House of Lords
Session 1997-98
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Judgments - Reg. v. Secretary of State for the Home Department, Ex parte V. and Reg. v. Secretary of State for the Home Department, Ex parte T.


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









ON 12 JUNE 1997


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 forward representations. The objection which is most often made by those subject to an indeterminate sentence is its uncertainty. They need a target date. It is also sensible from the administrator's point of view . . . In addition it identifies the penal element which perfectly properly the young offender can normally be expected to serve by way of punishment."

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.