R (Smith) v Secretary of State for the Home Department
| Jurisdiction | UK Non-devolved |
| Judge | LORD NICHOLLS OF BIRKENHEAD,LORD HOFFMANN,LORD HOPE OF CRAIGHEAD,LORD BINGHAM OF CORNHILL,BARONESS HALE OF RICHMOND |
| Judgment Date | 28 July 2005 |
| Neutral Citation | [2005] UKHL 51 |
| Court | House of Lords |
| Date | 28 July 2005 |
ex parte Smith (FC)
and one other action
[2005] UKHL 51
HOUSE OF LORDS
My Lords,
The question in this appeal is whether a sentence of detention during Her Majesty's Pleasure imposed before 30 November 2000 on conviction of a child or young person for murder imports a requirement that the minimum term to be served by that person be subject to periodic review, even though the length of that term has in effect been fixed by the Lord Chief Justice of England and Wales. The Court of Appeal (Lord Phillips of Worth Matravers MR, Mantell and Carnwath LJJ), affirming the decision of a Queen's Bench Divisional Court (Kennedy LJ and Mitchell J), held that it does: [2004] EWCA Civ 99, [2004] QB 1341; [2003] EWHC 692 (Admin), [2003] 1 WLR 2176. The Secretary of State challenges that conclusion.
On 8 March 1993 the respondent, Maria Smith, and a co-defendant pleaded guilty to murdering an elderly woman on 16 July 1992. At the time of the murder the respondent was aged 17 years 8 months, her co-defendant some six weeks younger. As required by section 53(1) of the Children and Young Persons Act 1933, the judge directed that each defendant be detained during Her Majesty's Pleasure. Under the sentencing regime then in force it was for the Secretary of State, having obtained the advice of the trial judge and the Lord Chief Justice, to fix the minimum (or tariff) term to be served before parole could be granted, that is, the punitive term judged necessary to meet the requirements of retribution and general deterrence. The trial judge drew no distinction between the culpability of the two defendants and rightly regarded the killing as exceptionally brutal. He advised a minimum term of 16 years in each case. The Lord Chief Justice, whilst recognising the horror of the crime, advised that a term of 14 years in each case would be sufficient. The Secretary of State fixed terms of 15 years.
In R v Secretary of State for the Home Department, Ex p Venables and R v Secretary of State for the Home Department, Ex p Thompson [1998] AC 407 the House held, by a majority, that the Secretary of State was bound to keep under review the minimum term to be served by a person sentenced to detention during Her Majesty's Pleasure, and quashed the terms fixed in the applicants' cases. On 10 November 1997, following that decision, the Secretary of State announced the policy which he would in future adopt after the initial fixing of the minimum or tariff term, to give effect to the judgment Hansard (HC Debates), written answers, cols 421-422):
"Officials in my department will receive annual reports on the progress and development of young people sentenced under s 53(1) whose initial tariff has yet to expire. Where there appears to be a case for considering a reduction in tariff, that will be brought to the attention of Ministers.
When half of the initial tariff period has expired, I or a Minister acting on my behalf will consider a report on the prisoner's progress and development, and invite representations on the question of tariff, with a view to determining whether the tariff period originally set is still appropriate. In complex and difficult cases, I shall seek the assistance of my Rt Hon friend the Secretary of State for Health in securing independent professional advice (that is to say, independent of those already charged with the care of the offender) on the young offender's condition and development.
Any request for a review of tariff before it expires will be considered on its merits, whether that request is made by or on behalf of the offender or by one of the agencies or individuals responsible for his or her care.
In considering requests, inviting representations, and in conducting reviews, I will look for evidence of:
significant alteration in the offender's maturity and outlook since the commission of the offence;
risks to the offender's continued development that cannot be sufficiently mitigated or removed in the custodial environment;
any matter that calls into question the basis of the original decisionto set tariff at a particular level (for example about the circumstances of the offence itself or the offender's state of mind at the time);
together with any other matter which appears relevant."
Pursuant to his duty of periodic review the Secretary of State invitedand received representations on the minimum term to be served by the respondent and her co-defendant and refixed it at 13 years.
In V v United Kingdom (1999) 30 EHRR 121 the European Court of Human Rights unanimously held, affirming a decision reached by the Commission with a single dissentient vote, that the procedure adopted to fix the minimum term to be served by the child applicant had violated his rights under article 6 of the Convention. The Court held (in paras 109, 111 and 114 of its judgment) that the fixing of a minimum term was part of the proceedings and amounted to a sentencing exercise; that article 6(1) was therefore applicable; that that article guaranteed a fair hearing by an impartial tribunal independent of the executive; and that the Secretary of State was clearly not independent of the executive.
This decision prompted the Secretary of State to revise the procedures adopted to fix the minimum terms of children and young persons sentenced to HMP detention on conviction of murder. He informed the House of Commons of his new policy in that regard on 13 March 2000 (Hansard (HC Debates), cols 22-23):
"Given that clear Court decision, I am bound to bring forward legislation, which will be in the Criminal Justice and Court Services Bill this Session, to provide for tariffs to be set by the trial judge in open court, in the same way as they are currently set for adults subject to discretionary life sentences, which apply to any offenders apart from those sentenced for murder. The tariff will be appealable either by the offender or by the Attorney-General if he believes it to be unduly lenient. I also plan to ensure that the views of the victims and their relatives are better taken into account. I shall announce our proposals in due course.
About 250 people, sentenced as juveniles, are currently detained at Her Majesty's pleasure, and fresh cases continue to go through the courts. For new cases, pending the necessary change in the law which I have announced, I shall set any tariffs in line with the recommendation that the Lord Chief Justice makes to me in each case. For existing cases, I propose a fresh review of tariffs in line with the principles in the judgment. I shall be inviting representations from those whose tariffs have not yet expired.
Where no representations are received, the tariff will be set in accordance with the original recommendation made by the Lord Chief Justice in that case. Where acceptance of the Lord Chief Justice's original recommendation would mean that the tariff had now expired, I shall refer those cases to the parole board immediately. Where the original recommendation made by the Lord Chief Justice was higher than the tariff set by Ministers, the tariff would not be increased.
Where existing detainees wish to make representations, they can be made to the present Lord Chief Justice, who will then make a recommendation to me. I will then adopt his recommendation on what the tariff should be."
Thus the Secretary of State proposed a two-pronged response: a legislative scheme to govern new cases, and an informal ad hoc procedure to govern the cases of HMP detainees sentenced before the legislation would take effect.
Effect was given to the first of these proposals by section 60 of the Criminal Justice and Court Services Act 2000. Three points about that section are noteworthy for present purposes. First, it inserted a new section 82A into the Powers of Criminal Courts (Sentencing) Act 2000. This, in brief and simple summary, requires trial judges, when imposing sentences of HMP detention (otherwise than in exceptional circumstances) to specify the minimum term to be served by the detainee before he or she becomes eligible for release, if recommended by the Parole Board, on parole. Thus the judge (not the Secretary of State) fixes the minimum term and the Parole Board (not the Secretary of State) decides whether it is safe to release the detainee. Secondly, it is provided in section 60(3) that "This section", and thus section 82A, "has effect in relation to sentences passed after the coming into force of this section". Thus neither section applies to sentences passed before that date. Thirdly, section 60 came into effect on 30 November 2000, the date on which the Criminal Justice and Court Services Act 2000 received the royal assent. Thus 30 November 2000 marks the legislative divide between what may loosely be called old and new sentences of HMP detention. The respondent's sentence, passed well before that date, was an old sentence. Hence it is governed by the informal ad hoc procedure already mentioned and not by the new legislative scheme.
Pursuant to this new procedure the respondent was given the opportunity to make written representations for consideration by the Lord Chief Justice if she wished to contend that the minimum period set in her case should be reduced below 13 years. She made such representations, as did her co-defendant. Having considered these representations the Lord Chief Justice, sitting in court on 21 November 2001, delivered his written decision. He referred to representations made by the respondent's solicitors on her behalf and said:
"They referred also to the need for the tariff I set to take into account the removal of the previous practice of continuous monitoring and periodic assessment and to reflect the issues of the detainee's welfare. As to this last...
To continue reading
Request your trial
-
R Anwar Hussain v The Parole Board of England and Wales
...progress during the course of his sentence (under the principles set out in R (Smith) v The Secretary of State for the Home Department [2005] UKHL 51 ("Smith")), that tariff is the minimum term which the offender must spend in custody. However, even after that term has been served, he will ......
-
R v Paul Michael Scott
...was sentenced to detention during Her Majesty's pleasure. The House of Lords in R (Smith) v Secretary of State for the Home Department [2005] UKHL 51; [2006] 1 AC 159, held that the tariff for a person sentenced to detention during her Majesty's Pleasure may be reduced on reconsideration if......
-
R Jordan Cunliffe v Secretary of State for Justice
...review did not apply in such cases. That stance was held to be wrong in R (Smith) v Secretary of State for the Home Department [2006] 1 AC 159. The House of Lords rejected an argument on behalf of the detainees that under what was described as the "informal ad hoc procedure" the role of the......
- Re Nanthakumar (application under para 3 of Sch 22 to the Criminal Justice Act 2003)
-
Children Who Murder: Indeterminate Sentencing in Law and Practice
...that no duty of continu-ing review applied in such cases. That stance was deemed erroneous in R (Smith) v SoS for the Home Department [2006] 1 AC 159, an existing case involving a girl involved in murder at age 17, sentenced in 1993, who had been assigned a 15-year minimum term by 88 Youth ......
-
High Court of Justiciary, Edinburgh: Selecting an Appropriate Sentence for Extreme Crimes by a Young Offender: Campbell (Aaron) v HM Advocate, 2019 SLT 1127
...50; 2016 SLT 793 in which the dicta of Lady Hale in R (onthe application of Smith) v Secretary of State for the Home Department (‘Smith’) [2005] UKHL 51;[2006] 1 AC 159; [2005] 3 WLR. 410; [2005] HRLR 33 were adopted. As Lady Hale had pointed out,juveniles are generally less blameworthy and......
-
“This case is about you and your future”: Towards Judgments for Children
...of System Contact on Patterns of Desistancefrom Offending’ (2007) 4 European Journal of Criminology 315; Tyler and Trinkner, ibid.100 [2005] UKHL 51, 43. And see again, Osborn vParole Board n75above.101 See Manchester Centre for Youth Studies, Participatory Youth Practice principles athttps......
-
Legal Commentary: Children on the Sex Offenders Register: Proportionality, Prospect of Change and Article 8 Rights
...conduct (Parks and Bard, 2006). As Baroness Hale expressed it in R. v Secretary of State for the Home Department, ex parte Smith [2005] UKHL 51; [2006] 1AC 159,6 citing with approval the United States Supreme Court’s approach to juvenile offending in Roper v Simmons (2005) 543 U.S. 551: ‘ev......