Judgments - Regina v. Secretary of State for the Home Department (Appellant) ex parte Smith (FC) (Respondent) and one other action

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    19.  I have had the advantage of reading in draft the speech of my noble and learned friend Lord Bingham of Cornhill. For the reasons he gives, with which I agree, I would dismiss this appeal.


My Lords,

    20.  I have had the advantage of reading in draft the speech of my noble and learned friend Lord Bingham of Cornhill. I agree with it, and for the reasons that he has given I too would dismiss the appeal.


My Lords,

    21.  For the reasons given by my noble and learned friend, Lord Bingham of Cornhill, I agree that this appeal should be dismissed. He has, of course, said everything that needs to be said. But I should like to add a short footnote, because a recent decision of the United States Supreme Court has given us a powerful account of the reasons why it is right to treat juvenile murderers differently from adults, even where they have been guilty, as Maria Smith was undoubtedly guilty, of a very, very grave crime.

    22.  Before the Children Act 1908, children convicted of murder were sentenced to death, although by then it had become the practice not to carry out that sentence. The 1908 Act, in section 103, provided that children should no longer be sentenced to death, and that instead they should be sentenced to be detained during His Majesty's pleasure. This sentence was modelled on that imposed upon people who were so seriously mentally disordered that they fell within the law's definition of insanity. It was thus a clear recognition that a juvenile's responsibility for even the most heinous crime was diminished, although not entirely extinguished.

    23.  On 1 March 2005, the United States Supreme Court decided, in Roper v Simmons, that the Eighth and Fourteenth amendments of the United States Constitution forbad the imposition of the death penalty upon offenders who were under 18 when the offence was committed. In doing so, the majority explained (at pp 15 - 16) three general differences between juveniles and adults:

    "First, as any parent knows and as the scientific and sociological studies respondent and his amici cite tend to confirm '[a] lack of maturity and an underdeveloped sense of responsibility are found in youth more often than in adults and are more understandable among the young. These qualities often result in impetuous and ill-considered actions and decisions.' Johnson v Texas 509 US 350, at 367 (1993) . . . It has been noted that 'adolescents are overrepresented statistically in virtually every category of reckless behaviour.' Arnett, Reckless Behaviour in Adolescence: A Developmental Perspective, 12 Developmental Review 339 (1992). . . .

    The second area of difference is that juveniles are more vulnerable or susceptible to negative influences and outside pressures, including peer pressure. . . This is explained in part by the prevailing circumstance that juveniles have less control, or less experience with control, over their own environment. See Steinberg & Scott, Less Guilty by Reason of Adolescence: Developmental Immaturity, Diminished Responsibility, and the Juvenile Death Penalty, 58 Am Psychologist 1009, 1014 (2003) … ('[A]s legal minors, [juveniles] lack the freedom that adults have to extricate themselves from a criminogenic setting").

    The third broad difference is that the character of a juvenile is not as well formed as that of an adult. The personality traits of juveniles are more transitory, less fixed. See generally E Erikson, Identity: Youth and Crisis (1968)."

    24.  In the Court's view, the first of these meant that a juvenile's irresponsible conduct was not as morally reprehensible as that of an adult; the second meant that juveniles had a greater claim to be forgiven for failing to escape the negative influences around them; and the third meant that even the most heinous crime was not necessarily evidence of an irretrievable depraved character. Furthermore, at p 19:

    "It is difficult even for expert psychologists to differentiate between the juvenile offender whose crime reflects unfortunate yet transient immaturity, and the rare juvenile offender whose crime reflects irreparable corruption. See Steinberg & Scott 1014-1016."

    25.  These considerations are relevant to the retributive and deterrent aspects of sentencing, in that they indicate that the great majority of juveniles are less blameworthy and more worthy of forgiveness than adult offenders. But they also show that an important aim, some would think the most important aim, of any sentence imposed should be to promote the process of maturation, the development of a sense of responsibility, and the growth of a healthy adult personality and identity. That is no doubt why the Children and Young Persons Act 1933, in section 44(1), required, and still requires, every court dealing with any juvenile offender to have regard to his or her welfare. It is important to the welfare of any young person that his need to develop into fully functioning, law abiding and responsible member of society is properly met. But that is also important for the community as a whole, for the community will pay the price, either of indefinite detention or of further offending, if it is not done.

    26.  It makes no difference to the nature of the sentence of detention during Her Majesty's pleasure whether the punishment part of the sentence is set by the Home Secretary or on the advice of a judge. The considerations which led the majority of this House, in R v Secretary of State for the Home Department, Ex p Venables [1998] AC 407, to decide that the nature of the sentence required the Home Secretary to keep the punishment part of that sentence under review, apply with exactly the same force where that punishment part has been set by a judge. As the European Court of Human Rights said in V v United Kingdom (1999) 30 EHRR 121, at para 110, "Where a juvenile sentenced to detention during Her Majesty's pleasure is not perceived to be dangerous, therefore, the tariff represents the maximum period of detention which he can be required to serve." Whatever may be the position under the Powers of Criminal Courts (Sentencing) Act 2000, as amended by the Criminal Justice and Court Services Act 2000, nothing has changed the effect of this House's decision in the Venables case as far as this respondent is concerned.

    27.  I would therefore dismiss this appeal.


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