Reasons To Be Cheerful

Abstract

The courts often make decisions on the most fundamental of rights when faced with the most noxious of litigants. The applicants in Doody v Secretary of State for the Home Department' were convicted murderers seeking information on their release. The right to receive reasons in public law matters was in issue. As the JUSTICE Committee2 observed: 'No single factor has inhibited the development of English administrative law as seriously as the absence of any general obligation upon public authorities to give reasons for their decisions.' The House, while denying that it was imposing a general obligation to give reasons, took an important step in that direction by upholding the arguments of the prisoners. Doody, Pegg, Pierson and Smart had been convicted of murder and were duly serving their life sentences. All, understandably, were seeking release on licence under the provisions of the Criminal Justice Act 1991, section 35(2): 'If recommended to do so by the [Parole] Board, the Secretary of State may, after consultation with the Lord Chief Justice together with the trial judge if available, release on licence a [mandatory] life prisoner.'3 Section 35(3) confers a discretion upon the Secretary of State to refer the case to the Parole Board for its advice. In 1983 the Home Secretary adopted a policy of consulting the judge and Lord Chief Justice before fixing a minimum 'penal element' to the sentence. Only on the expiry of this period, designed to reflect deterrence and retribution, did questions of discretionary release come into play. The Parole Board was then consulted regarding the prisoner's dangerousness and his suitability for release. In Doody, dispute turned upon the significance of the judge's recommendation, the prisoner's right to information prior to the decision on the penal element and the Home Secretary's duty to give reasons for his finding.