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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      When the case came before the Divisional Court, Pill L.J. drew attention to the "massive representations" which the Home Secretary had received. He acknowledged the Secretary of State's responsibility to maintain public confidence in the system of justice.

     "The public can," he said, "be expected to express overwhelmingly their support for Mr. and Mrs. Bulger in the tragic loss they have suffered and support measures to prevent such a crime happening again. I am confident that many more than 300,000 people would share those views."

There was no suggestion at the hearing before the Divisional Court or in the judgment, that the Secretary of State had been wrong to take the petitions or the correspondence into account as evidence of public concern.

      It therefore comes as something of a surprise to find the point featuring so strongly in the judgments of Lord Woolf M.R. and Hobhouse L.J. in the Court of Appeal. I quote from the judgment of Hobhouse L.J.:

     "But it appears that the Secretary of State was in the present case prepared to take into account a large amount of material which in effect amounted to taking a hopelessly unscientific poll from members of the public without any satisfactory checks or without any confidence as to the factual or legal basis upon which the responses were made. If the Secretary of State is choosing to assume the role of deciding the period necessary for these defendants for retribution and deterrence, he should not only disregard but be seen to disregard material of this kind."

It was the "quality" of the material, to use his own expression, which Hobhouse L.J. found so alien and, perhaps, distasteful.

      Morritt L.J. took a different line.

     "It is true that the material in this case is open to the criticisms made by the Master of the Rolls and Hobhouse L.J. But public concern is not necessarily either logical, fully informed or free from prejudice. It is the fact that the concern is public that gives it significance; what weight, if any, to attach to it is a matter for the Secretary of State. Accordingly however alien such a consideration may be to a judge sentencing an offender it is not one which, in my view, the Secretary of State is legally precluded from taking into account."

      I find myself in agreement with Morritt L.J. If the Home Secretary is entitled to take account of the need to maintain public confidence in the criminal justice system, as everybody agrees, I can see no reason why he should not take account of genuine public concern over a particular case. If he were to ignore such genuine concern (and nobody has suggested that the petitions and the correspondence were not genuine) it would have direct impact on public confidence for the future. Judges also take account of public concern over the level of sentencing; and so they should, as witness the increase over the last twenty years in the tariff for causing death by dangerous driving. In Ex parte Doody Staughton L.J. suggested (19931 Q.B. 157 at 197) that a distinction should be drawn between material received by the Home Secretary which is directed to penal policy in general, and material directed to a particular case. The latter should be disregarded. But how can such material be distinguished? The observations of Hobhouse L.J., which I have quoted, read far too much into the decision letters. The petitions and the letters were not, of course, evidence of anything in any legal sense. But surely they demonstrated a certain level of concern. It is to the Home Secretary that Parliament has entrusted the task of maintaining public confidence in the criminal justice system, and as part of that task gauging public concern in relation to a particular case when deciding on the earliest release date. I do not regard it as the function of the courts to tell him how to perform that task.

      I would therefore allow the Home Secretary's appeal on the procedural issues. This means that of the ten judges who have taken part in these proceedings, I am the only one to have accepted Mr. Pannick's submissions on all points. I would uphold the lawfulness of the Home Secretary's decision to impose a minimum tariff of 15 years' detention in the case of these two applicants. That does not, of course, mean that I would necessarily have imposed the same tariff myself, had I been Home Secretary. But that is not the issue.


My Lords,

      When they were both aged 10 years Venables and Thompson committed a vicious and cold-blooded murder of a two-year-old boy. The inexpressible grief of the family of the murdered boy will never cease. The family, the local community and society generally are morally outraged. Venables and Thompson will have to spend many years in detention. The only question is whether the Home Secretary in deciding to fix a "tariff" sentence of 15 years acted lawfully. It does not follow that after Venables and Thompson have served any applicable "tariff" sentence they will be released. That is a different question involving an assessment of the risk of releasing them. There appears to be very little that can be said for Venables and Thompson. But they have rights under our law: they are entitled to the full measure of the protection from unlawful action by the Executive afforded by the common law even to prisoners convicted of murder. And in my judgment the Home Secretary's decisions affecting them are unlawful.

My conclusions on the principal issues:

      In my view in making his decision to fix a tariff of 15 years the Home Secretary exceeded the statutory powers which he has been given. I will summarize at the outset my conclusions on the principal issues. Following the same structure I will then explain my reasons for each conclusion.

      Contrary to the submissions of counsel for Venables, my view is that a major purpose of a sentence of detention during Her Majesty's pleasure imposed upon a child under section 53(1) of the Children and Young Persons Act 1933 is punishment. Consequentially on this holding I conclude, contrary to the submissions of counsel for Venables, that in principle it is within the power of the Home Secretary to fix a provisional and reviewable tariff under section 53(1).

      But I have come to the conclusion that the decisions of the Home Secretary as contained in his letters of 22 July 1994, which fixed a 15-year tariff for both Venables and Thompson, were unlawful for substantive reasons as well as a breach of the principles of procedural fairness. There are two separate substantive reasons why I conclude that the Home Secretary's decisions were unlawful. First, the Home Secretary regarded a sentence of detention during Her Majesty's pleasure under section 53(1) imposed on a child convicted of murder as in law equivalent to a mandatory sentence of life imprisonment imposed on an adult convicted of murder. His legal premise was wrong: the two sentences are different. A sentence of detention during Her Majesty's pleasure requires the Home Secretary to decide from time to time, taking into account the punitive element, whether detention is still justified. The Home Secretary misunderstood his duty. This misdirection by itself renders his decision unlawful. Secondly, the Home Secretary misdirected himself by giving weight to public protestations about the level at which the tariff in the cases of Venables and Thompson should be fixed. In doing so the Home Secretary took into account in aggravation of the appropriate level of punishment legally irrelevant considerations. This was a material defect in the reasoning of the Home Secretary. It rendered his decisions unlawful.

      On the issues of alleged procedural unfairness, I have concluded that the decisions of the Home Secretary were also procedurally flawed by the credence and weight which he gave to public clamour for an increase in the level of the tariff. This point overlaps with my second substantive conclusion. It may be two sides of the same coin: either way the quality of the decision-making was adversely affected in a material way. I will deal with this point under the procedural heading quite briefly. I would reject the other procedural complaints about the decision of the Home Secretary.


      Counsel for Venables submitted that the sentence of detention during Her Majesty's pleasure for murder committed by children has always been a sentence designed solely for the reformation of youthful offenders and for the protection of the public. He argued that punishment has never had any part to play in respect of such a sentence. On this supposition he submitted that the imposition of a tariff is always inappropriate in the case of young murderers sentenced under section 53(1). In my view the premise of this argument is wrong. The Children Act 1908 provided that a child or young person charged with any offence may upon conviction be sentenced to inter alia a whipping or detention. That was a provision for the punishment of children for lesser offences than murder. When Parliament dealt with murder committed by a child or young person, the sentence of detention during Her Majesty's pleasure cannot credibly have been intended to have been entirely non punitive. Moreover the fact that children between the ages of 10 and 14 years may be criminally responsible demonstrates that in law they may deserve punishment. And that consideration must apply to murder as much as to lesser offences.

The applicability of a tariff to detention during Her Majesty's pleasure

 Counsel for the offenders had a more formidable argument against the applicability of a tariff in cases governed by section 53(1). By way of alternative submission counsel for Venables said that the sentence must be regarded as partly punitive and partly rehabilitative. But because it is indeterminate and provides for release "at any time," the concept of a predetermined initial punitive phase to be served before release is inconsistent with the purpose of the sentence. Counsel for Thompson also argued that a tariff was inappropriate. He said that the correct approach is that at such time as the particular young offenders involved in this case are found to be rehabilitated the Home Secretary should ask himself whether they have been sufficiently punished.

      Initially I was attracted to a line of reasoning that any tariff is contrary to the purpose and policy of a sentence under section 53(1). On balance I have come to the conclusion that this is not a correct analysis. If punishment is a purpose of such a sentence, as it is, it is difficult to say that a Home Secretary charged with the decision of giving content to what "detention during Her Majesty's pleasure" means in a particular case may not in his discretion make a provisional and subsequently reviewable judgment as to what ought to be the period to be served as punishment by a particular offender. And, if that it so, it is clearly right that his decision should be notified to the offender. In other words, I regard the discretionary power to set a provisional and reviewable tariff as inherent in the statutory power entrusted by Parliament to the Home Secretary since 1908, i.e. the power to decide how in an individual case the power to detain during Her Majesty's pleasure should be exercised.

The misconception as to the nature of the sentence

      The Home Secretary treated two sentences for murder as exactly alike, namely (1) a mandatory sentence of life imprisonment passed on an adult convicted of murder and (2) a mandatory sentence of detention during Her Majesty's pleasure passed on a child or young person convicted of murder. He emphasised that in a policy statement to the House of Commons of 27 July 1993 in the following words:

      "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 . . . ."

      In the same policy statement he contrasted the position of a prisoner subject to a mandatory life sentence with that of a prisoner subject to a discretionary life sentence. Once the minimum period fixed for retribution and deterrence has been satisfied, and provided that he is no longer a risk, a prisoner serving a discretionary life sentence is entitled to be released: section 34 of the Criminal Justice Act 1991. But a more severe regime applies to prisoners convicted of murder who are subject to mandatory life sentences. The Home Secretary endorsed the "practice" that an adult prisoner subject to mandatory life sentence has forfeited his liberty to the state for the rest of his days. He said that the "presumption" is that such a prisoner should remain in custody until the Home Secretary concludes that the public interest would be better served by the prisoner's release than by his continued detention. This is how the Home Secretary also viewed the nature of a sentence of detention during Her Majesty's pleasure under section 53(1).

      It is now necessary to examine the correctness of the Home Secretary's view of a section 53(1) sentence. In order to understand the nature of a sentence of detention during Her Majesty's pleasure it is necessary to start with the position before the Children Act 1908 was enacted. For this purpose I gratefully draw on a report prepared by Professor A. W. B. Simpson, the distinguished legal historian, and submitted to the European Court in the case of Prem Singh v. U.K. Application No. 23389/94. Until the Children Act of 1908 the formal law (as opposed to Home Office practice) made no special provision for children or young persons convicted of murder. In strict law youthful convicted murderers could be executed. But it became the practice not to execute murderers who were under the age of 18 years. It is probable that whenever a convicted murderer was reprieved on account of youth, a life sentence of penal servitude would have been imposed, and the individual would only have been released after serving a conventional period of twenty years unless he was then thought to be still dangerous. This practice was consistent with the notion that if children were criminally responsible they were amenable to exactly the same punishments as adults. Gradually, that policy fell into disfavour: the view gained ground that all juvenile offenders formed a distinct category of offenders for whom special arrangements for disposal should be made. The Children Act 1908 was a reforming measure which throughout reflected this change in attitude to young offenders. Thus it abolished the use of prisons for offenders under 14; it abolished penal servitude for those under it; and it permitted imprisonment for those between 14 and 16 only exceptionally. Section 103 formally abolished a sentence of death against a child or young person. That left the important question of the substitute penalty. Following previous practice regarding the punishment of children convicted of murder Parliament could have provided for a sentence of life imprisonment, or for detention for life. But Parliament chose not to do so. Instead the Act of 1908 provided that the new sentence to be imposed on children (those between 8 and 14) and young persons (those between 14 and 16) would be detention during His Majesty's pleasure. And the statute provided that, if so sentenced, the child or young person would be liable to be detained in such place and under such conditions as the Secretary of State directed. Professor Simpson commented on this change in the following terms:

     "If, as I think very probable, the practice before 1908 when a young (under 18) murder was reprieved was to grant a conditional pardon, with commutation to penal servitude for life, then the provision in the Act of 1908 involved a deliberate change in practice, and shows an intention to set up a regime for young persons convicted of murder which was significantly different from that for reprieved adults. At the time this Act was passed the conception of "detention during H.M. pleasure" existed in statutory form only in relation to criminal lunatics. When it was transferred to this new context, it formed part of an elaborate legislative scheme which reflected a general policy of treating young offenders quite differently from older ones. It would therefore be a misunderstanding of the policy of the Act to view detention at H.M.'s pleasure under the 1908 Act as the same in all but name as the life sentence of imprisonment imposed under conditional pardon granted to adult reprieved murderers."

This reasoning seems correct. Counsel for the Home Secretary, despite express invitation to comment on the purpose of section 103 of the Act of 1908, offered no argument to the contrary. Detention during His Majesty's pleasure, the term of sentence selected by Parliament in 1908 for children convicted of murder, was intended to involve (subject to matters of the risk of releasing the individual) a less severe form of sentence than imprisonment for life. After all, a sentence of life imprisonment involves an order that an individual be imprisoned for life. By contrast a sentence of detention during Her Majesty's pleasure merely authorizes detention of an individual for life.

       Subsequently, Parliament revisited this subject. Section 53(1) of the Children and Young Persons Act 1933 re-enacted section 103 in respect of persons under 18 convicted of murder. The Act of 1933 was preceded by a detailed inquiry into the way in which the criminal justice system treated children and young persons: Report of the Departmental Committee on the Treatment of Young Offenders (1927) (Cmnd. 2831). The report did not specifically deal with detention during His Majesty's pleasure: the matter had been settled in 1908. On the other hand, the report described the Children Act 1908 as "a notable piece of legislation, enshrining as it did in almost every section the principle that a young offender shall receive different treatment from an adult . . . " (p. 8). And that philosophy of differentiating between sentences imposed on adults and children and young persons was carried forward in the report and the resulting statute of 1933.

      The Murder (Abolition of Death Penalty) Act 1965 repealed section 53(1) and substituted the following section:

     "A person convicted of an offence who appears to the court to have been under the age of eighteen years at the time the offence was committed shall not, if he is convicted of murder, be sentenced to imprisonment for life, nor shall sentence of death be pronounced on or recorded against any such person; but in lieu thereof the court shall (notwithstanding anything in this or in any other Act) sentence him to be detained during Her Majesty's pleasure, and if so sentenced he shall be liable to be detained in such place and under such conditions as the Secretary of State may direct."

Before this provision was enacted the Ingleby Committee Report of the Committee on Children and Young Persons (1960) (Cmnd. 1191) had made a wide ranging report on the position of children and young persons in the criminal justice system. The report and the subsequent statute did not specifically deal with detention during His Majesty's pleasure. The report did, however, emphatically endorse the policy differentiating between the sentencing of adults and juvenile offenders. The report observed that originally the principle of equality before the law meant that children were hanged, transported or imprisoned on the same principles applicable to adults: paragraph 53(d) The report stated in categorical terms that the conception of a standard or ordinary punishment applicable to everyone, child or adult, had gone: paragraph 58. This is the culture in which section 53(1) was re-enacted.

       In respect of persons convicted of murder, who were between the ages of 18 and 21, Parliament provided for a sentence of custody for life: section 8 of the Criminal Justice Act 1982. This section expressly distinguishes between the two forms of sentence. The new philosophy which was adopted in 1908 has therefore repeatedly been reaffirmed by Parliament. The effect of the relevant legislation is as follows. Parliament differentiated between the two sentences. An order of detention during Her Majesty's pleasure involves merely an authority to detain indefinitely. That means that the Home Secretary must decide from time to time, taking into account the punitive element, whether detention is still justified. Life imprisonment involves an order of custody for life. That means, as the Home Office has interpreted the sentence of mandatory life imprisonment, that the Home Secretary must consider whether and when release is justified. These are obviously wholly different approaches.