

  • C committed the murders of a 60 year old man in 1986 and a 35 year old homosexual man and also committed theft of their belongings.
  • C was subsequently charged with murder.
  • The Secretary of State for the Home Department held discretionary powers under section 29 of the Crime (Sentences) Act to release a murderer on licence if this is recommended (after consultation of the trial judge and Lord Chief Justice).
  • It was recommended that the convicted murder serves at least 15 years for both the murders.
  • The Home Secretary, however, committed his discretionary powers and chose the set the sentence at 20 years.
  • C sought judicial review of the Home Secretary’s decision arguing that the discretionary powers contravened Article 6 of the European Convention on Human Rights because the Home Secretary as not an “independent tribunal.”

Issues

  • Was section 29 of the Crime (Sentences) Act in contravention with section 4 of the Human Rights Act 1998?

Held by the House of Lords

  • The House of Lords allowed the appeal and made a declaration of incompatibility against section 29 of the Crime (Sentences) Act 1997 under section 4 of the Human Rights Act.

Lord Bingham

  • “Rightly or wrongly the Court of Human Rights did consider that there was a material difference between a mandatory and discretionary life sentence. They had the benefit of Mr Fitzgerald’s arguments on behalf of the applicants and I am confident he would have ensured that the Court of Human Rights was not under any such misapprehension.” [20]
  • “The law is not always logical and it has been the approach of both Parliament and the courts in this jurisdiction and so far of the Court of Human Rights to give a particular status to life sentence for murder. From an historical perspective, connected with the abolition of capital punishment, the attitude of Parliament is understandable. It could also well be the case that this is an area where the Court of Human Rights considered it right to show deference to the attitude so clearly adopted by Parliament. If this was the position of the Court of Human Rights, it is an approach with which we should not differ.”

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