R v Secretary of State for the Home Department, ex parte T.; R v Secretary of State for the Home Department, ex parte H.; R v Secretary of State for the Home Department, ex parte Hickey

JurisdictionUK Non-devolved
Judgment Date12 June 1997
Judgment citation (vLex)[1997] UKHL J0612-4
Date12 June 1997
CourtHouse of Lords
Secretary of State for the Home Department
(Original Appellant and Cross-Respondent)
Ex Parte V.
(Original Respondent and Cross-Appellant
Secretary of State for the Home Department
(Original Appellant and Cross-Respondent)
Ex Parte T.
(Original Respondent and Cross-Appellant

(Conjoined Appeals)

[1997] UKHL J0612-4

Lord Goff of Chieveley

Lord Browne- Wilkinson

Lord Lloyd of Berwick

Lord Steyn

Lord Hope of Craighead



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:

"Robert Thompson and Jon Venables, the killing of James Bulger was an act of unparalleled evil and barbarity.

"This child of 2 was taken from his mother on a journey of over two miles and then, on the railway line, was battered to death without mercy and then his body was placed across the railway line so that his body would be run over by a train in an attempt to conceal his murder. In my judgment, your conduct was both cunning and very wicked.

"The sentence that I pass upon you both … is that you shall be detained during Her Majesty's pleasure in such a place and under such conditions as the Secretary of State may direct and that means that you will be securely detained for very, very many years until the Home Secretary is satisfied that you have matured and are fully rehabilitated and are no longer a danger to others."


After sentencing them the judge continued, in their absence:

"How it came about that two mentally normal boys aged 10 of average intelligence committed this terrible crime is very hard to comprehend …"


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:

"If the defendants had been adults I would have said that the actual length of detention necessary to meet the requirements of retribution and general deterrence should have been 18 years….

"In my judgment the appropriate actual length of detention necessary to meet the requirement[s] of retribution and general deterrence for the murder, taking into account all its appalling circumstances and the age of the defendants when it was committed is 8 years … 8 years is 'very very many years' for a ten or eleven year old. They are now children. In 8 years' time they will be young men."


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:

"I have well in mind that the trial judge is in a better position than I to assess these two boys and their crime; also I agree that a much lesser tariff should apply than in the case of an adult. But I think the minimum period for punishment and deterrence should be 10 years."


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 public concern about this case, which was evidenced by the petitions and other correspondence the substance of which were disclosed to your solicitors by our letter of 16 June 1994, and to the need to maintain confidence in the system of criminal justice."


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:

"not to make a fixed decision as to minimum length of detention at the commencement of the detention or to have an intention which can be changed only exceptionally….

"The rationale is in the requirement to have regard to the age of young offenders and, especially in the case of children, their change beyond recognition during a running of a tariff period. When I say that the tariff of 15 years in this case is inappropriate, I am expressing a view not as to its merit by way of length but the lack of merit in fixing it at this stage. Mr. Fitzgerald [counsel for Venables] did accept that the tariff figure recommended by Morland J. did not exclude the underlying purpose of the sentence. It would provide a review after five years."


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:

"This is because it allows a young offender to know the period during which he is unlikely to be released and when he should prepare himself to put...

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