Secretary of State v Smith

These two appeals have been heard together. They require consideration of one of the most confused areas of our criminal process. This is the position of children and young persons convicted of murder. Since 1908 a child or young person convicted of murder has, by statutory requirement, been sentenced to be “detained during His/Her Majesty’s pleasure”. The nature and effect of that sentence may have been clear in 1908, but it has ceased to be so. The intervention and inter-action of executive policy, amendments to the statutory regime and the requirements of the European Convention on Human Rights have combined to produce a state of uncertainty as to the law. In this judgment we will use the phrase “young persons” to embrace all those who, from time to time, by reason of their youth have, in the case of conviction for murder, been required to be sentenced to detention during Her Majesty’s pleasure.

The most recent change in the statutory regime governing the sentencing of young persons convicted of murder was made by section 82A of the Powers of Criminal Courts (Sentencing) Act 2000, as introduced by section 60 of the Criminal Justice and Courts Services Act 2000. That statutory change did not affect the position of the two detainees who are the subject of these appeals, or some 200 other detainees in like position, who will be directly affected by the result of these appeals. Theirs have been described as “transitional cases”. The new legislation was accompanied by a change of executive policy in relation to the transitional cases. The two appeals put directly in issue the effect of this change of executive policy. Indirectly they also bear on the effect of the most recent legislative change.

The sentence of “detention during Her Majesty’s pleasure” dates back to 1908. Since 1908 the Secretary of State has enjoyed a statutory power to release on licence young persons serving sentences of detention during Her Majesty’s pleasure. In 1993 the Secretary of State made plain that it was his policy, when a young person was convicted of murder and sentenced to be detained during Her Majesty’s pleasure, to fix a “tariff” for that detainee. The tariff was the period that the young person would have to serve by way of retribution and deterrence for the crime. Save in exceptional circumstances, the young person would not be released on licence until the tariff period had been served.

In R v Secretary of State for the Home Department, Ex Parte Venables [1998] AC 407 the legitimacy of this policy was challenged. All five Law Lords agreed that it was legitimate for the Secretary of State to fix a tariff period for a young person sentenced to be detained during Her Majesty’s pleasure. The House was, however, divided as to the effect of fixing a tariff. Two of their Lordships held that the Secretary of State was under no duty to keep the tariff of an individual detainee under review. Statutory changes had equated the approach to be adopted to young persons found guilty of murder to that adopted to adults convicted of murder. There was no requirement to review the tariff imposed in relation to adults and it followed that the same was true of young persons. The majority of the House disagreed. They held that the Secretary of State was under a continuing obligation to keep under review the position of young persons sentenced to be detained during Her Majesty’s pleasure. Thus the tariff set by him for a young person had to be reviewed by him, from time to time, to have regard to the progress being made by that young person. The issue common to both appeals is whether this majority ruling in Venables remains applicable despite the change in executive policy that accompanied the legislative change in 2000. Under that change of policy the Secretary of State undertook to review the tariffs fixed in transitional cases and to comply with the recommendations of the Lord Chief Justice when carrying out that review. In accordance with the new policy, the tariff of each of the detainees with whom these appeals are concerned was reviewed by the Lord Chief Justice, and the Secretary of State accepted the recommendation made on that review. The common issue is whether the Secretary of State remains under an obligation to keep these tariffs under periodic review.

On 16 July 1992, Maria Smith, then known as Maria Rossi, and her co-defendant Marie Malloy, murdered Edna Philpott. It was a brutal murder of the 70 year old, partially sighted, woman in her own home by two young women who were under the influence of drink and drugs. They had on a previous occasion burgled her home and made threats to kill her. They stabbed her some 30 times and mutilated her. After they had killed her they ransacked her home. Each pleaded guilty to murder.

Maria Smith was 17 years and 8 months old at the time of the murder. In consequence she was sentenced to be detained during Her Majesty’s pleasure. The trial judge recommended a tariff of 16 years. The Lord Chief Justice recommended that it should be 14 years. The Secretary of State, in June 1993, set the tariff at 15 years. On 13 April 1999 the Secretary of State, as required by the decision in Venables, reviewed Smith’s tariff and reduced it to 13 years. On 21 November 2001, pursuant to the Secretary of State’s new policy with respect to the transitional cases, the Lord Chief Justice reviewed Smith’s tariff and advised the Secretary of State that there was no ground for reducing it further. Accordingly her tariff remained at 13 years.

When he gave the advice referred to above, the Lord Chief Justice made it clear that he regarded it as the responsibility of the Secretary of State to undertake any future monitoring that the law required. He added that he hoped that the Secretary of State would keep Smith’s case under review. The Secretary of State, for his part, has made it clear that he does not consider that he is under any obligation to keep Smith’s case under review during the tariff period and that he does not intend to do so.

Smith commenced judicial review proceedings on 26 June 2002. She sought a declaration that the Secretary of State’s policy was unlawful “to the extent that it makes no provision for the further judicial review of an existing Her Majesty’s pleasure detainee’s tariff after it has been fixed in accordance with the Lord Chief Justice’s recommendation”. On 3 April 2003 the Divisional Court (Kennedy LJ and Mitchell J) upheld Smith’s claim for judicial review, although not in precisely the terms sought. The Court held that, despite the change in the manner in which their tariffs were fixed, the transitional cases remained governed by the decision of the House of Lords in Venables. Against that decision the Secretary of State appeals, and that is the only issue raised before us in the case of Smith.

In December 1992, when he was 16 years of age, Dudson joined with adult co-defendants in the murder of a 16 year old girl named Suzanne Capper in horrific circumstances. They imprisoned and tortured her over the period of a week and set light to her body so that she sustained burns from which she died. On 17 December 1993 Dudson and his co-defendants were convicted of murder. The trial judge recommended a tariff of 18 years for Dudson and 25 years for his co-defendants. The Lord Chief Justice supported those recommendations, which were implemented by the Secretary of State.

On 29 January 2002, pursuant to the Secretary of State’s new policy in respect of the transitional cases, the Lord Chief Justice reviewed Dudson’s tariff and advised that it should be reduced to 16 years. The Secretary of State accepted this recommendation and reset the tariff at 16 years on 20 March 2002.

On 30 October 2002 McCombe J granted Dudson permission to seek judicial review of the Secretary of State’s decision of 20 March 2002. The basis for challenging that decision was the same as the challenge made in Smith: the Secretary of State had failed to make any provision for the periodic review of Dudson’s tariff. This argument was subsumed in an attack on the tariff itself. It was argued that because the Secretary of State had declined to review the tariff he should have set a “minimum” tariff that anticipated that Dudson might make exceptional - indeed unforeseeable - progress in detention. The following grounds were advanced for challenging the Secretary of State’s decision on the tariff-:

The Secretary of State indicated that, in his opinion, the correct Defendant to at least one of the claims raised by Dudson was the Lord Chief Justice and he was joined as a party by consent. Before the Divisional Court (Kennedy LJ and MacKay J) the Secretary of State was represented by Mr Pannick QC and the Lord Chief Justice by Mr Sales.

The Divisional Court gave judgment on 21 November 2003. They held that the role that had been played by the Lord Chief Justice was a judicial role and that, accordingly, he was not susceptible to judicial review. The Court nonetheless dealt with all the issues raised. The court followed its decision in Smith and held that the Secretary of State remained under an obligation to review that tariff that he had set. The attack on the tariff itself was rejected. The Court held:

Before us Mr Sales appeared in order to represent the Lord Chief Justice. Mr Pannick, however, for the Secretary of State, made it plain that the Secretary of State no longer contended that the Lord Chief Justice was susceptible to judicial review, but accepted that, in so far as there were procedural or substantive shortcomings in the decision of the Lord Chief Justice, these could be laid at the door of the Secretary of State on the ground that he had acted on the advice of the Lord Chief Justice. We were content to proceed upon this basis. We further acceded to the sensible suggestion that, as Mr Sales had come prepared to meet the allegations directed against the Lord Chief Justice, he should be permitted to deal with these allegations in support of Mr Pannick’s submissions.

The first issue before us is thus, the issue raised in Smith - is the Secretary of State required to subject the tariffs fixed in the transitional cases to periodic review? Mr Tim Owen QC, for Dudson, has made common cause with Mr Fitzgerald QC, for Smith, both as to the basis upon which the tariffs should have been fixed in the transitional cases and as to the nature of the periodic reviews of the tariffs that should take place. This is a change of stance from the approach adopted in the court below.

In the case of Dudson we also have to consider whether the Lord Chief Justice failed to recognise an entitlement on the part of Dudson to an oral hearing and whether the tariff recommended by the Lord Chief Justice, and accepted by the Secretary of State, was too high in that it failed to have regard to Dudson’s welfare.

The common issue raised in Smith and Dudson requires a detailed analysis of the reasoning of the majority of the House of Lords in Venables and of material developments since the decision in Venables. We propose to summarise the relevant history prior to Venables, and the developments after Venables, before returning to give detailed consideration to that case.

The relevant history prior to Venables is conveniently to be found in the judgment of Lord Woolf MR at pp 415 to 427 in the Court of Appeal. The issue in Venables was the extent to which statutory developments had made uniform the regime to be applied to adults sentenced to life imprisonment for murder, the regime to be applied to young persons given discretionary sentences of detention for life and the regime to be applied to young persons sentenced to be detained during Her Majesty’s pleasure. Lord Woolf first considered developments in relation to adults and then those in relation to young persons. We propose to follow his example, drawing from his judgment, though in more summary fashion.

In 1957 the Homicide Act created a category of non-capital murder for which there was a prescribed mandatory sentence of imprisonment for life. In 1965 the Murder (Abolition of Death Penalty) Act 1965 made imprisonment for life the mandatory sentence for all adults convicted of murder. The Home Secretary was given power to release murderers on licence, but only after consultation with the Lord Chief Justice and the trial judge, if available.

In 1967 the Criminal Justice Act established the Parole Board. Section 61 provided:

“(1)

The Secretary of State may, if recommended to do so by the Parole Board, release on licence a person serving a sentence of imprisonment for life or a person detained under section 53 of the Children and Young persons Act 1933 (young offenders convicted of grave crimes), but shall not do so in the case of a person sentenced to imprisonment for life or to detention during Her Majesty’s pleasure or for life except after consultation with the Lord Chief Justice of England together with the trial judge if available.”

This was the first statutory provision that applied both to adults and to young persons who had been convicted of murder.

On 13 November 1983 the Secretary of State, Mr Leon Brittan, made a statement in Parliament which introduced the concept of the tariff. He would, in consultation with the judiciary, fix a period in the case of life sentence prisoners to meet the requirements of retribution and deterrence (the tariff period). There would normally be no review by the local review committee or the Parole Board until 3 years before the tariff period was due to expire. Those bodies would then concentrate on considering whether the release of the prisoner would involve risk to the public. Mr Brittan’s statement included the following passage:

“When a date for a first, or subsequent, formal review is set for several years ahead, the Home Office will review the case on the basis of reports of the kind now prepared for formal review, at regular, and in any event not longer than three-year, intervals. Moreover, governors will be told to report at once any exceptional development requiring action. These procedures will ensure that I can consider any special circumstances or exceptional progress which might justify changing the review date. But except where a prisoner has committed an offence for which he has received a further custodial sentence, the first formal review date will not be put back. In any event, ministers will review every case when a life sentence prisoner has been detained for 10 years”

On 23 July 1987 the Secretary of State, now Mr Douglas Hurd, announced in a Parliamentary Statement that, in the case of both discretionary and mandatory life sentences, the trial judge would be asked to write to him, through the Lord Chief Justice, with his view of the period of imprisonment necessary to meet the requirements of retribution and deterrence; the Lord Chief Justice would add his own view. The tariff would then be determined having regard to those views, and the first formal review by the Parole Board machinery would normally take place three years before the expiry of that period.

In 1990 the European Court of Human Rights (ECtHR), in Thynne, Wilson and Gunnell v United Kingdom (1990) 13 EHRR 666 in relation to discretionary life sentences, held that once the prisoner had served the penal element of his sentence, he was entitled to have the remaining period of his detention under judicial control. This did not apply to mandatory life sentences because in their case the punishment for the offence of murder was considered to require life imprisonment which was not necessarily the case with discretionary life sentences where the sentence could be imposed because of mental instability or the risk of further offending on the part of the defendant.

Section 34 of the Criminal Justice Act 1991 gave effect to the decision of the ECtHR. It gave the court that imposed a discretionary sentence of life imprisonment the power to specify the penal part of the sentence, entitled the prisoner to require his case to be referred to the Parole Board once the penal part of the sentence had been served, and gave the Board power to direct the prisoner’s release on licence if satisfied that the risks to the public no longer required the prisoner to remain in custody.

Section 35 maintained the Home Secretary’s discretion as to whether or when to refer a mandatory life prisoner to the Parole Board and whether, after consultation with the Lord Chief Justice and the trial judge, to release such a prisoner on licence. It provided:

(2)

If recommended to do so by the Board, the Secretary of State may, after consultation with the Lord Chief Justice together with the trial judge if available, release on licence a life prisoner who is not a discretionary life prisoner.

(3)

The Board shall not make a recommendation under subsection (2) above unless the Secretary of State has referred the particular case, or the class of case to which the case belongs, to the Board for advice.

In Thynne the ECtHR had accepted that the mandatory sentence of life imprisonment for murder was truly a life sentence so that there was no requirement for judicial involvement in determining the time actually served. This theme was adopted by Lord Mustill, in a speech with which the other members of the House agreed in R v Secretary of State for the Home Department, Ex Parte Doody [1993] QB 197. He remarked at p. 559:

“But for the fact that the Home Secretary decided, when formulating the new scheme, to retain in a modified shape the existing practice of inviting the opinion of the judges, they would never enter the picture at all.”

On 27 July 1993 the Secretary of State, now Mr Michael Howard, made a further statement in Parliament about life sentences. He summarised the existing practice as follows [Hansard (H.C Debates), 27 July 1993, cols 863-864]:

“Under those procedures, shortly after a person has received a mandatory life sentence, the Secretary of State invites the judiciary to give its views on the period to be served to satisfy the requirements of retribution and deterrence. The judiciary’s views presently comprise the advice of the trial judge and the Lord Chief Justice. Their advice is one factor among others which the Secretary of State considers before he sets the date for the first review by the Parole Board of the case for releasing the prisoner on licence. This review is timed to take place three years before the expiry of the minimum period which the Secretary of State considers necessary to satisfy the requirements of retribution and deterrence or where that period is 20 years or more, 17 years after sentence.”

Mr Howard went on to make it clear that he would only review a tariff in exceptional circumstances:

“I take this opportunity to emphasise that the view which I or a minister acting under my authority takes, at the beginning of a mandatory life sentence, of the period necessary to satisfy the requirements of retribution and deterrence is an initial view of the minimum period necessary to satisfy those requirements. It therefore remains possible for me, or a future Secretary of State, exceptionally to revise that view of the minimum period, either by reducing it, or by increasing it where I, or a successor in my office, concludes that, putting aside questions of risk, the minimum requirements of retribution and deterrence will not have been satisfied at the expiry of the period which had previously been determined.”

In the course of the hearing in Venables the Secretary of State made it plain that, in making any changes to the tariff period, he 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. He would not in any circumstances vary the tariff period by reason of events occurring after the commission of the crime - see Venables p.495. This contrasted with the more flexible approach that had been announced by Mr Brittan that we have quoted at paragraph 21 above.

Finally Mr Howard stated expressly that the policy extended to young persons detained during Her Majesty’s pleasure:

“Everything that I have said about the practice of the Secretary of State in relation to mandatory life sentence prisoners applies equally to persons who are, or will be, detained during Her Majesty’s pleasure under section 53(1) of the Children and Young Persons Act 1933, as well as to persons who have been, or will be, sentenced to custody for life under section 8 of the Criminal Justice Act 1982.”

This recognised the fact that, although Mr Brittan’s statement had referred only to those serving sentences for life imprisonment, the Secretary of State had adopted the same practice in relation to young persons detained during Her Majesty’s pleasure. It is time to turn to the history of the treatment of young persons.

The sentence of “detention during Her Majesty’s pleasure” has its origin in section 103 of the Children Act 1908, which provided:

“Sentence of death shall not be pronounced on or recorded against a child or young person, but in lieu thereof the court shall sentence the child or young person to be detained during His Majesty’s pleasure, and, if so sentenced, he shall, notwithstanding anything in the other provisions of this Act, be liable to be detained in such place and under such condition as the Secretary of State may direct, and while so detained shall be deemed to be in legal custody.”

Section 53(1) of the Children and Young Person’s Act 1933 re-enacted section 103 of the 1908 Act, but extended the upper age limit to which this provision applied from 16 to 18 years. Section 53 made other material provisions in relation to the sentencing of young prisoners. At the time of the decision in Venables that section, as amended, provided:

“(1)

A person convicted of an offence who appears to the court to have been under the age of 18 years at the time of the offence was committed shall not, if he is convicted of murder, be sentenced to imprisonment for life, nor shall sentence of death be pronounced on or recorded against any such person; but in lieu thereof the court shall (notwithstanding anything in this or any other Act) sentence him to be detained during Her Majesty’s pleasure, and if so sentenced he shall be liable to be detained during Her Majesty’s pleasure, and if so sentenced he shall be liable to be detained in such place and under such conditions as the Secretary of State may direct. (2) Where a child or young person is convicted on indictment of any offence punishable in the case of an adult with imprisonment for 14 years or more, not being an offence the sentence for which is fixed by law and the court is of the opinion that none of the other methods in which the case may legally be dealt with is suitable, the court may sentence the offender to be detained for such period [not exceeding the maximum term of imprisonment with which the offence is punishable in the case of an adult] as may be specified in the sentence; and where such a sentence has been passed the child or young person shall, during that period ... be liable to be detained in such place and on such conditions as the Secretary of State may direct. (3) A person detained pursuant to the directions of the Secretary of State under this section shall, while so detained, be deemed to be in legal custody …”

Thus, while a young person convicted of murder would receive an automatic sentence of detention during her Majesty’s pleasure pursuant to section 53(1), a young person could also, in appropriate circumstances, be sentenced to detention for life pursuant to section 53(2).

Section 44(1) of the 1933 Act , which remains in force today, provides:

“Every court in dealing with a child, or young person who is brought before it, either as … an offender or otherwise, shall have regard to the welfare of the child or young person …”

Prior, at least, to the introduction of the tariff system it was the practice of the Secretary of State to monitor the progress of young persons detained pursuant to section 53, whether detained during Her Majesty’s pleasure pursuant to section 53(1) or detained for life or for a determinate period, pursuant to section 53(2). In R v Fuat Storey & Duignam (1973) CAR 840, Lord Widgery CJ remarked:

“Accordingly one has within the scope of Section 53 an entirely flexible procedure in which, as the subject develops and his character matures, the Home Secretary can direct him to appropriate training and eventually order his release when release is possible”

We have already referred, in the context of adult prisoners, to the provisions of the Criminal Justice Act 1991 which was passed to give effect to the decision of the ECtHR in Thynne. These formed part of Part II of that Act, which dealt with “Early Release of Prisoners”. In that Part, the position of adult prisoners and of young prisoners was assimilated, thus section 43 provided:

“Young offenders.

43(1) Subject to subsections (4) and (5) below, this Part applies to persons serving sentences of detention in a young offender institution, or determinate sentences of detention under section 53 of the Act of 1933, as it applies to persons serving equivalent sentences of imprisonment.

(2)

Subject to subsection (5) below, this Part applies to persons serving – (a) sentences of detention during her Majesty’s pleasure or for life under section 53 of the Act of 1933; or (b) sentences of custody for life under section 8 of the Act of 1982, as it applies to persons serving sentences of imprisonment for life.”

Section 51 contained interpretation provisions in respect of Part II of the Act of 1991. The section included a provision which provided that in that Part “ “life prisoner” has the meaning given by section 34(7) above (as extended by section 43(2) above).” Section 51(1) also included a definition of a “discretionary life prisoner” as having “the meaning given by section 34 above (as extended by section 43(2) above).” Section 43(2) thus provided a further link between the provisions in the Act dealing with young offenders and those dealing with adult prisoners. The effect of these convoluted provisions proved to be the critical issue in Venables.

We propose at this point to summarise the decision in Venables only briefly, in order to set subsequent developments in context. At issue was the legitimacy of tariffs set by the Secretary of State in relation to Thompson and Venables, the two boys who, when only 10 years old, had been guilty of the murder of a young child, James Bulger, in horrifying circumstances. The trial judge recommended tariffs of 8 years to reflect the defendants’ extreme youth. The Lord Chief Justice’s recommendation was 10 years. The Secretary of State fixed tariffs at 15 years. The defendants sought judicial review of his decision.

Mr Fitzgerald, who appeared for Venables, contended that the very imposition of a tariff to reflect retribution and deterrence was at odds with the concept of detention during Her Majesty’s pleasure. He argued that such a sentence was not punitive, but designed to ensure that a young person who had committed murder was detained until, under the process of reformation, he had progressed to a stage where it was appropriate to release him. This contention was unanimously rejected both by the Court of Appeal and the House of Lords.

In an alternative argument, those acting for the two detainees attacked the policy announced by Mr Howard in 1993, contending that a sentence of detention during Her Majesty’s pleasure necessarily required the Secretary of State to keep the position of the detainee under review. Even if it was legitimate to fix a tariff for such a detainee, such a tariff could be no more than provisional. The progress made by the detainee remained a relevant factor, to be weighed against the requirements of retribution and deterrence, and this necessarily required the Secretary of State to keep under periodic view the period of detention that the two detainees should serve.

This argument was rejected by the Court of Appeal, Lord Woolf MR dissenting, but accepted by the majority of the House of Lords - Lord Brown-Wilkinson, Lord Steyn and Lord Hope of Craighead. The dissentients were Lord Goff of Chievely and Lord Lloyd of Berwick. The majority in the Court of Appeal and the minority in the House of Lords considered that the provisions of Part II of the 1991 Act entirely assimilated the position of young persons sentenced to detention during Her Majesty’s pleasure with that of young persons sentenced to detention for life pursuant to section 53(2) of the 1933 Act and that of adults sentenced to imprisonment for life. Lord Woolf in the Court of Appeal and the majority in the House of Lords held that these provisions did not remove the requirement to keep tariffs under review in the light of the progress made by young persons detained during Her Majesty’s pleasure.

Most of the developments since Venables have been in response to the requirements of the Human Rights Convention. We propose to summarise these in chronological order, whether they relate to young persons or to adults.

On 1 October 1997, sections 28 to 34 of the Crime (Sentences) Act 1997 came into force. These provisions were a response to the decision in Hussain v UK (1996) 22 EHRR 1. In that case the ECtHR held that a young person sentenced to detention during Her Majesty’s pleasure was entitled, after the tariff had been served, to periodic access to a body with the attributes of a court to assess whether he was suitable for release. Sections 28 to 34 of the 1997 Act amended the relevant provision of Part II of the Criminal Justice Act 1991 so that, after such an offender had served the tariff set by the Secretary of State, it became the responsibility of the Parole Board and not the Secretary of State to decide whether he should be released on licence. The Secretary of State retained the power to determine the tariff for those detained during Her Majesty’s pleasure.

On 10 November 1997 the Secretary of State, then Mr Jack Straw, made a statement in Parliament setting out how he intended to give effect to the decision of the House of Lords in Venables. He made it clear that he intended to continue to fix the provisional tariffs for those sentenced to be detained during Her Majesty’s pleasure, but that they could be altered “when the balance between the public interest in punishment on the one hand and the public interest in the offender’s welfare on the other has clearly shifted so as to justify a reduction”. He went on to state that annual reports would be provided on all those whose tariffs had yet to expire and that, after half the tariff period had expired, a fuller ministerial review would take place.

Meanwhile, Thompson and Venables had proceeded to challenge in Strasbourg the practice by which the Secretary of State set tariffs for young persons sentenced to be detained during Her Majesty’s pleasure. The challenge succeeded. In V v United Kingdom (2000) 20 EHRR 121 the ECtHR held (paragraphs 109 and 111) that Article 6(1) covered the determination of sentence and that the fixing of the tariff amounted to a sentencing exercise. The court went on to hold at paragraph 114:

“The Court notes that Article 6(1) guarantees, inter alia, “a fair … hearing … by an independent and impartial tribunal …”. “Independent” in this context means independent of the parties to the case and also of the executive. The Home Secretary, who set the applicant’s tariff, was clearly not independent of the executive, and it follows that there has been a violation of Article 6(1).”

An identical result was reached in the case of Thompson’s application.

Thompson and Venables also argued that, unless a very short tariff period was set, article 5(4) required detention of a young person to be reviewed because his physical, intellectual and emotional development could affect the lawfulness of his continued detention. The ECtHR implicitly rejected this contention in that it treated the setting of the tariff as constituting the determination of a fixed sentence, and observed (paragraph 119) that where a fixed term of imprisonment is imposed for a criminal offence for the purposes of punishment “the supervision required by article 5(4) is incorporated in that court decision”.

On 13 March 2000 the Secretary of State made a statement to Parliament as to how he intended to respond to the decision of the ECtHR in T and V v UK. He said that he would bring forward legislation to provide for tariffs to be set by the trial judge in open court, in the same way that they were already being set for adults sentenced to discretionary life sentences. As for those young persons, then numbering some 250, who were detained during her Majesty’s pleasure under tariffs already fixed, he would set fresh tariffs in line with the recommendations of the Lord Chief Justice, who would consider any representations made to him. It was in accordance with that statement that the tariffs of Smith and Dudson were reviewed.

Although he made no reference to this in his statement to Parliament, the Home Secretary subsequently made it clear in correspondence that the tariffs set for young persons detained during Her Majesty’s pleasure would no longer be open to automatic, periodic review.

On 27 July 2000 the Lord Chief Justice issued a Practice Statement [2001] 1WLR 1655 as to how he proposed to approach his task of setting fresh tariffs or reviewing existing tariffs for those detained during Her Majesty’s pleasure, pending the introduction of the proposed legislation. This included the following passages:

“Before I make a recommendation to the Home Secretary, in both new and existing cases, I shall invite written representations from the detainees’ legal advisers and also from the Director of Public Prosecutions who may include representations on behalf of victim’s families.”

“When making recommendations to the Home Secretary in such cases I will announce my reasons in open court after taking into account any written representations I receive.”

No provision was made for oral submissions.

On 25 August 2000 the Powers of Criminal Courts (Sentencing) Act 2000 came into force. This was a Law Commission consolidation of enactments relating to the powers of the courts to deal with offenders. No relevant amendment was then made to the provisions relevant to the issues before us. In particular, the automatic sentence of detention during Her Majesty’s pleasure for young persons convicted of murder was preserved by section 90. However, with effect from 13 November 2000, section 82A was introduced into that Act by section 60 of the Criminal Justice and Courts Sentencing Act 2000. This provides, so far as material,:

“(1)

This section applies if a court passes a life sentence in circumstances where –

(a)

the sentence is not fixed by law; or

(b)

the offender was aged under 18 when he committed the offence

(2)

The court shall, unless it makes an order under subsection (4) below, order that the provisions of section 28(5) to (8) of the Crimes (Sentences) Act 1997 (referred to in this section as the “early release provisions”) shall apply to the offender as soon as he has served the part of his sentence which is specified in the order.

By definition a life sentence includes a sentence of detention during Her Majesty’s pleasure - see section 82A(7). Thus this section gives effect to the decision of the ECtHR in V v UK, in that it provides that the Court, rather than the Secretary of State, is to set the tariff.

In April 2002 the Sentencing Advisory Panel published a lengthy advice to the Court of Appeal on setting the tariff, which it recommended should be renamed “the minimum period”, in the case of adults and young persons convicted of murder.

On 31 May 2002, the Lord Chief Justice issued a Practice Statement [2002] 1WLR 1879, the primary purpose of which was to give effect to the advice of the Sentencing Advisory Panel.

The final development in this area of the law relates to the nature of the mandatory life sentence for adult offenders. In Wynne v United Kingdom (1994) 19 EHRR 333 at paragraph 35, the ECtHR had ruled:

“the fact remains that the mandatory sentence belongs to a different category from the discretionary sentence in the sense that it is imposed automatically as the punishment for the offence of murder irrespective of considerations pertaining to the dangerousness of the offender.”

This constituted recognition of the accepted position at the time under our domestic jurisprudence. That position came, however, to be repeatedly questioned in the English Courts, and in Stafford v United Kingdom (2002) 35 EHRR 1121 the Grand Chamber of the ECtHR reached the following conclusion at paragraph 78:

“the continuing role of the Secretary of State in fixing the tariff and in deciding on a prisoner’s release following its expiry, has become increasingly difficult to reconcile with the notion of separation of powers between the executive and the judiciary, a notion which has assumed growing importance in the case law of the court (see mutatis mutandis, Incal v Turkey (2000) 29 EHRR 449)”

Referring to the Wynne judgment the court observed, at pp 1143-1144, para 79:

“The court considers that it may now be regarded as established in domestic law that there is no distinction between mandatory life prisoners, discretionary life prisoners and juvenile murderers as regards the nature of tariff-fixing. It is a sentencing exercise. The mandatory life sentence does not impose imprisonment for life as a punishment. The tariff, which reflects the individual circumstances of the offence and the offender, represents the element of punishment. The court concludes that the finding in Wynne that the mandatory life sentence constituted punishment for life can no longer be regarded as reflecting the real position in the domestic criminal justice system of the mandatory life prisoner.”

In R (Anderson) v Secretary of State for the Home Department [2002] UKHL 46; [2002] 3 WLR 1800 the House of Lords, sitting in a Committee of seven, held that the ECtHR had been correct in concluding that the fixing of a tariff in the case of an adult convicted of murder was legally indistinguishable from the imposition of a sentence. It followed that section 29 of the Crime (Sentences) Act, which entrusted decisions relating to the length of imprisonment and the release of prisoners serving mandatory life sentences to the Secretary of State, was incompatible with Article 6 of the Convention. To give effect to this decision sections 269 and 275 were inserted in the Criminal Justice Act 2003, together with transitional provisions pursuant to section 276. These brought mandatory life sentences within the regime applying to other life sentences.

The tariffs in Venables were set by the Secretary of State. The tariffs of Smith and Dudson were fixed, on review, by the Lord Chief Justice in as much as the Secretary of State had undertaken to abide by the Lord Chief Justice’s recommendations and did so. Mr Pannick submitted that in these circumstances there was no requirement to keep under review the tariffs that had been fixed. His submissions can best be summarised by setting out the relevant passage in his skeleton argument in the case of Smith:

“17.

Now that the penal term for the Claimant has been set by a judge (the Lord Chief Justice), the Claimant is wrong to contend that ex parte Venables and Thompson requires that the Secretary of State must periodically review her minimum term in the light of her progress:

(1)

Two members of the House of Lords (Lord Goff of Chieveley and Lord Lloyd of Berwick) concluded that the Secretary of State had no obligation to review the minimum term from time to time in the light of exceptional progress even when the minimum term was fixed by the Secretary of State. See Lord Goff of Chieveley at p.487D-E and Lord Lloyd of Berwick at p.513D-G. They accepted the argument advanced on behalf of the Secretary of State that it would be anomalous were young offenders serving a sentence of detention during Her Majesty’s pleasure entitled to a periodic review of their penal terms for progress when no other young offender who receives a discretionary life sentence for a serious offence under section 53(2) and (3) of the 1933 Act. In such a case, the penal term is fixed by the trial judge (subject to appeal) and is not subject to reassessment according to exceptional progress.

(2)

Three members of the House of Lords (Lord Browne-Wilkinson, Lord Steyn and Lord Hope of Craighead) concluded that the Secretary of State did have an obligation to review the minimum term from time to time in the light of exceptional progress when the minimum term was fixed by the Secretary of State.

(3)

But two members of that majority made it plain that the Secretary of State only had such a duty because the minimum term was set by him and not by an independent judicial body. See Lord Hope of Craighead at p.532E-G and Lord Browne-Wilkinson at pp.501H-502F. They rejected the arguments about an anomaly (see (1) above) by emphasising that the penal term was, at that time, set by the Secretary of State, and so it was right and proper that the offender should enjoy the additional protection of a right to a review from time to time in the light of progress.

(4)

As stated in ex parte Venables and Thompson by Lord Browne-Wilkinson at p.502E, and by Lord Hope of Craighead at p.532F-G, when a judge sets a penal term, then the interests of the young offenders, as guaranteed by section 44 of the Children and Young Persons Act 1933, are properly protected by that judge setting a term which takes account of the age of the offender (as in other cases of a penal term fixed by a judge in respect of a young offender).

(5)

So the decision of the majority of the House of Lords in ex parte Venables and Thompson far from assisting the Claimant in truth defeats her claim, now that her penal term has been set by the Lord Chief Justice.”

This submission requires analysis of the reasoning of the majority of the House of Lords in Venables. We propose at this point to conduct that analysis in rather greater detail than is required to resolve the common issue. This is because the reasoning of the majority is also of relevance when considering the challenge that is made to the tariff that was recommended by the Lord Chief Justice in respect of Dudson.

Mr Pannick’s starting point is well founded. The minority of their Lordships were indeed impressed by the anomaly that existed if the appellants’ contentions were correct. Thus Lord Goff held at p. 487:

“…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).”

Lord Lloyd’s reasoning was encapsulated in the following short passage of his speech at p. 513:

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

What was the reasoning of the majority? Mr Pannick submitted that Lord Browne-Wilkinson held that the Secretary of State had a duty to review the tariff only because it was set by him and not by an independent judicial body. This assertion he based on the following passage of Lord Browne-Wilkinson’s speech at p. 502:

“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(“Crime, Justice and Protecting The Public” (1990) (Cm. 965)) 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.”

This passage falls far short of demonstrating that Lord Browne-Wilkinson considered that the duty on the Secretary of State to keep under review the position of a young person sentenced to detention during Her Majesty’s pleasure arose only because it was he, rather than a judge, who was responsible for fixing the initial tariff. When his speech is considered as a whole it is apparent that this was not the case. We will extract the most relevant observations.

Lord Browne-Wilkinson first considered the position prior to the 1991 Act. The starting point is this passage at p. 496:

“… 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 (as amended by section 72(4) of and Schedule 6 to the Children and Young Persons Act 1969) which provides:

“Every court in dealing with a child or young person who is brought before it, either as … an offender or otherwise, shall have regard to the welfare of the child or young person …”

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.”

At pp 497-8 Lord Browne-Wilkinson drew a distinction between the position of adult life prisoners and children detained during Her Majesty’s pleasure. He said:

“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.”

Lord Browne-Wilkinson continued at pp 498-9:

“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 led Lord Browne-Wilkinson to the following conclusion at pp. 499-500:

“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 the 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”

Lord Browne-Wilkinson concluded that, unless the 1991 Act had altered the position, the Secretary of State’s policy was unlawful. It was open to him to fix a provisional tariff for a young person detained during Her Majesty’s pleasure, but only provided that it was “sufficiently flexible to enable him to reconsider the position from time to time in the light of the development and progress of the child”.

Lord Browne-Wilkinson went on to consider the effect of the provisions of Part II of the 1991 Act. He recounted the circumstances in which those provisions had been enacted, namely to give effect to the decision of the ECtHR in Thynne. He concluded at p. 501:

“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 prisoner 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.”

Lord Browne-Wilkinson went on to deal with the anomaly, in the passage relied upon by Mr Pannick, which we have already set out. It may be implicit in his comments that the anomaly would have been more marked had the tariff fixed for those detained during Her Majesty’s pleasure also been fixed by a judge, but when his speech is considered as a whole it is plain that that consideration was not critical to his decision. Lord Browne-Wilkinson’s reasoning was that the sentence of detention during Her Majesty’s pleasure was, when introduced in 1908, and remained one whereby the position of the detainee had to be kept under review in order to have proper regard to the requirements of his welfare, when determining for how long he should remain detained. These requirements would vary, depending upon the progress made by the detainee.

We turn to the speech of Lord Hope. The passage at p. 532 relied upon by Mr Pannick is as follows:

“It may be said that this approach is so out of line with what happens in the case of children and young persons who are sentenced to determinate sentences, or to detention for life at the discretion of the trial judge under section 53(2) of the Act of 1933, that it is not sustainable and must be rejected. But I am not persuaded by this objection. The sentences which are imposed in these cases are all judicial sentences. A determinate sentence is one which has been selected by the trial judge, having due regard to the provisions of section 44 of the Act of 1933. A discretionary life sentence also is one which the trial judge has selected, and to which he has applied the penal element as he is required to do so by section 34(2) of the Act of 1991. In neither case is the child or young person exposed to the determination of the penal element by the Secretary of Sate after taking into account considerations of policy. And if, as cannot be doubted, section 44 of the Act of 1933 must be taken into account by the judge when passing the sentence which he decided to impose it would seem both illogical and unfair if the child or young person were to be deprived of that protection in cases where the mandatory sentence under section 53(1) was pronounced.”

If this passage is taken in isolation, it does appear that Lord Hope was influenced in rejecting the anomaly argument by the distinction that he drew between the fact that, in the case of detention for life, pursuant to section 34(2) of the 1991 Act a judge would decide the period to be served to reflect the seriousness of the offence, whereas in the case of an automatic sentence of detention during Her Majesty’s pleasure the Secretary of State would fix the tariff. The passage suggests that Lord Hope was proceeding on the premise that, in the latter instance, section 44 of the 1933 Act would not be taken into account. We have a little difficulty with that premise having regard to the fact that, earlier in his speech at p. 530, Lord Hope had held that, in exercising his discretion in relation to section 53(1) detainees the Secretary of State was obliged to have regard to the requirement of section 44. At all events, we find it quite impossible to infer that, had the tariff of detainees in the position of Thompson and Venables been judicially determined, Lord Hope would have held that there was no requirement to keep their cases under review. Such a conclusion would have been incompatible with the reasoning in the remainder of his speech, to which we now turn.

Just before the passage relied upon by Mr Pannick, Lord Hope expressed the following views:

“… the sentence of detention during Her Majesty’s pleasure is a separate and distinct sentence from that of life imprisonment. It recognises the special characteristics of the young offender, and especially of the child offender. There is built into the sentence a measure of leniency in view of the age of the offender at the time of the offence. The measure of that leniency is that, in his case, in the working-out of the sentence punishment and welfare, present and future, are both equally relevant. He is to be detained without limit of time, but expressly on terms which do not deprive him of his liberty for the rest of his days.”

…

“this means that the child’s progress and development while in custody, as well as the requirements of punishment, must be kept under review throughout the sentence. A policy which ignores at any stage the child’s development and progress while in custody as a factor relevant to his eventual release date is an unlawful policy. The practice of fixing the penal element as applied to adult mandatory life prisoners, which has no regard to the development and progress of the prisoner during this period, cannot be reconciled with the requirement to keep the protection and welfare of the child under review throughout the period while he is in custody.”

Lord Hope went on to reject the argument that the provisions of the 1991 Act entitled the Secretary of State to apply the same criteria when exercising his discretion in relation to the relief of a life prisoner as had to be exercised in relation to a young person detained during Her Majesty’s pleasure. In the latter case Lord Hope emphasised repeatedly the obligation to review the progress made by the young offender. Thus at p. 534 he said:

“It is the concept of continuing review, with the prospect of rehabilitation and release from custody at some time in the future, albeit on life licence, which marks this sentence out for the application of different criteria from the sentence of life imprisonment.”

Lord Hope concluded at p. 536:

“It is not necessary in this case to consider whether the tariff approach in its current form is objectionable where adult mandatory life prisoners are concerned. The objection with which we have to deal applies only in the case of children and young persons, whose sentence is one of detention under section 53(1) of the Act of 1933. The younger the child the more objectionable it becomes, because the factors which favour special treatment in their case grow stronger the closer they were to the minimum age of criminal responsibility when the offence was committed. The tariff as applied to them fails to recognise that the welfare of the child, in the light of progress and developments while in custody, may require consideration of his case by the Parole Board at an earlier date than would otherwise be indicated by the application to his case of a fixed period in respect of the penal element. The contrast between the flexibility which regard for the protection and welfare of the child requires and the rigidity of the policy indicates the reason for regarding the policy, as it was applied in this case, as unlawful.”

The reasoning of Lord Steyn was consistent with that of Lord Browne-Wilkinson and Lord Hope. He started at p. 518 by expressing his conclusions in relation to the principal issues, which included the following:

“A sentence of detention during Her Majesty’s pleasure requires the Home Secretary to decide from to time, taking into account the punitive element, whether detention is still justified.”

Lord Steyn went on to consider the history of the sentence of detention during Her Majesty’s pleasure. He concluded that, when the sentence was introduced in 1908 it reflected a general policy of treating young offenders quite differently from older ones. Lord Steyn held at p. 522 that, prior to 1991:

“The new philosophy which was adopted in 1908 has therefore repeatedly been reaffirmed by Parliament. The effect of the relevant legislation is as follows. Parliament differentiated between the two sentences. An order of detention during her Majesty’s pleasure involves merely an authority to detain indefinitely. That means that the Home Secretary must decide from time to time, taking into account the punitive element, whether detention is still justified. Life imprisonment involves an order of custody for life. That means, as the Home Office has interpreted the sentence of mandatory life imprisonment, that the Home Secretary must consider whether and when release is justified. These are obviously wholly different approaches.”

Lord Steyn went on to hold that the 1991 legislation made procedural changes, but did not alter the essential nature of a sentence of detention during Her Majesty’s pleasure.

A common theme runs through the speeches of Lord Browne-Wilkinson and Lord Hope. The requirements of the welfare of the offender must be taken into account when deciding for how long a young person sentenced to detention during Her Majesty’s pleasure should remain in custody. Those requirements will change, depending upon the development of that young person while in custody. Accordingly, even if a provisional tariff is set to reflect the elements of punishment and deterrence, the position of the offender must be kept under a review in case the requirements of his welfare justify release before the provisional tariff period has expired. This reasoning does not depend upon who it is who determines the original tariff. The fact that the tariffs in the transitional cases have been subject to review by the Lord Chief Justice, whose recommendations the Secretary of State has undertaken to accept, does not affect the position. The position of these young offenders must still be kept under review in order to consider whether the facts of the individual case justify release before the tariff period has been completed.

The findings of the Divisional Court accorded with this conclusion. Accordingly we would dismiss the appeal of the Secretary of State in Smith against those findings.

The first two additional issues that arise in the case of Dudson are procedural. Should the Lord Chief Justice have afforded Dudson an oral hearing when reviewing his tariff? If so, did he waive his right to an oral hearing? The third issue is substantive – did the Lord Chief Justice err in recommending that Dudson’s tariff should be reduced by no more than two years?

The object of the tariff review conducted by the Lord Chief Justice was to carry out a sentencing exercise which satisfied the requirements of Article 6 of the Human Rights Convention, in place of that originally carried out. The defect in the original exercise, as identified in T and V v United Kingdom was that the tariff had been fixed by the Secretary of State, rather than by a judicial tribunal. Mr Owen submitted, however, that Article 6 imposed a further obligation on the sentencing exercise: Dudson was entitled to an oral hearing when his tariff was fixed.

The material part of Article 6 provides:

1.

In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law. Judgment shall be pronounced publicly…

Mr Owen argued that these provisions applied both to the determination of guilt and to the sentencing process, and that the Lord Chief Justice had failed to grant those representing Dudson the right to make oral submissions that is implicit in the right to a public hearing.

The Divisional Court rejected this submission. In doing so it treated as applicable Strasbourg jurisprudence dealing with the position of an appellate court conducting an appeal against sentence. Before us Mr Sales supported this approach. He argued that, while the exercise performed by the Lord Chief Justice was sui generis, it most closely resembled an appellate process. Mr Owen argued that the whole point of the exercise was that there should be a fresh sentencing procedure that was fully compliant with Article 6(1) and that the Strasbourg jurisprudence demonstrated that this had to be an oral hearing.

So far as the nature of the exercise is concerned, Mr Sales was plainly correct to submit that it was sui generis. The Lord Chief Justice was carrying out a fresh appraisal of the appropriate tariff in the light of the observations of the House of Lords in Venables. In practical effect the exercise had much in common with an appeal, albeit that the Lord Chief Justice was coming to the matter afresh and having regard, among other matters, to the progress made by Dudson while in detention.

The Divisional Court held, on the basis of the Strasbourg jurisprudence, that an oral hearing was only necessary if, on the facts, fairness required this. They went on to hold that fairness did not require an oral hearing in this case. There was no requirement for evidence to be led and submissions could be, and were, adequately advanced in writing.

Strasbourg jurisprudence on this point is a little sparse. Mr Owen relied upon Collozza v Italy (1985) 7 EHRR 516. In that case the ECtHR held that the trial of a defendant, conviction and sentence to 6 years imprisonment, all in his absence, violated Article 6(1). We do not find this decision of much assistance in the present case, which is concerned with a sentencing exercise in relation to a defendant who played a full part in his trial and initial sentencing.

Mr Sales relied on Botten v Norway (2001) 32 EHRR 3. In that case the Norwegian Supreme Court reversed a decision of the City Court acquitting the applicant of criminal neglect of duty and sentenced him to a short suspended period of imprisonment and a fine. He was represented before the Supreme Court by counsel, but was refused the right to appear in person. The ECtHR held that, in these circumstances Article 6(1) had been violated. It stated, however, that the application of Article 6 before courts of appeal depended upon the special features of the proceedings. There was no automatic right to a public hearing or to be present in person. Insofar as the approach in this case can be applied to the special exercise being carried out by the Lord Chief Justice, this decision supports the submission that there was no automatic right to a public hearing.

Mr Sales also relied on Goc v Turkey – application 36590/97, 11 July 2002. That case involved a decision at first instance in civil litigation in which judgment had been given in favour of the applicant on a claim for wrongful detention, but he had been refused the opportunity to describe his experiences at an oral hearing. The Grand Chamber held, by the narrow majority of 9 to 8, that the refusal to grant the applicant an oral hearing had violated Article 6. The Divisional Court held that this decision underlined the need to examine closely the nature of the proceedings under consideration before deciding whether Article 6 involved the right to an oral hearing. Mr Sales submitted that the decision was a strong indicator that no oral hearing was required before the Lord Chief Justice in the present context.

The majority and the minority were agreed in this case that Article 6 required an oral hearing, in the absence of ‘exceptional circumstances’. They disagreed as to the application of this test. We find the value of this case in the following passage in the judgment of the minority at p. 20:

“That case-law lays down three criteria for determining whether there are “exceptional circumstances” which justify dispensing with a public hearing: there must be no factual or legal issue which requires a hearing; the questions which the court is required to answer must be limited in scope and no public interest must be at stake. In the present case these three conditions were satisfied.”

By far the most relevant Strasbourg decision is Easterbrook v United Kingdom application 48015/99, 12 June 2003. The background to that case was an unreported decision of the Court of Appeal – R v Secretary of State for the Home Department ex parte Ronald Leonard Easterbrook (22^nd March 1999). The Court of Appeal rejected an application for judicial review of a decision of the Secretary of State to re-fix the tariff of the applicant, an adult serving a discretionary life sentence imposed prior to the 1991 Act, at 12½ years. That tariff accorded with the advice of the Lord Chief Justice that the tariff should be re-fixed at 12 to 13 years. One ground upon which the applicant challenged this tariff was that, in advising the Secretary of State the Lord Chief Justice was performing an act equivalent to sentencing and that the applicant should have been permitted to make oral submissions. Article 6(1) of the Convention was relied upon, although this had not then been incorporated into English law.

In rejecting the application, Lord Woolf MR said:

“In coming to that conclusion I bear in mind that the argument is not based upon any dispute as to the facts which an oral hearing would have helped to clarify. The facts in this case were not in issue. Mr Easterbrook had had an opportunity of advancing oral submissions before the judge as to matters which were relevant to sentence and also on the oral hearing before the Court of Appeal. The Lord Chief Justice had the benefit of the full and well drafted submissions to which I have already made reference. I do not believe that an oral hearing could have provided anything which would have influenced the Lord Chief Justice to come to a different conclusion.”

The ECtHR summarised the applicant’s submissions at paragraph 24 as follows:

“24.

The applicant complained of the procedure by which his tariff was set after considerable delay by the Secretary of State. He submitted that it was contrary to Article 6(1) for the decision to set the tariff to be taken by the executive in an administrative procedure and not by the judiciary. The decision by the tribunal for the purpose of this provision should be legally binding rather than purely advisory. The procedure was also fundamentally flawed as it failed to provide for a public hearing. It was irrelevant to that failure that his tariff had now expired.”

The Court held that there had been a breach of Article 6.1 regarding the procedure adopted in fixing the applicant’s tariff, observing at paragraph 28:

“The Court would observe that the sentencing exercise carried out in criminal cases must necessarily be carried out by an independent and impartial tribunal, namely, a court offering guarantees and procedure of a judicial nature. It was not a court that fixed the applicant’s tariff in a public, adversarial hearing and in the circumstances it is not sufficient to satisfy the fundamental principle relating to the separation of powers that the member of the executive who issued the decision was guided by judicial opinion.”

The Divisional Court concluded that it was the failure to observe the separation of powers that lay at the heart of the ECtHR’s decision rather than the absence of a further adversarial hearing. The decision was no authority for the proposition that in every case where a tariff fixing exercise is carried out there must be an oral hearing. There was nothing in the decision that was critical of the decision of the Court of Appeal on this point.

We agree that the failure to observe the separation of powers was the principal reason why the ECtHR held that the procedure had violated Article 6(1). Nonetheless the reference to ‘public adversarial hearing’ supports the proposition that, in general, sentencing must be carried out at a public hearing. The Strasbourg jurisprudence demonstrates that in order to satisfy Article 6.1 it is normally necessary for a criminal sentence to be determined at a public hearing. Exceptional circumstances may, however, show that this is unnecessary.

The task undertaken by the Lord Chief Justice of reviewing the tariffs of those young persons who were detained during Her Majesty’s pleasure satisfied many of the criteria identified by the minority in Goc v Turkey as constituting ‘exceptional circumstances’ that dispensed with the need for an oral hearing. It was a routine task that involved considering progress reports and representations that could adequately be made in writing. Could it be said that no public interest was at stake? It seems to us that the public interest militated against an oral hearing. The task of reviewing the transitional cases was a very substantial burden undertaken by the Lord Chief Justice, to be performed in addition to his existing heavy judicial duties. If he had granted detainees oral hearings, the completion of the task would have been greatly delayed. Having regard to the nature of the exercise, we consider that the procedure adopted by the Lord Chief Justice was in both the public interest and the interest of the individual detainees.

Although this issue did not strictly arise, the Divisional Court addressed it and we propose to do so also. It is common ground that to waive any right to an oral hearing Dudson had to act in a way that clearly and unequivocally indicated that he was abandoning such right. The material facts are not in issue and we will adopt the Divisional Court’s summary of these.

On the 27^th July 2000 in his first Practice Statement the Lord Chief Justice made his procedure plain. He said:

“Before I make a recommendation to the Home Secretary, in both new and existing cases, I shall invite written representations from the detainee’s legal advisors and also from the Director of Public Prosecutions who may include representations on behalf of victims’ families…. I will announce my reasons in open court after taking into account any written representations I receive”.

The Claimant’s original detailed written submissions, of 11 August 2000, in its final paragraph, having contended that the tariff should be reduced to 12 years, submitted that the Claimant should be afforded an oral hearing of his case under the requirements of Article 6 if his submissions that a 12 year tariff was appropriate were not to be accepted. The submissions asserted that the tariff fixing process was a sentencing exercise attracting the safeguards of Article 6 and concluded:

“… in the event that Mr Dudson’s tariff is not fixed at 12 years and he is not afforded an oral hearing we reserve the right to challenge the procedural aspects of this matter … .”

On the 2^nd July 2001 the solicitors wrote again expressing concern that there had been no decision for nearly a year and concluding:

“We would therefore be grateful for your confirmation that our concerns will be conveyed to the Lord Chief Justice and that a decision will be forthcoming imminently. If we do not hear from you in the next 21 days we reserve the right to issue proceedings requiring a decision to be made without further notice”.

On 14^th August 2001 the Claimant was sent a large amount of material which included prison reports and victim’s family statements. The memorandum covering these documents stated:

“Any comments that you or your legal representatives may have on the material from the CPS, the attached prison reports or the new report referred to above must be sent to me within 2 months of date below. If no representations are received by that date your case will be referred to the Lord Chief Justice without further reference”.

On the 9^th November 2001 the Claimant’s solicitors sent their further tariff representation in written form dealing with the effect of the material that had been sent, suggesting the approach that should be taken to the family’s statements, and enclosing further reports on the Claimant from the prison where he was then held. Representation and submissions were then based on that material and the submissions concluded with the sentence:

“We would submit that the suggested tariff period of 12 years as set out in the earlier representations is appropriate in this case”.

Neither in these submissions nor in any other document did the claimant expressly withdraw or abandon his previous request for an oral hearing in the event that the Lord Chief Justice was not minded to reduce the tariff to the level suggested by him.

The Divisional Court concluded that the demand for an imminent decision in the letter of July 2 was inconsistent with the maintenance of a demand for an oral hearing and that the same was true of the response to the request in the letter of 14 August to submit comments in writing. The Court held that the correspondence as it developed indicated that Dudson was not maintaining but was abandoning his originally stated aim of achieving an oral hearing unless his own tariff figure was adopted. Here again we part company with the Divisional Court. At the outset those acting for Dudson had made it plain that he sought an oral hearing if his suggested tariff was not adopted. The Lord Chief Justice, for his part, made it plain that he was only seeking submissions in writing. We do not consider the fact that those acting for Dudson thereafter called for a speedy decision from the Lord Chief Justice and complied with the request to make submissions in writing amounted to a clear and unequivocal waiver of their request for an oral hearing if Dudson’s tariff was not fixed at 12 years.

Had we concluded that Dudson was denied a right to an oral hearing in violation of Article 6.1, we would not have considered it appropriate to grant him any substantive relief. He has now, before the Divisional Court and this court, been able to advance detailed oral submissions in relation to the manner in which the period that he should remain in detention should be determined. It is an irony that, as we shall show, the submissions of principle that he has made to us have differed from those which he advanced in writing to the Lord Chief Justice and which he wished to support with oral argument. The lack of an oral hearing before the Lord Chief Justice has caused him no prejudice.

Mr Owen’s submissions to us as to the approach which the Lord Chief Justice should have adopted when fixing Dudson’s tariff differ from those that he made to the Divisional Court. These accorded with the submissions made in writing to the Lord Chief Justice himself. Before the Divisional Court Mr Owen argued that the Lord Chief Justice ought to have fixed the “shortest possible” tariff that it would be appropriate for Dudson to serve by way of retribution and deterrence on the premise that he made exceptional progress while in detention to an extent that was not foreseeable. There would be no review while this tariff was being served. Once the tariff was served, it would be for the Parole Board to decide when his release was justified, having regard to considerations which included the young person’s welfare. This submission was founded on the observations of Lord Browne-Wilkinson in Venables, to which we have referred in paragraph 56 above.

Before us Mr Owen’s submissions, which were made in writing jointly with those of Mr Fitzgerald on behalf of Smith, proceeded on the basis that the tariff would be subject to periodic review while it was being served. Those submissions were as follows:

“a.

Any “provisional” tariff in the case of a s.53(1) prisoner must take into account the additional factor, uniquely applicable to such a sentence, namely the need for flexibility in the treatment of the child in order to vindicate the welfare principle. This requires the trial judge (and the LCJ in a transitional case) to set the lowest minimum tariff so as to ensure that at the earliest possible moment, compatible with the foreseeable requirements of welfare balanced against retribution/deterrence, the case comes under the consideration of the Parole Board who can balance the relevant factors including the development and progress of the child.

b.

It is accepted that when setting the provisional tariff at the lowest minimum level, the trial judge can only take into account reasonably foreseeable welfare considerations (e.g. a concern about the potentially damaging effects of exposure to the YOI system or the adult prison estate).

c.

in the case of the Lord Chief Justice’s task of re-determining tariffs in the light of V v UK, the obligation to set a tariff at the lowest minimum level can not logically be affected by the fact that the vast majority of prisoners who benefit from this re-determination will be above the age when further, exceptional progress can be reasonably be foreseen and anticipated. In effect, the Lord Chief Justice is re-exercising the discretion that should have been exercised at the time of the original sentence, though he may take account of actual progress that has occurred since then

d.

Because the judicially fixed, provisional tariff cannot take account of unforeseeable future events (e.g. future progress or development) the requirement of flexibility in the treatment of s.53(1) prisoners requires also that there be a mechanism for continuing review of all such individuals so that, in an appropriate case, a provisional tariff may be reduced to reflect an appropriate re-balancing of the welfare requirement against the requirements of retribution and deterrence.

e.

Unless and until fresh legislation is in place, the Secretary of State must, at the very least, ensure that each s.53(1) prisoner is subject to continuing review of the appropriate length of his/her detention during the judicially set provisional tariff period.

f.

It is recognised that, in the long term, the exercise of continuing review should attract the guarantees of Articles 5(4) and 6(1) and thus that it must be conducted by an independent and impartial body.”

Despite this change in stance, Mr Owen has persisted in his contention that the Lord Chief Justice erred when fixing Dudson’s tariff. He submitted that the Lord Chief Justice took as his starting point the tariff set by the trial judge. This tariff, on Mr Owen’s submission, was necessarily too high because it was fixed before the decision of the House of Lords in Venables. Until that decision it was not appreciated that, when fixing the tariff of a young person, the court was obliged to take into account the welfare of that person.

This submission requires consideration of the approach adopted by the Lord Chief Justice. In his Practice Statement of 27 July 2000 the Lord Chief Justice announced the principles upon which he would carry out his review of tariffs that had been imposed in transitional cases. His starting point would be the appropriate tariff in the case of an adult convicted of murder. This would then be adjusted to reflect aggravating and mitigating factors. Foremost of the latter was the age of the offender. No mention was made of attaching any significance to the tariff originally fixed.

In accordance with the practice announced in that Statement, the Lord Chief Justice gave his decision in relation to Dudson’s tariff in open court. He summarised the facts of the offence and referred to the fact that the trial judge had recommended a tariff of 18 years for Dudson and 25 years for his adult co-defendants. He went on to deal with reports of Dudson’s post-conviction behaviour and to refer to representations made on behalf of Dudson and on behalf of his victim’s family. He ended with this conclusion:

“Although I do not question the tariff which was set, Dudson has made significant progress in detention and it is possible to recognise this by reducing the tariff to 16 years.”

It is upon this last statement that Mr Owen bases his contention that the Lord Chief Justice took as his starting point the original tariff.

We do not accept that the decision of the Lord Chief Justice indicates that he took as his starting point the tariff recommended by the trial judge. There is no basis for concluding that the Lord Chief Justice did other than give fresh consideration to the appropriate tariff, in accordance with his Practice Statement. The statement at the end of his decision indicates, so it seems to us, that having done so he concluded that the trial judge’s recommendation was an appropriate one at the time that he made it. We can see no reason for challenging that conclusion, nor did the Divisional Court.

The Divisional Court commented:

“Mr Owen’s starting point, and certainly that of his instructing solicitors, is that in 1993 Potts J, the then Lord Chief Justice and the Secretary of State all erred because when setting the claimant’s tariff at 18 years they failed to have regard for the welfare of the offender as required by section 44(1) of the 1993 Act. We see no evidence of any such oversight. The sentencing judge said that he took the view that there was nothing to choose between the other co-accused and continued “ Dudson, much younger, was corrupted by the others but played an active part in the torture and killing”. No credit could be given for a plea, all of the defendants took drugs, and the trial judge concluded: “ this case was so appalling as to require severe sentences to meet the requirements of retribution and deterrence.” Against that background it seems to us that the fact the trial judge recommended a tariff of 18 years for the 17 ½ year old claimant as compared with the tariffs of 25 years which he recommended for the co-accused shows that he gave considerable weight to the claimant’s youth and his welfare, as well as to the corruption to which he referred. ”

To the Divisional Court’s comment we would add this. Where a tariff is fixed at the end of a trial there are conceptual difficulties in having regard to the welfare of the defendant when fixing a tariff to reflect the elements of retribution and deterrence. The Advice to the Court of Appeal of the Sentencing Advisory Panel of April 2002 recommended as a starting point for the tariff in the case of young persons convicted of murder a sliding scale, reducing the appropriate tariff for an adult according to the age of the young person. It ended with the cryptic comment:

“The welfare needs of the offender would also come into the equation, and would be of particular importance for those offenders who were only just above the age of criminal responsibility.”

That Advice was given on the premise that there would not be periodic reviews of tariffs imposed on young persons. In his Practice Statement of 31 May 2002 Lord Woolf referred to the Secretary of State’s view that the requirement for periodic reviews of the welfare of young persons detained during Her Majesty’s pleasure as laid down by the House of Lords in Venables did not apply to tariffs fixed judicially and ended with this comment:

“It has been suggested that in these circumstances section 44(1) of the 1933 Act requires judges to fix the lowest possible minimum term so as to ensure the Parole Board will consider the case at the correct time if a child happens to make exceptional progress. It is recommended that this suggestion is not followed although it is appreciated that the Home Secretary’s view means that apparently exceptional progress by a child while in detention will not influence the date his case is considered by the Parole Board.”

The reality is that the requirements of the welfare of the individual detainee will largely depend upon the manner in which he develops in the course of his detention. This cannot be predicted and allowed for at the time that the original tariff is fixed. If it is properly to be taken into account, this can only be done on the basis of periodic reviews.

For the reasons that we have given we reject the challenge made on the part of Dudson to the manner in which his tariff was set by the Lord Chief Justice.

This judgment is an additional chapter in a history that does no credit to English criminal law. The confusion that it illustrates has been due, in part, to the fact that the mandatory sentence of life imprisonment for murder has concealed the fact that, in reality, determinate sentences are imposed for that offence. So far as the sentence of detention during Her Majesty’s pleasure is concerned, the basic problem has been that this sentence, which confers on the executive a discretion as to how long a young person remains in detention, is not compatible with the requirements of Article 6.1 of the Human Rights Convention. In an attempt to make our law compliant in practice, the Secretary of State has been obliged to fetter the discretion conferred on him by the legislation by delegating its exercise to the judiciary.

This judgment leaves unresolved a number of issues, although it may suggest some answers to them. Does Venables apply to the regime introduced by the 2000 legislation? Do reviews of tariffs of young persons have to be conducted by a judicial tribunal rather than by the Secretary of State? Mr Pannick conceded that this question might well fall to be answered in the affirmative, but urged that we should leave it to the Secretary of State to put in place appropriate arrangements for such reviews as the law required. Neither Mr Fitzgerald nor Mr Owen demurred to this suggestion and we did not hear argument on the point. Accordingly we have not addressed it in this judgment.

An outstanding issue of principle may remain in relation to the anomaly identified in the difference in treatment of young persons sentenced to be detained during Her Majesty’s pleasure, and young persons sentenced to determinate sentences. Further legislation may well prove necessary. It is certainly desirable. The legislative history that we have outlined has culminated in a maze of statutory provisions that are almost impenetrable.

This country is a party to the United Nations Convention on the Rights of a Child. Article 37 (b) of this provides:

“The arrest, detention or imprisonment of a child shall be in conformity with the law and shall be used only as a measure of last resort and for the shortest appropriate period of time.”

This requirement is a further relevant consideration if legislative changes are to be considered.

Appeal against the order of Kennedy LJ and Mitchell J of 3 April 2003 be dismissed.

The costs of the claim of the claim and appeal be subject to detailed assessment if not agreed and paid by the appellants to respondent.

The costs of the respondent be subject to a detailed Community Legal Service Funding Assessment.

The appellant’s appeal against the order of Kennedy LJ and MacKay J of 21 November 2003 be dismissed.

No order as to costs.

The costs of the appellant be subject to detailed Legal Service Funding Assessment.

Application of Secretary of State for permission to appeal to the House of Lords refused.