R (Smith) v Secretary of State for the Home Department
| Jurisdiction | England & Wales |
| Judgment Date | 21 November 2003 |
| Neutral Citation | [2003] EWHC 2797 (Admin) |
| Date | 21 November 2003 |
| Court | Queen's Bench Division (Administrative Court) |
[2002] EWHC 692 Admin
Court and Reference:Administrative Court ; CO/3047/2002
Kennedy LJ, Mitchell J
Appearances:E Fitzgerald QC and P Kaufmann (instructed by Irwin Mitchell) for S; D Pannick QC and K Gallafent (instructed by Treasury Solicitor) for the Secretary of State; H Southey (instructed by Bhatt Murphy) for Anthony Dudson, an Interested Party, filed written submissions.
Whether the Home Secretary is obliged to offer an occasional review of the tariff fixed in relation to those sentenced prior to 30 November 2000 to detention during Her Majesty's Pleasure for murder.
In March 1993, S, then aged under 18, was convicted of murder and sentenced to be detained during Her Majesty's Pleasure under s. 53(1) Children and Young Persons Act 1933. The judge recommended a tariff (or minimum term) of 16 years; the Lord Chief Justice recommended 14 years; in June 1993, the Home Secretary set the minimum term at 15 years. At that time, the Home Secretary had a policy that the tariff period once fixed could not be amended. This policy was found to be unlawful, the House of Lords holding that in relation to children it was necessary to review from time to time whether there were grounds to reduce the tariff to take account of any progress whilst in custody: R v Home Secretary ex p Venables [1998] AC 407. The Home Secretary then reconsidered S's case and on 13 April 1999 re-fixed the tariff at 13 years.
In 1999, the European Court of Human Rights decided in V v UK ((1999) 30 EHRR 121) that tariffs should be fixed by the court. In consequence, on 13 March 2000 the Home Secretary indicated that, pending fresh legislation to provide that tariffs be set by trial judges in open court, he would set tariffs in line with recommendations of the Lord Chief Justice, to whom representations could be made. As from 30 November 2000, s. 82A Powers of the Criminal Courts (Sentencing) Act 2000 made provision for judges to set tariffs in relation to those sentenced to detention during Her Majesty's Pleasure for murder.
On 21 November 2001, S made written representations to the Lord Chief Justice seeking a reduction in her tariff; none was recommended at that time. On 10 June 2002, in a letter to S's solicitors, the Home Secretary indicated that he would not allow any further application to reduce S's tariff. S challenged this decision, arguing that those detained during Her Majesty's Pleasure had a right to occasional reviews by the Home Secretary, who retained the power to reduce the tariff set in light of progress and development in custody. The relevant statutory provision, s. 28(4) Crime (Sentences) Act 1997,provides that in the case of a prisoner sentenced to detention during Her Majesty's Pleasure whose tariff has not been fixed by the trial judge, the case is referred to the Parole Board (which has the power to order the release of the prisoner) when the Home Secretary so directs.
The Home Secretary argued that S had had her tariff fixed judicially, as did those sentenced after s. 82A of the 2000 Act came into effect; and that it would be anomalous for those convicted of murder to enjoy additional rights to a review of their sentences not enjoyed by other children sentenced under s. 53(1) of the 1933 Act (now s. 90 of the 2000 Act).
Kennedy LJ
1. The issue which arises in this case relates only to offenders under the age of 18 convicted of murder and sentenced prior to 30November 2000 pursuant to s. 53(1) of the Children and Young Persons Act 1933 (or s. 90(1) Powers of Criminal Courts (Sentencing) Act 2000) to be detained during Her Majesty's pleasure. The question we have to consider is whether after the Secretary of State has, in accordance with the recommendation of the Lord Chief Justice, decided upon a period of detention to be served before the case is referred to the Parole Board he is under any continuing obligation to review his decision from time to time to see if there has been such progress on the part of the offender as would warrant a reduction in the period.
Offence and Sentence
2. On 16 July 1992 the claimant, then known as Maria Rossi and her co-accused Marie Molloy murdered Edna Philpott. It was a brutal murder of a 70 year old partially sighted woman in her own home by 2 young women who the sentencing judge described as "evil products of the modern age." They were both high on drink and drugs and inflicted appalling injuries on Miss Philpott before ransacking her home. They pleaded guilty at Cardiff Crown Court on 8 March 1993 and, both being under the age of 18, they received the same sentence. When exercising its powers the court was required by s. 44(1) of the 1933 Act to have regard to the welfare of the defendants, but as the provisions of s. 53(1) were mandatory the trial judge could only give effect to s. 44 when deciding what recommendation he should make as to the period to be served to satisfy the requirements of retribution and deterrence.
3. The trial judge recommended a tariff of 16 years in relation to each offender, the Lord Chief Justice recommended 14 years, and in June 1993 the Secretary of State set the tariff at 15 years in each case. That was the period to elapse before their cases were considered for parole pursuant to part II of the Criminal Justice Act 1991.
Developing Policy
4. The sentence of "detention during Her Majesty's pleasure" originates in s. 103 of the Children Act 1908. As in the case of its successor (s53(1) of the Children and Young Persons Act 1933) the Act provides for detention "in such place and under such conditions as the Secretary of State may direct…" Each Act provided for discharge "at any time" on licence (s105(1) of the 1908 Act and s. 53(4) of the 1933 Act). Thus the executive determined the actual length of detention and did so by reference to the offender's progress. Prior to 1983 there was no tariff element (or minimum punitive period) in this sentence.
5. In 1983 the Secretary of State had indicated in a statement that after a tariff had been set the case would be reviewed at intervals not exceeding 3 years. That would enable the Secretary of State to consider any special circumstances or exceptional progress which might justify changing the review date. In the same statement the Secretary of State indicated that adult offenders convicted of some serious offences would not be considered for parole until they had served a substantial period in custody. That adversely affected a life sentence prisoner named Hogben who was about to be considered for parole, and on his behalf Mr Fitzgerald QC submitted to the European Commission that the change of policy by the Secretary of State contravened Art 7 of the European Convention on Human Rights in that it imposed on him a penalty that was harsher than that imposed at the time of sentence and applicable at the time of his crime. That submission was rejected by the Commission, which pointed out that the penalty for the offence was always life imprisonment, so no issue under Art 7 arose. Although the change of policy "may give rise to the result that his imprisonment is effectively harsher than if he had been eligible for release on parole at an earlier stage, such matters relate to the execution of the sentence as opposed as to the "penalty" which remains that of life imprisonment. Accordingly it cannot be said that the "penalty" imposed is a heavier one than that imposed by the trial judge." (Hogben v UK Appn 11653/85, (1986) 46 DR 231).
6. A successor Secretary of State in a statement to Parliament made on 27 July 1993 (4 months after the present claimant was sentenced) adopted a more restrictive position, saying that in making any change to the tariff period he would only have regard to matters relevant to the circumstances of the crime or the applicant's state of mind when the offence was committed. He would not in any circumstances vary the tariff by reason of events occurring after the commission of the crime. Thus the possibility of the tariff period being reduced by the Secretary of State as a result of exceptional progress by the offender after the imposition of the sentence disappeared.
Ex p Venables and Thompson
7. That policy initiated in 1993 was challenged in the courts, and on 12 June 1997 the House of Lords gave judgment in R v Home Secretary ex p Venables [1998] AC 407. By a majority of 3 to 2 it was held that whereas the Secretary of State might in his discretion set a provisional tariff as to the period of detention to be served by a young offender by way of punishment and deterrence, the policy adopted in 1993 was unlawful because it did not allow for any reduction in the tariff by reason of exceptional progress, and thus failed properly to take account of the provisions of s. 44 of the 1933 Act.
8. For present purposes it is necessary to look with some care at the reasoning, especially of those who were in the majority. In the Court of Appeal it had been questioned whether the Secretary of State was entitled to adopt any tariff policy when dealing with children sentenced to be detained during Her Majesty's pleasure. But Lord Browne-Wilkinson at 394H said that was not decisive.
"What is crucial is whether the particular policy adopted is, in relation to children, sufficiently flexible to permit the Secretary of State to take into account all those factors to which he ought to have regard in exercising his discretion in relation to children if he is to act lawfully."
He then set out the developing policy to which I have referred and the obligation on the Secretary of State to have regard to the provisions of s. 44(1) of the 1933 Act. He had a statutory discretionary power in relation to the referral of any s. 53(1) case to the Parole Board, and in principle the future exercise of such a power should not be fettered.
9. As to the 1993 policy the legality of that policy depended on the...
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