R v Home Secretary ex parte Pierson; Pierson v Home Secretary [1997] 3 WLR 492; [1998] AC 539

• Defendant was convicted of double murder and under the sec state’s scheme was sentenced to 20 years imprisonment when Lord Chief Justice had recommended 15 years. This was communicated to Defendant after the trial judge had sentenced him to life with possible parole after 15 years.

• Under the sentencing tariff, Defendant was entitled to know what the judiciary recommended, what the sentence passed by the Home Secretary was and the latter’s reason if there would “exceptionally” be a difference.

• Defendant was also entitled to seek judicial review if there was a difference.

• The Home Secretary said the reason he had given Defendant an additional 5 years was because this was a double-murder. Later on the Home Secretary accepted that actually this was a “single incident” but insisted on keeping his 20 year sentence anyway

• HL found that the Home Secretary was only entitled to increase the sentence recommended where there was an “exceptional circumstance” which was not the case here.

  • HL also said that there was no general power of the Home Secretary to change the period communicated to the prisoner or to raise the sentence: only a possibility in exceptional circumstances. 

Lord Steyn

• A Home Secretary or judge cannot alter the sentence after 28 days has lapsed since the original sentence: this is important since the family of the convicted may plan their lives around the sentence.

• Also the Home Secretary’s power is to state when the earliest possible release date for the prisoner is: NOT to retrospectively increase the sentence.

• Steyn argues that the rule of law encompasses both formal and substantive elements, requiring fairness in both procedure and content.

  • (He cites Jowell as saying that the rule of law has requirements that a law pass a minimum standard of fairness in content).

  • The power to raise the tariff retrospectively only occurs in exceptional circumstances, e.g. where both the judge and Home Secretary have been misled.

    • Steyn is confusing two points: on the one hand he is saying that the rule of law has a substantive element but on the other is saying that the relevant point here is the raising of fixed tariffs retrospectively, which seems to be an objection based on form, not substance.

• Steyn says that the fundamental principle of not raising fixed tariffs was not mentioned in the legislation giving Home Secretary this power and therefore we assume parliament did not intend that he should get it.

  • NB this seems to be a more challenging attitude than that demonstrated by the Wednesbury test, possibly because of the human rights aspect involved: The courts may have had right to a fair trial under ECHR in mind when making the decision and therefore applying a more intense review standard than usual. 

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