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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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      It was not long before Mr. Leon Brittan's new policy was challenged. In In re Findlay [1985] A.C. 318, it was argued that the new policy was unlawful. The classification of offences by reference to their gravity was said to be inconsistent with each case being considered individually on its merits. The gravity of the offence was only one factor. It should not be considered to the exclusion of other relevant factors. This was the argument which was accepted by Browne-Wilkinson L.J. in his dissenting judgment in the Court of Appeal. In the House, Lord Scarman said at p. 335 that he had difficulty in understanding how a Secretary of State could properly manage the complexities of his statutory duty without a policy. After referring to an observation of Templeman L.J. in Attorney-General ex rel. Tilley v. Wandsworth London Borough Council [1981] 1 W.L.R. 854, he continued:

     "But the duty of the Secretary of State in this case is, as I have already shown, a very complex one. Indeed, the complexities are such that an approach based on a carefully formulated policy could be said to be called for. There is, as I understand the law nothing to prevent such an approach, where it is appropriate."

So there was no objection to the Home Secretary adopting a policy in guiding the exercise of his discretion.

      On 23 July 1987 Mr. Douglas Hurd made a further statement in the light of the decision of the Divisional Court in Reg. v. Secretary of State for the Home Department, Ex parte Handscomb (1987) 86 Cr.App.R. 59. He announced that the first formal review by the Home Office would take place as soon as practical after conviction, instead of being postponed for three or four years as had been the practice hitherto. The Home Secretary would then determine the date for the first formal review by the Parole Board, which would normally be three years before the earliest release date. Mr. Hurd made clear that in setting the first review date he would take account not only of the requirement of retribution and deterrence, but also, among other factors, the need to maintain public confidence in the criminal justice system.

     "I shall ensure that the timing of the first formal review in such cases is fixed in accordance with my overall policy for ensuring that the time served by prisoners serving sentences for the worst offences of violence fully reflects public concern about violent crime."

      Then in 1990 came the decision of the European Court of Human Rights in Thynne, Wilson and Gunnell v. United Kingdom, 13 E.H.R.R. 666. That decision is not of direct relevance, since it was concerned with adults serving discretionary life sentence after the punitive period of their imprisonment had expired. The court held that their continued detention was in violation of Article 5(4) of the European Convention on Human Rights. Accordingly it became necessary for the Government to legislate. Part II of the Criminal Justice Act 1991 is headed "Early Release of Prisoners." It is based on the recommendations of the Committee chaired by Lord Carlisle of Bucklow Q.C. in their review of the parole system ("The Parole System in England and Wales" (1988) (Cm. 532)). Section 34 was the Government's specific response to the decision of the European Court in the Thynne case. It imposes a duty on the Secretary of State to release a discretionary life prisoner once he has served that part of his sentence which is set by the court as "the tariff" for retribution and deterrence, and once the Parole Board has directed his release. In the case of discretionary life prisoners the Secretary of State no longer has any discretion as to the release date.

      Section 35 is different. It covers long-term and life prisoners, other than those serving a discretionary life sentence. Sub-section (2) confers on the Secretary of State the power to release a prisoner serving a mandatory life sentence, if recommended to do so by the Parole Board, but only after consultation with the judiciary. Sub-section (3) prohibits the Board from making a recommendation for release unless the Secretary of State has first referred the case to the Board. There is nothing in section 35 which requires the Secretary of State to refer the case to the Board at any particular time or at all. It is left to the discretion of the Secretary of State.

      Section 43 concerns young offenders. Section 43(1) covers those serving determinate sentences of detention under section 53(2) of the Act of 1933. It provides that Part II of the Act of 1991 shall apply to such persons as if they were serving an equivalent sentence of imprisonment. Section 43(2) covers those serving indeterminate sentences of detention under section 53, that is to say, those who are detained during Her Majesty's pleasure under section 53(1) of the Act of 1933, and those detained for life under section 53(2). It provides that Part II of the Act of 1991 shall apply to such persons as if they were serving sentences of imprisonment for life.

      Finally, section 51(1) provides that "life prisoner" in Part II means a life prisoner as defined in section 34(7),, but extended to include those covered by section 43(2).

      It is on the interaction of section 35(2) and section 43(2) that the outcome of the main issue in this appeal depends. But it is first necessary to complete the background material, by referring to the next occasion on which the Home Secretary's procedures for releasing life prisoners was challenged. This came with the decision of the House in Reg. v. Secretary of State for the Home Department, Ex parte Doody [1994] 1 A.C. 531. It was held in that case that the Secretary of State must afford a person found guilty of murder an opportunity to make effective representations as to the date of his first referral to the Parole Board, and hence, by adding three years, his earliest date of release. The offender must be informed of the tariff recommended by the judges, and the gist of their advice to the Home Secretary. I return to these points later. At this stage I wish only to draw attention to what Lord Mustill had to say as to a further argument advanced by the applicants in that case, namely, that the Home Secretary acted unlawfully by setting a tariff period in excess of that recommended by the judiciary. It was submitted that the judges were uniquely skilled and experienced in matching punishment to the needs of retribution and deterrence, and that the Secretary of State should not interfere. This argument was roundly rejected by the House. Lord Mustill said, at p. 559:

     "The Secretary of State is compelled, or at least entitled, to have regard to broader considerations of a public character than those which apply to an ordinary sentencing function. It is he, and not the judges, who is entrusted with the task of deciding upon the prisoner's release, and it is he who has decided, within the general powers conferred upon him by the statute, to divide his task into two stages. It is not, and could not be, suggested that he acted unlawfully in this respect and I can see no ground whatever for suggesting that by doing so he deprived himself entirely of his discretion at the first stage, and delivered it into the hands of the judges. If the decision in Ex parte Handscomb is to a contrary effect, then with due respect to a very experienced court, I must disagree."

      Within a month of the decision of the House in Ex parte Doody, the Secretary of State, Mr. Michael Howard, made a further policy statement. He announced that he would give effect to the judgment of the House in Doody by arranging for those convicted of murder to be informed of the substance ("gist") of the judicial recommendations. He continued:

     "I take this opportunity to emphasise that the view which I or a minister acting under my authority takes, at the beginning of a mandatory life sentence, of the period necessary to satisfy the requirements of retribution and deterrence is an initial view of the minimum period necessary to satisfy those requirements. 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."

He went on to outline the factors which he would take into account before releasing a convicted murderer:

     "I will consider not only (a) whether the period served by the prisoner is adequate to satisfy the requirements of retribution and deterrence and (b) whether it is safe to release the prisoner, but also (c) the public acceptability of early release. This means that I will exercise my discretion to release only if I am satisfied that to do so will not threaten the maintenance of public confidence in the system of criminal justice."

      Finally, he said that the practice which he had described would apply equally to persons detained during Her Majesty's pleasure under section 53(1) of the Act of 1933, as well as to persons sentenced to custody for life under section 8 of the Criminal Justice Act 1982. This was the first time that the practice in relation to juvenile offenders had been mentioned in a policy statement. But it was not suggested that the 1993 statement marked any change in the Home Secretary's previous practice in setting a tariff for juvenile offenders convicted of murder.

      With that rather lengthy introduction I can now turn to the issues in the appeal.

The substantive issue

       The first question is whether the Home Secretary is entitled to have a policy at all with regard to juvenile offenders convicted of murder, whereby he determines in advance a minimum period which the offender must serve before he is considered for release. The second question is whether he is entitled to have the same policy as he has in the case of adult murderers.

      As to the first question, all three judges of the Court of Appeal answered in the affirmative. I do not see how any other answer is possible, bearing in mind the width of the discretion conferred on the Secretary of State, the age range of those under consideration, namely, 10 to 21, and the number of those convicted of murder within that age-range. Thus Lord Woolf M.R. (who in the event was in a minority on the substantive issues) said at p. 38:

     "Again the fact that the mandatory sentence of detention for young offenders has the distinction from the mandatory sentence of life imprisonment which I have described does not mean that the same tariff-based approach cannot be deployed in relation to both. The distinction between the sentences can be accommodated in the application of the policy. This involves paying greater attention to the need for flexibility when circumstances require."

A little later he said:

     "The Home Secretary's discretion as to release is very wide. It is the type of discretion which calls out for the development of policy as to the way it will in general be exercised. This should assist in providing consistency and certainty which are highly desirable in an area involving the administration of justice where fairness is particularly important."

As to informing the young offender of the minimum period to be served, views might differ. Lord Woolf M.R. had this to say:

     "The objection which is most often made by those subject to an indeterminate sentence is its uncertainty. They need a target date. It is also sensible from the administrator's point of view. It avoids conducting reviews which will serve no purpose at times when there is no question of the offender being released from custody which will only give rise to unjustified expectations on the part of the detainee. In addition it identifies the penal element which perfectly properly the young offender can normally be expected to serve by way of punishment."

These are wise words with which I wholly agree. But it is worth repeating (it cannot be said too often) that the question is not whether the policy is wise or unwise. The question is whether it is lawful.

      I need not quote from the majority judgments on this point. They both affirm the lawfulness of the Home Secretary's policy.

      I have some difficulty in understanding the judgment of the Divisional Court, given by Pill L.J. Having pointed out that the sentence on a young offender should be kept under regular review, the Divisional Court continued:

     "That requirement does not prevent the Secretary of State forming an initial and provisional view as to what punishment and deterrence requires. That may well be helpful to him in performing his later duties. He can take judicial advice before forming that view. What I cannot accept is that in the case of an offender aged 10 or 11 he can fix a tariff of 15 years as if the offender were an adult."

This seems to be saying that it is not the policy that is wrong, but the length of the tariff in this particular case. This is borne out by other passages in the Divisional Court's judgment as follows:

     "It is inconsistent with the requirement to keep under review to fix a 15-year tariff at the beginning of a sentence on a child of 11. . . . The need to keep an open mind, and to keep the whole question under review, is stronger as the age of the offender at time of sentence is younger. In the case of an offender aged 16 or 17, it will usually be possible to express a firmer initial view than in the present case."

It is true that the Divisional Court went on to say that they were not expressing any view as to the merits of the sentence by way of length, but only as to the lack of merit in fixing it so early. But I find this difficult to reconcile with what follows. The Divisional Court record, and appear to accept, Mr. Fitzgerald's concession that the tariff figure of 8 years recommended by the trial judge would have accorded with "the underlying purpose of the sentence." It would not have been unlawful, since it would have allowed for a review after five years. This seems to be an acceptance by the Divisional Court that it is lawful to fix the tariff at the beginning of the sentence, even in the case of a ten-year old child, provided the tariff is not too long.

      So I am driven to the conclusion that in the eyes of the Divisional Court the real objection to the fifteen-year tariff was not the fixing of the tariff at the beginning of the sentence, but the length of the tariff in the case of these two children. If a tariff of eight years would have been consistent with "keeping an open mind" and "keeping the whole question under review", why not a tariff of fifteen years?

      I now turn to the argument on behalf of the two applicants. The starting-point was that the sentence of detention during Her Majesty's pleasure is preventive and therapeutic by nature, and contains no punitive element. The Divisional Court rejected this proposition; so did all the members of the Court of Appeal, and so would I. Section 53 of the Act of 1933 is headed "Punishment of certain grave crimes." Section 53(2) which enables the court to impose a determinate sentence, i.e. detention for a period of years, is clearly punitive in character, or at least contains a punitive element. In Reg. v. Fairhurst [1986] 1 W.L.R. 1374, a case which concerned a number of appellants who had been sentenced to various periods of detention under section 53(2) for crimes such as burglarly, rape and arson, Lord Lane C.J. said, at pp. 1376-1377:

     "On the one hand there exists the desirability of keeping youths under the age of 17 out of long terms of custody. This is implicit in the provisions of the Criminal Justice Act 1982 already referred to. On the other hand it is necessary that serious offences committed by youths of this age should be met with sentences sufficiently substantial to provide both the appropriate punishment and also the necessary deterrent effect, and in certain cases to provide a measure of protection to the public. A balance has to be struck between these objectives."

      If a sentence under section 53(2) is punitive in character, or contains a punitive element, as it obviously does, it would be preposterous if the sentence for the gravest crime of all under section 53(1) did not contain a punitive element. It was conceded by Mr. Higgs that this must be so in the case of a young person of 17 convicted of murder, but he submitted that the position was different for a child of 10. But the wording of section 53(1) is the same in both cases. If a sentence of detention during Her Majesty's pleasure is capable of containing a punitive element in the case of a murderer aged 17, it must also be capable, as a matter of language, of including a punitive element in the case of a child aged 10. The age of the offender is, of course, highly relevant to the length of the minimum period of detention. But it cannot be said that at the age of 10 the sentence is purely rehabilitative or therapeutic. Otherwise there would be no purpose in requiring the prosecution to prove, as they did in these cases, that the applicants knew that what they were doing was seriously wrong.

      If it be right that the sentence of detention during Her Majesty's pleasure contains a punitive element, then the rest seems to follow. The Home Secretary was entitled to set a policy which covers the imposition of a sentence on those within the age group 10 to 17, just as he can have a policy for those in the age group 18 to 21 sentenced to custody for life, and for those serving an adult sentence of life imprisonment, provided always he considers each case on its own merits. No doubt opinions will differ greatly as to the length of the appropriate tariff in a given case. But as to that, the only opinion which matters is that of the Home Secretary. The decision is always one of the utmost gravity, especially so in the present case. The courts cannot interfere on the ground that 15 years was too long, or even that it was half as long again as the tariff proposed by the Lord Chief Justice: see Ex parte Doody at p. 559. The only ground on which the courts could interfere would be if the sentence were beyond all reason, or irrational in the Wednesbury sense. This was not suggested. If it was intended to be suggested, I would not accept the suggestion.

      That brings me to the second question. If it is lawful for the Home Secretary to have a policy at all in relation to the 10 to 17 age group, as it clearly is, is it lawful for him to have the same policy as he has in relation to adults, or (presumably) the 18 to 21 age group, although the latter comparison was hardly mentioned in the course of the hearing? It was pointed out--correctly--that the origin of the expression "detention during Her Majesty's pleasure" lies in the sentence first imposed on criminal lunatics in the time of George III, and its adoption by Parliament in section 103 of the Children Act 1908, from whence it found its way into section 53 of the Act of 1933. When in 1908 Parliament abolished the death sentence for children and young persons, it might have chosen life imprisonment or custody for life as the alternative punishment. Instead it chose a sentence which was expressed to be indeterminate. It was argued that, by announcing that he would apply the same policy in the case of children and adults, the Home Secretary obliterated this distinction. The last paragraph of his 1993 policy statement was thus said to be unlawful. This was the ground on which the Divisional Court decided against the Home Secretary. I return to this argument later.