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Session 1997-98
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| Judgments - Reg. v. Secretary of State for the Home Department, Ex parte V. and Reg. v. Secretary of State for the Home Department, Ex parte T. continued |
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The relevant statutory provisions: the Children Act 1908 and the Children and
Young Persons Act 1933.
I start with the Children Act 1908, and the
subsequent consolidating Act, the Children and Young Persons Act 1933. It was under
section 53(1) of the latter Act (as amended) that the two respondents in the present case were
sentenced to be detained during Her Majesty's pleasure; but since that subsection reflects
without material alteration section 103 of the Act of 1908, it is right that I should begin with the
earlier statute. Sections 103-105 of that Act provide as follows:
The Act of 1933 was a consolidating Act. We
find the provisions of 103 to 105 of the Act of 1908 gathered into section 53 of the Act of 1933,
with minor alterations none of which are material for the present case. Section 53 in its original
form provided as follows:
Section 53 was subsequently amended in
certain respects. First, following the abolition of the death penalty in 1965, section 53(1) was
amended (by sections 1(5) and 4 of the Murder (Abolition of Death Penalty) Act 1965) to make
a sentence of detention during Her Majesty's pleasure mandatory, in place of a mandatory life
sentence, for young offenders convicted of murder. Second, following the introduction of the
Parole Board by the Criminal Justice Act 1967, the power to release young offenders
sentenced under section 53 of the Act of 1933 was made dependent upon a recommendation
by the Board and, in the case of those sentenced to imprisonment for life or to detention
during Her Majesty's pleasure, prior consultation with the Lord Chief Justice and (if available)
the trial judge: see section 61 of the Act of 1967. Finally, the whole regime was subject to
major revision in Part II of the Criminal Justice Act 1991. The relevant provisions of that Act
are of great importance in the present case; but the form of section 53 of the Act of 1933 (as
previously amended) was left untouched. Before I turn to the impact of the Act of 1991, I wish
first to consider section 53 itself. First of all, I am satisfied that the submission of
Mr. Fitzgerald Q.C. for Venables that a sentence to detention during Her Majesty's pleasure
under section 53(1) contains no element of punishment is unsustainable. Section 104 of the
Act of 1908, which is the direct precursor of section 53(2) of the Act of 1933, expressly refers
to cases in which punishment provided for elsewhere in the Act is insufficient. It is plain,
therefore, that a sentence under section 104 involved punishment of the young offender; and
this is all the more obvious when it is seen that, among the lesser sentences which might then
be imposed, was a sentence of whipping (see section 107(g)). That being so, it is
inconceivable that a sentence of detention under section 103 for the greater offence of murder
should not likewise involve punishment of the offender. Furthermore, there is nothing in
section 53 of the Act of 1933 to indicate that any different conclusion should be drawn in
respect of a sentence of detention under section 53(1); on the contrary, consistently with that
conclusion, section 53 is headed by the words "Punishment of certain grave
crimes." Since, therefore, a sentence of detention under section 53(1) involves
punishment, it is difficult at first sight to see why, as a matter of policy, the Home Secretary
should not be entitled to identify a penal element and require that it should be served before
release on licence. I turn next to the conclusion of the Divisional
Court that a sentence of detention during Her Majesty's pleasure under section 53(1)
connotes "not only a power but a duty in the Secretary of State to keep the question of
continued detention under review throughout the period of detention," with the effect that
the imposition of a penal element which must be served before release is inconsistent with
such a sentence. In my opinion this conclusion flows from a misunderstanding of the
applicable legislation. I have read with great interest the paper
prepared by Professor A. W. B. Simpson for submission to the European Court of Human
Rights in Prem Singh v. United Kingdom. The theme of the paper is that a sentence on
a young offender (whether under section 103 of the Act of 1908 or section 53(1) of the Act of
1933) to detention during Her Majesty's pleasure should not be viewed as equivalent to a
mandatory life sentence. That the two should be differentiated is explained in the paper,
essentially because the introduction of such a sentence for young offenders "formed part
of an elaborate legislative scheme which reflected a general policy of treating young offenders
quite differently from older ones" (see page 22). A similar policy no doubt underlay the
amendment to section 53(1) in 1965 to make a sentence of detention during Her Majesty's
pleasure mandatory, in place of a mandatory life sentence, for young offenders convicted of
murder. But this policy relates to "making a special arrangement for the disposal of
juvenile murderers" (see page 26). It does not relate to arrangements for their
discharge; indeed it would be surprising if it did so because, unlike the case of young
offenders, detention during Her Majesty's pleasure as originally applied to lunatics was
regarded as purely preventative, and so was an interim order pending their release if they
recovered (see pages 13-14). In such cases, continuous review was no doubt necessary (see
page 13). But the same does not necessarily apply in the case of young offenders, where the
sentence involves punishment. At all events, the position is made clear in both
the Act of 1908 and the Act of 1933, where the power of discharge is expressly provided for,
and is a power vested in the Secretary of State to discharge the young offender at any time on
licence, subject to revocation of that licence by him at any time -see section 53(4) of the Act of
1933 (now repealed), formerly section 105 of the Act of 1908. Furthermore, these statutory
provisions for discharge are likewise applicable to sentences of detention under section 53(2)
of the Act of 1933, formerly section 104 of the Act of 1908. In my opinion, the adoption of the
expression "during Her Majesty's pleasure" in relation to one form of detention
under the Acts of 1908 and 1933 cannot of itself give rise to any impact upon discharge, when
identical provision is expressly made in each statute for a power of discharge applicable to
both forms of detention. Furthermore, no implication can in my opinion
be derived from these words that cases of detention for murder under section 53(1) of the Act
of 1933 (or under section 103 of the Act of 1908) should be kept under continuous review. It
would be most extraordinary if the presence of these words in the sections applicable in cases
of murder should have that effect, when the absence of those words in section 53(2) (or
section 104) should have the effect that offenders sentenced to detention for life for lesser
offences under those provisions would be deprived of the benefit of any such review. That no
distinction can be drawn in this way between the two provisions is made plain by the fact that,
in the days before the time when identification of a penal element in the sentence was
considered desirable, the flexible regime applicable to young offenders was considered to be
equally appropriate to those sentenced under section 53(2) and section 53(1). This is made
plain in the decision of the Court of Appeal (Criminal Division) in Reg. v. Fuat [1973] 1
W.L.R. 1045. There the Court of Appeal upheld a sentence of 20 years detention imposed
under section 53(2) on a 16 year old boy held guilty of attempted murder and robbery. In the
course of his judgment, Lord Widgery C.J. (at pp. 1049 et seq.) stressed that section 53
created:
This was as true of a young offender sentenced to life or a fixed period of detention under
section 53(2) as it was of one sentenced to detention during Her Majesty's pleasure under
section 53(1). In this connection, Lord Widgery C.J. relied upon a passage from the judgment
of Lord Parker C.J. in Reg. v. Chambers; Reg. v. Sorsby (1967) 51 Cr.App.R. 254,
256, when he said of sentences under section 53(2):
It follows that the flexible procedures then
applied did not owe their origin to the fact that some young offenders (those sentenced under
section 53(1)) were sentenced to be detained during Her Majesty's pleasure. On the contrary,
they applied to all young offenders, whether sentenced under section 53(1) or section 53(2).
Indeed, it would have been most surprising if any distinction had in this respect been drawn
between the two categories of young offenders. In more recent years, it has been recognised in
the case of adult prisoners that it is desirable to fix a penal element which has to be served
before release, a policy which has been recognised by your Lordships' House to be
unobjectionable (see Reg. v. Secretary of State for the Home Department, Ex parte
Doody [1994] 1 A.C. 531, 559C, per Lord Mustill). As Lord Woolf M.R. pointed out
in his dissenting judgment in the Court of Appeal in the present case, there can be no legal
objection to the Home Secretary applying the same approach to young offenders. As I have
already recorded, he said, at p. 90:
It would be very strange if the benefit (such as it is) of such a policy should be available to
young offenders sentenced to detention for life under section 53(2), but not to those
sentenced to detention during Her Majesty's pleasure under section 53(1). Certainly, I can
derive no such conclusion from the words "during Her Majesty's pleasure."
For these reasons, quite apart from the impact
of the Act of 1991, I am unable to accept the reasoning or conclusion of the Divisional Court
on this point.
The relevant legislation: the Criminal Justice Act 1991.
It is against that background that I now turn to
the impact on these cases of Part II of the Criminal Justice Act 1991, which in my opinion puts
the matter beyond all doubt. The Act made important changes in respect of the administration
of criminal justice in this country; but it is Part II of the Act, concerned with the early release of
prisoners, with which your Lordships are directly concerned. In order to understand the
relevant provisions of the Act, however, it is necessary that I should first refer to developments
in the policy applied by successive Home Secretaries in relation to release on licence, and to
a decision of the European Court of Human Rights. First of all, in a statement made by Mr. Leon
Brittan on 30 November 1983, he stated that, in the case of life sentence prisoners, he looked
to the judiciary for advice on the period to be served to satisfy the requirements of retribution
and deterrence and to the Parole Board for advice on risk. This appears to have been the
origin of the penal element or "tariff." He further stated that the first review by the
Local Review Committee would normally take place three years before the expiry of that
period, which would give time for preparation for release if the Parole Board recommended it,
having considered risk. The ultimate discretion when to release would remain with the Home
Secretary. This policy was further developed in a statement by Mr. Douglas Hurd on 23 July
1987, following the decision of a Divisional Court in Reg. v. Secretary of State for the
Home Department, Ex parte Handscomb (1988) 86 Cr.App.R. 59, which was concerned
with discretionary life sentences. Next, following the decision of your Lordships'
House in Reg. v. Secretary of State for the Home Department, Ex parte Doody [1994] 1
A.C. 531, a statement was made by Mr. Michael Howard on 27 July 1993 giving effect to that
decision (with which your Lordships are not here directly concerned), in which he reiterated
(with amendments) the policy with regard to the penal element referred to in previous policy
statements in relation to mandatory life sentence cases, and concluded with the following
words:
Finally, I must refer to the decision of the
European Court of Human Rights in Thynne, Wilson and Gunnell v. United Kingdom
(1990) 13 E.H.R.R. 666, in which it was held that, in the case of discretionary life sentence
prisoners the penal element in whose sentences has expired, their continued detention should
be subject to judicial control by virtue of Article 5(4) of the Convention.
It is against this background that the effect of
Part II of the Act of 1991 can be understood. Section 34 of the Act is concerned with the
release of discretionary life prisoners, and it is plain that this section has been drafted to give
effect to the decision of the European Court in Thynne. Although the section is drafted
with reference to the requirement that a part of the prisoner's sentence is to be served before
his release is considered, nevertheless that part is to be determined by the court which
sentenced him. Furthermore, once he has served that part of his sentence, and the Parole
Board has directed his release, it is the duty of the Secretary of State to release him; and a
discretionary life prisoner may require the Secretary of State to refer his case to the Board at
any time after (inter alia) he has served the relevant part of his sentence. It follows that, in the
case of such prisoners, the question of his release has been entirely "judicialised",
to use the current jargon.
The case of mandatory life prisoners is dealt
with in section 35(2) and (3), which provide as follows:
It is apparent that, in such cases, the Secretary of State retains his discretion both when
to refer a case to the Parole Board and, if the Board recommends his release, whether to
release him as so recommended.
Section 43 is concerned with Young Offenders.
Subsections (1), (2) and (3) provide as follows:
Subsections (4) and (5) refer respectively to
short-term prisoners under the age of 18 years, and persons under the age of 22 years who
are released on licence.
It follows therefore that Part II of the Act (which
is concerned with the Early Release of Prisoners) applies both to young offenders sentenced
to detention during Her Majesty's pleasure under section 53(1) of the Act of 1933 and to those
sentenced to detention for life under section 53(2). However, since the sentence on the former
is a mandatory sentence, and the sentence on the latter is discretionary, their cases fall to be
considered under different sections of the Act--the former under section 35, and the latter
under section 34 (as is made plain by section 51(1) which provides that "'life prisoner'
has the meaning given by section 34(7) above (as extended by section 43(2)
above)" (emphasis added)). The practical result is that young offenders sentenced
to detention for life fall within the judicialised regime in section 34, which makes express
provision for the fixing of a part of the sentence which must be served before release,
whereas those sentenced to detention during Her Majesty's pleasure fall to be considered by
the Secretary of State under the broad discretion now conferred upon him by section 35.
Although the regime now applicable under the statute to the latter class of young offenders is
that applicable in the case of adult life prisoners subject to mandatory life sentences (i.e., adult
murderers), it would not, in my opinion, be strictly correct to describe such young offenders as
subject to a life sentence. What has happened is that Parliament has recognised that
sentences to detention during Her Majesty's pleasure under section 53(1) have sufficient
similarity to sentences of life imprisonment imposed upon adults to render it appropriate that
the question of release should in both cases be provided for in the same statutory provision.
This is no doubt because in both cases a mandatory sentence of indeterminate length has
been imposed for murder, and if release is permitted on licence that licence will remain
thereafter revocable by the Secretary of State for the rest of the offender's natural life--as is
made plain by section 37(3) of the Act, which is rendered applicable to young offenders
detained during Her Majesty's pleasure by section 43(2) and (3) and section 51(1). |
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