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:

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:

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:

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:

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]:

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

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

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

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:

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:

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:

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:

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:

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:

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,:

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:

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:

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:

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

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:

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:

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:

Lord Browne-Wilkinson continued at pp 498-9:

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

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:

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:

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:

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:

Lord Hope concluded at p. 536:

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:

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:

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:

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:

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:

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

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 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:

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:

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:

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:

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:

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:

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:

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.