There is no general duty on the home secretary to elect a minimum prison term that the judiciary have recommended to him, but that if he is to depart from that then he has to give reasons why. Also, before making the decision, he has to allow the prisoner to make a written representation to him, in the knowledge of what the judiciary has recommended.
Lord Mustill: “I find in the more recent cases on judicial review a perceptible trend towards an insistence on greater openness”. “The law does not at present recognise a general duty to give reasons for an administrative decision. Nevertheless, it is equally beyond question that such a duty may in appropriate circumstances be implied”. The factors set out in Cunningham guide us as to when this will be. He contrasts the position of a prisoner who is convicted of a crime less than murder with one convicted of murder: The former can measure his expectations based on a public tariff, hears his barrister addressing the judge and is given reasons for the final sentence by the judge. The latter never even sees the home sec and has no dialogue with him, while there is no tariff and no reasons are given for explanation. “A distant oracle has spoken, and that is that.” This unequal treatment was clearly unfair. Furthermore, unless reasons are given, P has no idea of whether the decision made is correct or not.