R (Anderson) v Secretary of State for the Home Department [2002] UKHL 46
Facts
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.”
Legal Issue
Was the Home Secretary’s determination of a mandatory life prisoner’s punitive minimum term compatible with Article 6, and could section 3 interpretation remove any incompatibility?
Held
The House of Lords allowed Anderson’s appeal and declared the relevant statutory arrangement incompatible with Article 6. Determining the punitive minimum term of a mandatory life sentence was a sentencing function requiring an independent and impartial tribunal. The Home Secretary was not such a tribunal. The court could not use section 3 of the Human Rights Act to replace the statutory allocation with a different decision-making scheme. It therefore issued a declaration under section 4, which did not invalidate the legislation. The judgment did not decide that every executive decision about prisoners is judicial sentencing. It addressed the particular function of fixing the minimum punitive term and the institutional safeguards that function required.
⭐ Legal Principle
Fixing the punitive minimum term of a mandatory life sentence is a sentencing function requiring an independent and impartial tribunal under Article 6. Anderson declared the Home Secretary’s statutory tariff-setting role incompatible because interpretation could not replace that fundamental allocation of responsibility.
Significance
Anderson distinguishes sentencing from the executive’s role in administering detention and release. Fixing the punitive minimum term of a mandatory life sentence was a judicial task requiring an independent tribunal. The decision is also an example of section 4 being used where compatible interpretation would contradict the statutory allocation of responsibility. Later legislation transferred the relevant function to the courts. Students should explain that change rather than present the Home Secretary’s historical tariff-setting power as the current general arrangement.
Common exam questions about this case
Why did fixing the tariff engage Article 6?
The tariff determined the minimum punitive period to be served as part of the sentence. That was a sentencing function rather than merely an administrative decision about prison management. Article 6 therefore required determination by an independent and impartial tribunal, a requirement not met by the Home Secretary performing that role.
Why could section 3 not cure the defect?
The legislation expressly allocated the relevant decision to the Secretary of State. Recasting that allocation as a judicial function through interpretation would contradict a fundamental feature of the scheme. The House therefore used a declaration of incompatibility rather than rewriting who held the statutory power.
Did the declaration repeal the sentencing provision?
No. Section 4 identifies incompatibility without invalidating primary legislation. Parliament was responsible for changing the statutory arrangement, and later legislation transferred tariff-setting to the courts. The distinction between identifying a rights defect and amending the law is central to understanding the remedy in Anderson.