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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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      Whatever merit the argument may have had in the past, it cannot possibly survive the passing of the Criminal Justice Act 1991. It was common ground that the relevant release power is contained in section 35(2) of the Act, which provides:

     "If recommended to do so by the 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."

      In order to understand the operation of section 35(2) in relation to young offenders, it is necessary to refer in greater detail to some of the other provisions of Part II of the Act of 1991. As already mentioned, section 34 imposes a duty to release discretionary life sentence prisoners when certain conditions have been satisfied. Section 33 imposes a duty to release short-term and long-term prisoners after half and two-thirds of their sentences, respectively, and section 35(1) grants a power to release a long-term prisoner after one-half of his sentence. Then comes section 43 which is the all-important section. It is necessary to set out this section in full:

     "Young offenders

     (1) Subject to subsections (4) and (5) below, this Part applies to persons serving sentences of detention in a young offender institution, or determinate sentences of detention under section 53 of the 1933 Act, as it applies to persons serving equivalent sentences of imprisonment.

     (2) Subject to subsection (5) below, this Part applies to persons serving -

      (a) sentences of detention during Her Majesty's pleasure or for life under section 53 of the 1933 Act; or

      (b) sentences of custody for life under section 8 of the 1982 Act,

     as it applies to persons serving sentences of imprisonment for life.

     (3) References in this Part to prisoners (whether short-term, long-term or life prisoners), or to prison or imprisonment, shall be construed in accordance with subsections (1) and (2) above.

     (4) In relation to a short-term prisoner under the age of 18 years to whom subsection (1) of section 33 above applies, that subsection shall have effect as if it required the Secretary of State -

      (a) to release him unconditionally if his sentence is for a term of twelve months or less; and

      (b) to release him on licence if that sentence is for a term of more than twelve months.

     (5) In relation to a person under the age of 22 years who is released on licence under this Part, section 37(4) above shall have effect as if the reference to supervision by a probation officer included a reference to supervision by a social worker of a local authority social services department."

      Section 43(1) and (3) apply the provisions of section 33 (short-and long-term prisoners) and section 35(1) (long-term prisoners) to those detained under section 53(2) of the Act of 1933. There cannot be any doubt as to that, since the provisions are applied with the modifications set out in section 43(4) and (5). Similarly, section 43(2) and (3) apply section 35(2) to two classes of offenders under the age of 22, namely, those detained during Her Majesty's pleasure under section 53(1) of the Act of 1933 and those sentenced to custody for life under section 8 of the Act of 1982. They also apply section 34 of the Act to those detained for life under section 53(2) of the Act of 1933. Again there can be no doubt as to the intention, since the provisions are applied with the modifications set out in section 43(5). But section 35(2) can only apply at all to those detained during Her Majesty's pleasure if they are treated, for the purposes of section 35(2), as life prisoners. Hence the definition in section 51(1) of the Act of 1991 which provides that "life prisoner" has the meaning given by section 34(7) of the Act as extended by section 43(2). Against this statutory background, it hardly matters whether a sentence of detention during Her Majesty's pleasure is correctly described as a "life" sentence or not. Since it is assimilated to a life sentence for all purposes of release, it is certainly a sentence which covers the offender for the rest of his natural life. Like an adult murderer, a juvenile murderer released on licence can be recalled at any time: see section 37(3). In these circumstances, the distinction urged on your Lordships between a sentence which orders detention for life and a sentence which authorises detention for life cannot be sustained. In the light of section 43(2) of the Act of 1991 it is a distinction without practical difference. It is said that an adult convicted of murder has "forfeited" his liberty for the rest of his life. But this is only because, after release, he is liable to be recalled. Exactly the same applies to a juvenile detained during Her Majesty's pleasure.

      Since Parliament has created a direct link between the mandatory life sentence and sentence of detention during Her Majesty's pleasure, and provided the same release procedure for both, I cannot see how it can be said to be unlawful for the Secretary of State to apply the same policy of indicating the minimum period to be served for the purposes of retribution and deterrence as soon as practicable after the sentence has been imposed. This is made all the more manifest by comparison with the discretionary life sentence. As already mentioned, a discretionary sentence for life can be imposed, and is from time to time imposed, under section 53(2) of the Act of 1933: see Reg. v. Abbott. That would bring the case within section 34 of the Act of 1991. The judge then sets the tariff in accordance with the 1993 Practice Direction: [1993] 1 W.L.R. 223. If a judge can set a tariff in respect of a sentence under section 53(2), as Parliament has provided, how can it be unlawful for the Secretary of State to fix a tariff in respect of the more serious conviction under section 53(1)? Contrary to the view of the Divisional Court, I cannot accept that there was anything unlawful in the last paragraph of the Home Secretary's 1993 policy statement. On this aspect of the case I find myself in complete agreement with the views expressed by Hobhouse L.J. and Morritt L.J.

      I cannot, with respect, agree with Lord Woolf M.R. that the Home Secretary must have been guilty of an over-rigid application of his policy, or must have misunderstood the nature of the tariff. The only evidence for this conclusion is Lord Woolf's view that 15 years would appear to be "totally unreasonable" in the case of a child of ten. But according to Mr. Newton's affidavit, the Home Secretary had particular regard for the age of these offenders, and their need for rehabilitation. Indeed this appears in each case from the decision letter itself. For if he had not had regard to their age, he would presumably have imposed a tariff of 25 years. But the age of the applicants, and their need for rehabilitation, were not the only factors. In addition to the punitive element in the sentence, the Home Secretary was entitled to have regard to other factors, and especially the need for maintaining public confidence in the criminal justice system: see In re Findlay, per Lord Scarman, at p. 333B and Ex parte Doody, per Lord Mustill, at p. 559B. In the light of these other factors it cannot be said that the Home Secretary's initial view of 15 years was so far beyond what was reasonable as to point inevitably to a wrong approach. If the figure had been 10 years (the tariff suggested by the Lord Chief Justice) or even 12 years the argument could hardly have got off the ground.

      I accept, of course, that a policy otherwise lawful may be attacked on the ground of its over-rigid application. Each case must be considered on its merits before the policy is applied. If, for example, the Home Secretary had announced a policy that all children found guilty of murder should be detained for at least seven years, such a policy might well have been unlawful if it did not allow for exceptions: see In re Findlay, per Lord Scarman, at p. 336G. But the Home Secretary's decision in the present case cannot be faulted on that ground. The minimum detention of 15 years was not fixed by reference to a predetermined scale. It was decided by reference to the facts of the case, and the circumstances of these two applicants. So there was no need to allow for any exceptions. If the minimum period of detention were a "tariff" sentence in the true sense of the word, there might be grounds for criticism. But it is not. As Lord Mustill observed in Ex parte Doody at pp. 556-558 the use of the word "tariff" in that context is apt to be misleading.

      Then it is said that the policy is over-rigid because it does not allow for a reconsideration of the tariff on the ground of exceptional progress during detention. This limitation is not, in fact, spelt out in the 1993 policy statement. The statement expressly contemplates that the initial tariff period may be reduced or increased. The argument therefore depends on the way the policy is currently being applied. According to Mr. Newton's affidavit, the Home Secretary does not currently consider exceptional progress in detention as a ground for reconsidering the tariff. Is this enough to make the policy as a whole unlawful?

      There is a danger here that the courts, by insisting on flexibility in every aspect of the policy, may emasculate the policy itself, and deprive it of all utility. If the Home Secretary is entitled to have a policy at all in relation to young offenders by which he announces the tariff period as soon as possible after the start of the sentence (as to which I entirely agree with what Lord Woolf says) I cannot for my part accept that the whole policy is undermined by the absence of a formal review during that period. I say that for three reasons.

      In the first place, the progress of these two applicants in detention, while not qualifying them for release until after 15 years, will certainly be monitored during that period; no doubt exceptional progress will be an important factor in deciding how soon thereafter they may be released. Secondly, Parliament has itself provided for early release on compassionate grounds: see section 36 of the Act of 1991. Thirdly, there is no special provision for early release on the grounds of exceptional progress where a young offender is serving a determinate sentence or a discretionary life sentence under section 53(2) of the Act of 1933. Subject to section 43(4) and (5) of the Act of 1991, Parliament intended that they should be dealt with in the same way as adult offenders. So why should there be any provision for early release on the grounds of exceptional progress in the case of young offenders serving the equivalent of a mandatory life sentence? For these reasons, and especially the third, I cannot agree that the Home Secretary's policy announced in 1993 is unlawful on the ground that it lacks sufficient flexibility, nor that its application in the case of these two applicants was unlawful on that ground.

      Finally, I return to the argument accepted by a majority of your Lordships that a sentence of detention during Her Majesty's pleasure is, and has always been, different in conception from a sentence of life imprisonment. The argument is that when Parliament abolished the death sentence for children and young persons in 1908, it might have substituted a sentence of life imprisonment. Instead it substituted a sentence of detention during Her Majesty's pleasure. It is said that the Home Secretary failed to appreciate this conceptual distinction when he announced in 1993 that he would adopt the same practice in the case of children and young persons as in the case of adult murderers, and when, in particular, he fixed the tariff for these two applicants.

      I do not myself get much assistance from the legislative history in this case. We know that one of the objectives of the Act of 1908 was to ensure that children and young persons did not mix with adult prisoners in ordinary jails. This is a sufficient explanation for why Parliament avoided the use of the term imprisonment, and chose instead detention "in such place and under such conditions as the Secretary of State may direct." We do not know why Parliament chose the words "during Her Majesty's pleasure." If the intention had been to secure that the sentence should be purely preventative and therapeutic, as in the case of criminal lunatics, then there would indeed have been a conceptual difference. But none of your Lordships are of that view. For my part I cannot read anything more into the words "during Her Majesty's pleasure" than that they were intended to describe a sentence which is indeterminate in length, like a life sentence. Nor is there anying in the language of section 103 which required the sentence to be kept under continual review, any more than a determinate sentence for less serious offences under section 104. So I do not accept that a sentence of detention during Her Majesty's pleasure was conceptually different from a life sentence in 1908, save in relation to the place and conditions of detention; and if there ever was such a difference, it soon became obscured. For it seems to have escaped the attention of the Departmental Committee which reported on the Treatment of Young Offenders in 1927, Cmnd. 2831, and the Ingleby Committee which reported in 1960, Cmnd. 1911.

      It is unfortunate that Parliament continues to use archaic language in a modern statute. Your Lordships are all agreed that "during Her Majesty's pleasure" does not mean what it meant when the phrase originated nearly 200 years ago. What it meant in 1908 must remain a matter for speculation. Even if the legislative background sounded with a more certain note, I would not myself allow the history of the phrase to influence, still less control, the meaning which Parliament plainly intended in 1991.

      Like my noble and learned friend, Lord Goff of Chieveley, I would dismiss the applicants' cross-appeals.

Procedural Issues

      As to the Home Secretary's appeal, I have the misfortune to find myself again in a minority.

      I can deal briefly with two of the three points. It is said that the Secretary of State had insufficient material on which to exercise his discretion. For example, it is said that if he had been sentencing the applicants in court he would have asked for psychiatric reports as to their level of responsibility having regard to their age. At the very least he would have asked for a social inquiry report. With all respect to the judges of the Court of Appeal who expressed their views in strong terms (Lord Woolf described the Secretary of State's approach as perfunctory), I cannot agree with this conclusion. The Secretary of State was not bereft of material. He had the judge's report, which summarised the medical evidence. It is worth quoting the following passage:

     "Both Thompson and Venables were healthy boys of average intelligence with no mental abnormality . . . However, these two boys came from homes and families with great social and emotional deprivation. They grew up in an atmosphere of matrimonial breakdown where they were exposed to, saw, heard or suffered abuse, drunkenness and violence. I have no doubt both boys saw video films frequently showing violent and aberrant activities."

The Secretary of State was entitled to accept the judge's report at its face value. He was not obliged to look for corroboration. If he had been minded to disagree with the judge's view of the mental state of the applicants, then of course he would have been obliged to seek further psychiatric advice, as Mr. Pannick accepted. But he was not. Moreover, if the Home Secretary were obliged to seek further reports, so also was the Lord Chief Justice, when he increased the judge's tariff from 8 years to 10 years. If the courts are going to tell the Home Secretary how to perform a function which has been entrusted to him, and to him alone, by Parliament, then there would appear to be no limit to the bounds of judicial review. Of course, the court will interfere if the Home Secretary acts unlawfully or abuses his powers, or behaves unfairly, or on any of the other well established grounds of judicial review. But there was nothing remotely unfair in the Secretary of State assessing the tariff on the information which he already had, without calling for further reports.

      Secondly, it is said that the Home Secretary ought to have made full disclosure of all the material on which he relied, and in particular should have disclosed the whole of the judge's report, in order to enable the applicants to make adequate representations, and to correct any mistakes of fact. It was not enough, so it was said, that the Secretary of State should have made known the recommendations of the trial judge and the Lord Chief Justice, as required by the House in Ex parte Doody; the applicants were entitled to the full text of the judge's report. Indeed the applicants were said to be entitled to disclosure of all the materials before the Home Secretary, including details of any comparable cases on which the Home Secretary proposed to rely, and, I suppose, any comparable cases which might assist the applicants.

      But this goes much too far. In my opinion the appropriate limit was set in Ex parte Doody, which required no more than that the Home Secretary should disclose the gist of the judge's advice. That would almost always be enough, as it was in this case, to enable the applicants to know the case against them. We were informed that it is now the practice of the Home Secretary to disclose the judicial comments in full, other than material relating to future risk. This does not, of course, mean that the previous practice was unlawful. The full report was disclosed to the applicants on 23 January 1995, when they were invited to make further representations if they wished. This was as far, and maybe further, than the Home Secretary was obliged to go. How could he sensibly disclose all the material which weighed with him when considering the need to maintain public confidence in the rule of law?

      I come now to the third and last point of criticism. The relevant paragraph in the decision letter dated 22 July 1994 reads as follows:

     "In making his decision, the Secretary of State had regard to the circumstances of the offence, the recommendations received from the judiciary, the representations made on your behalf and the extent to which this case could be compared with other cases. He also had regard to the public concern about this case, which was evidenced by the petitions and other correspondence the substance of which were disclosed to your solicitors by our letter of 16 June 1994, and to the need to maintain public confidence in the system of criminal justice."

      The facts are that the Home Secretary received a petition signed by 278,000 members of the public submitted by the victim's family. The petition called for a full-life sentence. The family also submitted some 4,400 letters. Another petition was signed by 5,900 members of the public calling for a minimum of 25 years' detention. On 28 June 1994 one of the applicants' solicitors wrote to the Home Office "objecting most strongly to the reception of 'political' representations made to the Secretary of State behind the back of the applicant and his family and without a proper opportunity to respond." The solicitors asked to be sent the full text of any petition, letters or representations received by the Secretary of State; in addition they asked for all materials which would be before the Secretary of State when he reached his decision. On 7 July 1994 the Home Office replied that the applicant already had the full text of the petitions (other than the signatures) and that it was not practicable to make all the letters available. No further representations were received from the applicant before the Secretary of State reached his decision.

      The complaint is, first, that the Home Secretary is not entitled to have regard to public concern in relation to an individual case, and, secondly, that he was not entitled to take account of the petitions and other correspondence as evidence of public concern in the present case.

      I am bound to note that this complaint, however it may be put, forms no part of the grounds on which relief is sought. The original complaint related only to the failure to disclose the material.