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You are here: BAILII >> Databases >> United Kingdom House of Lords Decisions >> Secretary of State for the Home Department ex parte Venables and Thompson, R v. [1997] UKHL 25; [1998] AC 407; [1997] 3 All ER 97; [1997] 3 WLR 23; [1997] 2 FLR 471; [1997] Fam Law 786 (12th June, 1997)
URL: http://www.bailii.org/uk/cases/UKHL/1997/25.html
Cite as: [1997] 3 All ER 97, [1997] 2 FLR 471, [1997] UKHL 25, [1997] 3 WLR 23, [1998] AC 407, [1997] Fam Law 786

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Secretary of State for the Home Department ex parte Venables and Thompson, R v. [1997] UKHL 25; [1998] AC 407; [1997] 3 All ER 97; [1997] 3 WLR 23; [1997] 2 FLR 471; [1997] Fam Law 786 (12th June, 1997)

HOUSE OF LORDS

  Lord Goff of Chieveley   Lord Browne- Wilkinson   Lord Lloyd of Berwick
  Lord Steyn   Lord Hope of Craighead

OPINIONS OF THE LORDS OF APPEAL FOR JUDGEMENT IN THE CAUSE

REGINA

v.

SECRETARY OF STATE FOR THE HOME DEPARTMENT
(ORIGINAL APPELLANT AND CROSS-RESPONDENT),

EX PARTE V.
(ORIGINAL RESPONDENT AND CROSS-APPELLANT

REGINA


v.


SECRETARY OF STATE FOR THE HOME DEPARTMENT
(ORIGINAL APPELLANT AND CROSS-REPONDENT),
EX PARTE T.
(ORIGINAL RESPONDENT AND CROSS-APPELLANT
(CONJOINED APPEALS)


ON 12 JUNE 1997



LORD GOFF OF CHIEVELEY


My Lords,

The Sentence of the Judge

      On 24 November 1993 two young boys, Robert Thompson and Jon Venables, were convicted of the murder of a two year old boy, James Bulger. The murder had taken place on 12 February 1993, when Thompson and Venables were 10½ years old. Since a child under 10 cannot be guilty of a criminal offence in English law, they were only just over the age of criminal responsibility. They were 11 years old at the time of their trial, which took place before Morland J. and a jury. After conviction, the judge sentenced each of them to be detained during Her Majesty's pleasure, such a sentence being mandatory in the case of young offenders convicted of murder: see section 53(1) of the Children and Young Persons Act 1933.

      Before sentencing them, the judge said:

After sentencing them the judge continued, in their absence:

The Judge's Report to the Home Secretary

      On 29 November 1993 the judge completed a Report on a standard form headed: "Mandatory Life Sentence Case. Trial Judge's Report to the Home Secretary." In section 5 of the Report the judge provided, as required, a description of the offence and the circumstances in which it was committed, together with his assessment of the relative culpability of the two defendants, which was that he was unable to determine their relative culpability. In section 10 he gave, again as required, his view on the actual length of detention necessary to meet the requirements of retribution and general deterrence for the offence (known as "the penal element" or "the tariff"). He wrote:

The advice of the Lord Chief Justice

      On 4 December 1993 the Lord Chief Justice, Lord Taylor of Gosforth, advised the Home Secretary that the penal element should be increased from 8 years to 10 years. He wrote:

The decision of the Home Secretary

      Having received this advice from the trial judge and the Lord Chief Justice, the Home Secretary, acting pursuant to his discretion under section 35 of the Criminal Justice Act 1991, and a Policy Statement dated 27 July 1993, proceeded to consider the question of the penal element in the sentence for the two boys, and decided that it should be increased to 15 years. In his Decision Letters, dated 22 July 1994, it was stated that the Home Secretary had regard (inter alia) to:

The letter dated 16 June 1994 referred in particular to a petition, signed by some 278,300 members of the public (with some 4,400 letters in support) urging that the two boys should remain in detention for life; a petition, signed by nearly 6,000 members of the public, asking for a minimum period of detention of 25 years; and over 20,000 coupons, cut out of a popular newspaper, together with over 1,000 letters, demanding a life tariff. There were only 33 letters agreeing with the judiciary, or asking for a lower tariff.

The proceedings for judicial review

      Applications were then made on behalf of both Thompson and Venables to quash the decision of the Home Secretary on the penal element, and in addition to quash the consequential decision of the Home Secretary that the first review of their cases by the Parole Board should not take place until they had served 12 years in custody. In addition, it was submitted on behalf of Venables that the decision of the Home Secretary was in certain respects reached unfairly and in breach of the rules of natural justice.

The decision of the Divisional Court

      The matter came before a Divisional Court consisting of Pill L.J. and Newman J. They concluded that a sentence on a young offender to be detained during Her Majesty's pleasure pursuant to section 53(1) of the Act of 1933 created not only a power but a duty in the Secretary of State to keep the question of continued detention under review throughout the period of detention. They further held that Part II of the Criminal Justice Act 1991, in which such a sentence was assimilated with a sentence of mandatory life imprisonment, did not affect this characteristic of a sentence of detention during Her Majesty's pleasure. They accordingly held that the practice of the Home Secretary, expressed in a Policy Statement made by the present Home Secretary, Mr. Michael Howard, in July 1993, that young offenders sentenced to detention during Her Majesty's pleasure should, like adults upon whom mandatory life sentences have been imposed, have to serve an identified penal element in their sentence before their release could be considered, was unlawful. They nevertheless rejected a submission that such detention was exclusively preventative and rehabilitative, and that punishment and deterrence should play no part in the Home Secretary's decision upon a release date.

      In delivering the judgment of the court, Pill L.J. said that the duty on the Secretary of State required him:

      In the result the Home Secretary's decisions of 22 July 1994 were quashed. The court expressed no opinion on the points concerned with unfairness or breach of natural justice because, in the light of their decision, those points did not arise for decision.
The decision of the Court of Appeal

      The Secretary of State then appealed against that decision to the Court of Appeal [1997] 2 W.L.R. 67, and the two applicants raised by way of respondents' notices the issues of unfairness and breach of natural justice. The Court of Appeal dismissed the appeal. A majority (Hobhouse and Morritt L.JJ., Lord Woolf M.R. dissenting) held that the conclusion of the Divisional Court on what I shall call the main issue--that the concept of a penal element in the sentence which must be served could not stand with the continuing duty of the Secretary of State to keep the detention of the detainee under continuous review--must be rejected as inconsistent with the intention of Parliament as expressed in Part II of the Criminal Justice Act 1991. Lord Woolf M.R., in his dissenting judgment on this point, took a different view. He too rejected the argument that punishment formed no part of a sentence to detention under section 53(1); and he accepted that it was not unlawful for the Secretary of State to adopt, in relation to young offenders so sentenced, a policy involving the identification of a penal element in the sentence which the detainee would have to serve. He said, at p. 90:

In his opinion, however, the difference between a mandatory sentence of life imprisonment and a mandatory sentence of detention for a young offender can be accommodated in the application of the policy. This required that the policy must not be so inflexible that it cannot accommodate the range of situations to which it has to apply, nor must it be so rigid that it does not allow for exceptional cases; otherwise it will result in an unlawful fetter on the discretion. In the present case, to postpone review for 12 years was unacceptable, though it would be different if there were to be a general reconsideration during the period of the tariff. If the decision to fix the tariff was taken on limited material, that would make reconsideration all the more important. The position of adults was different, because their circumstances do not change to the same extent as do those of children. In the present case there was an almost irresistible case for considering whether the tariff approach should not exceptionally be departed from. It appears that either the ability to depart from the tariff was not appreciated or, if it was appreciated, it was not considered.

      In the circumstances, it was necessary for the majority to consider whether there had been procedural unfairness or a breach of natural justice by the Secretary of State; and the Master of the Rolls also considered these questions. All three members of the court considered that such breaches had occurred, though they were not all agreed on their identity. In the result, therefore, it was on these grounds that the Divisional Court's decision was upheld and the Secretary of State's appeal was dismissed. I shall in due course refer to the matters in question when I come to consider this aspect of the case.

The appeal to the House of Lords

      Before your Lordships, therefore, the Secretary of State was the appellant on the issues of procedural unfairness and breach of natural justice, and the two defendants were cross-appellants on the main issue. I propose however to consider first the main issue which arises on the cross-appeal, and then to turn to the issues arising on the appeal.

An overview

      Before I turn to consider the main issue, I wish to preface my consideration of it with certain introductory comments. In the present case, we see a marked divergence between the successive penal elements chosen as appropriate for these two defendants. The judge selected a period of 8 years' detention. He expressed the opinion that, had they been adults, the appropriate period would have been 18 years, but reduced this to 8 years for these two children. In his sentencing remarks, he warned them that they would be detained for "very, very many years"; and in his Report to the Home Secretary he stated that 8 years is "very, very many years" for a ten or eleven year old. It may justly be said that 8 years is a very long time for a boy of that age; but I doubt very much if ordinary people would think that 8 years was "very, very many years." Hobhouse L.J. thought that, as a result of the judge's sentencing remarks, the public may well have been surprised when it was later revealed in the press that the judge had recommended a period of detention of no more than 8 years. I am inclined to agree. At all events, a press campaign then developed in which demands were made that the two respondents should remain in detention or custody for the rest of their lives.

      The Lord Chief Justice, when he came to express an opinion on the penal element, concluded that, despite the fact that the judge had had the benefit of presiding over the trial and therefore a fuller opportunity of assessing the two defendants, nevertheless the penal element in their sentence should be increased to 10 years. Since he agreed with the judge that a much lesser tariff should apply than in the case of an adult, it is not difficult to infer that he thought that the period of 18 years chosen by the judge for the hypothetical adult offender was considerably too low. It may not be without significance that the period chosen by him would have the effect that the two defendants' cases would fall to be reviewed when they were 18 years old, and their release would be possible when they were 21. He did not, therefore, contemplate the possibility that the penal element requiring their continued detention should persist after they had come of age.

      It is against this background that the choice by the Secretary of State of a penal element of 15 years has to be seen. We know that he, like (in all probability) the Lord Chief Justice, thought that the judge's figure for an adult was too short; he preferred a period of 25 years to the judge's 18 years. But he then proceeded to select a period of 15 years for the two boys. This is a period which is 50 per cent longer than that chosen by the Lord Chief Justice, who had already significantly increased that chosen by the judge. Such an increase must be regarded as very substantial; moreover it extended the almost inevitable period of their detention for a number of years after the time when they would become adults. It is obvious however that the Secretary of State chose this figure in good faith as the appropriate figure for the penal element, having reduced the figure from 25 years to 15 years to allow for the fact that they were children.

      I have specifically referred to these matters, because it appears to me that the real complaint of the two respondents is not so much against the fact that the Home Secretary specified a penal element which had to be served by them before they might be released under licence, as against the length of the period chosen by him. As appears from the judgment of the Divisional Court, there was no complaint against the period recommended by the trial judge; and it may be that the period recommended by the Lord Chief Justice might also have been reluctantly accepted. However, the ground upon which the Divisional Court held that the Home Secretary's decisions should be quashed was that he had no power to impose any penal element. I shall bear these considerations in mind when I address the question of statutory construction which arises on the main issue in this appeal, to which I now turn.

 

The relevant statutory provisions: the Children Act 1908 and the Children and Young Persons Act 1933.

      I start with the Children Act 1908, and the subsequent consolidating Act, the Children and Young Persons Act 1933. It was under section 53(1) of the latter Act (as amended) that the two respondents in the present case were sentenced to be detained during Her Majesty's pleasure; but since that subsection reflects without material alteration section 103 of the Act of 1908, it is right that I should begin with the earlier statute. Sections 103-105 of that Act provide as follows:

      The Act of 1933 was a consolidating Act. We find the provisions of 103 to 105 of the Act of 1908 gathered into section 53 of the Act of 1933, with minor alterations none of which are material for the present case. Section 53 in its original form provided as follows:

      Section 53 was subsequently amended in certain respects. First, following the abolition of the death penalty in 1965, section 53(1) was amended (by sections 1(5) and 4 of the Murder (Abolition of Death Penalty) Act 1965) to make a sentence of detention during Her Majesty's pleasure mandatory, in place of a mandatory life sentence, for young offenders convicted of murder. Second, following the introduction of the Parole Board by the Criminal Justice Act 1967, the power to release young offenders sentenced under section 53 of the Act of 1933 was made dependent upon a recommendation by the Board and, in the case of those sentenced to imprisonment for life or to detention during Her Majesty's pleasure, prior consultation with the Lord Chief Justice and (if available) the trial judge: see section 61 of the Act of 1967. Finally, the whole regime was subject to major revision in Part II of the Criminal Justice Act 1991. The relevant provisions of that Act are of great importance in the present case; but the form of section 53 of the Act of 1933 (as previously amended) was left untouched. Before I turn to the impact of the Act of 1991, I wish first to consider section 53 itself.

      First of all, I am satisfied that the submission of Mr. Fitzgerald Q.C. for Venables that a sentence to detention during Her Majesty's pleasure under section 53(1) contains no element of punishment is unsustainable. Section 104 of the Act of 1908, which is the direct precursor of section 53(2) of the Act of 1933, expressly refers to cases in which punishment provided for elsewhere in the Act is insufficient. It is plain, therefore, that a sentence under section 104 involved punishment of the young offender; and this is all the more obvious when it is seen that, among the lesser sentences which might then be imposed, was a sentence of whipping (see section 107(g)). That being so, it is inconceivable that a sentence of detention under section 103 for the greater offence of murder should not likewise involve punishment of the offender. Furthermore, there is nothing in section 53 of the Act of 1933 to indicate that any different conclusion should be drawn in respect of a sentence of detention under section 53(1); on the contrary, consistently with that conclusion, section 53 is headed by the words "Punishment of certain grave crimes." Since, therefore, a sentence of detention under section 53(1) involves punishment, it is difficult at first sight to see why, as a matter of policy, the Home Secretary should not be entitled to identify a penal element and require that it should be served before release on licence.

      I turn next to the conclusion of the Divisional Court that a sentence of detention during Her Majesty's pleasure under section 53(1) connotes "not only a power but a duty in the Secretary of State to keep the question of continued detention under review throughout the period of detention," with the effect that the imposition of a penal element which must be served before release is inconsistent with such a sentence. In my opinion this conclusion flows from a misunderstanding of the applicable legislation.

      I have read with great interest the paper prepared by Professor A. W. B. Simpson for submission to the European Court of Human Rights in Prem Singh v. United Kingdom. The theme of the paper is that a sentence on a young offender (whether under section 103 of the Act of 1908 or section 53(1) of the Act of 1933) to detention during Her Majesty's pleasure should not be viewed as equivalent to a mandatory life sentence. That the two should be differentiated is explained in the paper, essentially because the introduction of such a sentence for young offenders "formed part of an elaborate legislative scheme which reflected a general policy of treating young offenders quite differently from older ones" (see page 22). A similar policy no doubt underlay the amendment to section 53(1) in 1965 to make a sentence of detention during Her Majesty's pleasure mandatory, in place of a mandatory life sentence, for young offenders convicted of murder. But this policy relates to "making a special arrangement for the disposal of juvenile murderers" (see page 26). It does not relate to arrangements for their discharge; indeed it would be surprising if it did so because, unlike the case of young offenders, detention during Her Majesty's pleasure as originally applied to lunatics was regarded as purely preventative, and so was an interim order pending their release if they recovered (see pages 13-14). In such cases, continuous review was no doubt necessary (see page 13). But the same does not necessarily apply in the case of young offenders, where the sentence involves punishment.

      At all events, the position is made clear in both the Act of 1908 and the Act of 1933, where the power of discharge is expressly provided for, and is a power vested in the Secretary of State to discharge the young offender at any time on licence, subject to revocation of that licence by him at any time -see section 53(4) of the Act of 1933 (now repealed), formerly section 105 of the Act of 1908. Furthermore, these statutory provisions for discharge are likewise applicable to sentences of detention under section 53(2) of the Act of 1933, formerly section 104 of the Act of 1908. In my opinion, the adoption of the expression "during Her Majesty's pleasure" in relation to one form of detention under the Acts of 1908 and 1933 cannot of itself give rise to any impact upon discharge, when identical provision is expressly made in each statute for a power of discharge applicable to both forms of detention.

      Furthermore, no implication can in my opinion be derived from these words that cases of detention for murder under section 53(1) of the Act of 1933 (or under section 103 of the Act of 1908) should be kept under continuous review. It would be most extraordinary if the presence of these words in the sections applicable in cases of murder should have that effect, when the absence of those words in section 53(2) (or section 104) should have the effect that offenders sentenced to detention for life for lesser offences under those provisions would be deprived of the benefit of any such review. That no distinction can be drawn in this way between the two provisions is made plain by the fact that, in the days before the time when identification of a penal element in the sentence was considered desirable, the flexible regime applicable to young offenders was considered to be equally appropriate to those sentenced under section 53(2) and section 53(1). This is made plain in the decision of the Court of Appeal (Criminal Division) in Reg. v. Fuat [1973] 1 W.L.R. 1045. There the Court of Appeal upheld a sentence of 20 years detention imposed under section 53(2) on a 16 year old boy held guilty of attempted murder and robbery. In the course of his judgment, Lord Widgery C.J. (at pp. 1049 et seq.) stressed that section 53 created:

This was as true of a young offender sentenced to life or a fixed period of detention under section 53(2) as it was of one sentenced to detention during Her Majesty's pleasure under section 53(1). In this connection, Lord Widgery C.J. relied upon a passage from the judgment of Lord Parker C.J. in Reg. v. Chambers; Reg. v. Sorsby (1967) 51 Cr.App.R. 254, 256, when he said of sentences under section 53(2):

      It follows that the flexible procedures then applied did not owe their origin to the fact that some young offenders (those sentenced under section 53(1)) were sentenced to be detained during Her Majesty's pleasure. On the contrary, they applied to all young offenders, whether sentenced under section 53(1) or section 53(2). Indeed, it would have been most surprising if any distinction had in this respect been drawn between the two categories of young offenders.

      In more recent years, it has been recognised in the case of adult prisoners that it is desirable to fix a penal element which has to be served before release, a policy which has been recognised by your Lordships' House to be unobjectionable (see Reg. v. Secretary of State for the Home Department, Ex parte Doody [1994] 1 A.C. 531, 559C, per Lord Mustill). As Lord Woolf M.R. pointed out in his dissenting judgment in the Court of Appeal in the present case, there can be no legal objection to the Home Secretary applying the same approach to young offenders. As I have already recorded, he said, at p. 90:

It would be very strange if the benefit (such as it is) of such a policy should be available to young offenders sentenced to detention for life under section 53(2), but not to those sentenced to detention during Her Majesty's pleasure under section 53(1). Certainly, I can derive no such conclusion from the words "during Her Majesty's pleasure."

      For these reasons, quite apart from the impact of the Act of 1991, I am unable to accept the reasoning or conclusion of the Divisional Court on this point.

The relevant legislation: the Criminal Justice Act 1991.

      It is against that background that I now turn to the impact on these cases of Part II of the Criminal Justice Act 1991, which in my opinion puts the matter beyond all doubt. The Act made important changes in respect of the administration of criminal justice in this country; but it is Part II of the Act, concerned with the early release of prisoners, with which your Lordships are directly concerned. In order to understand the relevant provisions of the Act, however, it is necessary that I should first refer to developments in the policy applied by successive Home Secretaries in relation to release on licence, and to a decision of the European Court of Human Rights.

      First of all, in a statement made by Mr. Leon Brittan on 30 November 1983, he stated that, in the case of life sentence prisoners, he looked to the judiciary for advice on the period to be served to satisfy the requirements of retribution and deterrence and to the Parole Board for advice on risk. This appears to have been the origin of the penal element or "tariff." He further stated that the first review by the Local Review Committee would normally take place three years before the expiry of that period, which would give time for preparation for release if the Parole Board recommended it, having considered risk. The ultimate discretion when to release would remain with the Home Secretary. This policy was further developed in a statement by Mr. Douglas Hurd on 23 July 1987, following the decision of a Divisional Court in Reg. v. Secretary of State for the Home Department, Ex parte Handscomb (1988) 86 Cr.App.R. 59, which was concerned with discretionary life sentences.

      Next, following the decision of your Lordships' House in Reg. v. Secretary of State for the Home Department, Ex parte Doody [1994] 1 A.C. 531, a statement was made by Mr. Michael Howard on 27 July 1993 giving effect to that decision (with which your Lordships are not here directly concerned), in which he reiterated (with amendments) the policy with regard to the penal element referred to in previous policy statements in relation to mandatory life sentence cases, and concluded with the following words:

      Finally, I must refer to the decision of the European Court of Human Rights in Thynne, Wilson and Gunnell v. United Kingdom (1990) 13 E.H.R.R. 666, in which it was held that, in the case of discretionary life sentence prisoners the penal element in whose sentences has expired, their continued detention should be subject to judicial control by virtue of Article 5(4) of the Convention.

      It is against this background that the effect of Part II of the Act of 1991 can be understood. Section 34 of the Act is concerned with the release of discretionary life prisoners, and it is plain that this section has been drafted to give effect to the decision of the European Court in Thynne. Although the section is drafted with reference to the requirement that a part of the prisoner's sentence is to be served before his release is considered, nevertheless that part is to be determined by the court which sentenced him. Furthermore, once he has served that part of his sentence, and the Parole Board has directed his release, it is the duty of the Secretary of State to release him; and a discretionary life prisoner may require the Secretary of State to refer his case to the Board at any time after (inter alia) he has served the relevant part of his sentence. It follows that, in the case of such prisoners, the question of his release has been entirely "judicialised", to use the current jargon.

      The case of mandatory life prisoners is dealt with in section 35(2) and (3), which provide as follows:

It is apparent that, in such cases, the Secretary of State retains his discretion both when to refer a case to the Parole Board and, if the Board recommends his release, whether to release him as so recommended.

      Section 43 is concerned with Young Offenders. Subsections (1), (2) and (3) provide as follows:

      Subsections (4) and (5) refer respectively to short-term prisoners under the age of 18 years, and persons under the age of 22 years who are released on licence.

      It follows therefore that Part II of the Act (which is concerned with the Early Release of Prisoners) applies both to young offenders sentenced to detention during Her Majesty's pleasure under section 53(1) of the Act of 1933 and to those sentenced to detention for life under section 53(2). However, since the sentence on the former is a mandatory sentence, and the sentence on the latter is discretionary, their cases fall to be considered under different sections of the Act--the former under section 35, and the latter under section 34 (as is made plain by section 51(1) which provides that "'life prisoner' has the meaning given by section 34(7) above (as extended by section 43(2) above)" (emphasis added)). The practical result is that young offenders sentenced to detention for life fall within the judicialised regime in section 34, which makes express provision for the fixing of a part of the sentence which must be served before release, whereas those sentenced to detention during Her Majesty's pleasure fall to be considered by the Secretary of State under the broad discretion now conferred upon him by section 35. Although the regime now applicable under the statute to the latter class of young offenders is that applicable in the case of adult life prisoners subject to mandatory life sentences (i.e., adult murderers), it would not, in my opinion, be strictly correct to describe such young offenders as subject to a life sentence. What has happened is that Parliament has recognised that sentences to detention during Her Majesty's pleasure under section 53(1) have sufficient similarity to sentences of life imprisonment imposed upon adults to render it appropriate that the question of release should in both cases be provided for in the same statutory provision. This is no doubt because in both cases a mandatory sentence of indeterminate length has been imposed for murder, and if release is permitted on licence that licence will remain thereafter revocable by the Secretary of State for the rest of the offender's natural life--as is made plain by section 37(3) of the Act, which is rendered applicable to young offenders detained during Her Majesty's pleasure by section 43(2) and (3) and section 51(1).

 

      There is nothing in the Act of 1991 to suggest that the discretion vested in the Secretary of State by section 35 is to be the subject of any special criteria when he considers the cases of young murderers sentenced to detention under section 53(1) of the Act of 1933, as opposed to adult murderers sentenced to mandatory life imprisonment in the ordinary way. Certainly there is nothing in section 35 itself to suggest that that is the case. Furthermore, there are contrary indications in the statute when provision is made for those serving determinate sentences and those sentenced to discretionary life imprisonment. The early release of young offenders sentenced to determinate sentences of detention under section 53(2) is governed by section 33(1) and (2) and section 35(1), applicable to short term and long-term prisoners. It is true that Parliament, in section 43(4) and (5) of the Act of 1991, made special provision for young offenders; but that only emphasises the fact that, subject to such special provisions, the cases of such young offenders are governed by the provisions in the statute for adults serving similar terms of imprisonment: see section 43(1). Even more striking, however, is the fact that the release of young offenders sentenced to detention for life under section 53(2) of the Act of 1933 falls to be considered under section 34, under which Parliament has made express provision for a part of the sentence to be identified and served before they can be released: see section 34(3). It is, in my opinion, inconceivable that Parliament should have so provided in the case of those sentenced to detention for life under section 53(2), while contemplating that no penal element could be required to be served by young offenders convicted of the graver offence of murder under section 53(1). Plainly, in my opinion, Parliament proceeded on the basis that the Secretary of State was free to apply (as he had done in the past) a sentencing policy under section 35 which required the identification of a penal element which must be served before release, and was as free to apply that policy to murderers who were young offenders as he was in the case of adult murderers; and, having regard to the legislative history to which I have already referred, Parliament was fully entitled to do so. For these reasons, I find myself to be in agreement with the majority of the Court of Appeal on the main issue.

      I wish to add that none of this means that the Secretary of State is entitled to ignore the fact that the offender in question is a young offender. It was, of course, for this reason that he reduced the penal element for the two respondents from 25 years (considered appropriate for an adult who had committed a similar offence) to 15 years. Moreover, the fact that the Secretary of State specifies a penal element which has to be served by a young offender sentenced to detention under section 53(1) of the Act of 1933 does not mean that his welfare or rehabilitation are being ignored. On the contrary, a regime is established for his detention which is specifically directed towards matters of this kind. But it does mean that good progress during detention does not have the effect of reducing the penal period. That is regarded as being consistent with the nature of punishment. This is no doubt why, under the statutory regime in section 34 which is applicable in the case of young offenders sentenced to life imprisonment under section 53(2) of the Act of 1933, no provision is made for any such reduction, the only statutory power of release during the penal period being on compassionate grounds: see section 36, which is equally applicable to discretionary life prisoners and to mandatory life prisoners (including young offenders sentenced to detention under section 53(1)). It would be very strange if the Secretary of State should be required, when exercising his discretion under section 35(2), to take account of good progress during detention with a view to reducing the penal period in the case of a young offender who is a murderer, when that course has not been made available by Parliament in the case of a young offender sentenced to detention for life for a lesser offence, for example, one who has attempted to kill but has only succeeded in maiming his victim. I cannot believe that Parliament should have contemplated so extraordinary and anomalous a differentiation as this.

      For the same reasons I do not, with all respect, feel able to accept the reasoning of Lord Woolf M.R. in his dissenting judgment in the Court of Appeal. Since there is no basis in the statute for departure, on the ground of good progress during detention, from a penal element set under section 34 in the case of a young offender sentenced to detention for life under section 53(2) of the Act of 1933, Parliament cannot have contemplated that the Secretary of State should, in the exercise of his discretion under section 35(2), have been bound to consider departing, on the ground of good progress during detention, from a penal period specified by him in respect of a young offender sentenced to detention for the greater offence of murder under section 53(1).

      For these reasons I would dismiss the cross- appeals of the two respondents. I turn therefore to the question whether the Home Secretary has erred in the exercise of his discretion.

The appeal of the Secretary of State

      I now turn to the appeal of the Secretary of State, and I must first identify the grounds upon which the Court of Appeal decided to quash his decisions. They were as follows:

(1) Failure to disclose material.

            &nbs p;(a) Failure to disclose the judge's summary of the facts contained in his Report to the Home Secretary (per Lord Woolf M.R., Hobhouse and Morritt L.JJ.).

             (b)  Failure to disclose a psychiatric report about Thompson which was sent to the Home Secretary (per Hobhouse L.J.).

             (c)  Failure to disclose information about an earlier case relied on by the Home Secretary (per Hobhouse L.J.).

(2) Failure by the Home Secretary himself to obtain material such as psychiatric and social inquiry reports, to enable him to form his own view about the responsibility to be attributed to the respondents (per Lord Woolf M.R., Hobhouse and Morritt L.JJ.).

(3) Taking into account petitions and other material from the public demanding an increase in the tariff recommended by the judiciary (per Lord Woolf M.R. and Hobhouse L.J.; Morritt L.J. disagreed).

      Of these various complaints, I have come to the conclusion that there is substance in the last; and for that reason I would dismiss the appeal of the Secretary of State. I do not consider that there was substance in the other complaints; but, in view of my conclusion on the last one, I trust that I will be forgiven if I give my reasons for rejecting the others comparatively briefly.

      (1)(a) Failure to disclose the judge's summary of the facts. It is obviously desirable that, in cases such as these, the respondents and their advisers should know the facts set out in the judge's summary, on which the Secretary of State will rely. It is therefore most satisfactory that the Secretary of State should have adopted the practice of disclosing the relevant judicial comments in full. In the present case, the Secretary of State sought to act in accordance with the principle stated by Lord Mustill in Doody at p. 564, and so informed the respondents of the gist of the advice received by him from the judiciary. However on 23 January 1995, in accordance with the new policy, the respondents were sent the full text of the judge's observations excluding one paragraph relating to future risk (which was later supplied on 19 May 1995). The respondents were then invited to make any further representations they wished about their tariff. I should add that, at the hearing before the Appellate Committee, your Lordships went through the judge's summary of the facts line by line with Mr. Fitzgerald, and it transpired that the omitted matters complained of by him were relatively slight. In all the circumstances, I can see no unfairness in this respect on the part of the Secretary of State.

      (1)(b) Failure to disclose a psychiatric report. With great respect to Hobhouse L.J., this point (which was not relied on by the respondents before the Court of Appeal) is, in my opinion, without substance. The report related to Thompson, and was voluntarily sent to the Secretary of State; but it concluded that that no reliable view could be reached about Thompson's state of mind at the material time, and the Secretary of State understandably concluded that it did not assist him. There was, in my opinion, no unfairness in not disclosing it.

      (1)(c) Failure to disclose information about an earlier case. Again there is, in my opinion, no substance in this point, which was not previously relied upon by the respondents. The Secretary of State is fully entitled to have regard to other comparable cases, and there is no suggestion that disclosure of a particular case would have enabled the respondents to advance any further representations.

      (2) Failure by the Secretary of State himself to obtain material in the form of psychiatric or other reports. In my opinion, there is no duty on the Secretary of State to obtain such reports in every case, though sometimes it may be desirable for him to do so. In the present case, the Secretary of State had the benefit of the assessment by the trial judge, who expressed his views to the Secretary of State based upon detailed reports and upon the evidence. It must not be forgotten that the judge had the benefit of presiding over the whole trial, and hearing the whole evidence and submissions by counsel. It is plain that the Secretary of State formed the opinion that he, like the Lord Chief Justice, could safely proceed upon the basis of the judge's assessment. His view that he could do so was reinforced by the conclusion reached in the psychiatric report voluntarily sent to him, in which the opinion was expressed that no reliable conclusion could be reached about Thompson's state of mind at the relevant time. In my opinion, the Secretary of State was entitled to form this view and act upon it. In any event, the Secretary of State has stated that if any information of a psychiatric nature comes to light which is relevant to the tariff, it will be considered. In all the circumstances, I can see no unfairness in this respect.

      (3) Having regard to petitions and other material. As I have already indicated, I see great substance in this point. I will therefore consider it in some detail.

      It is plain from his Decision Letters that the Secretary of State did indeed have regard, when he made his decision to fix the penal element in the respondents' sentences at 15 years, to the petitions and letters to which I have already referred. As stated in the Decision Letters, he did so as evidence of the public concern about this case.

      That there was public concern about this terrible case, there can be no doubt. Any humane person must have felt, not only the deepest sympathy for little James Bulger and his family, but horror that two boys as young as the two respondents should have perpetrated such a brutal crime. The Home Secretary hardly needed the media to inform him of this. But events such as this tend to provoke a desire for revenge, and calls for the infliction of the severest punishment upon the perpetrators of the crime. This elemental feeling is perhaps natural, though in today's society there is a tendency for it to be whipped up and exploited by the media. When this happens, it can degenerate into something less acceptable. Little credit can be given to favourable responses to a campaign that the two respondents should "rot in jail" for the rest of their lives, especially when it is borne in mind that those who responded may well have been unaware that, even after the penal element in their sentences had been served, their release would not be automatic but would be the subject of very careful consideration by the responsible authorities. It was the submission of Mr. Fitzgerald for Venables that material such as that which the Secretary of State had regard to in the present case was no more than public clamour, and as such worthless. It should therefore have been disregarded by the Secretary of State. In the Court of Appeal this submission was accepted by Lord Woolf M.R. and Hobhouse L.J., but rejected by Morritt L.J.

      I approach the matter as follows. Under section 35 of the Act of 1991, the Secretary of State has a discretion regarding the release of mandatory life prisoners, including young offenders sentenced to detention during Her Majesty's pleasure. In the case of such prisoners, there is no statutory provision requiring the fixing of a penal element which must be served. That arises from the policy that there should be such an element, first established by Mr. Leon Brittan in 1983, and subsequently continued by later Secretaries of State. It may therefore be said that the same considerations apply to the implementation of this policy as apply to the decision to release when taken in cases such as these. Moreover, in Reg. v. Secretary of State for the Home Department, Ex parte Doody [1994] 1 A.C. 531, 559, Lord Mustill, speaking of the Secretary of State's discretion with regard to release, spoke of the Secretary of State as being entitled "to have regard to broader considerations of a public character than those which apply to an ordinary sentencing function".

      Even so, when it comes to fixing the penal element, different considerations apply. In doing so, the Secretary of State is not looking at the whole picture at the material time when deciding whether in all the circumstances it is appropriate for a life prisoner to be released, when considerations of a broader character may properly be relevant. On the contrary, he is deciding what in future will be the period of time which a prisoner must serve, compassionate considerations apart, before he may be released, if it is then thought fit. It is scarcely surprising that, in Ex parte Doody, at p. 557, Lord Mustill said of this exercise that:

Furthermore this approach derives strong support from the statutory context in which the discretion is now to be found. For in the same Part [II] of the same statute, the fixing of the penal element for discretionary life prisoners is, by section 34 of the Act of 1991, performed by the judges. They will undoubtedly act in a judicial manner when doing so; and indeed that they should do so must have been the intention of Parliament when entrusting this function to them. In so doing, they will disregard any evidence of the kind now under consideration as irrelevant and prejudicial. It follows that, if the Secretary of State was right to have regard to it, there will exist an extraordinary and anomalous conflict between neighbouring sections, sections 34 and 35, in the same statute.

      It is, in my opinion, impossible to explain this conflict on the basis that a relevant distinction is to be drawn in this context between discretionary and mandatory life sentences. In my opinion the only way in which the conflict can be resolved is by recognising that, if the Secretary of State implements a policy of fixing a penal element of the sentence of a mandatory life prisoner pursuant to his discretionary power under section 35, he is to this extent exercising a function which is closely analogous to a sentencing function with the effect that, when so doing, he is under a duty to act within the same constraints as a judge will act when exercising the same function. In particular, should he take into account public clamour directed towards the decision in the particular case which he has under consideration, he will be having regard to an irrelevant consideration which will render the exercise of his discretion unlawful.

      In so holding, I wish to draw a distinction in the present context between public concern of a general nature with regard to, for example, the prevalence of certain types of offence, and the need that those who commit such offences should be duly punished; and public clamour that a particular offender whose case is under consideration should be singled out for severe punishment. It is legitimate for a sentencing authority to take the former concern into account, but not the latter. In my opinion, by crossing the boundary from one type of public concern to the other, the Secretary of State erred in the present case. In reaching this conclusion, I find myself to be in substantial agreement with the opinion expressed by Lord Woolf M.R. on this point.

      For these reasons, I would dismiss the appeal of the Secretary of State.



LORD BROWNE-WILKINSON


My Lords,

Introduction

      The murder of James Bulger by the two applicants, Robert Thompson and Jon Venables, was a cruel and sadistic crime. It is made even more horrific by the fact that the applicants were only 10½ years old at the time. It is not surprising that the case has given rise to much public concern and, indeed, outrage. There is room for a wide range of attitudes to the proper treatment of the two murderers. At one extreme there are those who consider that, even though the applicants were only 10½ years old at the time, the crime was so terrible that they should spend the rest of their life in detention. At the other extreme, there are those who take the view that punishment as such is inappropriate for those of such tender age as the applicants and that the treatment that they should receive should be purely remedial, save so far as the public need to be protected from risk. I suspect that most people take a view somewhere between these two extremes.

      It cannot be too strongly emphasised that it is not for the courts or for your Lordships' House to determine how long these two boys should be detained. Parliament has laid down in section 53(1) of the Children and Young Persons Act 1933 (as amended) that a child shall not be sentenced to life imprisonment but in lieu thereof the courts shall sentence him to be detained during Her Majesty's pleasure. That is the sentence which has been passed on these two applicants. It is accepted by all parties that the decision how long the two applicants shall remain subject to detention is a decision which lies within the discretion of the Secretary of State, i.e. the Home Secretary. By decision letters dated 22 July 1994 the Secretary of State determined that the applicants should be detained for a minimum of 15 years. The question is not whether your Lordships agree that such a period is appropriate. The only question is whether the Secretary of State acted lawfully in fixing that period.

 

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:



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:

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

      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:

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:

      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:

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:

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:

      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.

 

The factors relevant to the exercise of the discretion.

      The mandatory sentence of detention during Her Majesty's pleasure is imposed by section 53(1) of the Act of 1933 which, as currently in force, provides as follows:

      In the Court of Appeal, Hobhouse L.J. (at p. 102G) concluded that the sentence under section 53(1) was a life sentence. This view was not supported by Mr. Pannick in argument before your Lordships and, as the Master of the Rolls points out,at p. 82, is inconsistent with the express words of the section: the section states in terms that the child shall not be sentenced to imprisonment for life and provides that detention during Her Majesty's pleasure is to be "in lieu of" such imprisonment. The words of the section itself make it clear that detention during Her Majesty's pleasure is wholly indeterminate in duration: it lasts so long as Her Majesty (i.e. the Secretary of State) considers appropriate. Therefore, in relation to a person sentenced to be detained during Her Majesty's pleasure the Secretary of State is not dealing with a sentence of the same kind as the mandatory life sentence imposed on an adult murderer, the duration of which is determined by the sentence of the court and is for life. In cases of detention during Her Majesty's pleasure the duty of the Secretary of State is to decide how long that detention is to last, not to determine whether or not to release prematurely a person on whom the sentence of the court is life imprisonment. This factor by itself suggests that there are risks in adopting the same policy in relation to two different categories of offenders who are subject to two different sentences.

      Why did Parliament in 1908 introduce for child murderers a mandatory sentence of indefinite duration instead of a sentence of detention for life? Lord Steyn and Lord Hope of Craighead have set out the history of the legislation which shows that since 1908 Parliament has adopted a different policy towards child offenders from that adopted towards adults. In particular, in the case of child offenders the courts have to have regard not only to retribution, deterrence and prevention of risk but also to the welfare of the child offender himself. This has been made demonstrably clear since 1933 by section 44(1) of the Act of 1933 which I have already quoted and which Mr. Pannick accepts must also guide the Secretary of State in the exercise of his discretion. That subsection is still part of the law of England: it cannot just be ignored. It provides that in dealing with a child or young person the court shall have regard to the welfare of the child. In the face of that clear statutory provision it seems to me inescapable that, in adopting a sentence of detention during Her Majesty's pleasure, the legislature have in mind a flexible approach to child murderers which, whilst requiring regard to be had to punishment, deterrence and risk, adds an additional factor which has to be taken into account, the welfare of the child.

      This conclusion is reinforced by the fact that the United Kingdom (together with 186 other countries) is a party to the United Nations Convention on the Rights of the Child (1989), which was drawn to our attention in a helpful brief lodged by Justice. The Convention provides, inter alia:

      The Convention has not been incorporated into English law. But it is legitimate in considering the nature of detention during Her Majesty's pleasure (as to which your Lordships are not in agreement) to assume that Parliament has not maintained on the statute book a power capable of being exercised in a manner inconsistent with the treaty obligations of this country. Article 3(i) requires that in the exercise of administrative, as well as court, powers the best interests of the child are a "primary consideration." Article 40(i) shows that the child offender is to be treated in a manner which takes into account "the desirability of promoting the child's reintegration and the child's assuming a constructive role in society." The Secretary of State contends that he is entitled to fix a tariff which will endure throughout the childhood of the offender and that neither in fixing that tariff nor in considering any revision of it will he have any regard to the welfare of the child. Such a policy would infringe the treaty obligations of this country.

      Therefore the Secretary of State in exercising his discretion as to the duration of the detention of the child must at all times be free to take into account as one of the relevant factors the welfare of the child and the desirability of reintegrating the child into society. The extent to which this is possible must depend, in the case of a young child at least, on the way in which that child is maturing through his formative years. If the child is making exceptional progress and it is clear that his welfare would be improved by release from detention, that is one of the factors the Secretary of State must take into account and balance against the other relevant factors of retribution, deterrence and risk. The child's welfare is not paramount: but it is one of the factors which must be taken into account.

      It follows that, unless the position has been altered by the Act of 1991, the tariff policy adopted by the Secretary of State in 1993 is an unlawful policy in relation to child murderers. First, it expressly applies to children the approach of Dame Angela Rumbold that under the sentence of the court "he forfeits his liberty to the State for the rest of his days." The child murderer sentenced to be detained during Her Majesty's pleasure does no such thing: under the sentence of the court, he forfeits his liberty only so long as, taking all relevant matters into account, the State determines to detain him. Second, by applying the adult murder policy (in relation to which the welfare of the adult murderer is not a relevant factor) to the child murderer (in relation to whom the welfare of the child murderer is a relevant factor) the adoption of the policy in relation to child murderers is unlawful: it requires a relevant factor to be left out of account. Third, and most important, the policy precludes any regard being had to how the child has progressed and matured during his detention until the tariff originally fixed has expired. It therefore precludes the Home Secretary during that period from giving weight to the circumstances directly relevant to an assessment of the child's welfare.

      I am not suggesting that if, for other good reasons, the Home Secretary thinks it desirable to adopt some form of tariff policy in relation to the child detained during Her Majesty's pleasure he cannot do so. If he considers that it is advantageous to set a provisional tariff, I can see no reason why he should not do so, provided that the policy is sufficiently flexible to enable him to reconsider the position from time to time in the light of the development and progress of the child.

The Act of 1991

      Part II of the Act deals with "early release of prisoners." So far as life prisoners are concerned, they are divided into two categories, discretionary life prisoners and mandatory life prisoners. The release of a discretionary life prisoner is "judicialised" by section 34: the trial judge fixes "a part of his sentence specified in the order" (the tariff); after the tariff has expired, the Secretary of State is bound, if so requested, to refer the case to the Parole Board and if they recommend release to release the prisoner. By section 43(2) this judicialised regime is applied to those sentenced under section 53(2) of the Act of 1933 to detention for life (as opposed to detention during Her Majesty's pleasure) since such sentence is discretionary.

      Adult murderers under a mandatory life sentence are left under a regime very similar to that which was applicable before 1991. Under section 35(2) of the Act of 1991 the Secretary of State, after consultation, has an absolute discretion whether or not to release on licence. This non-judicialised system is also applied to child murderers subject to the mandatory sentence of detention during Her Majesty's pleasure: section 43(2).

      An adult murderer serving a mandatory life sentence and a child murderer detained during Her Majesty's pleasure are both subjected to the same procedural regime for release. Under section 37, the licence for release (unless revoked) remains in force until death but the licence can be revoked under section 39.

      It is first argued that since Part II of the Act of 1991 confers the same powers and consequences of release to children detained during Her Majesty's pleasure as to adult mandatory life prisoners, the ambit of the powers of the Secretary of State to release both classes of prisoner must be the same. Since it is lawful for the Secretary of State to apply the 1993 tariff policy to adult murderers, it must be equally lawful to apply the same policy to children detained during Her Majesty's pleasure. I do not accept this argument.

      The decision of the European Court on Human Rights in Thynne (supra) drew a distinction between discretionary life prisoners and mandatory life prisoners. As to discretionary life prisoners, the court held that the system for release had to be subject to judicial control in order to satisfy the requirement of Article 5(4) of the European Convention on Human Rights that a person deprived of his liberty must have access to "a court" to determine the lawfulness of his detention. However, the Strasbourg court treated those subject to mandatory sentences as being in a different position: since detention for life was the sentence prescribed by law and imposed by a court there was no need to have further court intervention in order to satisfy the requirements of Article 5(4). This same distinction was subsequently adhered to by the Strasbourg court in Wynne v. United Kingdom (1994) 19 E.H.R.R. 333. It is common ground that the different regimes applicable to discretionary and mandatory life prisoners were introduced by the Act of 1991 so as to comply with the decision in Thynne. Although the Strasbourg court had not at that stage considered the position of children detained during Her Majesty's pleasure, the Act of 1991 groups them with mandatory life prisoners since in both cases their sentences are mandatory.

      Against this background, I am unable to accept that Parliament by making the same release provisions applicable to both mandatory life prisoners and those subject to mandatory sentence during Her Majesty's pleasure intended to effect any change in the nature of the sentences themselves. The Act of 1991 was not dealing with sentences at all. Any intention to alter the indeterminate duration of detention during Her Majesty's pleasure would surely have been spelt out much more clearly. The mere fact that the powers relating to the release of both categories of mandatory sentence are contained in the same statutory provisions does not mean that the same considerations have to be taken into account in exercising those powers, irrespective of the nature of the sentence.

      A more formidable argument was founded on the fact that, in relation to a discretionary sentence to detention for life under section 53(2) of the Act of 1933, the tariff period has to be fixed by the judge at trial. A tariff so fixed cannot be varied subsequently by the judge so as to take account of the child's progress in detention nor can the child be released by the Secretary of State having regard to his progress until the judicially fixed tariff has expired. Would it not be strange, it is asked, that Parliament should envisage that an unalterable tariff set at trial (and therefore by definition unable to take account of the subsequent progress of the child) should apply to a child sentenced to detention for life under section 53(2) of the Act of 1933 but that the Secretary of State should be unable himself to set such an unalterable tariff in relation to those detained during Her Majesty's pleasure under section 53(1)?

      There is here an anomaly but it is not sufficient to persuade me that Parliament, by a side-wind, meant to change the nature of the sentence of detention during Her Majesty's pleasure into one where the development of a child can be ignored during the tariff period. To effect such a change would have represented a major policy shift not in any way foreshadowed by the White Paper which preceded the passing of the Act of 1991. Nor do I think that the anomaly is as great as it seems at first sight. In setting the judicialised tariff period under section 34(2) of the Act of 1991, the judge is directed to specify such a period as is "appropriate" taking into account the seriousness of the offence. The section does not say that that is the only matter to be taken into account. No doubt the judge, in fixing the period, will also take into account all other normal sentencing considerations. In relation to a child sentenced to detention for life the judge is bound by section 44(1) of the Act of 1933 (which was not repealed or altered in any way by the Act of 1991) to have regard to the welfare of the child. Therefore, in imposing such a tariff he must take into account the need for flexibility in the treatment of the child and, in so doing, will set the minimum tariff so as to ensure that at the earliest possible moment the matter comes under consideration of the Parole Board who will be able to balance the relevant factors including the development and progress of the child.

      In my view, therefore, the Act of 1991 did not affect the nature of the sentence of detention during Her Majesty's pleasure or the factors which are relevant to be taken into account by the Secretary of State in exercising his discretion as to the duration of the sentence.

Conclusion

      For these reasons, I reach the conclusion that in setting the tariff of 15 years for these two applicants the Secretary of State was applying an unlawful policy and his decisions should be quashed. The unlawfulness lies in adopting a policy which totally excludes from consideration during the tariff period factors (i.e. their progress and development) necessary to determine whether release from detention would be in the interests of the welfare of the applicants. Such welfare is one of the factors which the Secretary of State has to take into account in deciding from time to time how long the applicant should be detained. This does not mean that in relation to children detained during Her Majesty's pleasure any policy based on a tariff would be unlawful. But any such tariff policy would have to be sufficiently flexible to enable the Secretary of State to take into account the progress of the child and his development. In relation to children, the factors of retribution, deterrence and risk are not the only relevant factors: the welfare of the child is also another relevant factor.

Other points

      A number of other points were argued before your Lordships. In view of the decision which I have reached, it is only necessary for me to express a concluded view on one of those points. It will be clear from what I have said that I reject the submission that there is no punitive element at all involved in the sentence of detention during Her Majesty's pleasure. On this point I gratefully adopt the reasoning of Lord Goff of Chieveley.

      Finally, I would add a word on the issue whether it was procedurally improper for the Secretary of State to take into account the petitions and other material sent to him. The Court of Appeal and, I understand, the majority of your Lordships take the view that this was improper. I find it unnecessary to express any final view but I would sound a word of caution. Parliament has entrusted decisions relating to the future of these applicants to the executive, not to the judiciary. Whilst it is right for the courts to ensure that in making his decision the Secretary of State acts in accordance with natural justice, in my view the court should be careful not to impose judicial procedures and attitudes on what Parliament has decided should be an executive function. I understand it to be common ground that the Secretary of State, in setting the tariff, is entitled to have regard to "broader considerations of a public character" including public respect for the administration of justice and public attitudes to criminal sentencing. How is the Secretary of State to discover what those attitudes are except from the media and from petitions? To seek to differentiate between the Secretary of State discovering public feeling generally (which is proper) and taking into account distasteful public reactions in a particular case (which is said to be unlawful) seems to me too narrow a distinction to be workable in practice. Public attitudes are ill-defined and are usually only expressed in relation to particular cases.

      I would, therefore, allow the cross-appeals and make no order on the appeal.



LORD LLOYD OF BERWICK


My Lords,

Introduction


      A child below the age of 10 cannot be guilty of any offence in English law. A child between the age of 10 and 14 can only be guilty of an offence if it is proved by the prosecution, as it was in these cases, that he knew that what he was doing was "seriously wrong." The punishment of those between the ages of 10 and 17 is governed by section 53 of the Children and Young Persons Act 1933. Under section 53(1) a child or young person who is convicted of murder is sentenced to be detained "during Her Majesty's pleasure . . . in such place and under such conditions as the Secretary of State may direct." The sentence is mandatory, just as it is in the case of an adult convicted of murder.

      Section 53(2) covers other grave crimes, which would, in the case of an adult, carry a sentence of 14 years' or more imprisonment. In such a case the court may pass a determinate sentence of detention, not exceeding the maximum sentence of imprisonment for an adult, or it may pass an indeterminate sentence, that is to say a sentence of detention for life: see Reg. v. Abbott [1964] 1 Q.B. 489. Unlike the sentence of detention under section 53(1) the sentence of detention for life under section 53(2) is discretionary.

      The release of life sentence prisoners convicted of murder lies in the discretion of the Home Secretary. On 30 November 1983 the then Home Secretary, Mr. Leon Brittan, announced a new policy covering the release of life sentence prisoners convicted of murdering police officers, and certain other categories of offender, including those guilty of the sexual or sadistic murder of children. Such offenders could expect to serve at least 20 years in prison. The effect of the new policy was to separate consideration of the punitive element in the sentence, that is to say, the period of imprisonment required for retribution and deterrence, from the consideration of risk to the public. For the former he would continue to ask the judiciary for advice. For the latter he would look to the Parole Board. The Home Secretary would himself decide when to refer the case to the Parole Board. This would usually be three years before the expiry of the punitive element in the sentence. In the meantime the Home Office would review each case at three-yearly intervals on the basis of reports of the kind prepared for formal reviews. Nothing was said in the policy statement about juvenile offenders sentenced under section 53(1) of the Children and Young Persons Act.

 

      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:

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.

      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:

      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:

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

      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:

A little later he said:

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

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:

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: