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Session 1997-98
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Judgments

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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      There is nothing in the Act of 1991 to suggest that the discretion vested in the Secretary of State by section 35 is to be the subject of any special criteria when he considers the cases of young murderers sentenced to detention under section 53(1) of the Act of 1933, as opposed to adult murderers sentenced to mandatory life imprisonment in the ordinary way. Certainly there is nothing in section 35 itself to suggest that that is the case. Furthermore, there are contrary indications in the statute when provision is made for those serving determinate sentences and those sentenced to discretionary life imprisonment. The early release of young offenders sentenced to determinate sentences of detention under section 53(2) is governed by section 33(1) and (2) and section 35(1), applicable to short term and long-term prisoners. It is true that Parliament, in section 43(4) and (5) of the Act of 1991, made special provision for young offenders; but that only emphasises the fact that, subject to such special provisions, the cases of such young offenders are governed by the provisions in the statute for adults serving similar terms of imprisonment: see section 43(1). Even more striking, however, is the fact that the release of young offenders sentenced to detention for life under section 53(2) of the Act of 1933 falls to be considered under section 34, under which Parliament has made express provision for a part of the sentence to be identified and served before they can be released: see section 34(3). It is, in my opinion, inconceivable that Parliament should have so provided in the case of those sentenced to detention for life under section 53(2), while contemplating that no penal element could be required to be served by young offenders convicted of the graver offence of murder under section 53(1). Plainly, in my opinion, Parliament proceeded on the basis that the Secretary of State was free to apply (as he had done in the past) a sentencing policy under section 35 which required the identification of a penal element which must be served before release, and was as free to apply that policy to murderers who were young offenders as he was in the case of adult murderers; and, having regard to the legislative history to which I have already referred, Parliament was fully entitled to do so. For these reasons, I find myself to be in agreement with the majority of the Court of Appeal on the main issue.

      I wish to add that none of this means that the Secretary of State is entitled to ignore the fact that the offender in question is a young offender. It was, of course, for this reason that he reduced the penal element for the two respondents from 25 years (considered appropriate for an adult who had committed a similar offence) to 15 years. Moreover, the fact that the Secretary of State specifies a penal element which has to be served by a young offender sentenced to detention under section 53(1) of the Act of 1933 does not mean that his welfare or rehabilitation are being ignored. On the contrary, a regime is established for his detention which is specifically directed towards matters of this kind. But it does mean that good progress during detention does not have the effect of reducing the penal period. That is regarded as being consistent with the nature of punishment. This is no doubt why, under the statutory regime in section 34 which is applicable in the case of young offenders sentenced to life imprisonment under section 53(2) of the Act of 1933, no provision is made for any such reduction, the only statutory power of release during the penal period being on compassionate grounds: see section 36, which is equally applicable to discretionary life prisoners and to mandatory life prisoners (including young offenders sentenced to detention under section 53(1)). It would be very strange if the Secretary of State should be required, when exercising his discretion under section 35(2), to take account of good progress during detention with a view to reducing the penal period in the case of a young offender who is a murderer, when that course has not been made available by Parliament in the case of a young offender sentenced to detention for life for a lesser offence, for example, one who has attempted to kill but has only succeeded in maiming his victim. I cannot believe that Parliament should have contemplated so extraordinary and anomalous a differentiation as this.

      For the same reasons I do not, with all respect, feel able to accept the reasoning of Lord Woolf M.R. in his dissenting judgment in the Court of Appeal. Since there is no basis in the statute for departure, on the ground of good progress during detention, from a penal element set under section 34 in the case of a young offender sentenced to detention for life under section 53(2) of the Act of 1933, Parliament cannot have contemplated that the Secretary of State should, in the exercise of his discretion under section 35(2), have been bound to consider departing, on the ground of good progress during detention, from a penal period specified by him in respect of a young offender sentenced to detention for the greater offence of murder under section 53(1).

      For these reasons I would dismiss the cross- appeals of the two respondents. I turn therefore to the question whether the Home Secretary has erred in the exercise of his discretion.

The appeal of the Secretary of State

      I now turn to the appeal of the Secretary of State, and I must first identify the grounds upon which the Court of Appeal decided to quash his decisions. They were as follows:

(1) Failure to disclose material.

            &nbs p;(a) Failure to disclose the judge's summary of the facts contained in his Report to the Home Secretary (per Lord Woolf M.R., Hobhouse and Morritt L.JJ.).

             (b)  Failure to disclose a psychiatric report about Thompson which was sent to the Home Secretary (per Hobhouse L.J.).

             (c)  Failure to disclose information about an earlier case relied on by the Home Secretary (per Hobhouse L.J.).

(2) Failure by the Home Secretary himself to obtain material such as psychiatric and social inquiry reports, to enable him to form his own view about the responsibility to be attributed to the respondents (per Lord Woolf M.R., Hobhouse and Morritt L.JJ.).

(3) Taking into account petitions and other material from the public demanding an increase in the tariff recommended by the judiciary (per Lord Woolf M.R. and Hobhouse L.J.; Morritt L.J. disagreed).

      Of these various complaints, I have come to the conclusion that there is substance in the last; and for that reason I would dismiss the appeal of the Secretary of State. I do not consider that there was substance in the other complaints; but, in view of my conclusion on the last one, I trust that I will be forgiven if I give my reasons for rejecting the others comparatively briefly.

      (1)(a) Failure to disclose the judge's summary of the facts. It is obviously desirable that, in cases such as these, the respondents and their advisers should know the facts set out in the judge's summary, on which the Secretary of State will rely. It is therefore most satisfactory that the Secretary of State should have adopted the practice of disclosing the relevant judicial comments in full. In the present case, the Secretary of State sought to act in accordance with the principle stated by Lord Mustill in Doody at p. 564, and so informed the respondents of the gist of the advice received by him from the judiciary. However on 23 January 1995, in accordance with the new policy, the respondents were sent the full text of the judge's observations excluding one paragraph relating to future risk (which was later supplied on 19 May 1995). The respondents were then invited to make any further representations they wished about their tariff. I should add that, at the hearing before the Appellate Committee, your Lordships went through the judge's summary of the facts line by line with Mr. Fitzgerald, and it transpired that the omitted matters complained of by him were relatively slight. In all the circumstances, I can see no unfairness in this respect on the part of the Secretary of State.

      (1)(b) Failure to disclose a psychiatric report. With great respect to Hobhouse L.J., this point (which was not relied on by the respondents before the Court of Appeal) is, in my opinion, without substance. The report related to Thompson, and was voluntarily sent to the Secretary of State; but it concluded that that no reliable view could be reached about Thompson's state of mind at the material time, and the Secretary of State understandably concluded that it did not assist him. There was, in my opinion, no unfairness in not disclosing it.

      (1)(c) Failure to disclose information about an earlier case. Again there is, in my opinion, no substance in this point, which was not previously relied upon by the respondents. The Secretary of State is fully entitled to have regard to other comparable cases, and there is no suggestion that disclosure of a particular case would have enabled the respondents to advance any further representations.

      (2) Failure by the Secretary of State himself to obtain material in the form of psychiatric or other reports. In my opinion, there is no duty on the Secretary of State to obtain such reports in every case, though sometimes it may be desirable for him to do so. In the present case, the Secretary of State had the benefit of the assessment by the trial judge, who expressed his views to the Secretary of State based upon detailed reports and upon the evidence. It must not be forgotten that the judge had the benefit of presiding over the whole trial, and hearing the whole evidence and submissions by counsel. It is plain that the Secretary of State formed the opinion that he, like the Lord Chief Justice, could safely proceed upon the basis of the judge's assessment. His view that he could do so was reinforced by the conclusion reached in the psychiatric report voluntarily sent to him, in which the opinion was expressed that no reliable conclusion could be reached about Thompson's state of mind at the relevant time. In my opinion, the Secretary of State was entitled to form this view and act upon it. In any event, the Secretary of State has stated that if any information of a psychiatric nature comes to light which is relevant to the tariff, it will be considered. In all the circumstances, I can see no unfairness in this respect.

      (3) Having regard to petitions and other material. As I have already indicated, I see great substance in this point. I will therefore consider it in some detail.

      It is plain from his Decision Letters that the Secretary of State did indeed have regard, when he made his decision to fix the penal element in the respondents' sentences at 15 years, to the petitions and letters to which I have already referred. As stated in the Decision Letters, he did so as evidence of the public concern about this case.

      That there was public concern about this terrible case, there can be no doubt. Any humane person must have felt, not only the deepest sympathy for little James Bulger and his family, but horror that two boys as young as the two respondents should have perpetrated such a brutal crime. The Home Secretary hardly needed the media to inform him of this. But events such as this tend to provoke a desire for revenge, and calls for the infliction of the severest punishment upon the perpetrators of the crime. This elemental feeling is perhaps natural, though in today's society there is a tendency for it to be whipped up and exploited by the media. When this happens, it can degenerate into something less acceptable. Little credit can be given to favourable responses to a campaign that the two respondents should "rot in jail" for the rest of their lives, especially when it is borne in mind that those who responded may well have been unaware that, even after the penal element in their sentences had been served, their release would not be automatic but would be the subject of very careful consideration by the responsible authorities. It was the submission of Mr. Fitzgerald for Venables that material such as that which the Secretary of State had regard to in the present case was no more than public clamour, and as such worthless. It should therefore have been disregarded by the Secretary of State. In the Court of Appeal this submission was accepted by Lord Woolf M.R. and Hobhouse L.J., but rejected by Morritt L.J.

      I approach the matter as follows. Under section 35 of the Act of 1991, the Secretary of State has a discretion regarding the release of mandatory life prisoners, including young offenders sentenced to detention during Her Majesty's pleasure. In the case of such prisoners, there is no statutory provision requiring the fixing of a penal element which must be served. That arises from the policy that there should be such an element, first established by Mr. Leon Brittan in 1983, and subsequently continued by later Secretaries of State. It may therefore be said that the same considerations apply to the implementation of this policy as apply to the decision to release when taken in cases such as these. Moreover, in Reg. v. Secretary of State for the Home Department, Ex parte Doody [1994] 1 A.C. 531, 559, Lord Mustill, speaking of the Secretary of State's discretion with regard to release, spoke of the Secretary of State as being entitled "to have regard to broader considerations of a public character than those which apply to an ordinary sentencing function".

      Even so, when it comes to fixing the penal element, different considerations apply. In doing so, the Secretary of State is not looking at the whole picture at the material time when deciding whether in all the circumstances it is appropriate for a life prisoner to be released, when considerations of a broader character may properly be relevant. On the contrary, he is deciding what in future will be the period of time which a prisoner must serve, compassionate considerations apart, before he may be released, if it is then thought fit. It is scarcely surprising that, in Ex parte Doody, at p. 557, Lord Mustill said of this exercise that:

     "Even if the Home Secretary still retains his controlling discretion as regards the assessment of culpability the fixing of the penal element begins to look much more like an orthodox sentencing exercise, and less like a general power exercised completely at large."

Furthermore this approach derives strong support from the statutory context in which the discretion is now to be found. For in the same Part [II] of the same statute, the fixing of the penal element for discretionary life prisoners is, by section 34 of the Act of 1991, performed by the judges. They will undoubtedly act in a judicial manner when doing so; and indeed that they should do so must have been the intention of Parliament when entrusting this function to them. In so doing, they will disregard any evidence of the kind now under consideration as irrelevant and prejudicial. It follows that, if the Secretary of State was right to have regard to it, there will exist an extraordinary and anomalous conflict between neighbouring sections, sections 34 and 35, in the same statute.

      It is, in my opinion, impossible to explain this conflict on the basis that a relevant distinction is to be drawn in this context between discretionary and mandatory life sentences. In my opinion the only way in which the conflict can be resolved is by recognising that, if the Secretary of State implements a policy of fixing a penal element of the sentence of a mandatory life prisoner pursuant to his discretionary power under section 35, he is to this extent exercising a function which is closely analogous to a sentencing function with the effect that, when so doing, he is under a duty to act within the same constraints as a judge will act when exercising the same function. In particular, should he take into account public clamour directed towards the decision in the particular case which he has under consideration, he will be having regard to an irrelevant consideration which will render the exercise of his discretion unlawful.

      In so holding, I wish to draw a distinction in the present context between public concern of a general nature with regard to, for example, the prevalence of certain types of offence, and the need that those who commit such offences should be duly punished; and public clamour that a particular offender whose case is under consideration should be singled out for severe punishment. It is legitimate for a sentencing authority to take the former concern into account, but not the latter. In my opinion, by crossing the boundary from one type of public concern to the other, the Secretary of State erred in the present case. In reaching this conclusion, I find myself to be in substantial agreement with the opinion expressed by Lord Woolf M.R. on this point.

      For these reasons, I would dismiss the appeal of the Secretary of State.



LORD BROWNE-WILKINSON


My Lords,

Introduction

      The murder of James Bulger by the two applicants, Robert Thompson and Jon Venables, was a cruel and sadistic crime. It is made even more horrific by the fact that the applicants were only 10½ years old at the time. It is not surprising that the case has given rise to much public concern and, indeed, outrage. There is room for a wide range of attitudes to the proper treatment of the two murderers. At one extreme there are those who consider that, even though the applicants were only 10½ years old at the time, the crime was so terrible that they should spend the rest of their life in detention. At the other extreme, there are those who take the view that punishment as such is inappropriate for those of such tender age as the applicants and that the treatment that they should receive should be purely remedial, save so far as the public need to be protected from risk. I suspect that most people take a view somewhere between these two extremes.

      It cannot be too strongly emphasised that it is not for the courts or for your Lordships' House to determine how long these two boys should be detained. Parliament has laid down in section 53(1) of the Children and Young Persons Act 1933 (as amended) that a child shall not be sentenced to life imprisonment but in lieu thereof the courts shall sentence him to be detained during Her Majesty's pleasure. That is the sentence which has been passed on these two applicants. It is accepted by all parties that the decision how long the two applicants shall remain subject to detention is a decision which lies within the discretion of the Secretary of State, i.e. the Home Secretary. By decision letters dated 22 July 1994 the Secretary of State determined that the applicants should be detained for a minimum of 15 years. The question is not whether your Lordships agree that such a period is appropriate. The only question is whether the Secretary of State acted lawfully in fixing that period.

 
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