QUEEN'S BENCH DIVISION
AMINISTRATIVE (DIVISIONAL) COURT
Strand, London, WC2A 2LL
B e f o r e :
MR JUSTICE MITCHELL
| The Queen on the application of Maria Smith|
|- and -|
|The Secretary of State for the Home Department|
David Pannick QC and Kate Gallafent (instructed by Treasury Solicitor) for the Secretary of State
Hugh Southey (instructed by Bhatt Murphy, London) representing Anthony Dudson, an Interested Party, did not attend.
Hearing dates: 24th March 2003
Crown Copyright ©
Lord Justice Kennedy:
Offence and Sentence.
Ex Parte Venables and Thompson.
"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.
"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."
"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."
1997 to 2000.
That triggers section 28(5), which provides that once the offender has served the part of his sentence specified in the order or direction and the Parole Board has directed his release it shall be the duty of the Secretary of State to release him on licence.
"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 10th 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.
"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.
Mr Justice Mitchell: