The aims of this essay are to critically discuss the statement, "Impartiality is essential to justice and yet partiality can only exist with reference to a set of rules. " This will be done in the context of UK Human Rights Law, and will also be in relation to recent cases of relevance, being, Regina v. Secretary of State for the Home Department Ex Parte Anderson1. And Regina v. Bow Street Metropolitan Magistrates Ex Parte Pinochet Ugarte2.
Within this essay, the "The Rule of Law," will be discussed and clarified as to what its relevance is to the discussion within this essay, also different peoples versions of "The Rule of Law," will be assessed for their relevance to the statement question and also the cases in question. The European Convention on Human Rights states under Article 6 states that everyone is entitled to a fair and public hearing, within a reasonable time by an independent and impartial tribunal established by law.
As you can see from the title of the essay the focus is going to be on impartiality and how it can be maintained which will require the guarantee against outside influence. And also that impartiality is judged both subjectively and objectively so that is accounted from every perspective. This means that actual bias must be shown, but also the guarantees against the existence of bias. In the case of Regina v.
Secretary of State for the Home Department Ex Parte Anderson, the court were required to assess the power that is exercised by the Home Secretary, as to how long prisoners who have committed murder should spend in prison for the purposes of punishment. In the case there were many points raised as to whether or not the Home Secretary should have the power by discretion to release on licence a convicted murderer. Who has been serving a sentence of life imprisonment if recommended to do so by the Parole Board under section 61 (1) of the Criminal Justice Act 1967.
Lord Bingham of Cornhill went on to justify that the then Home Secretary justified his impartiality by claiming to still ask the Parole Board as to whether or not the convicted murdered was still a risk. Also that he would continue to look at the judiciary for advice as to whether or not the convicted murderer had satisfied the requirements for retribution to be felt by any person directly affected by his crimes, and also that deterrence had been instilled into the convict. Finally the Home Secretary set out new procedures that were to be followed, as seen below.
The reason for this was so that there was to be a set format for the procedure of releasing a convicted murderer, so that there was seen to be no partiality: (1) 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 life prisoner who is not [a discretionary life prisoner. ] (2) The Parole Board shall not make a recommendation under subsection (1) above unless the Secretary of State has referred the particular case or the class of the case to which that case belongs, to the Board for its advice3.
To stop any anomalous result occurring from the Home Secretary ability to have an affect on the detention of convicted murderers, two safeguards were introduced. The first being when the convicted murderer has come to the end of his sentence he will be placed before the Parole Board whom will assess the case. However if the Parole Board find that it is required to keep the murderer confined then the Home Secretary has no power to release him under section 29. Safeguard two involves the convicted murderer being released under licence.
The licence may be exercised if the convicted murderer is thought to be a threat to the public. In the case of Regina v. Secretary of State for the Home Department Ex Parte Anderson, Mr. Anthony Anderson had murdered two people. And in doing so attracted a sentence of 15 years for both murders. However the Home Secretary set the term to twenty years. To which Mr Anderson was unsuccessful in appealing for a judicial review before the Queens Bench Divisional Court. In the case of Regina v. Bow Street Metropolitan Magistrates Ex Parte Pinochet Ugarte.
The case evolved from General Pinochet coming to England in 1998 for medical treatment. Which he was initially welcome to do, however while he was here in England, he was arrested on warrants issued by the metropolitan stipendiary magistrate under s 8(1)(b) of the Extradition Act. It was issued because of the crimes of torture, murder, conspiracy to murder, which were all alleged to have been orchestrated by Pinochet in Chile during the 1970's. In 1998 the House of Lords rejected General Pinochet's claim by a 3:2 majority, that during the time of the alleged offences he was diplomatically immune.
After this decision was made Pinochet's lawyers found out that one of the majority dissenting, Lord Hoffman happened to be an unpaid director of Amnesty International Charitable trust. Therefor it was seen that Lord Hoffman had conflicting interests in the case, as the English legal system is known to be rigorous in governing conflicts of interest which might be seen to any persons as to have an affect what should be a neutral, and impartial decision making process.