R (Smith) v Secretary of State for the Home Department
| Jurisdiction | England & Wales |
| Judgment Date | 11 February 2004 |
| Neutral Citation | [2004] EWCA Civ 99 |
| Date | 11 February 2004 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | Case No: C3/2003/0895 & C3/2003/2125 |
[2004] EWCA Civ 99
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
DIVISIONAL COURT (KENNEDY LJ & MITCHELL J)
Royal Courts of Justice
Strand,
London, WC2A 2LL
Lord Phillips of Worth Matravers, Mr
Lord Justice Mantell and
Lord Justice Carnwath
Case No: C3/2003/0895 & C3/2003/2125
Edward Fitzgerald QC & Phillippa Kaufmann (instructed byIrwin Mitchell Solicitors) for Maria Smith
Tim Owen QC Hugh Southey (instructed byMessrs Bhatt Murphy) for DudsonDavid Pannick QC & Kate Gallafent (instructed by the Treasury Solicitor) for the Secretary of State
Phillip Sales (instructed by the Treasury Solicitor) for the Lord Chief Justice
Lord Phillips, MR:
This is the judgment of the court.
Introduction
These two appeals have been heard together. They require consideration of one of the most confused areas of our criminal process. This is the position of children and young persons convicted of murder. Since 1908 a child or young person convicted of murder has, by statutory requirement, been sentenced to be "detained during His/Her Majesty's pleasure". The nature and effect of that sentence may have been clear in 1908, but it has ceased to be so. The intervention and inter-action of executive policy, amendments to the statutory regime and the requirements of the European Convention on Human Rights have combined to produce a state of uncertainty as to the law. In this judgment we will use the phrase "young persons" to embrace all those who, from time to time, by reason of their youth have, in the case of conviction for murder, been required to be sentenced to detention during Her Majesty's pleasure.
The most recent change in the statutory regime governing the sentencing of young persons convicted of murder was made by section 82A of the Powers of Criminal Courts (Sentencing) Act 2000, as introduced by section 60 of the Criminal Justice and Courts Services Act 2000. That statutory change did not affect the position of the two detainees who are the subject of these appeals, or some 200 other detainees in like position, who will be directly affected by the result of these appeals. Theirs have been described as "transitional cases". The new legislation was accompanied by a change of executive policy in relation to the transitional cases. The two appeals put directly in issue the effect of this change of executive policy. Indirectly they also bear on the effect of the most recent legislative change.
The sentence of "detention during Her Majesty's pleasure" dates back to 1908. Since 1908 the Secretary of State has enjoyed a statutory power to release on licence young persons serving sentences of detention during Her Majesty's pleasure. In 1993 the Secretary of State made plain that it was his policy, when a young person was convicted of murder and sentenced to be detained during Her Majesty's pleasure, to fix a "tariff" for that detainee. The tariff was the period that the young person would have to serve by way of retribution and deterrence for the crime. Save in exceptional circumstances, the young person would not be released on licence until the tariff period had been served.
In R v Secretary of State for the Home Department, Ex Parte Venables [1998] AC 407 the legitimacy of this policy was challenged. All five Law Lords agreed that it was legitimate for the Secretary of State to fix a tariff period for a young person sentenced to be detained during Her Majesty's pleasure. The House was, however, divided as to the effect of fixing a tariff. Two of their Lordships held that the Secretary of State was under no duty to keep the tariff of an individual detainee under review. Statutory changes had equated the approach to be adopted to young persons found guilty of murder to that adopted to adults convicted of murder. There was no requirement to review the tariff imposed in relation to adults and it followed that the same was true of young persons. The majority of the House disagreed. They held that the Secretary of State was under a continuing obligation to keep under review the position of young persons sentenced to be detained during Her Majesty's pleasure. Thus the tariff set by him for a young person had to be reviewed by him, from time to time, to have regard to the progress being made by that young person. The issue common to both appeals is whether this majority ruling in Venables remains applicable despite the change in executive policy that accompanied the legislative change in 2000. Under that change of policy the Secretary of State undertook to review the tariffs fixed in transitional cases and to comply with the recommendations of the Lord Chief Justice when carrying out that review. In accordance with the new policy, the tariff of each of the detainees with whom these appeals are concerned was reviewed by the Lord Chief Justice, and the Secretary of State accepted the recommendation made on that review. The common issue is whether the Secretary of State remains under an obligation to keep these tariffs under periodic review.
The facts and the issues
Maria Smith
On 16 July 1992, Maria Smith, then known as Maria Rossi, and her co-defendant Marie Malloy, murdered Edna Philpott. It was a brutal murder of the 70 year old, partially sighted, woman in her own home by two young women who were under the influence of drink and drugs. They had on a previous occasion burgled her home and made threats to kill her. They stabbed her some 30 times and mutilated her. After they had killed her they ransacked her home. Each pleaded guilty to murder.
Maria Smith was 17 years and 8 months old at the time of the murder. In consequence she was sentenced to be detained during Her Majesty's pleasure. The trial judge recommended a tariff of 16 years. The Lord Chief Justice recommended that it should be 14 years. The Secretary of State, in June 1993, set the tariff at 15 years. On 13 April 1999 the Secretary of State, as required by the decision in Venables, reviewed Smith's tariff and reduced it to 13 years. On 21 November 2001, pursuant to the Secretary of State's new policy with respect to the transitional cases, the Lord Chief Justice reviewed Smith's tariff and advised the Secretary of State that there was no ground for reducing it further. Accordingly her tariff remained at 13 years.
When he gave the advice referred to above, the Lord Chief Justice made it clear that he regarded it as the responsibility of the Secretary of State to undertake any future monitoring that the law required. He added that he hoped that the Secretary of State would keep Smith's case under review. The Secretary of State, for his part, has made it clear that he does not consider that he is under any obligation to keep Smith's case under review during the tariff period and that he does not intend to do so.
Smith commenced judicial review proceedings on 26 June 2002. She sought a declaration that the Secretary of State's policy was unlawful "to the extent that it makes no provision for the further judicial review of an existing Her Majesty's pleasure detainee's tariff after it has been fixed in accordance with the Lord Chief Justice's recommendation". On 3 April 2003 the Divisional Court (Kennedy LJ and Mitchell J) upheld Smith's claim for judicial review, although not in precisely the terms sought. The Court held that, despite the change in the manner in which their tariffs were fixed, the transitional cases remained governed by the decision of the House of Lords in Venables. Against that decision the Secretary of State appeals, and that is the only issue raised before us in the case of Smith.
Dudson
In December 1992, when he was 16 years of age, Dudson joined with adult co-defendants in the murder of a 16 year old girl named Suzanne Capper in horrific circumstances. They imprisoned and tortured her over the period of a week and set light to her body so that she sustained burns from which she died. On 17 December 1993 Dudson and his co-defendants were convicted of murder. The trial judge recommended a tariff of 18 years for Dudson and 25 years for his co-defendants. The Lord Chief Justice supported those recommendations, which were implemented by the Secretary of State.
On 29 January 2002, pursuant to the Secretary of State's new policy in respect of the transitional cases, the Lord Chief Justice reviewed Dudson's tariff and advised that it should be reduced to 16 years. The Secretary of State accepted this recommendation and reset the tariff at 16 years on 20 March 2002.
On 30 October 2002 McCombe J granted Dudson permission to seek judicial review of the Secretary of State's decision of 20 March 2002. The basis for challenging that decision was the same as the challenge made in Smith: the Secretary of State had failed to make any provision for the periodic review of Dudson's tariff. This argument was subsumed in an attack on the tariff itself. It was argued that because the Secretary of State had declined to review the tariff he should have set a "minimum" tariff that anticipated that Dudson might make exceptional—indeed unforeseeable—progress in detention. The following grounds were advanced for challenging the Secretary of State's decision on the tariff-:
(i) The procedure leading to the Secretary of State's decision was flawed in that the Lord Chief Justice, when deciding what advice to tender to the Secretary of State, had declined to grant Dudson an oral hearing
(ii) The advice given to the Secretary of...
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