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

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

HOUSE OF LORDS

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

OPINIONS OF THE LORDS OF APPEAL FOR JUDGEMENT IN THE CAUSE

REGINA

v.

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

EX PARTE V.
(ORIGINAL RESPONDENT AND CROSS-APPELLANT

REGINA

v.

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

ON 12 JUNE 1997

LORD GOFF OF CHIEVELEY

My Lords,

The Sentence of the Judge

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

Before sentencing them, the judge said:

After sentencing them the judge continued, in their absence:

The Judge's Report to the Home Secretary

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

The advice of the Lord Chief Justice

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

The decision of the Home Secretary

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

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

The proceedings for judicial review

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

The decision of the Divisional Court

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

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

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

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

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

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

The appeal to the House of Lords

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

An overview

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

The relevant legislation: the Criminal Justice Act 1991.

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

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

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

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

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

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

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

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

a

b

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

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

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

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

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

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

The appeal of the Secretary of State

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

(1) Failure to disclose material.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

LORD BROWNE-WILKINSON

My Lords,

Introduction

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

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

The discretion to release

Although there is dispute as to the meaning of the sentence of detention "during Her Majesty's pleasure," no doubt surrounds the discretion of the Secretary of State to release such a prisoner. Under section 43(2) of the Criminal Justice Act 1991, the provisions of Part II of the Act of 1991 (relating to the release of adult prisoners serving life sentences) are made applicable to children who are serving sentences of detention during Her Majesty's pleasure. The Secretary of State may release the detained child if recommended to do so by the Parole Board and after consultation with the Lord Chief Justice and the trial judge if available: section 35(2) of the A1ct of 1991. Before the Parole Board can make any such recommendation, the Secretary of State has to refer the case to the Board for its advice: section 35(3) of the Act of 1991. Therefore the release of a child detained during Her Majesty's pleasure is wholly dependent on, first, the Secretary of State exercising a discretion whether or not to refer the case to the Parole Board and, second, the Secretary of State deciding whether or not to adopt any recommendation made by the Parole Board that the detained person should be released.

If the Secretary of State determines to release a person detained during Her Majesty's pleasure, such release is made on licence which may either be conditional or unconditional. If unconditional, the licence remains in force until his death unless, in the meantime, it has been revoked by the Secretary of State on one of the grounds laid down in section 39 of the Act of 1991: see section 37(3) of the Act of 1991. Under section 39(1) and (2) once the Secretary of State has released on licence, apart from cases of emergency, he can revoke that licence so as to recall the former detainee only upon the recommendation of the Parole Board. If the detainee is recalled, he has a right to have his case considered by the Board and, if the Board so recommends, to be released by the Secretary of State on licence.

Therefore the effect of a sentence of detention during Her Majesty's pleasure is:

(a) the child is to be detained for an indeterminate period, the duration of which is wholly within the discretion of the Home Secretary; and

(b) when the Home Secretary, on the recommendation of the Parole Board, releases the detainee on licence, the detainee is liable to be recalled throughout his life but such recall is subject to the decision of the Parole Board and not within the discretion of the Home Secretary.

The policy of the Secretary of State

(a) The tariff

Over the years, the Secretary of State has adopted a tariff policy in exercising his discretion whether to release adults who have been sentenced to life imprisonment. This was first publicly announced in Parliament by Mr. Leon Brittan on 30 November 1983. In essence, the tariff approach is this. The life sentence is broken down into component parts, viz., retribution, deterrence and protection of the public. The trial judge and the Lord Chief Justice advise the Secretary of State as to the sentence which would be appropriate for the crime having regard to the elements of retribution and deterrence. In the light of that advice (and not being in any way bound by it) the Secretary of State makes his own decision as to the minimum period which the prisoner will have to serve in order to satsify the requirements of retribution and deterrence. This is the tariff period. The policy provides that, until three years before the tariff period expires, the Secretary of State will not refer the case to the Parole Board for its advice as to whether the prisoner should or should not be released. Moreover, until the tariff period has expired the Secretary of State will not exercise his discretion to release on licence.

This basic approach to adult prisoners has developed over the years. In particular, as a result of the decision of the European Court of Human Rights in Thynne, Wilson and Gunnell v. United Kingdom 13 EHRR 666, a distinction has had to be drawn between murderers for whom the sentence of life imprisonment is mandatory under English law and others sentenced to life imprisonment where the sentence is not mandatory and has been imposed by the judge because he considers that the prisoner may, if released after a determinate sentence appropriate to the crime, present a continuing risk to society (a discretionary life sentence). The Strasbourg Court held that under Article 5(4) of the European Convention on Human Rights a discretionary life prisoner who had served the tariff period was entitled to have the question whether his continuing detention thereafter on the grounds of risk was justified determined by "a court." In order to comply with this decision, Part II of the Act of 1991 was passed by Parliament. It provides that the treatment of discretionary life prisoners is (to use an unpleasant but invaluable word) "judicialised." In the case of discretionary life prisoners, the tariff is fixed by the trial judge and the risk after expiry of the tariff period is determined by the Parole Board, to whom the Secretary of State is bound to refer the case. The Secretary of State is bound to release the discretionary life prisoner if the Parole Board so directs: see section 34.

However, in Thynne, a distinction was drawn between discretionary life prisoners and mandatory life prisoners. The Strasbourg decision in Thynne did not affect mandatory life prisoners: the Secretary of State's discretion as to their release is preserved by section 35 of the Act of 1991, as is his discretion whether or not to refer the case to the Parole Board. Since, under section 53(1) of the Act of 1933, it is mandatory to sentence a child murderer to detention during Her Majesty's pleasure, the effect of section 43 of the Act of 1991 is to preserve the Secretary of State's discretions in relation to a child detained during Her Majesty's pleasure.

It follows that it is within the Secretary of State's discretion whether or not to release both mandatory life prisoners and children detained during Her Majesty's pleasure. The statement to Parliament made by Mr. Howard, the Secretary of State, on 27 July 1993 made it clear that the tariff principle first enunciated publicly by Mr. Leon Brittan in 1983 would continue to apply to adults sentenced to mandatory life imprisonment. The tariff period (being the minimum period necessary to reflect the elements of retribution and deterrence) would be fixed by the Secretary of State at the beginning of the sentence after receiving judicial advice. The Secretary of State would then fix the date for the first review (i.e. the first reference of the matter to the Parole Board), as being a date three years before the expiry of the tariff. The statement emphasised that the tariff was only being fixed as an initial view. The Secretary of State said:

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

Up to this point, the Home Secretary's 1993 statement had been dealing with the release of adults sentenced to mandatory life imprisonment. However, at the end of this statement the Home Secretary said this:

Accordingly, the tariff system, whereby the punitive and deterrent element is set by the Secretary of State soon after the date of conviction, applies in just the same way to children sentenced to detention during Her Majesty's pleasure as it applies to adult murderers.

(b) Flexibility

There are passages in the Court of Appeal judgment which suggest that the only question in this case is whether the Secretary of State was entitled to adopt any tariff policy in dealing with children sentenced to be detained during Her Majesty's pleasure. In my judgment that is not the decisive point. What is crucial is whether the particular policy adopted is, in relation to children, sufficiently flexible to permit the Secretary of State to take into account all those factors to which he ought to have regard in exercising his discretion in relation to children if he is to act lawfully.

Mr. Leon Brittan's 1983 statement contained the following paragraph:

or exceptional progress

Thus under the 1983 policy statement it was clear, even in the case of adult life prisoners, that their position would be kept under tri-annual review and that the Secretary of State would consider any special circumstances "or exceptional progress" which might justify bringing forward the review date and hence the earlier release of the prisoner, i.e. the facts relating to the prisoner's behaviour after the commission of the offence could be taken into account. It was the presence of this flexibility which proved decisive in In re Findlay [1985] A.C. 318.

Policy in this regard seems to have changed since 1983. The passage from the Secretary of State's statement in 1993 which I have quoted refers to "exceptionally" revising the tariff period by "reducing it." However, it was made clear to your Lordships both from the evidence and in submissions that in making any change to the tariff period the Secretary of State would only have regard to matters relevant to the circumstances of the commission of the crime or the applicant's state of mind when the offence was committed. The Secretary of State would not in any circumstances vary the tariff period by reason of events occurring after the commission of the crime.

Therefore, under the policy applied by the Secretary of State to these applicants, the way in which they mature hereafter or behave is irrelevant: however they develop, the tariff period will remain fixed at a minimum of 15 years.

The consequences of the Secretary of State's decisions

The position of these applicants is therefore as follows. Although they were only 10½ years old at the date of the crime, until they have reached the age of 21 or 22 the Parole Board will not have an opportunity to consider their progress in detention. During that period they will have passed through puberty, adolescence and young manhood. Even when the Parole Board considers the matter, the applicants will not be released until the age of 24 or 25 at the earliest. For 12 years (that is to say, throughout their minorities) the welfare of the applicants themselves will be wholly irrelevant to the question of their release and will not be considered. The only exception to this will be if fresh facts emerge as to their state of mind when they were 10½ and committed the offence.

My Lords, it would be surprising if such a policy towards young children (however heinous their offence) is lawful in this country. As the speeches of my noble and learned friends Lord Steyn and Lord Hope of Craighead demonstrate, ever since the Children Act 1908 there has been legislation in this country requiring child offenders to be dealt with on a basis different from that applicable to adults. In the case of children, Parliament has directed that attention should be given not only to the requirements of punishment and protection of the public from risk but also to the welfare of the child offender. What was, in my view, tacit in the Act of 1908 was made explicit by section 44(1) of the Act of 1933 which provides:

That subsection is still in force and is one of the basic principles applicable to dealing with child offenders. It is clear from the statutory direction that in dealing with children (whether by sentencing or otherwise) a court is bound to take into account the welfare of the child. Mr. Pannick, for the Secretary of State, felt unable to contend that the Secretary of State in exercising his discretion in relation to child offenders was not under the same duty.
The relevant question

In these circumstances, the first question to be determined is whether the Secretary of State, by adopting a policy (not laid down by Parliament) which precludes both himself and the Parole Board from having any regard to the circumstances and welfare of the applicants for a period of 12 years, has acted within the discretionary powers conferred on him in relation to children detained during Her Majesty's pleasure. The answer to this question depends upon the following points:

(2) What are the factors relevant to the exercise of the discretion conferred on the Secretary of State in relation to children detained during Her Majesty's pleasure? and

(3) Did the Act of 1991 change the nature of that discretion?

I will consider these in turn.

Discretion and policy--the law

When Parliament confers a discretionary power exercisable from time to time over a period, such power must be exercised on each occasion in the light of the circumstances at that time. In consequence, the person on whom the power is conferred cannot fetter the future exercise of his discretion by committing himself now as to the way in which he will exercise his power in the future. He cannot exercise the power nunc pro tunc. By the same token, the person on whom the power has been conferred cannot fetter the way he will use that power by ruling out of consideration on the future exercise of that power factors which may then be relevant to such exercise.

These considerations do not preclude the person on whom the power is conferred from developing and applying a policy as to the approach which he will adopt in the generality of cases: see Rex v. Port of London Authority, Ex parte Kynoch Ltd. [1919] 1 K.B. 176; British Oxygen Company Ltd. v. Board of Trade [1971] AC 610. But the position is different if the policy adopted is such as to preclude the person on whom the power is conferred from departing from the policy or from taking into account circumstances which are relevant to the particular case in relation to which the discretion is being exercised. If such an inflexible and invariable policy is adopted, both the policy and the decisions taken pursuant to it will be unlawful: see generally de Smith, Woolf and Jowell: Judicial Review of Administrative Action, 5th ed. (1995), para. 11.004 et seq., pp. 506 et seq.

The position is well illustrated by your Lordships' decision in In re Findlay (supra) which was itself concerned with the legality of the tariff policy announced in 1983 by Mr. Leon Brittan. Your Lordships held that the policy was lawful because it provided for a departure from the policy in exceptional circumstances. Lord Scarman said, at p. 336G:

In my judgment this passage demonstrates that what saved Mr. Brittan's 1983 policy from being unlawful was that it contained within it the flexibility, in exceptional circumstances, to have regard to relevant circumstances and such circumstances included not only those factors relevant to the culpability of the offence but also "other relevant factors such as prison record, person or family circumstances."

It is not necessary in this case to consider how far the 1993 policy (which precludes consideration of matters occurring after the date of the offence such as prison record and personal circumstances) is lawful in relation to adult life prisoners. In this appeal, your Lordships are only concerned with the lawfulness of the policy as applied to children sentenced to be detained during Her Majesty's pleasure. In relation to such children, the question is whether it is lawful to adopt a policy which, even in exceptional circumstances, treats as irrelevant the progress and development of the child who has been detained. This is plainly the effect of the inflexible 1993 policy. The answer to that question must depend upon the character of a sentence of detention during Her Majesty's pleasure. If such a sentence requires the Secretary of State to have regard not only to those factors relevant in considering an adult life prisoner (retribution, deterrence and risk) but also to the progress and development of the child whilst detained, it seems to me clear that the policy is unlawful since it excludes from consideration, even in exceptional circumstances, a factor relevant to the decision whether or not to release the child.

The factors relevant to the exercise of the discretion.

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

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

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

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

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

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

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

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

The Act of 1991

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

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

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

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

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

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

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

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

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

Conclusion

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

Other points

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

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

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

LORD LLOYD OF BERWICK

My Lords,

Introduction

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

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

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

It was not long before Mr. Leon Brittan's new policy was challenged. In In re Findlay [1985] A.C. 318, it was argued that the new policy was unlawful. The classification of offences by reference to their gravity was said to be inconsistent with each case being considered individually on its merits. The gravity of the offence was only one factor. It should not be considered to the exclusion of other relevant factors. This was the argument which was accepted by Browne-Wilkinson L.J. in his dissenting judgment in the Court of Appeal. In the House, Lord Scarman said at p. 335 that he had difficulty in understanding how a Secretary of State could properly manage the complexities of his statutory duty without a policy. After referring to an observation of Templeman L.J. in Attorney-General ex rel. Tilley v. Wandsworth London Borough Council [1981] 1 W.L.R. 854, he continued:

So there was no objection to the Home Secretary adopting a policy in guiding the exercise of his discretion.

On 23 July 1987 Mr. Douglas Hurd made a further statement in the light of the decision of the Divisional Court in Reg. v. Secretary of State for the Home Department, Ex parte Handscomb (1987) 86 Cr.App.R. 59. He announced that the first formal review by the Home Office would take place as soon as practical after conviction, instead of being postponed for three or four years as had been the practice hitherto. The Home Secretary would then determine the date for the first formal review by the Parole Board, which would normally be three years before the earliest release date. Mr. Hurd made clear that in setting the first review date he would take account not only of the requirement of retribution and deterrence, but also, among other factors, the need to maintain public confidence in the criminal justice system.

Then in 1990 came the decision of the European Court of Human Rights in Thynne, Wilson and Gunnell v. United Kingdom, 13 EHRR 666. That decision is not of direct relevance, since it was concerned with adults serving discretionary life sentence after the punitive period of their imprisonment had expired. The court held that their continued detention was in violation of Article 5(4) of the European Convention on Human Rights. Accordingly it became necessary for the Government to legislate. Part II of the Criminal Justice Act 1991 is headed "Early Release of Prisoners." It is based on the recommendations of the Committee chaired by Lord Carlisle of Bucklow Q.C. in their review of the parole system ("The Parole System in England and Wales" (1988) (Cm. 532)). Section 34 was the Government's specific response to the decision of the European Court in the Thynne case. It imposes a duty on the Secretary of State to release a discretionary life prisoner once he has served that part of his sentence which is set by the court as "the tariff" for retribution and deterrence, and once the Parole Board has directed his release. In the case of discretionary life prisoners the Secretary of State no longer has any discretion as to the release date.

Section 35 is different. It covers long-term and life prisoners, other than those serving a discretionary life sentence. Sub-section (2) confers on the Secretary of State the power to release a prisoner serving a mandatory life sentence, if recommended to do so by the Parole Board, but only after consultation with the judiciary. Sub-section (3) prohibits the Board from making a recommendation for release unless the Secretary of State has first referred the case to the Board. There is nothing in section 35 which requires the Secretary of State to refer the case to the Board at any particular time or at all. It is left to the discretion of the Secretary of State.

Section 43 concerns young offenders. Section 43(1) covers those serving determinate sentences of detention under section 53(2) of the Act of 1933. It provides that Part II of the Act of 1991 shall apply to such persons as if they were serving an equivalent sentence of imprisonment. Section 43(2) covers those serving indeterminate sentences of detention under section 53, that is to say, those who are detained during Her Majesty's pleasure under section 53(1) of the Act of 1933, and those detained for life under section 53(2). It provides that Part II of the Act of 1991 shall apply to such persons as if they were serving sentences of imprisonment for life.

Finally, section 51(1) provides that "life prisoner" in Part II means a life prisoner as defined in section 34(7),, but extended to include those covered by section 43(2).

It is on the interaction of section 35(2) and section 43(2) that the outcome of the main issue in this appeal depends. But it is first necessary to complete the background material, by referring to the next occasion on which the Home Secretary's procedures for releasing life prisoners was challenged. This came with the decision of the House in Reg. v. Secretary of State for the Home Department, Ex parte Doody [1994] 1 AC 531. It was held in that case that the Secretary of State must afford a person found guilty of murder an opportunity to make effective representations as to the date of his first referral to the Parole Board, and hence, by adding three years, his earliest date of release. The offender must be informed of the tariff recommended by the judges, and the gist of their advice to the Home Secretary. I return to these points later. At this stage I wish only to draw attention to what Lord Mustill had to say as to a further argument advanced by the applicants in that case, namely, that the Home Secretary acted unlawfully by setting a tariff period in excess of that recommended by the judiciary. It was submitted that the judges were uniquely skilled and experienced in matching punishment to the needs of retribution and deterrence, and that the Secretary of State should not interfere. This argument was roundly rejected by the House. Lord Mustill said, at p. 559:

Ex parte Handscomb

Within a month of the decision of the House in Ex parte Doody, the Secretary of State, Mr. Michael Howard, made a further policy statement. He announced that he would give effect to the judgment of the House in Doody by arranging for those convicted of murder to be informed of the substance ("gist") of the judicial recommendations. He continued:

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

Finally, he said that the practice which he had described would apply equally to persons detained during Her Majesty's pleasure under section 53(1) of the Act of 1933, as well as to persons sentenced to custody for life under section 8 of the Criminal Justice Act 1982. This was the first time that the practice in relation to juvenile offenders had been mentioned in a policy statement. But it was not suggested that the 1993 statement marked any change in the Home Secretary's previous practice in setting a tariff for juvenile offenders convicted of murder.

With that rather lengthy introduction I can now turn to the issues in the appeal.

The substantive issue

The first question is whether the Home Secretary is entitled to have a policy at all with regard to juvenile offenders convicted of murder, whereby he determines in advance a minimum period which the offender must serve before he is considered for release. The second question is whether he is entitled to have the same policy as he has in the case of adult murderers.

As to the first question, all three judges of the Court of Appeal answered in the affirmative. I do not see how any other answer is possible, bearing in mind the width of the discretion conferred on the Secretary of State, the age range of those under consideration, namely, 10 to 21, and the number of those convicted of murder within that age-range. Thus Lord Woolf M.R. (who in the event was in a minority on the substantive issues) said at p. 38:

A little later he said:

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

These are wise words with which I wholly agree. But it is worth repeating (it cannot be said too often) that the question is not whether the policy is wise or unwise. The question is whether it is lawful.

I need not quote from the majority judgments on this point. They both affirm the lawfulness of the Home Secretary's policy.

I have some difficulty in understanding the judgment of the Divisional Court, given by Pill L.J. Having pointed out that the sentence on a young offender should be kept under regular review, the Divisional Court continued:

This seems to be saying that it is not the policy that is wrong, but the length of the tariff in this particular case. This is borne out by other passages in the Divisional Court's judgment as follows:

It is true that the Divisional Court went on to say that they were not expressing any view as to the merits of the sentence by way of length, but only as to the lack of merit in fixing it so early. But I find this difficult to reconcile with what follows. The Divisional Court record, and appear to accept, Mr. Fitzgerald's concession that the tariff figure of 8 years recommended by the trial judge would have accorded with "the underlying purpose of the sentence." It would not have been unlawful, since it would have allowed for a review after five years. This seems to be an acceptance by the Divisional Court that it is lawful to fix the tariff at the beginning of the sentence, even in the case of a ten-year old child, provided the tariff is not too long.

So I am driven to the conclusion that in the eyes of the Divisional Court the real objection to the fifteen-year tariff was not the fixing of the tariff at the beginning of the sentence, but the length of the tariff in the case of these two children. If a tariff of eight years would have been consistent with "keeping an open mind" and "keeping the whole question under review", why not a tariff of fifteen years?

I now turn to the argument on behalf of the two applicants. The starting-point was that the sentence of detention during Her Majesty's pleasure is preventive and therapeutic by nature, and contains no punitive element. The Divisional Court rejected this proposition; so did all the members of the Court of Appeal, and so would I. Section 53 of the Act of 1933 is headed "Punishment of certain grave crimes." Section 53(2) which enables the court to impose a determinate sentence, i.e. detention for a period of years, is clearly punitive in character, or at least contains a punitive element. In Reg. v. Fairhurst [1986] 1 W.L.R. 1374, a case which concerned a number of appellants who had been sentenced to various periods of detention under section 53(2) for crimes such as burglarly, rape and arson, Lord Lane C.J. said, at pp. 1376-1377:

If a sentence under section 53(2) is punitive in character, or contains a punitive element, as it obviously does, it would be preposterous if the sentence for the gravest crime of all under section 53(1) did not contain a punitive element. It was conceded by Mr. Higgs that this must be so in the case of a young person of 17 convicted of murder, but he submitted that the position was different for a child of 10. But the wording of section 53(1) is the same in both cases. If a sentence of detention during Her Majesty's pleasure is capable of containing a punitive element in the case of a murderer aged 17, it must also be capable, as a matter of language, of including a punitive element in the case of a child aged 10. The age of the offender is, of course, highly relevant to the length of the minimum period of detention. But it cannot be said that at the age of 10 the sentence is purely rehabilitative or therapeutic. Otherwise there would be no purpose in requiring the prosecution to prove, as they did in these cases, that the applicants knew that what they were doing was seriously wrong.

If it be right that the sentence of detention during Her Majesty's pleasure contains a punitive element, then the rest seems to follow. The Home Secretary was entitled to set a policy which covers the imposition of a sentence on those within the age group 10 to 17, just as he can have a policy for those in the age group 18 to 21 sentenced to custody for life, and for those serving an adult sentence of life imprisonment, provided always he considers each case on its own merits. No doubt opinions will differ greatly as to the length of the appropriate tariff in a given case. But as to that, the only opinion which matters is that of the Home Secretary. The decision is always one of the utmost gravity, especially so in the present case. The courts cannot interfere on the ground that 15 years was too long, or even that it was half as long again as the tariff proposed by the Lord Chief Justice: see Ex parte Doody at p. 559. The only ground on which the courts could interfere would be if the sentence were beyond all reason, or irrational in the Wednesbury sense. This was not suggested. If it was intended to be suggested, I would not accept the suggestion.

That brings me to the second question. If it is lawful for the Home Secretary to have a policy at all in relation to the 10 to 17 age group, as it clearly is, is it lawful for him to have the same policy as he has in relation to adults, or (presumably) the 18 to 21 age group, although the latter comparison was hardly mentioned in the course of the hearing? It was pointed out--correctly--that the origin of the expression "detention during Her Majesty's pleasure" lies in the sentence first imposed on criminal lunatics in the time of George III, and its adoption by Parliament in section 103 of the Children Act 1908, from whence it found its way into section 53 of the Act of 1933. When in 1908 Parliament abolished the death sentence for children and young persons, it might have chosen life imprisonment or custody for life as the alternative punishment. Instead it chose a sentence which was expressed to be indeterminate. It was argued that, by announcing that he would apply the same policy in the case of children and adults, the Home Secretary obliterated this distinction. The last paragraph of his 1993 policy statement was thus said to be unlawful. This was the ground on which the Divisional Court decided against the Home Secretary. I return to this argument later.

Whatever merit the argument may have had in the past, it cannot possibly survive the passing of the Criminal Justice Act 1991. It was common ground that the relevant release power is contained in section 35(2) of the Act, which provides:

In order to understand the operation of section 35(2) in relation to young offenders, it is necessary to refer in greater detail to some of the other provisions of Part II of the Act of 1991. As already mentioned, section 34 imposes a duty to release discretionary life sentence prisoners when certain conditions have been satisfied. Section 33 imposes a duty to release short-term and long-term prisoners after half and two-thirds of their sentences, respectively, and section 35(1) grants a power to release a long-term prisoner after one-half of his sentence. Then comes section 43 which is the all-important section. It is necessary to set out this section in full:

Young offenders

a

b

a

b

section 37

Section 43(1) and (3) apply the provisions of section 33 (short-and long-term prisoners) and section 35(1) (long-term prisoners) to those detained under section 53(2) of the Act of 1933. There cannot be any doubt as to that, since the provisions are applied with the modifications set out in section 43(4) and (5). Similarly, section 43(2) and (3) apply section 35(2) to two classes of offenders under the age of 22, namely, those detained during Her Majesty's pleasure under section 53(1) of the Act of 1933 and those sentenced to custody for life under section 8 of the Act of 1982. They also apply section 34 of the Act to those detained for life under section 53(2) of the Act of 1933. Again there can be no doubt as to the intention, since the provisions are applied with the modifications set out in section 43(5). But section 35(2) can only apply at all to those detained during Her Majesty's pleasure if they are treated, for the purposes of section 35(2), as life prisoners. Hence the definition in section 51(1) of the Act of 1991 which provides that "life prisoner" has the meaning given by section 34(7) of the Act as extended by section 43(2). Against this statutory background, it hardly matters whether a sentence of detention during Her Majesty's pleasure is correctly described as a "life" sentence or not. Since it is assimilated to a life sentence for all purposes of release, it is certainly a sentence which covers the offender for the rest of his natural life. Like an adult murderer, a juvenile murderer released on licence can be recalled at any time: see section 37(3). In these circumstances, the distinction urged on your Lordships between a sentence which orders detention for life and a sentence which authorises detention for life cannot be sustained. In the light of section 43(2) of the Act of 1991 it is a distinction without practical difference. It is said that an adult convicted of murder has "forfeited" his liberty for the rest of his life. But this is only because, after release, he is liable to be recalled. Exactly the same applies to a juvenile detained during Her Majesty's pleasure.

Since Parliament has created a direct link between the mandatory life sentence and sentence of detention during Her Majesty's pleasure, and provided the same release procedure for both, I cannot see how it can be said to be unlawful for the Secretary of State to apply the same policy of indicating the minimum period to be served for the purposes of retribution and deterrence as soon as practicable after the sentence has been imposed. This is made all the more manifest by comparison with the discretionary life sentence. As already mentioned, a discretionary sentence for life can be imposed, and is from time to time imposed, under section 53(2) of the Act of 1933: see Reg. v. Abbott. That would bring the case within section 34 of the Act of 1991. The judge then sets the tariff in accordance with the 1993 Practice Direction: [1993] 1 W.L.R. 223. If a judge can set a tariff in respect of a sentence under section 53(2), as Parliament has provided, how can it be unlawful for the Secretary of State to fix a tariff in respect of the more serious conviction under section 53(1)? Contrary to the view of the Divisional Court, I cannot accept that there was anything unlawful in the last paragraph of the Home Secretary's 1993 policy statement. On this aspect of the case I find myself in complete agreement with the views expressed by Hobhouse L.J. and Morritt L.J.

I cannot, with respect, agree with Lord Woolf M.R. that the Home Secretary must have been guilty of an over-rigid application of his policy, or must have misunderstood the nature of the tariff. The only evidence for this conclusion is Lord Woolf's view that 15 years would appear to be "totally unreasonable" in the case of a child of ten. But according to Mr. Newton's affidavit, the Home Secretary had particular regard for the age of these offenders, and their need for rehabilitation. Indeed this appears in each case from the decision letter itself. For if he had not had regard to their age, he would presumably have imposed a tariff of 25 years. But the age of the applicants, and their need for rehabilitation, were not the only factors. In addition to the punitive element in the sentence, the Home Secretary was entitled to have regard to other factors, and especially the need for maintaining public confidence in the criminal justice system: see In re Findlay, per Lord Scarman, at p. 333B and Ex parte Doody, per Lord Mustill, at p. 559B. In the light of these other factors it cannot be said that the Home Secretary's initial view of 15 years was so far beyond what was reasonable as to point inevitably to a wrong approach. If the figure had been 10 years (the tariff suggested by the Lord Chief Justice) or even 12 years the argument could hardly have got off the ground.

I accept, of course, that a policy otherwise lawful may be attacked on the ground of its over-rigid application. Each case must be considered on its merits before the policy is applied. If, for example, the Home Secretary had announced a policy that all children found guilty of murder should be detained for at least seven years, such a policy might well have been unlawful if it did not allow for exceptions: see In re Findlay, per Lord Scarman, at p. 336G. But the Home Secretary's decision in the present case cannot be faulted on that ground. The minimum detention of 15 years was not fixed by reference to a predetermined scale. It was decided by reference to the facts of the case, and the circumstances of these two applicants. So there was no need to allow for any exceptions. If the minimum period of detention were a "tariff" sentence in the true sense of the word, there might be grounds for criticism. But it is not. As Lord Mustill observed in Ex parte Doody at pp. 556-558 the use of the word "tariff" in that context is apt to be misleading.

Then it is said that the policy is over-rigid because it does not allow for a reconsideration of the tariff on the ground of exceptional progress during detention. This limitation is not, in fact, spelt out in the 1993 policy statement. The statement expressly contemplates that the initial tariff period may be reduced or increased. The argument therefore depends on the way the policy is currently being applied. According to Mr. Newton's affidavit, the Home Secretary does not currently consider exceptional progress in detention as a ground for reconsidering the tariff. Is this enough to make the policy as a whole unlawful?

There is a danger here that the courts, by insisting on flexibility in every aspect of the policy, may emasculate the policy itself, and deprive it of all utility. If the Home Secretary is entitled to have a policy at all in relation to young offenders by which he announces the tariff period as soon as possible after the start of the sentence (as to which I entirely agree with what Lord Woolf says) I cannot for my part accept that the whole policy is undermined by the absence of a formal review during that period. I say that for three reasons.

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.

Finally, I return to the argument accepted by a majority of your Lordships that a sentence of detention during Her Majesty's pleasure is, and has always been, different in conception from a sentence of life imprisonment. The argument is that when Parliament abolished the death sentence for children and young persons in 1908, it might have substituted a sentence of life imprisonment. Instead it substituted a sentence of detention during Her Majesty's pleasure. It is said that the Home Secretary failed to appreciate this conceptual distinction when he announced in 1993 that he would adopt the same practice in the case of children and young persons as in the case of adult murderers, and when, in particular, he fixed the tariff for these two applicants.

I do not myself get much assistance from the legislative history in this case. We know that one of the objectives of the Act of 1908 was to ensure that children and young persons did not mix with adult prisoners in ordinary jails. This is a sufficient explanation for why Parliament avoided the use of the term imprisonment, and chose instead detention "in such place and under such conditions as the Secretary of State may direct." We do not know why Parliament chose the words "during Her Majesty's pleasure." If the intention had been to secure that the sentence should be purely preventative and therapeutic, as in the case of criminal lunatics, then there would indeed have been a conceptual difference. But none of your Lordships are of that view. For my part I cannot read anything more into the words "during Her Majesty's pleasure" than that they were intended to describe a sentence which is indeterminate in length, like a life sentence. Nor is there anying in the language of section 103 which required the sentence to be kept under continual review, any more than a determinate sentence for less serious offences under section 104. So I do not accept that a sentence of detention during Her Majesty's pleasure was conceptually different from a life sentence in 1908, save in relation to the place and conditions of detention; and if there ever was such a difference, it soon became obscured. For it seems to have escaped the attention of the Departmental Committee which reported on the Treatment of Young Offenders in 1927, Cmnd. 2831, and the Ingleby Committee which reported in 1960, Cmnd. 1911.

It is unfortunate that Parliament continues to use archaic language in a modern statute. Your Lordships are all agreed that "during Her Majesty's pleasure" does not mean what it meant when the phrase originated nearly 200 years ago. What it meant in 1908 must remain a matter for speculation. Even if the legislative background sounded with a more certain note, I would not myself allow the history of the phrase to influence, still less control, the meaning which Parliament plainly intended in 1991.

Like my noble and learned friend, Lord Goff of Chieveley, I would dismiss the applicants' cross-appeals.

Procedural Issues

As to the Home Secretary's appeal, I have the misfortune to find myself again in a minority.

I can deal briefly with two of the three points. It is said that the Secretary of State had insufficient material on which to exercise his discretion. For example, it is said that if he had been sentencing the applicants in court he would have asked for psychiatric reports as to their level of responsibility having regard to their age. At the very least he would have asked for a social inquiry report. With all respect to the judges of the Court of Appeal who expressed their views in strong terms (Lord Woolf described the Secretary of State's approach as perfunctory), I cannot agree with this conclusion. The Secretary of State was not bereft of material. He had the judge's report, which summarised the medical evidence. It is worth quoting the following passage:

The Secretary of State was entitled to accept the judge's report at its face value. He was not obliged to look for corroboration. If he had been minded to disagree with the judge's view of the mental state of the applicants, then of course he would have been obliged to seek further psychiatric advice, as Mr. Pannick accepted. But he was not. Moreover, if the Home Secretary were obliged to seek further reports, so also was the Lord Chief Justice, when he increased the judge's tariff from 8 years to 10 years. If the courts are going to tell the Home Secretary how to perform a function which has been entrusted to him, and to him alone, by Parliament, then there would appear to be no limit to the bounds of judicial review. Of course, the court will interfere if the Home Secretary acts unlawfully or abuses his powers, or behaves unfairly, or on any of the other well established grounds of judicial review. But there was nothing remotely unfair in the Secretary of State assessing the tariff on the information which he already had, without calling for further reports.

Secondly, it is said that the Home Secretary ought to have made full disclosure of all the material on which he relied, and in particular should have disclosed the whole of the judge's report, in order to enable the applicants to make adequate representations, and to correct any mistakes of fact. It was not enough, so it was said, that the Secretary of State should have made known the recommendations of the trial judge and the Lord Chief Justice, as required by the House in Ex parte Doody; the applicants were entitled to the full text of the judge's report. Indeed the applicants were said to be entitled to disclosure of all the materials before the Home Secretary, including details of any comparable cases on which the Home Secretary proposed to rely, and, I suppose, any comparable cases which might assist the applicants.

But this goes much too far. In my opinion the appropriate limit was set in Ex parte Doody, which required no more than that the Home Secretary should disclose the gist of the judge's advice. That would almost always be enough, as it was in this case, to enable the applicants to know the case against them. We were informed that it is now the practice of the Home Secretary to disclose the judicial comments in full, other than material relating to future risk. This does not, of course, mean that the previous practice was unlawful. The full report was disclosed to the applicants on 23 January 1995, when they were invited to make further representations if they wished. This was as far, and maybe further, than the Home Secretary was obliged to go. How could he sensibly disclose all the material which weighed with him when considering the need to maintain public confidence in the rule of law?

I come now to the third and last point of criticism. The relevant paragraph in the decision letter dated 22 July 1994 reads as follows:

The facts are that the Home Secretary received a petition signed by 278,000 members of the public submitted by the victim's family. The petition called for a full-life sentence. The family also submitted some 4,400 letters. Another petition was signed by 5,900 members of the public calling for a minimum of 25 years' detention. On 28 June 1994 one of the applicants' solicitors wrote to the Home Office "objecting most strongly to the reception of 'political' representations made to the Secretary of State behind the back of the applicant and his family and without a proper opportunity to respond." The solicitors asked to be sent the full text of any petition, letters or representations received by the Secretary of State; in addition they asked for all materials which would be before the Secretary of State when he reached his decision. On 7 July 1994 the Home Office replied that the applicant already had the full text of the petitions (other than the signatures) and that it was not practicable to make all the letters available. No further representations were received from the applicant before the Secretary of State reached his decision.

The complaint is, first, that the Home Secretary is not entitled to have regard to public concern in relation to an individual case, and, secondly, that he was not entitled to take account of the petitions and other correspondence as evidence of public concern in the present case.

I am bound to note that this complaint, however it may be put, forms no part of the grounds on which relief is sought. The original complaint related only to the failure to disclose the material.

When the case came before the Divisional Court, Pill L.J. drew attention to the "massive representations" which the Home Secretary had received. He acknowledged the Secretary of State's responsibility to maintain public confidence in the system of justice.

There was no suggestion at the hearing before the Divisional Court or in the judgment, that the Secretary of State had been wrong to take the petitions or the correspondence into account as evidence of public concern.

It therefore comes as something of a surprise to find the point featuring so strongly in the judgments of Lord Woolf M.R. and Hobhouse L.J. in the Court of Appeal. I quote from the judgment of Hobhouse L.J.:

It was the "quality" of the material, to use his own expression, which Hobhouse L.J. found so alien and, perhaps, distasteful.

Morritt L.J. took a different line.

I find myself in agreement with Morritt L.J. If the Home Secretary is entitled to take account of the need to maintain public confidence in the criminal justice system, as everybody agrees, I can see no reason why he should not take account of genuine public concern over a particular case. If he were to ignore such genuine concern (and nobody has suggested that the petitions and the correspondence were not genuine) it would have direct impact on public confidence for the future. Judges also take account of public concern over the level of sentencing; and so they should, as witness the increase over the last twenty years in the tariff for causing death by dangerous driving. In Ex parte Doody Staughton L.J. suggested (19931 Q.B. 157 at 197) that a distinction should be drawn between material received by the Home Secretary which is directed to penal policy in general, and material directed to a particular case. The latter should be disregarded. But how can such material be distinguished? The observations of Hobhouse L.J., which I have quoted, read far too much into the decision letters. The petitions and the letters were not, of course, evidence of anything in any legal sense. But surely they demonstrated a certain level of concern. It is to the Home Secretary that Parliament has entrusted the task of maintaining public confidence in the criminal justice system, and as part of that task gauging public concern in relation to a particular case when deciding on the earliest release date. I do not regard it as the function of the courts to tell him how to perform that task.

I would therefore allow the Home Secretary's appeal on the procedural issues. This means that of the ten judges who have taken part in these proceedings, I am the only one to have accepted Mr. Pannick's submissions on all points. I would uphold the lawfulness of the Home Secretary's decision to impose a minimum tariff of 15 years' detention in the case of these two applicants. That does not, of course, mean that I would necessarily have imposed the same tariff myself, had I been Home Secretary. But that is not the issue.

LORD STEYN

My Lords,

When they were both aged 10 years Venables and Thompson committed a vicious and cold-blooded murder of a two-year-old boy. The inexpressible grief of the family of the murdered boy will never cease. The family, the local community and society generally are morally outraged. Venables and Thompson will have to spend many years in detention. The only question is whether the Home Secretary in deciding to fix a "tariff" sentence of 15 years acted lawfully. It does not follow that after Venables and Thompson have served any applicable "tariff" sentence they will be released. That is a different question involving an assessment of the risk of releasing them. There appears to be very little that can be said for Venables and Thompson. But they have rights under our law: they are entitled to the full measure of the protection from unlawful action by the Executive afforded by the common law even to prisoners convicted of murder. And in my judgment the Home Secretary's decisions affecting them are unlawful.

My conclusions on the principal issues:

In my view in making his decision to fix a tariff of 15 years the Home Secretary exceeded the statutory powers which he has been given. I will summarize at the outset my conclusions on the principal issues. Following the same structure I will then explain my reasons for each conclusion.

Contrary to the submissions of counsel for Venables, my view is that a major purpose of a sentence of detention during Her Majesty's pleasure imposed upon a child under section 53(1) of the Children and Young Persons Act 1933 is punishment. Consequentially on this holding I conclude, contrary to the submissions of counsel for Venables, that in principle it is within the power of the Home Secretary to fix a provisional and reviewable tariff under section 53(1).

But I have come to the conclusion that the decisions of the Home Secretary as contained in his letters of 22 July 1994, which fixed a 15-year tariff for both Venables and Thompson, were unlawful for substantive reasons as well as a breach of the principles of procedural fairness. There are two separate substantive reasons why I conclude that the Home Secretary's decisions were unlawful. First, the Home Secretary regarded a sentence of detention during Her Majesty's pleasure under section 53(1) imposed on a child convicted of murder as in law equivalent to a mandatory sentence of life imprisonment imposed on an adult convicted of murder. His legal premise was wrong: the two sentences are different. A sentence of detention during Her Majesty's pleasure requires the Home Secretary to decide from time to time, taking into account the punitive element, whether detention is still justified. The Home Secretary misunderstood his duty. This misdirection by itself renders his decision unlawful. Secondly, the Home Secretary misdirected himself by giving weight to public protestations about the level at which the tariff in the cases of Venables and Thompson should be fixed. In doing so the Home Secretary took into account in aggravation of the appropriate level of punishment legally irrelevant considerations. This was a material defect in the reasoning of the Home Secretary. It rendered his decisions unlawful.

On the issues of alleged procedural unfairness, I have concluded that the decisions of the Home Secretary were also procedurally flawed by the credence and weight which he gave to public clamour for an increase in the level of the tariff. This point overlaps with my second substantive conclusion. It may be two sides of the same coin: either way the quality of the decision-making was adversely affected in a material way. I will deal with this point under the procedural heading quite briefly. I would reject the other procedural complaints about the decision of the Home Secretary.

Punishment

Counsel for Venables submitted that the sentence of detention during Her Majesty's pleasure for murder committed by children has always been a sentence designed solely for the reformation of youthful offenders and for the protection of the public. He argued that punishment has never had any part to play in respect of such a sentence. On this supposition he submitted that the imposition of a tariff is always inappropriate in the case of young murderers sentenced under section 53(1). In my view the premise of this argument is wrong. The Children Act 1908 provided that a child or young person charged with any offence may upon conviction be sentenced to inter alia a whipping or detention. That was a provision for the punishment of children for lesser offences than murder. When Parliament dealt with murder committed by a child or young person, the sentence of detention during Her Majesty's pleasure cannot credibly have been intended to have been entirely non punitive. Moreover the fact that children between the ages of 10 and 14 years may be criminally responsible demonstrates that in law they may deserve punishment. And that consideration must apply to murder as much as to lesser offences.

The applicability of a tariff to detention during Her Majesty's pleasure

Counsel for the offenders had a more formidable argument against the applicability of a tariff in cases governed by section 53(1). By way of alternative submission counsel for Venables said that the sentence must be regarded as partly punitive and partly rehabilitative. But because it is indeterminate and provides for release "at any time," the concept of a predetermined initial punitive phase to be served before release is inconsistent with the purpose of the sentence. Counsel for Thompson also argued that a tariff was inappropriate. He said that the correct approach is that at such time as the particular young offenders involved in this case are found to be rehabilitated the Home Secretary should ask himself whether they have been sufficiently punished.

Initially I was attracted to a line of reasoning that any tariff is contrary to the purpose and policy of a sentence under section 53(1). On balance I have come to the conclusion that this is not a correct analysis. If punishment is a purpose of such a sentence, as it is, it is difficult to say that a Home Secretary charged with the decision of giving content to what "detention during Her Majesty's pleasure" means in a particular case may not in his discretion make a provisional and subsequently reviewable judgment as to what ought to be the period to be served as punishment by a particular offender. And, if that it so, it is clearly right that his decision should be notified to the offender. In other words, I regard the discretionary power to set a provisional and reviewable tariff as inherent in the statutory power entrusted by Parliament to the Home Secretary since 1908, i.e. the power to decide how in an individual case the power to detain during Her Majesty's pleasure should be exercised.

The misconception as to the nature of the sentence

The Home Secretary treated two sentences for murder as exactly alike, namely (1) a mandatory sentence of life imprisonment passed on an adult convicted of murder and (2) a mandatory sentence of detention during Her Majesty's pleasure passed on a child or young person convicted of murder. He emphasised that in a policy statement to the House of Commons of 27 July 1993 in the following words:

In the same policy statement he contrasted the position of a prisoner subject to a mandatory life sentence with that of a prisoner subject to a discretionary life sentence. Once the minimum period fixed for retribution and deterrence has been satisfied, and provided that he is no longer a risk, a prisoner serving a discretionary life sentence is entitled to be released: section 34 of the Criminal Justice Act 1991. But a more severe regime applies to prisoners convicted of murder who are subject to mandatory life sentences. The Home Secretary endorsed the "practice" that an adult prisoner subject to mandatory life sentence has forfeited his liberty to the state for the rest of his days. He said that the "presumption" is that such a prisoner should remain in custody until the Home Secretary concludes that the public interest would be better served by the prisoner's release than by his continued detention. This is how the Home Secretary also viewed the nature of a sentence of detention during Her Majesty's pleasure under section 53(1).

It is now necessary to examine the correctness of the Home Secretary's view of a section 53(1) sentence. In order to understand the nature of a sentence of detention during Her Majesty's pleasure it is necessary to start with the position before the Children Act 1908 was enacted. For this purpose I gratefully draw on a report prepared by Professor A. W. B. Simpson, the distinguished legal historian, and submitted to the European Court in the case of Prem Singh v. U.K. Application No. 23389/94. Until the Children Act of 1908 the formal law (as opposed to Home Office practice) made no special provision for children or young persons convicted of murder. In strict law youthful convicted murderers could be executed. But it became the practice not to execute murderers who were under the age of 18 years. It is probable that whenever a convicted murderer was reprieved on account of youth, a life sentence of penal servitude would have been imposed, and the individual would only have been released after serving a conventional period of twenty years unless he was then thought to be still dangerous. This practice was consistent with the notion that if children were criminally responsible they were amenable to exactly the same punishments as adults. Gradually, that policy fell into disfavour: the view gained ground that all juvenile offenders formed a distinct category of offenders for whom special arrangements for disposal should be made. The Children Act 1908 was a reforming measure which throughout reflected this change in attitude to young offenders. Thus it abolished the use of prisons for offenders under 14; it abolished penal servitude for those under it; and it permitted imprisonment for those between 14 and 16 only exceptionally. Section 103 formally abolished a sentence of death against a child or young person. That left the important question of the substitute penalty. Following previous practice regarding the punishment of children convicted of murder Parliament could have provided for a sentence of life imprisonment, or for detention for life. But Parliament chose not to do so. Instead the Act of 1908 provided that the new sentence to be imposed on children (those between 8 and 14) and young persons (those between 14 and 16) would be detention during His Majesty's pleasure. And the statute provided that, if so sentenced, the child or young person would be liable to be detained in such place and under such conditions as the Secretary of State directed. Professor Simpson commented on this change in the following terms:

This reasoning seems correct. Counsel for the Home Secretary, despite express invitation to comment on the purpose of section 103 of the Act of 1908, offered no argument to the contrary. Detention during His Majesty's pleasure, the term of sentence selected by Parliament in 1908 for children convicted of murder, was intended to involve (subject to matters of the risk of releasing the individual) a less severe form of sentence than imprisonment for life. After all, a sentence of life imprisonment involves an order that an individual be imprisoned for life. By contrast a sentence of detention during Her Majesty's pleasure merely authorizes detention of an individual for life.

Subsequently, Parliament revisited this subject. Section 53(1) of the Children and Young Persons Act 1933 re-enacted section 103 in respect of persons under 18 convicted of murder. The Act of 1933 was preceded by a detailed inquiry into the way in which the criminal justice system treated children and young persons: Report of the Departmental Committee on the Treatment of Young Offenders (1927) (Cmnd. 2831). The report did not specifically deal with detention during His Majesty's pleasure: the matter had been settled in 1908. On the other hand, the report described the Children Act 1908 as "a notable piece of legislation, enshrining as it did in almost every section the principle that a young offender shall receive different treatment from an adult . . . " (p. 8). And that philosophy of differentiating between sentences imposed on adults and children and young persons was carried forward in the report and the resulting statute of 1933.

The Murder (Abolition of Death Penalty) Act 1965 repealed section 53(1) and substituted the following section:

Before this provision was enacted the Ingleby Committee Report of the Committee on Children and Young Persons (1960) (Cmnd. 1191) had made a wide ranging report on the position of children and young persons in the criminal justice system. The report and the subsequent statute did not specifically deal with detention during His Majesty's pleasure. The report did, however, emphatically endorse the policy differentiating between the sentencing of adults and juvenile offenders. The report observed that originally the principle of equality before the law meant that children were hanged, transported or imprisoned on the same principles applicable to adults: paragraph 53(d) The report stated in categorical terms that the conception of a standard or ordinary punishment applicable to everyone, child or adult, had gone: paragraph 58. This is the culture in which section 53(1) was re-enacted.

In respect of persons convicted of murder, who were between the ages of 18 and 21, Parliament provided for a sentence of custody for life: section 8 of the Criminal Justice Act 1982. This section expressly distinguishes between the two forms of sentence. 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.

It was, of course, possible for Parliament subsequently to reverse the policy adopted in 1908 and repeatedly re-affirmed. Counsel for the Home Secretary said that Parliament did so by provisions in the Criminal Justice Act 1991. Carefully distancing himself from the view that a section 53(1) sentence "is the same" as a sentence of life imprisonment, counsel for the Home Secretary said that the Criminal Justice Act of 1991 shows that Parliament was satisfied that a section 53(1) sentence had sufficient similarities to a mandatory life sentence imposed on an adult murderer to make it appropriate to deal with the question of release on life licence of prisoners in both categories under the same provisions. As I understood the argument it involves saying that Parliament in effect assimilated the two sentences and that in fixing a tariff for Venables and Thompson the Home Secretary was entitled to proceed on the basis that, like adults serving mandatory life sentences, they had forfeited the rest of their lives to the state. This argument crucially depends on two sections in the Criminal Justice Act 1991. Section 43(2) of the Act of 1991 provides that the provisions for release apply to section 53(1) sentences. This is a reference to section 35(2) which provides that if the Parole Board so recommends, the Home Secretary may, after consulting the Lord Chief Justice and the trial judge, release on life licence a life prisoner who is not a discretionary life prisoner. By section 35(2) "life prisoner" includes a child or young person sentenced under section 53(1). These provisions are perfectly consistent with the policy that a sentence of detention during Her Majesty's pleasure is a sentence different in conception from a sentence of mandatory life imprisonment. These are procedural provisions which do not alter the nature of the section 53(1) sentence. It is true that there is similarity between a section 53(1) sentence and a sentence of life imprisonment in the sense that all persons released on licence shall remain in force until their death: section 37(3) of the Act of 1991. That is unremarkable. It tells us nothing about the nature of a section 53(1) sentence.

It is necessary to put counsel's arguments in context. It postulates that in 1991 Parliament reversed the policy it had adopted in 1908, and reaffirmed subsequently, by assimilating the sentences of children and young persons convicted of murder with adults convicted of murder. Given that no dissatisfaction with the conception of a sentence of detention during Her Majesty's pleasure ever became public such a change of direction would have been surprising. The merits of such a radical change, contrary to the long standing policy of differentiating between the sentences of adults and children, were never debated in public or in Parliament. The Act of 1991 was preceded by a White Paper published by the Government: Crime, Justice and Protecting the Public, February 1990, reprinted in (1990), (Cm. 965). The White Paper contained no proposal for assimilating the two sentences. Moreover, since 1908 there has been an ever-increasing awareness of the need to treat juvenile criminals as a separate class. It became an axiom of our criminal justice system. The reason for this change in public perception was neatly encapsulated in the following proposition:

Howard, Criminal Law

This proposition is a quotation endorsed by Lord Lowry in C. (A Minor) v. Director of Public Prosecutions [1996] 1 A.C. 1, 40C, in a speech which carried the agreement of all his fellow Law Lords. Against this contextual scene an express legislative proposal to assimilate section 53(1) sentences for juvenile murderers with mandatory life sentences for adult murderers, or to substitute for the sentence of detention during Her Majesty's pleasure for children a sentence of detention for life, would have been deeply controversial. In effect counsel for the Home Secretary has put forward an argument that Parliament achieved this radical result by an oblique legislative method. If his argument were to be accepted it would amount to legislation by stealth. But the truth is that the argument that in 1991 Parliament intended to assimilate section 53(1) sentences and mandatory life sentences is misconceived.

It follows that in making his decisions the Home Secretary wrongly equated the sentences of Venables and Thompson with that applicable to adults convicted of murder. I will assume that the Home Secretary was entitled to apply a "practice" that a prisoner serving a mandatory life sentence has forfeited his life to the State and that the "presumption" must be that the prisoner will spend the rest of his days in prison. But in my judgment this practice is plainly not legitimate in respect of the different sentence of detention during Her Majesty's pleasure. Section 53(1) is based on the premise that, to some extent, children are less accountable for their actions than adults. Subject to continued detention for reasons of risk, a section 53(1) was intended to be a more merciful punishment than life imprisonment: see Lord Woolf M.R.'s observations on this point in: Reg. v. Home Secretary, Ex parte Venables and Thompson [1997] 2 W.L.R. 67, 83H. The Home Secretary misunderstood the legal nature of the sentence in respect of which he was called upon to exercise a discretion. He did take the ages of Venables and Thompson into account. But he misinterpreted the sentence prescribed by law for children convicted of murder. He did so to the detriment of Venables and Thompson. The Home Secretary's decisions were therefore unlawful. For the same reasons his policy statement of 27 July 1993 to the House of Commons was unlawful so far as it related to section 53(1) sentences.
The public clamour for an increase in the tariff

The Home Secretary rightly invited representations about the level of the tariff from solicitors acting for the two young prisoners. The letter written on his behalf included the following paragraph:

At the same time, the family submitted some 4,400 letters to them from members of the public in their support.

Mr. George Howarth M.P. (Knowsley North) has submitted a petition at the request of relatives of the Bulger family. It is signed by some 5,900 members of the public, and is in the following terms:

A total of 22,638 items of correspondence has been received directly by the Home Office at the time of writing. This comprises 21,281 Sun newspaper coupons in support of a whole life tariff, and 1,357 letters and small petitions.

The coupons linked with the Sun newspaper followed a campaign under headlines such as "80,000 call T.V. to say Bulger killers must rot in jail." Each coupon contained the word "Dear Home Secretary I agree with Ralph and Denise Bulger that the boys who killed their son James should stay in jail for LIFE."

The decision letters of the Home Secretary dated 22 July 1994 contained the following paragraph:

which was evidenced by the petitions and other correspondence

The Home Secretary regarded "the public concern about this case" as evidenced by the "petitions and other correspondence" as evidence in favour of increasing the tariff. It is clear from the earlier letter that the "correspondence" included the 21,281 Sun coupons which were treated as part of the 22,638 items of correspondence.

It is perfectly understandable that the family of the murdered boy felt very strongly about the sentence to be served by the killers of the little boy. But it is quite another matter whether the Home Secretary was entitled to take into account such protests, and other media inspired protests, about the level of the tariff. The Home Secretary in fixing a tariff may, like a sentencing judge, take into account the general consideration of public confidence in the criminal justice system. He may also take into account a more specific feature such as public concern about the severity, or lack of severity, of sentences imposed on children for crimes of violence. But may the Home Secretary take into account public clamour about the tariff to be fixed in a particular case? May he treat as relevant a newspaper campaign to obtain an increase in the tariff? May he take into account a demonstration in Queen Anne's Gate to protest about the tariff to be imposed?

For my part the matter can be decided on a twofold basis. First, the material in fact taken into account by the Home Secretary was worthless and incapable of informing him in a meaningful way of the true state of informed public opinion in respect of the tariff to be set in the cases of Venables and Thompson. By "informed public opinion" I mean public opinion formed in the knowledge of all the material facts of the case. Plainly, the "evidence" to which the Home Secretary referred did not measure up to his standard. It was therefore irrelevant. But the Home Secretary was influenced by it. He gave weight to it. On this ground his decision is unlawful. But the objection to the course adopted by the Home Secretary is more fundamental. The starting point must be to inquire into the nature of the power to fix a tariff which the Home Secretary exercised. Writing on behalf of the Home Secretary the Home Office explained in correspondence placed before us that:

The comparison between the position of the Home Secretary, when he fixes a tariff representing the punitive element of the sentence, and the position of a sentencing judge is correct. In fixing a tariff the Home Secretary is carrying out, contrary to the constitutional principle of separation of powers, a classic judicial function: see Lord Diplock's explanation of the importance of the separation of powers between the Executive and the judiciary in Hinds v. The Queen [1977] AC 195, 212; and Dupont Steels Ltd. v. Sirs [1980] 1 W.L.R. 142, 157. Parliament entrusted the underlying statutory power, which entailed a discretion to adopt a policy of fixing a tariff, to the Home Secretary. But the power to fix a tariff is nevertheless equivalent to a judge's sentencing power. Parliament must be assumed to have acted have entrusted the power to the Home Secretary on the supposition that, like a sentencing judge, the Home Secretary would not act contrary to fundamental principles governing the administrative of justice. Plainly a sentencing judge must ignore a newspaper campaign designed to encourage him to increase a particular sentence. It would be an abdication of the rule of law for a judge to take into account such matters. The same reasoning must apply to the Home Secretary when he is exercising a sentencing function. He ought to concentrate on the facts of the case and balance considerations of public interest against the dictates of justice. Like a judge the Home Secretary ought not to be guided by a disposition to consult how popular a particular decision might be. He ought to ignore the high voltage atmosphere of a newspaper campaign. The power given to him requires, above all, a detached approach. I would therefore hold that public protests about the level of a tariff to be fixed in a particular case are legally irrelevant and may not be taken into account by the Home Secretary in fixing the tariff. I conclude that the Home Secretary misdirected himself in giving weight to irrelevant considerations. It influenced his decisions. And it did so to the detriment of Venables and Thompson.

For this further reason I conclude that his decisions were unlawful.

Procedural unfairness

For the reasons I have already given I would also hold that by giving weight to public clamour about the tariff the Home Secretary acted in a procedurally unfair way.

In my judgment the remaining allegations of procedural unfairness are not made out.

Form of relief

It follows that for substantive reasons I would allow the cross-appeals and for a procedural reason I would dismiss the appeal. In my judgment declaratory relief is not necessary.

LORD HOPE OF CRAIGHEAD

My Lords,

Two questions require to be answered in this case. The first is whether the Secretary of State acted unlawfully when he applied to the applicants, who had been sentenced to be detained during Her Majesty's pleasure under section 53(1) of the Children and Young Persons Act 1933, the same policy as he applies to adult mandatory life sentence prisoners in regard to the period to be served by them in custody to satisfy the requirements of retribution and deterrence--the tariff period. The second is whether his decisions on the tariff, as set out in the letters dated 22 July 1994 which were written on his behalf to the applicants, were reached in a manner which was procedurally unfair to them and was thus an improper exercise of the discretion which is vested in him by section 35(2) of the Criminal Justice Act 1991. I have come to the view that each of these two questions should be answered in the affirmative.

The offence of which the applicants were convicted was, when measured by the ordinary standards of human conduct, an exceptionally cruel and sadistic one. As the writer of the two decision letters has pointed out, it was committed over a period of several hours against a victim who was very young and defenceless. It was all the more horrifying because the two perpetrators were themselves of such a young age. If it had been committed by an adult an exceptionally long tariff period would have been entirely justified. But the applicants were not adults when they committed this offence. They were children, and because they were only ten years old at the time they were only just within the age of criminal responsibility.

Had the applicants been only a few months younger--Jon Venables was born on 13th August 1982, Robert Thompson was born on 23 August 1982 and the murder was committed ten years and six months later on 12 February 1993--they could not have been held responsible for this crime. As it was, since they were over ten but under fourteen years old, and of an age when the understanding, knowledge and ability to reason of children is still developing, the presumption that they were doli incapax had to be rebutted in their case. The fact that it was rebutted meant that they could be convicted of the crime, on the view that they were fully responsible for their actions because they knew that what they were doing was seriously wrong. But the fact that they were under the age of 18 when the offence was committed meant that they could not be sentenced to life imprisonment The mandatory sentence which was passed in their case was that they were to be detained during her Majesty's pleasure. It is this feature of the case which has presented and will continue to present the Secretary of State with questions of unusual difficulty. It was inevitable that the trial and the conviction of the applicants would attract widespread publicity and that strong emotions would be aroused. The fact that the tariff-fixing process has been conducted in public also and that it has resulted in this litigation, one effect of which will be to prolong that publicity, has greatly increased the difficulty of dealing with the case in a just way, which takes proper account of the age of the applicants and the nature of the sentences which were passed by the court.

I believe that some measure of detachment from the pressure of public opinion is essential if a just result which is consistent with the rights of the applicants as children is to be achieved in this case. A judge when passing a determinate sentence or when advising the Secretary of State about the tariff to be served by a life prisoner is expected to be able to resist that pressure. Indeed he can be relied upon to do so, in view of his independence which is such a vital characteristic of the judiciary. It is so much more difficult for the Secretary of State to do this as he is, in the exercise of the discretion which is given to him by section 35(2) of the Act of 1991, in the end answerable to Parliament. But there are limits to his discretion, as he cannot adopt a policy which is unlawful or act unfairly in matters of procedure in the application of his policy to the case. It is at this point that his decisions appear to have come into conflict with the rights of the applicants who, although convicted of a crime of such extreme gravity, were and are nevertheless still children. They are entitled to be dealt with fairly according to a policy which is lawful as they begin to serve the sentences which were imposed on them as required by the law.

The policy

Every system of criminal justice has had to face up to the problem of how to deal with children who commit crimes. It is worth repeating here the words with which Harper J. began his judgment in Regina (A Child) v. Whitty (1993) 66 A.Crim.R. 462 in the Supreme Court of Victoria, which Lord Lowry quoted in his speech in C. (A Minor) v. Director of Public Prosecutions [1996] AC 1, 40C-D:

Criminal Law,

The protection comes in two forms--the selection of the age of criminal responsibility and the nature of the sentences which can be imposed by the court. The two go hand in hand and can be balanced one against the other. The public interest in holding even quite young children accountable for their actions can be satisfied by requiring that a more lenient and reformative penalty should be imposed in their case. It has for a long time been recognised that the ordinary consequences of a conviction ought to be modified where the offender is of less than full age. The position in England and Wales prior to the intervention of more recent statutes as described in Hale's Pleas of the Crown, 6th ed., Leach (1788), vol. I, pp. 25 et seq., was that in the case of persons under the age of seven years the presumption that they were not criminally responsible was absolute, so they could not be convicted of any crime. In the case of persons under the age of fourteen, and even more clearly those under twelve, the presumption was that they were doli incapax, but this was rebuttable. If it was rebutted the court could delay judgment, so that the King's pleasure considering a pardon might be known. But if it chose to proceed, the penalty was that appropriate to the offence in the ordinary way whatever that might be. In the case of those over the age of fourteen years there was full criminal responsibility and the sentence was the same as that ordinarily passed in the case of an adult offender, even if it was the death penalty. These rules have now been modified (1) by raising the threshold of criminal responsibility, first to eight years and then to ten years: see section 50 of the Children and Young Persons Act 1933, as amended by section 16(1) of the Children and Young Persons Act 1963; and (2) by introducing a system of penalties and other disposals which have been designed specially for young offenders: see Part V of the Children Act 1908, on which all subsequent statutes dealing with this matter have been based.

The age of criminal responsibility in England and Wales is lower that it is in most other European countries, but that in itself does not seem to me to be a ground for criticism. One has to look at the whole picture, including the nature of the sentences which the court can impose and the way in which they are administered, in order to see whether the effect of placing criminal responsibility on children as young as the applicants are in this case is objectionable. Nor is the fact that the United Kingdom stands alone in Europe in requiring the court to impose an indeterminate sentence on children and young persons convicted of murder which is not to be judicially supervised necessarily a ground for criticism either, provided that the right policy is applied to the working out of these sentences. It is not for your Lordships to say what that policy should be. This is a matter which must be left to the Secretary of State, to whom the discretion in this matter has been entrusted by Parliament. But the policy must be a lawful policy. It is this requirement which ensures that children are treated in the way to which they are entitled. It is the responsibility of the judges in the exercise of their supervisory jurisdiction in matters of public law to intervene if the policy which is applied to them is unlawful.

The context for the decision which is under review in this case is provided by Part III of the Children and Young Persons Act 1933, in which section 53(1) of that Act appears. That Part is entitled "Protection of Children and Young Persons in relation to Criminal and Summary Proceedings." Section 44 of the same Act, which also appears in Part III and has as its headnote the words "Principles to be observed by all Courts in dealing with Children and Young Persons," states that every court in dealing with a child or young person who is brought before it "shall have regard to the welfare of the child or young person." Protection and welfare thus lie at the heart of the provisions in this Part of the Act, although many of the sections which it contains are concerned also with punishment. Your Lordships were not referred to any enactment which suggests that these principles are not still applicable to the way children and young persons are entitled to be treated by the courts. It was suggested that section 44 could not apply to the provisions of section 53(1), as the sentence which is laid down by that section is mandatory. But there is no indication in Part III of the Act that this subsection is in a different position from the other provisions which that Part of the Act contains. Where there is a discretion to be exercised--and the discretion to make a recommendation under section 1(2) of the Murder (Abolition of Death Penalty) Act 1965 is one example--the welfare of the child must be taken into account by the court. In my opinion the same principles apply to the exercise by the Secretary of State of his discretion in the case of section 53(1) detainees. That seems to me to follow from the fact that the sentence which he is required to administer is one which has been laid down by this Part of the Act.

The principles of protection and welfare are therefore as relevant to section 53(1) detainees as they are to those who are serving determinate sentences. They apply to plans for the future of these detainees as well as to the conditions under which they are presently being held. While punishment is plainly one of the purposes to which section 53(1) is directed--I agree with your Lordships that Mr. Fitzgerald's argument to the contrary must be rejected--it cannot at any stage in the sentence be allowed to override consideration for the detainee's protection and welfare. It is worth noting also that the United Nations Convention on the Rights of the Child (1989) 28 International Legal Materials 1448, which was ratified by the United Kingdom on 16 December 1991, draws attention to the rights of the child who has committed an offence. Article 40.1 states that there is an obligation to take into account the desirability of promoting the child's reintegration into society. Children who are convicted of crime are entitled to be treated in a way which is consistent with their age when the crime was committed. The sentence must be approached from the outset with a view to their rehabilitation and reintegration into society, once they have served the requirements of punishment and it is safe for them to be released.

Mr. Pannick's submission for the Secretary of State was that the nature of the sentence under section 53(1) of the Act of 1933 did not confine the discretion of the Secretary of State as to release under section 53(2) of the Act of 1991. It was on this ground that he sought to defend the policy which the Home Secretary announced to Parliament on 27 July 1993, when he stated that everything he had said about the practice of the Secretary of State in relation to mandatory life prisoners applied equally to prisoners who were, or would be, detained during Her Majesty's pleasure under section 53(1) of the Act of 1933 and to persons who had been, or would be, sentenced to custody for life under section 8 of the Criminal Justice Act 1982. In his statement he specifically endorsed this part of a statement to Parliament by the then Minister of State, Dame Angela Rumbold, on 16 July 1991:

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The theory as restated in that passage was said in Regina v. Secretary of State for the Home Department, Ex parte Doody [1994] 1 AC 531, 556B-C by Lord Mustill to be the only theory which could justify the retention of the mandatory sentence of imprisonment for life for adult persons convicted of murder, which the court must impose under section 1(1) of the Murder (Abolition of Death Penalty) Act 1965. As he pointed out in the same passage, the theory and the practice for convicted murderers are out of tune, as the practice established by Mr. Leon Brittan, the then Home Secretary, in 1983 is based on the proposition that within the life term there is concealed a fixed period of years which is the penal element. It is this practice which has led to the fixing of the "tariff" by the Home Secretary. The release of the mandatory life sentence prisoner on life licence is a measure of leniency, as the proper "tariff" sentence for murder is life imprisonment. But I do not think that the same theory, and the practice which has been developed from it, can be applied to persons who have been sentenced to be detained during Her Majesty's pleasure under section 53(1) of the Act of 1933 as substituted by section 1(5) of the Act of 1965. If the same theory could be applied to them as to adult prisoners there would have been no point in providing for the imposition on them of a different penalty. Yet section 1(5) of the Act of 1965 went out of its way to require that a different sentence from that of life imprisonment under section 1(1) of that Act was to be imposed in the case of children and young persons. It did not just re-enact the provisions of section 53(1) of the Act of 1933, which had re-enacted in almost precisely the same words the provisions of section 103 of the Children Act 1908, which was in these terms:

What section 1(5) of the Act of 1965 did was to amend that section by directing attention to the age of the person at the time when the offence was committed. It provides that a person convicted of an offence:

There is here an express prohibition against the imposition on him of a sentence of life imprisonment. And it is not just the word "imprisonment," which is plainly inappropriate in the case of a child or young person, that has been removed by this direction. The word "life" also has been removed. The sentence which is to be imposed instead is that of "detention," which is to be not for life but "during Her Majesty's pleasure." Moreover that direction is related specifically to the age of the person at the time of the offence, not at the time of sentence. It does not matter how old the person is at the time when he is convicted of the crime and is being sentenced for his offence. Even if he is over twenty-one, and thus liable to be imprisoned as an adult prisoner, his sentence must be one of detention during Her Majesty's pleasure if he was under eighteen years when he committed the murder.

In my opinion the effect of section 1(5) of the Act of 1965 is that 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. I agree with the Master of the Rolls [1997] 2 W.L.R. 67, 83H-84A, that the discretion as to release which is to be exercised by the Secretary of State in the case of these two sentences is a different one. In the case of the mandatory life sentence it is a discretion 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. 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.

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 Children and Young Persons Act 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 by section 34(2) of the Criminal Justice Act 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.

Mr. Pannick submitted that it was clear that Parliament had not adopted a special regime for those sentenced to detention under section 53(1) of the Act of 1933 because it had expressly provided in section 43(2) of the Act of 1991 that, for the purpose of release, the provisions relating to life sentences were to apply also to section 53(1) sentences. There is no doubt that section 43(2)(a) of the Act of 1991 does have that effect, but that does not mean that the whole regime is the same. What section 43(2)(a) does is to apply the provisions of Part II of the Act to those sentenced to detention under section 53(1) of the Act of 1933 as well as to those sentenced to life imprisonment--that is, to discretionary life imprisonment--under section 53(2) of the same Act. In the result those sentenced to discretionary life imprisonment under section 53(2) are classed as discretionary life prisoners. They require to be dealt with under the same procedure for early release as adult life sentence prisoners under section 34 of the Act of 1991. Those sentenced to detention during Her Majesty's pleasure as classed as life prisoners for the purposes of that Part of the Act. In this respect, but in this respect only, they are to be dealt with in the same way as adult mandatory life sentence prisoners under section 35(2) and (3) of the Act of 1991, which provide:

Where I part company with Mr. Pannick's argument is with respect to the conclusion which he sought to draw from the assimilation of the section 53(1) detainee with the adult mandatory life prisoner for the purposes of the Act of 1991. He said that this meant that the Secretary of State was entitled to apply the same criteria in regard to the exercise of discretion about the release of prisoners in each of these two categories. His argument was that Parliament was satisfied that the two sentences had sufficient similarities to make it appropriate to deal with them under the same provisions when it came to their release on life licence, and that if Parliament had intended different criteria to apply it was impossible to understand why it had provided for the release of prisoners in both categories under the same general provision which conferred a broad discretion on the Secretary of State as to their release. In my opinion this argument confuses questions of procedure with questions as to the criteria which may be applied.

Part II of the Act of 1991 was concerned essentially with questions of procedure. It set out to classify the various categories of prisoner with a view to providing for their early release from custody. A distinction was drawn, as regards the duty to release, between short-term and long-term prisoners. These were to be the two categories which were to be applicable to those sentenced to determinate sentences. A further distinction was drawn between discretionary life sentence prisoners and mandatory life prisoners, who were described as life prisoners for the purposes of the Act. In the case of discretionary life prisoners, section 34 laid down the conditions under which there was to be a duty to release this category of prisoner on licence. Following the decision of the European Court of Human Rights in Thynne, Wilson and Gunnell v. United Kingdom (1990) 13 E.H.R.R. 666 that the applicants were entitled to judicial control of their detention by virtue of Article 5(4) of the European Convention, the Secretary of State was to release this category of life prisoner or detainee when the Parole Board directed his release. In the case of mandatory life prisoners there was to be no such duty. Instead, in their case, there was to be a power to release under the procedure which section 35(2) and (3) laid down. But nothing is said in either of these two subsections about the criteria which the Secretary of State is to apply. They are concerned only with the procedure which he has to follow, which involves a recommendation for release by the Parole Board and prior consultation with the judiciary. Furthermore the procedure which these two subsections lay down is precisely the same as that which was set out for all life prisoners, and for all detainees under section 53 of the Act of 1933, in section 61(1) of the Criminal Justice Act 1967. What the Act of 1991 did, when it repealed that section, was to separate out the various kinds of life prisoners and detainees into two different categories. It did so in order to distinguish between those sentences which were discretionary and those which were mandatory.

I can find nothing in the legislative history or in the terminology of these provisions which would entitle the Secretary of State to conclude that the distinction between the sentences of life imprisonment and of detention during Her Majesty's pleasure, which was preserved so clearly by section 1(1) and (5) of the Act of 1965, has been removed by the Act of 1991. Nor can I find anything which would entitle him to conclude that he was entitled to treat them, for the purposes of their consideration for release on life licence, as if the effect of the Act of 1991 was that the section 53(1) detainee had had imposed on him the same consequences in regard to punishment as in the case of the mandatory life sentence prisoner.

In my opinion the Secretary of State's policy, as described by him in his statement of 27 July 1993, was unlawful because it failed to recognise that different criteria continue to apply to those sentenced to detention during Her Majesty's pleasure, having regard both to the terms of the sentence and to its history. The wording of the sentence indicates that the duration of the sentence, as well as the place and the conditions of the detention, must be kept under review by the Secretary of State during the time while the detainee remains in custody. At one time a direction that a convicted person was to be detained during His Majesty's pleasure was a means of enabling the execution of the sentence to be deferred with a view to the possibility of a reprieve. Then the phrase came to be used for the disposal where the person was suffering from a mental disorder or, in Scotland, was unable to stand trial for this reason or was found to be insane by the jury: see section 87 of the Lunacy (Scotland) Act 1857 and section 2 of the Trial of Lunatics Act 1883. Neither consideration is, of course, relevant to a sentence of detention which is passed under section 53(1) of the Act of 1933. But the selection of the words appropriate for this form of disposal cannot be regarded as wholly detached from their historical background. 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. The Secretary of State's policy has overlooked that distinction.

That oversight has, in its turn, vitiated the decision which he took in regard to the tariff which was to be served by the applicants. I agree with Pill L.J. in the Divisional Court that it was inconsistent with the duty to keep their detention under review to fix a tariff of 15 years in this case. The effect of such a long tariff was to preclude consideration of their case by the Parole Board for twelve years, by which time the applicants would have ceased to be young persons and would have been moved into prison conditions with adults. But it is not only the length of the tariff which gives rise to concern. The absence of any reference in the decision letters to a recognition by the Secretary of State of the duty to keep the progress and development of the children under review shows that he has proceeded upon an unlawful policy. I do not regard the assurance at the end of these letters that he was prepared to consider any fresh representations and to reduce the tariff if appropriate as providing an answer to this criticism. He made it clear in his policy statement that he would do this only in exceptional circumstances, and your Lordships were informed that this would not include the progress or development of the applicants while they were in custody. In paragraph 8 of his affidavit, Mr Ian Newton of H.M. Prison Service, whose responsibilities in the Lifer Section include consideration of and advice on the setting of the tariff period of imprisonment, states:

This statement is consistent with the view that the tariff period has fixed the penal element of the sentence. But it clearly has nothing to do with the question of keeping the period of detention under review in order to take account of the applicants' progress while in custody.

I agree also with the Master of the Rolls [1997] 2 W.L.R. 67, 92C that there was an almost irresistible case here for considering whether the tariff approach should be departed from. I mention this not by way of criticism of the decision on procedural grounds, but rather to emphasise what I see as a serious conflict between the process of tariff-fixing which the Secretary of State embarked upon in this case and his duty to keep the period of detention under review. It is to be noted that section 35(2) of the Act of 1991 does not require a tariff to be fixed in any of the cases to which that subsection applies. The subsection deals only with what the Secretary of State must do before he exercises his discretion to release. It does not oblige him to seek advice or to take any decisions about the period to be served at the outset, although he may of course do so. The tariff approach which is currently in use has its origins in a policy which was announced to Parliament by the Home Secretary, Mr Leon Brittan, on 30 November 1983. But what was contemplated in that policy statement was the seeking of an initial judicial view--the word "initial" was appropriate, because the Secretary of State was still required to consult the judiciary before release from custody--on the requirements of retribution and deterrence, in order to provide guidance to the Secretary of State as to the appropriate date for the first consideration of the case by the Parole Board. And it was made clear that it was to remain possible for the Secretary of State exceptionally to revise that view of the minimum period.

The use of the word "tariff," which implies fixture, as in a table of fixed charges for services, has led to a development of this policy which, in the case of detainees under section 53(1) of the Act of 1933, risks replacing the duty of review with the blanket of rigidity. If the matter had been allowed to rest in this case at the stage of seeking advice from the judiciary--advice which was relevant to the Secretary of State's function, but from which he could depart if and when he thought appropriate--that would have been one thing and no harm would have been done. But for the Secretary of State to set his own tariff, of the kind indicated by his present policy and then to communicate his decision to the applicants--as he was required to do by Regina v. Secretary of State for the Home Department, Ex parte Doody, but which had the inevitable result of publicity--seems to me to have had the unreasonable result of imposing a fetter on the discretion which he is required to exercise if these sentences are to be kept under review.

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 development 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 decision

The Secretary of State's decision has been criticised on various procedural grounds, but the only ground which has any real force, in my opinion, is that he wrongly took into account in fixing his tariff of material derived from public petitions and through the media, and in this respect reached a decision which was unfair to the applicants. I agree entirely with what my noble and learned friend, Lord Goff of Chieveley, has said about all the other grounds, in which, as he has said, there is no substance.

In my opinion one need look no further than the two decision letters in order to see that this material was irrelevant to the tariff and that it should have been left entirely out of account at this stage. In the opening paragraph it was stated that the Secretary of State's decision was on the period to be served "to meet the requirements of retribution and deterrence ('the tariff')." But in the explanation which followed it was stated that he had had regard not only to the circumstances of the offence, the recommendations from the judiciary, the representations made on behalf of the applicants and the extent to which the case could be compared with other cases, but also "to the public concern about this case . . . and to the need to maintain public confidence in the system of criminal justice."

It seems to me that the Secretary of State has confused two quite different things in reaching his decision on this matter. On the one hand there is the minimum period to be fixed for retribution and deterrence. That is the matter on which advice is sought in the first instance from the judiciary. On the other hand there is the question whether the person should be released from custody once the tariff has been served, as a preliminary to which his case must be considered and he must then be recommended for release by the Parole Board. That is a matter which is at the discretion of the Secretary of State under section 35(2) and(3) of the Act of 1991. He is entitled then to decide, for policy reasons, that the case should not be referred to the Parole Board or, if the Parole Board have recommended release, that the prisoner should not be released from custody. The policy considerations to be applied at that stage are a matter for him, subject to what I have already said about his duty of review in the case of section 35(1) detainees.

But the imposition of a tariff, which is intended to fix the minimum period to be spent in custody is, in itself, the imposition of a form of punishment. This has, as Lord Mustill observed in Regina v. Secretary of State for the Home Department, Ex parte Doody, at p. 557A-B, the characteristics of an orthodox judicial exercise, which is directed to the circumstances of the offence and those of the offender and to what, having regard to the requirements of retribution and deterrence, is the appropriate minimum period to be spent in custody. The judge, when advising the Secretary of State about the tariff, must and does confine his attention to these matters. He does not take account of public petitions or public opinion as expressed through the media. Expressions of opinion from these sources, however sincere and well presented, are rarely based on a full appreciation of the facts of the case. More importantly, they cannot be tested by cross-examination or by any other form of inquiry in which the prisoner for his interest can participate. Natural justice requires that they be dismissed as irrelevant to the judicial exercise, as it would be unfair for the judge to allow himself to be influenced by them.

If the Secretary of State wishes to fix a tariff for the case--in order to replace the views of the judiciary with a view of his own about the length of the minimum period--he must be careful to abide by the same rules. He must leave out of account at this stage and for this purpose those factors which the judge would have to leave out of account in reaching a decision which was fair. It would be unfair for him to do otherwise. This is not to say that those other factors may not have a part to play when the time comes for the selection of a proposed release date. But circumstances may have changed by then, and the factors which at one time may have seemed important may by then have acquired a different significance. The more rigid the approach to the tariff--and the decisions which the Secretary of State took in this case in the light of his declared policy indicate a desire on his part for rigidity in order to maintain public confidence--the more important it is that these requirements should be observed. They were departed from in this case, and I regard the decisions as procedurally unreasonable on this ground.

Conclusion

The appeal was taken by the Secretary of State against the decision of the Divisional Court, which the Court of Appeal upheld, that the decision which he reached was unfair for procedural reasons. On the single ground which I have described in the previous paragraph I would dismiss the appeal. The cross-appeals were taken by the applicants against the decision of the Court of Appeal that the Secretary of State was entitled to adopt the same policy with regard to a child detained during Her Majesty's pleasure as in the case of an adult mandatory life prisoner. For the reasons which I have given in the earlier part of this speech I would allow the cross-appeals. In the result I agree with both the Divisional Court and the Court of Appeal that the decision must be quashed, and I would decline to grant declaratory relief on the ground that this is unnecessary.