Smith, R (on the application of) v Secretary of State for the Home Department

The issue which arises in this case relates only to offenders under the age of eighteen convicted of murder and sentenced prior to 30^th November 2000 pursuant to section 53(1) of the Children and Young Persons Act 1933 (or section 90(1) Powers of Criminal Courts (Sentencing) Act 2000) to be detained during Her Majesty’s pleasure. The question we have to consider is whether after the Secretary of State has, in accordance with the recommendation of the Lord Chief Justice, decided upon a period of detention to be served before the case is referred to the Parole Board he is under any continuing obligation to review his decision from time to time to see if there has been such progress on the part of the offender as would warrant a reduction in the period.

On 16^th July 1992 the claimant, then known as Maria Rossi and her co-accused Marie Molloy murdered Edna Philpott. It was a brutal murder of a 70 year old partially sighted woman in her own home by two young women who the sentencing judge described as “evil products of the modern age.” They were both high on drink and drugs and inflicted appalling injuries on Miss Philpott before ransacking her home. They pleaded guilty at Cardiff Crown Court on 8^th March 1993 and, both being under the age of eighteen, they received the same sentence. When exercising its powers the court was required by section 44(1) of the 1933 Act to have regard to the welfare of the defendants, but as the provisions of section 53(1) were mandatory the trial judge could only give effect to section 44 when deciding what recommendation he should make as to the period to be served to satisfy the requirements of retribution and deterrence.

The trial judge recommended a tariff of 16 years in relation to each offender, the Lord Chief Justice recommended 14 years, and in June 1993 the Secretary of State set the tariff at 15 years in each case. That was the period to elapse before their cases were considered for parole pursuant to part II of the Criminal Justice Act 1991.

The sentence of “detention during Her Majesty’s pleasure” originates in section 103 of the Children Act 1908. As in the case of its successor (section 53(1) of the Children and Young Persons Act 1933) the Act provides for detention “in such place and under such conditions as the Secretary of State may direct……”. Each Act provided for discharge “at any time” on licence (section 105(1) of the 1908 Act and section 53(4) of the 1933 Act). Thus the executive determined the actual length of detention and did so by reference to the offender’s progress. Prior to 1983 there was no tariff element (or minimum punitive period) in this sentence.

In 1983 the Secretary of State had indicated in a statement that after a tariff had been set the case would be reviewed at intervals not exceeding three years. That would enable the Secretary of State to consider any special circumstances or exceptional progress which might justify changing the review date. In the same statement the Secretary of State indicated that adult offenders convicted of some serious offences would not be considered for parole until they had served a substantial period in custody. That adversely affected a life sentence prisoner named Hogben who was about to be considered for parole, and on his behalf Mr Fitzgerald QC submitted to the European Commission that the change of policy by the Secretary of State contravened Article 7 of the European Convention on Human Rights in that it imposed on him a penalty that was harsher than that imposed at the time of sentence and applicable at the time of his crime. That submission was rejected by the Commission, which pointed out that the penalty for the offence was always life imprisonment, so no issue under Article 7 arose. Although the change of policy “may give rise to the result that his imprisonment is effectively harsher than if he had been eligible for release on parole at an earlier stage, such matters relate to the execution of the sentence as opposed as to the “penalty” which remains that of life imprisonment. Accordingly it cannot be said that the “penalty” imposed is a heavier one than that imposed by the trial judge.” (Hogben v UK App. No. 11653/85:46 DR 231).

A successor Secretary of State in a statement to Parliament made on 27^th July 1993 (4 months after the present claimant was sentenced) adopted a more restrictive position, saying that in making any change to the tariff period he would only have regard to matters relevant to the circumstances of the crime or the applicant’s state of mind when the offence was committed. He would not in any circumstances vary the tariff by reason of events occurring after the commission of the crime. Thus the possibility of the tariff period being reduced by the Secretary of State as a result of exceptional progress by the offender after the imposition of the sentence disappeared.

That policy initiated in 1993 was challenged in the courts, and on 12^th June 1997 the House of Lords gave judgment in R v Home Secretary ex parte Venables [1998] AC 407. By a majority of 3 to 2 it was held that whereas the Secretary of State might in his discretion set a provisional tariff as to the period of detention to be served by a young offender by way of punishment and deterrence, the policy adopted in 1993 was unlawful because it did not allow for any reduction in the tariff by reason of exceptional progress, and thus failed properly to take account of the provisions of section 44 of the 1933 Act.

For present purposes it is necessary to look with some care at the reasoning, especially of those who were in the majority. In the Court of Appeal it had been questioned whether the Secretary of State was entitled to adopt any tariff policy when dealing with children sentenced to be detained during Her Majesty’s pleasure. But Lord Browne-Wilkinson at 394H said that was not decisive.

“What is crucial is whether the particular policy adopted is, in relation to children, sufficiently flexible to permit the Secretary of State to take into account all those factors to which he ought to have regard in exercising his discretion in relation to children if he is to act lawfully.”

He then set out the developing policy to which I have referred and the obligation on the Secretary of State to have regard to the provisions of section 44(1) of the 1933 Act. He had a statutory discretionary power in relation to the referral of any section 53(1) case to the Parole Board, and in principle the future exercise of such a power should not be fettered.

As to the 1993 policy the legality of that policy depended on the character of a sentence of detention during Her Majesty’s pleasure. It is not a life sentence. It is a sentence which lasts so long as Her Majesty (i.e. the Secretary of State) considers appropriate, so at 498G Lord Browne-Wilkinson said –

“In cases of detention during Her Majesty’s pleasure the duty of the Secretary of State is to decide how long the detention is to last, not to determine whether or not to release prematurely a person on whom the sentence of the court is life imprisonment.”

The statutory developments since 1908, culminating in section 44(1) of the 1933 Act, show 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.”

At 499H Lord Browne-Wilkinson continued –

“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 during 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.”

The 1993 policy was therefore found to be unlawful because, amongst other things, it precluded “any regard being had to how the child has progressed and matured during his detention until the tariff originally fixed has expired.”

Lord Browne-Wilkinson recognised the anomaly that a child sentenced to detention for life as a matter of discretion under section 53(2) of the 1933 Act had his or her tariff period fixed by the trial judge, and that period could not later be varied by the judge or by the Secretary of State. The duty of the trial judge to specify the tariff period was at that time spelt out in section 34(2) of the Criminal Justice Act 1991. Because the sentence was discretionary, and because the judge had to have regard to section 44(1) of the 1933 Act, Lord Browne-Wilkinson said at 502E that when imposing a tariff the judge “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.”

Lord Steyn also pointed to the distinction between life imprisonment and detention during Her Majesty’s pleasure, saying at 522H –

“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.”

Similarly Lord Hope at 532C said that in the case of a mandatory life sentence the discretion of the Secretary of State is to bring custody to an end –

“In the case of the detainee during Her Majesty’s pleasure, it is a discretion to continue custody for as long, but only for as long, as this is appropriate. 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.”

That was what in his judgment made the 1933 policy unlawful. Like Lord Browne-Wilkinson he recognised the apparent anomaly created by determinate sentences passed on young offenders and by the application of part II of the 1991 Act to sentences imposed under section 53(2) of the 1933 Act, saying at 532E –

“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 for 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 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 State 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 decides 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.”

On 10^th November 1997, in response to the decision of the House of Lords, the Secretary of State in answer to a Parliamentary question said that he would be prepared periodically to review the tariffs in relation to sentences imposed under section 53(1) before the tariff period expired, and on 13^th April 1999 the Secretary of State re-fixed the claimant’s tariff at 13 years. Her co-defendant’s tariff period was also re-fixed at 13 years in January 2000. The statutory relevant provision giving the Secretary of State the personal discretion to determine the minimum period an HMP detainee must serve in detention before review by the Parole Board is section 28(4) of the Crime (Sentences) Act 1997 which requires the Secretary of State to direct that section 28 applies to a person in the position of the claimant “as soon as he has served a part of his sentence specified in the direction”.

In Browne v The Queen [2000] 1 AC 45 the Privy Council considered an appeal by an appellant convicted of murder in St Christopher and Nevis when aged 16 and sentenced to be “detained until the pleasure of the Governor General be known”. That sentence was found to be unconstitutional because the decision as to the length of sentence was entrusted to the executive and not the judiciary. It should have been during the court’s pleasure, and “during pleasure” was said by Lord Hobhouse at 50f to be “not a once and for all assessment that is made at the time that the defendant is first before the court after his conviction.” That mirrored an approach adopted by the Irish Supreme Court in The State v O’Brien [1973] IR 50, to which Lord Hobhouse referred.

In 1999 in the European Court of Human Rights there was a challenge to the power of the Secretary of State to set a tariff where sentence was imposed pursuant to section 53(1). The setting of the tariff was found in V v UK (1999) 30 EHRR 121 to be a sentencing exercise which failed to comply with Article 6(1) of the European Convention in that the decision maker was the Secretary of State rather than a court or tribunal independent of the executive.

On 13^th March 2000, in response to the decision of the European Court, the Secretary of State announced to Parliament that he would bring forward legislation to provide for tariffs to be set by trial judges in open court, as they were already being set for adults subject to discretionary life sentences. He went on to deal with those sentenced as juveniles and currently detained during Her Majesty’s pleasure, a class which included the present claimant, and said that for them he would set fresh tariffs in line with the recommendation of the Lord Chief Justice, who would consider any representations made to him.

As envisaged, section 82A of the Powers of Criminal Courts (Sentencing) Act 2000, (which was introduced into that Act by section 60 of the Criminal Justice and Court Services Act 2000) made provisions for judges to set tariffs with effect from 30^th November 2000, hence the reference to that date in the first paragraph of this judgment. There may be problems in relation to the interpretation and application of that section, but if so they are not matters we have to consider in this case.

On 21^st November 2001 the Lord Chief Justice, having considered representations addressed to him in relation to the claimant and her co-defendant, found no grounds for reducing the tariff in the case of the claimant. It therefore remained at 13 years. In the case of Molloy the tariff was reduced to 12 years, but the Lord Chief Justice said that he regarded it as the responsibility of the Secretary of State to undertake any further monitoring of the claimant’s case that the law requires, and expressed the hope that the Secretary of State would keep the claimant’s case under review.

On 31^st May 2002 the Lord Chief Justice handed down a Practice Statement [2002] 1 WLR 1789 in relation to life sentences. It began by abandoning the use of the word tariff in favour of minimum term, and after referring to paragraph 26 of the speech of Lord Browne-Wilkinson in Venables the statement continues in paragraph 27 –

“The Home Secretary does not consider that this statement as to his responsibility is relevant now that the minimum term is set by the trial judge. The trial judge can only act on the information before him in taking into account the welfare of the child at the time he announces the minimum term. It has been suggested that in these circumstances section 44(1) of the 1933 Act requires judges to fix the lowest possible 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.”

Solicitors acting for the claimant had already submitted to the Secretary of State that the policy set out in March 2000 in relation to transitional cases was flawed in that it did not provide for any further review of a tariff or minimum term after it was fixed by the Secretary of State in accordance with the recommendation of the Lord Chief Justice, and the solicitors sought a further review. The response of the Secretary of State was in a letter from the Prison Service dated 10^th June 2002. It asserted that the decision of the House of Lords in Venables was in relation to executively set tariffs, and could not be read across to judicially set tariffs. It further asserted that it is “entirely within the Home Secretary’s powers, both domestically and in accordance with the ECHR to adopt a transitional policy which accepts the Lord Chief Justice’s recommendations but permits for no further reviews.” The letter ended by stating that the Secretary of State “is not prepared further to review your client’s tariff following the recent review of her case by the Lord Chief Justice and the recommendation he made.” It is clear from the terms of the letter that the decision was in accordance with policy. There was no consideration of individual merits.

These proceedings were commenced on 26^th June 2002. In her Claim Form the claimant seeks judicial review of the policy set out in the statement of 13^th March 2000, and asks for a declaration that it is unlawful “to the extent that it makes no provisions for the further judicial review of an existing HMP detainee’s tariff after it has been fixed in accordance with the Lord Chief Justice’s recommendation.”

Mr Fitzgerald submits that although the claimant is now 28 years of age what matters is the nature of the sentence passed upon her. She was sentenced to be detained during Her Majesty’s pleasure, and therefore she enjoys the right to have her tariff or minimum period reviewed from time to time for all of the reasons spelt out by the majority in Venables. It is nothing to the point that the minimum period is now one set by the Secretary of State in accordance with a recommendation of the Lord Chief Justice because, under section 28(4) of the 1997 Act, it is still the Secretary of State who must direct, and when appropriate re-direct, what the minimum period shall be. In his speaking note Mr Fitzgerald put it thus –

“Under primary legislation the discretion remains his (i.e. that of the Secretary of State). He is entitled to seek the guidance of the judiciary, and to follow their views as to the maximum period that a detainee should spend in custody as punishment. But he cannot abdicate his discretion to consider the reduction of any period recommended by the judiciary for purely punitive purposes in the light of the detainee’s subsequent progress.”

Without going so far as to place much reliance on Article 7 of the Convention, Mr Fitzgerald submitted that to remove a right to periodic review would aggravate the claimant’s sentence. He did not adopt a suggestion apparently made by counsel advising the Lord Chief Justice that Article 8 (respect for private and family life) might be of some assistance to the claimant, and without having the benefit of argument on the matter it seems to me that Mr Fitzgerald was right not to seek to rely on Article 8.

We have before us two notes prepared by Mr Southey as counsel for an interested party, Anthony Dudson. In his first note Mr Southey draws attention to paragraph 27 of the Practice Statement of 31^st May 2002, and submits that it indicates a flawed approach to tariff setting as one way to take account of the obligation to have regard to welfare is for the tariff to be fixed at the lowest possible term, so that the welfare principle can then be applied by the Parole Board. Mr Southey goes on to submit that in order to comply with the European Convention any review should be carried out by a court. In his further note Mr Southey draws attention to Article 37(b) of the United Nations Convention on the Rights of the Child, but it is difficult to see what that Article adds to the existing requirements of English law as interpreted by the House of Lords, especially if those provisions have to be applied as Mr Fitzgerald submits.

Mr Pannick QC for the defendant submits that when Venables was before the House of Lords a critical factor was the fact that the Secretary of State set the tariff. Under section 82A of the 2000 Act it is the trial judge who must specify the minimum term. The Secretary of State has no part to play, and the Statement of 13^th March 2000 simply applied that principle to transitional cases. In passing Mr Pannick submitted that when setting a minimum term a judge takes into account future progress, but if the judge follows the Practice Statement it is clear that future progress not readily envisaged at the time of sentence will not be taken into account.

Mr Pannick went on to submit that to require re-assessment of the minimum or penal term by the Secretary of State by reference to progress made after sentence would make the treatment of those convicted of murder and sentenced pursuant to section 53(1) of the 1933 Act different from the treatment of all other offenders convicted of serious crimes who have no right to a review of their determinate sentences or of the minimum period specified in relation to a sentence imposed under section 53(2) – now section 91 of the Powers of the Criminal Courts (Sentencing) Act 2000. I agree, but that was the position when Venables was before the House of Lords, and what principally persuaded the majority of the House to decide as they did was the nature of the sentence imposed pursuant to section 53(1) when read together with the welfare obligation in section 44.

Mr Pannick went so far as to submit that when the speeches in Venables are properly analysed it becomes clear that their lordships were prepared to accept that no further review of a minimum term would be required if that term were set by a judge. Lord Goff and Lord Lloyd did not regard such a review as necessary even though the term was set by the Secretary of State, but Lord Hope, when dealing with the anomalous position of other young offenders in the passage set out above, did refer to the role of the sentencing judge, and his obligation to have due regard to the provisions of section 44. Similarly Lord Browne-Wilkinson at 502D made the same point, but neither, as it seems to me, was going as far as Mr Pannick suggests. They were simply offering a partial explanation of an apparent anomaly. Their reasons for deciding that the tariff period of sentences imposed under section 53(1) must remain subject to review were not related to who set the tariff, or to what was done in relation to other types of offender. For what it is worth I agree with Mr Pannick that there is an anomaly, and it may even be said that young murders have an advantage denied to other young offenders who commit grave crimes, but the anomaly is the same one that was recognised by the House of Lords, and without any relevant change in the legislation we can do nothing to resolve it.

Mr Pannick submits that for the claimant to rely on section 28(4) of the 1997 Act as against the defendant is unrealistic because the Secretary of State has now made it clear that he will follow the recommendations as to tariff of the Lord Chief Justice, and, as with other types of young offender, the Lord Chief Justice can recommend a minimum period which takes welfare into account. Cases such as Browne and O’Brien do not, it is said, directly address the situation where the penal part of the sentence has been set by a judge, and Article 7 is of no value to the claimant for the reasons explained in Hogben.

As Mr Pannick points out, the Lord Chief Justice did take account of the claimant’s progress to date when he made his recommendation in November 2001. She was then just 27 years of age, and by then the prospect of further exceptional improvement as a result of increasing maturity must have been a lot weaker. As to that I agree, but that does not impact upon her legal right to further review. Furthermore, as Mr Fitzgerald pointed out, if Mr Pannick is right a twelve year old offender who in 1999 was given a minimum term of ten years would not be entitled to any further review for another six years and that does seem to me to be very much at odds with everything that was said in Venables.

In my judgment Mr Fitzgerald is right for the reasons which he gave, and which I need not repeat. In substance the situation in relation to those sentenced prior to 30^th November 2000 is still governed by the decision of the House of Lords in Venables. However I would not be prepared to make the declaration sought because of the width of its terms. I would be prepared to say that so far as the claimant is concerned the Statement of 13^th March 2000 read together with the letter of 10^th June 2002, discloses an unlawful policy on the part of the Secretary of State in that he is not prepared to keep open the possibility of a further review by him of the claimant’s minimum term after that term was fixed in November 2001 in accordance with the recommendation of the Lord Chief Justice. In my judgment the provisions of section 28(4) of the 1997 Act require the Secretary of State to keep open that possibility for the reasons given in this judgment, and I would therefore grant relief to the extent that I have indicated. I doubt if anything more formal is required.

I agree.