House of Lords
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 discretion to release

      Although there is dispute as to the meaning of the sentence of detention "during Her Majesty's pleasure," no doubt surrounds the discretion of the Secretary of State to release such a prisoner. Under section 43(2) of the Criminal Justice Act 1991, the provisions of Part II of the Act of 1991 (relating to the release of adult prisoners serving life sentences) are made applicable to children who are serving sentences of detention during Her Majesty's pleasure. The Secretary of State may release the detained child if recommended to do so by the Parole Board and after consultation with the Lord Chief Justice and the trial judge if available: section 35(2) of the A1ct of 1991. Before the Parole Board can make any such recommendation, the Secretary of State has to refer the case to the Board for its advice: section 35(3) of the Act of 1991. Therefore the release of a child detained during Her Majesty's pleasure is wholly dependent on, first, the Secretary of State exercising a discretion whether or not to refer the case to the Parole Board and, second, the Secretary of State deciding whether or not to adopt any recommendation made by the Parole Board that the detained person should be released.

      If the Secretary of State determines to release a person detained during Her Majesty's pleasure, such release is made on licence which may either be conditional or unconditional. If unconditional, the licence remains in force until his death unless, in the meantime, it has been revoked by the Secretary of State on one of the grounds laid down in section 39 of the Act of 1991: see section 37(3) of the Act of 1991. Under section 39(1) and (2) once the Secretary of State has released on licence, apart from cases of emergency, he can revoke that licence so as to recall the former detainee only upon the recommendation of the Parole Board. If the detainee is recalled, he has a right to have his case considered by the Board and, if the Board so recommends, to be released by the Secretary of State on licence.

      Therefore the effect of a sentence of detention during Her Majesty's pleasure is:

     (a) the child is to be detained for an indeterminate period, the duration of which is wholly within the discretion of the Home Secretary; and

     (b) when the Home Secretary, on the recommendation of the Parole Board, releases the detainee on licence, the detainee is liable to be recalled throughout his life but such recall is subject to the decision of the Parole Board and not within the discretion of the Home Secretary.

The policy of the Secretary of State

(a) The tariff

       Over the years, the Secretary of State has adopted a tariff policy in exercising his discretion whether to release adults who have been sentenced to life imprisonment. This was first publicly announced in Parliament by Mr. Leon Brittan on 30 November 1983. In essence, the tariff approach is this. The life sentence is broken down into component parts, viz., retribution, deterrence and protection of the public. The trial judge and the Lord Chief Justice advise the Secretary of State as to the sentence which would be appropriate for the crime having regard to the elements of retribution and deterrence. In the light of that advice (and not being in any way bound by it) the Secretary of State makes his own decision as to the minimum period which the prisoner will have to serve in order to satsify the requirements of retribution and deterrence. This is the tariff period. The policy provides that, until three years before the tariff period expires, the Secretary of State will not refer the case to the Parole Board for its advice as to whether the prisoner should or should not be released. Moreover, until the tariff period has expired the Secretary of State will not exercise his discretion to release on licence.

      This basic approach to adult prisoners has developed over the years. In particular, as a result of the decision of the European Court of Human Rights in Thynne, Wilson and Gunnell v. United Kingdom 13 E.H.R.R. 666, a distinction has had to be drawn between murderers for whom the sentence of life imprisonment is mandatory under English law and others sentenced to life imprisonment where the sentence is not mandatory and has been imposed by the judge because he considers that the prisoner may, if released after a determinate sentence appropriate to the crime, present a continuing risk to society (a discretionary life sentence). The Strasbourg Court held that under Article 5(4) of the European Convention on Human Rights a discretionary life prisoner who had served the tariff period was entitled to have the question whether his continuing detention thereafter on the grounds of risk was justified determined by "a court." In order to comply with this decision, Part II of the Act of 1991 was passed by Parliament. It provides that the treatment of discretionary life prisoners is (to use an unpleasant but invaluable word) "judicialised." In the case of discretionary life prisoners, the tariff is fixed by the trial judge and the risk after expiry of the tariff period is determined by the Parole Board, to whom the Secretary of State is bound to refer the case. The Secretary of State is bound to release the discretionary life prisoner if the Parole Board so directs: see section 34.

      However, in Thynne, a distinction was drawn between discretionary life prisoners and mandatory life prisoners. The Strasbourg decision in Thynne did not affect mandatory life prisoners: the Secretary of State's discretion as to their release is preserved by section 35 of the Act of 1991, as is his discretion whether or not to refer the case to the Parole Board. Since, under section 53(1) of the Act of 1933, it is mandatory to sentence a child murderer to detention during Her Majesty's pleasure, the effect of section 43 of the Act of 1991 is to preserve the Secretary of State's discretions in relation to a child detained during Her Majesty's pleasure.

      It follows that it is within the Secretary of State's discretion whether or not to release both mandatory life prisoners and children detained during Her Majesty's pleasure. The statement to Parliament made by Mr. Howard, the Secretary of State, on 27 July 1993 made it clear that the tariff principle first enunciated publicly by Mr. Leon Brittan in 1983 would continue to apply to adults sentenced to mandatory life imprisonment. The tariff period (being the minimum period necessary to reflect the elements of retribution and deterrence) would be fixed by the Secretary of State at the beginning of the sentence after receiving judicial advice. The Secretary of State would then fix the date for the first review (i.e. the first reference of the matter to the Parole Board), as being a date three years before the expiry of the tariff. The statement emphasised that the tariff was only being fixed as an initial view. The Secretary of State said:

     "It therefore remains possible for me, or a future Secretary of State, exceptionally to revise that view of the minimum period, either by reducing it, or by increasing it where I, or a successor in my office, concludes that, putting aside questions of risk, the minimum requirements of retribution and deterrence will not have been satisfied at the expiry of the period which had previously been determined."

The statement further emphasised that the Secretary of State endorsed the statement of policy made on 16 July 1991 by Dame Angela Rumbold:

     "In a discretionary case, the decision on release is based purely on whether the offender continues to be a risk to the public. The presumption is that once the period that is appropriate to punishment is passed, the prisoner should be released if it is safe to do so. The nature of the mandatory sentence is different. The element of risk is not the decisive factor in handing down a life sentence. According to the judicial process, the offender has committed a crime of such gravity that he forfeits his liberty to the state for the rest of his days- -if necessary, he can be detained for life without the necessity for subsequent judicial intervention. The presumption is, therefore, that the offender should remain in custody until and unless the Home Secretary concludes that the public interest would be better served by the prisoner's release than by his continued detention. In exercising his continued discretion in that respect, the Home Secretary must take account, not just of the question of risk, but of how society as a whole would view the prisoner's release at that juncture. The Home Secretary take[s] account of the judicial recommendation, but the final decision is his."

      Up to this point, the Home Secretary's 1993 statement had been dealing with the release of adults sentenced to mandatory life imprisonment. However, at the end of this statement the Home Secretary said this:

     "Everything that I have said about the practice of the Secretary of State in relation to mandatory life sentence prisoners applies equally to persons who are, or will be, detained during Her Majesty's pleasure under section 53(1) of the Children and Young Persons Act 1933, as well as to persons who have been, or will be, sentenced to custody for life under section 8 of the Criminal Justice Act 1982"

Accordingly, the tariff system, whereby the punitive and deterrent element is set by the Secretary of State soon after the date of conviction, applies in just the same way to children sentenced to detention during Her Majesty's pleasure as it applies to adult murderers.

(b) Flexibility

       There are passages in the Court of Appeal judgment which suggest that the only question in this case is whether the Secretary of State was entitled to adopt any tariff policy in dealing with children sentenced to be detained during Her Majesty's pleasure. In my judgment that is not the decisive point. What is crucial is whether the particular policy adopted is, in relation to children, sufficiently flexible to permit the Secretary of State to take into account all those factors to which he ought to have regard in exercising his discretion in relation to children if he is to act lawfully.

      Mr. Leon Brittan's 1983 statement contained the following paragraph:

     "When a date for a first, or subsequent, formal review is set for several years ahead, the Home Office will review the case on the basis of reports of the kind now prepared for formal review, at regular, and in any event not longer than three-year, intervals. Moreover, governors will be told to report at once any exceptional development requiring action. These procedures will ensure that I can consider any special circumstances or exceptional progress which might justify changing the review date. But except where a prisoner has committed an offence for which he has received a further custodial sentence, first formal review date will not be put back. In any event, Ministers will review every case when a life sentence prisoner has been detained for 10 years." (emphasis added)

      Thus under the 1983 policy statement it was clear, even in the case of adult life prisoners, that their position would be kept under tri-annual review and that the Secretary of State would consider any special circumstances "or exceptional progress" which might justify bringing forward the review date and hence the earlier release of the prisoner, i.e. the facts relating to the prisoner's behaviour after the commission of the offence could be taken into account. It was the presence of this flexibility which proved decisive in In re Findlay [1985] A.C. 318.

      Policy in this regard seems to have changed since 1983. The passage from the Secretary of State's statement in 1993 which I have quoted refers to "exceptionally" revising the tariff period by "reducing it." However, it was made clear to your Lordships both from the evidence and in submissions that in making any change to the tariff period the Secretary of State would only have regard to matters relevant to the circumstances of the commission of the crime or the applicant's state of mind when the offence was committed. The Secretary of State would not in any circumstances vary the tariff period by reason of events occurring after the commission of the crime.

      Therefore, under the policy applied by the Secretary of State to these applicants, the way in which they mature hereafter or behave is irrelevant: however they develop, the tariff period will remain fixed at a minimum of 15 years.

The consequences of the Secretary of State's decisions

      The position of these applicants is therefore as follows. Although they were only 10½ years old at the date of the crime, until they have reached the age of 21 or 22 the Parole Board will not have an opportunity to consider their progress in detention. During that period they will have passed through puberty, adolescence and young manhood. Even when the Parole Board considers the matter, the applicants will not be released until the age of 24 or 25 at the earliest. For 12 years (that is to say, throughout their minorities) the welfare of the applicants themselves will be wholly irrelevant to the question of their release and will not be considered. The only exception to this will be if fresh facts emerge as to their state of mind when they were 10½ and committed the offence.

      My Lords, it would be surprising if such a policy towards young children (however heinous their offence) is lawful in this country. As the speeches of my noble and learned friends Lord Steyn and Lord Hope of Craighead demonstrate, ever since the Children Act 1908 there has been legislation in this country requiring child offenders to be dealt with on a basis different from that applicable to adults. In the case of children, Parliament has directed that attention should be given not only to the requirements of punishment and protection of the public from risk but also to the welfare of the child offender. What was, in my view, tacit in the Act of 1908 was made explicit by section 44(1) of the Act of 1933 which provides:

     "Every court in dealing with a child or young person who is brought before it, either as . . . an offender or otherwise, shall have regard to the welfare of the child or young person . . ."

That subsection is still in force and is one of the basic principles applicable to dealing with child offenders. It is clear from the statutory direction that in dealing with children (whether by sentencing or otherwise) a court is bound to take into account the welfare of the child. Mr. Pannick, for the Secretary of State, felt unable to contend that the Secretary of State in exercising his discretion in relation to child offenders was not under the same duty.
The relevant question

      In these circumstances, the first question to be determined is whether the Secretary of State, by adopting a policy (not laid down by Parliament) which precludes both himself and the Parole Board from having any regard to the circumstances and welfare of the applicants for a period of 12 years, has acted within the discretionary powers conferred on him in relation to children detained during Her Majesty's pleasure. The answer to this question depends upon the following points:

     (1) In what circumstances is it lawful to adopt a non-statutory policy in exercising a statutory discretionary power?

     (2) What are the factors relevant to the exercise of the discretion conferred on the Secretary of State in relation to children detained during Her Majesty's pleasure? and

     (3) Did the Act of 1991 change the nature of that discretion?

I will consider these in turn.

Discretion and policy--the law

      When Parliament confers a discretionary power exercisable from time to time over a period, such power must be exercised on each occasion in the light of the circumstances at that time. In consequence, the person on whom the power is conferred cannot fetter the future exercise of his discretion by committing himself now as to the way in which he will exercise his power in the future. He cannot exercise the power nunc pro tunc. By the same token, the person on whom the power has been conferred cannot fetter the way he will use that power by ruling out of consideration on the future exercise of that power factors which may then be relevant to such exercise.

      These considerations do not preclude the person on whom the power is conferred from developing and applying a policy as to the approach which he will adopt in the generality of cases: see Rex v. Port of London Authority, Ex parte Kynoch Ltd. [1919] 1 K.B. 176; British Oxygen Company Ltd. v. Board of Trade [1971] A.C. 610. But the position is different if the policy adopted is such as to preclude the person on whom the power is conferred from departing from the policy or from taking into account circumstances which are relevant to the particular case in relation to which the discretion is being exercised. If such an inflexible and invariable policy is adopted, both the policy and the decisions taken pursuant to it will be unlawful: see generally de Smith, Woolf and Jowell: Judicial Review of Administrative Action, 5th ed. (1995), para. 11.004 et seq., pp. 506 et seq.

      The position is well illustrated by your Lordships' decision in In re Findlay (supra) which was itself concerned with the legality of the tariff policy announced in 1983 by Mr. Leon Brittan. Your Lordships held that the policy was lawful because it provided for a departure from the policy in exceptional circumstances. Lord Scarman said, at p. 336G:

     "The question, therefore, is simply: did the new policy constitute a refusal to consider the cases of prisoners within the specified classes? The answer is clearly 'no'. Consideration of a case is not excluded by a policy which provides that exceptional circumstances or compelling reasons must be shown because of the weight to be attached to the nature of the offence, the length of the sentence and the factors of deterrence, retribution, public confidence, all of which it was the duty of the Secretary of State to consider. . . . I see nothing wrong in classifying offenders according to the character and gravity of their offences and to the length of sentences imposed provided always that the classification does not preclude consideration of other relevant factors such as prison record, personal or family circumstances and the element of risk (or its absence) in the event of early release."

      In my judgment this passage demonstrates that what saved Mr. Brittan's 1983 policy from being unlawful was that it contained within it the flexibility, in exceptional circumstances, to have regard to relevant circumstances and such circumstances included not only those factors relevant to the culpability of the offence but also "other relevant factors such as prison record, person or family circumstances."

      It is not necessary in this case to consider how far the 1993 policy (which precludes consideration of matters occurring after the date of the offence such as prison record and personal circumstances) is lawful in relation to adult life prisoners. In this appeal, your Lordships are only concerned with the lawfulness of the policy as applied to children sentenced to be detained during Her Majesty's pleasure. In relation to such children, the question is whether it is lawful to adopt a policy which, even in exceptional circumstances, treats as irrelevant the progress and development of the child who has been detained. This is plainly the effect of the inflexible 1993 policy. The answer to that question must depend upon the character of a sentence of detention during Her Majesty's pleasure. If such a sentence requires the Secretary of State to have regard not only to those factors relevant in considering an adult life prisoner (retribution, deterrence and risk) but also to the progress and development of the child whilst detained, it seems to me clear that the policy is unlawful since it excludes from consideration, even in exceptional circumstances, a factor relevant to the decision whether or not to release the child.