House of Lords
Publications on the Internet|
|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. continued|
The discretion to release
Although there is dispute as to the meaning of
the sentence of detention "during Her Majesty's pleasure," no doubt surrounds the
discretion of the Secretary of State to release such a prisoner. Under section 43(2) of the
Criminal Justice Act 1991, the provisions of Part II of the Act of 1991 (relating to the release of
adult prisoners serving life sentences) are made applicable to children who are serving
sentences of detention during Her Majesty's pleasure. The Secretary of State may release
the detained child if recommended to do so by the Parole Board and after consultation with
the Lord Chief Justice and the trial judge if available: section 35(2) of the A1ct of 1991. Before
the Parole Board can make any such recommendation, the Secretary of State has to refer the
case to the Board for its advice: section 35(3) of the Act of 1991. Therefore the release of a
child detained during Her Majesty's pleasure is wholly dependent on, first, the Secretary of
State exercising a discretion whether or not to refer the case to the Parole Board and, second,
the Secretary of State deciding whether or not to adopt any recommendation made by the
Parole Board that the detained person should be released.
If the Secretary of State determines to release a
person detained during Her Majesty's pleasure, such release is made on licence which may
either be conditional or unconditional. If unconditional, the licence remains in force until his
death unless, in the meantime, it has been revoked by the Secretary of State on one of the
grounds laid down in section 39 of the Act of 1991: see section 37(3) of the Act of 1991.
Under section 39(1) and (2) once the Secretary of State has released on licence, apart from
cases of emergency, he can revoke that licence so as to recall the former detainee only upon
the recommendation of the Parole Board. If the detainee is recalled, he has a right to have his
case considered by the Board and, if the Board so recommends, to be released by the
Secretary of State on licence.
Therefore the effect of a sentence of detention
during Her Majesty's pleasure is:
The policy of the Secretary of State
(a) The tariff
Over the years, the Secretary of State
has adopted a tariff policy in exercising his discretion whether to release adults who have
been sentenced to life imprisonment. This was first publicly announced in Parliament by Mr.
Leon Brittan on 30 November 1983. In essence, the tariff approach is this. The life sentence
is broken down into component parts, viz., retribution, deterrence and protection of the public.
The trial judge and the Lord Chief Justice advise the Secretary of State as to the sentence
which would be appropriate for the crime having regard to the elements of retribution and
deterrence. In the light of that advice (and not being in any way bound by it) the Secretary of
State makes his own decision as to the minimum period which the prisoner will have to
serve in order to satsify the requirements of retribution and deterrence. This is the tariff
period. The policy provides that, until three years before the tariff period expires, the
Secretary of State will not refer the case to the Parole Board for its advice as to whether the
prisoner should or should not be released. Moreover, until the tariff period has expired the
Secretary of State will not exercise his discretion to release on licence.
This basic approach to adult prisoners has
developed over the years. In particular, as a result of the decision of the European Court of
Human Rights in Thynne, Wilson and Gunnell v. United Kingdom 13 E.H.R.R. 666, a
distinction has had to be drawn between murderers for whom the sentence of life
imprisonment is mandatory under English law and others sentenced to life imprisonment
where the sentence is not mandatory and has been imposed by the judge because he
considers that the prisoner may, if released after a determinate sentence appropriate to the
crime, present a continuing risk to society (a discretionary life sentence). The Strasbourg
Court held that under Article 5(4) of the European Convention on Human Rights a
discretionary life prisoner who had served the tariff period was entitled to have the question
whether his continuing detention thereafter on the grounds of risk was justified determined by
"a court." In order to comply with this decision, Part II of the Act of 1991 was
passed by Parliament. It provides that the treatment of discretionary life prisoners is (to use
an unpleasant but invaluable word) "judicialised." In the case of discretionary life
prisoners, the tariff is fixed by the trial judge and the risk after expiry of the tariff period is
determined by the Parole Board, to whom the Secretary of State is bound to refer the case.
The Secretary of State is bound to release the discretionary life prisoner if the Parole Board so
directs: see section 34.
However, in Thynne, a distinction was
drawn between discretionary life prisoners and mandatory life prisoners. The Strasbourg
decision in Thynne did not affect mandatory life prisoners: the Secretary of State's
discretion as to their release is preserved by section 35 of the Act of 1991, as is his discretion
whether or not to refer the case to the Parole Board. Since, under section 53(1) of the Act of
1933, it is mandatory to sentence a child murderer to detention during Her Majesty's pleasure,
the effect of section 43 of the Act of 1991 is to preserve the Secretary of State's discretions in
relation to a child detained during Her Majesty's pleasure.
It follows that it is within the Secretary of State's
discretion whether or not to release both mandatory life prisoners and children detained during
Her Majesty's pleasure. The statement to Parliament made by Mr. Howard, the Secretary of
State, on 27 July 1993 made it clear that the tariff principle first enunciated publicly by Mr.
Leon Brittan in 1983 would continue to apply to adults sentenced to mandatory life
imprisonment. The tariff period (being the minimum period necessary to reflect the elements
of retribution and deterrence) would be fixed by the Secretary of State at the beginning of the
sentence after receiving judicial advice. The Secretary of State would then fix the date for the
first review (i.e. the first reference of the matter to the Parole Board), as being a date three
years before the expiry of the tariff. The statement emphasised that the tariff was only being
fixed as an initial view. The Secretary of State said:
The statement further emphasised that the Secretary of State endorsed the statement of
policy made on 16 July 1991 by Dame Angela Rumbold:
Up to this point, the Home Secretary's 1993
statement had been dealing with the release of adults sentenced to mandatory life
imprisonment. However, at the end of this statement the Home Secretary said this:
Accordingly, the tariff system, whereby the punitive and deterrent element is set by the
Secretary of State soon after the date of conviction, applies in just the same way to children
sentenced to detention during Her Majesty's pleasure as it applies to adult murderers.
There are passages in the Court of
Appeal judgment which suggest that the only question in this case is whether the Secretary of
State was entitled to adopt any tariff policy in dealing with children sentenced to be detained
during Her Majesty's pleasure. In my judgment that is not the decisive point. 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.
Mr. Leon Brittan's 1983 statement contained the
Thus under the 1983 policy statement it was
clear, even in the case of adult life prisoners, that their position would be kept under tri-annual
review and that the Secretary of State would consider any special circumstances "or
exceptional progress" which might justify bringing forward the review date and hence the
earlier release of the prisoner, i.e. the facts relating to the prisoner's behaviour after the
commission of the offence could be taken into account. It was the presence of this
flexibility which proved decisive in In re Findlay  A.C. 318.
Policy in this regard seems to have changed
since 1983. The passage from the Secretary of State's statement in 1993 which I have
quoted refers to "exceptionally" revising the tariff period by "reducing
it." However, it was made clear to your Lordships both from the evidence and in
submissions that in making any change to the tariff period the Secretary of State would only
have regard to matters relevant to the circumstances of the commission of the crime or the
applicant's state of mind when the offence was committed. The Secretary of State would not
in any circumstances vary the tariff period by reason of events occurring after the commission
of the crime.
Therefore, under the policy applied by the
Secretary of State to these applicants, the way in which they mature hereafter or behave is
irrelevant: however they develop, the tariff period will remain fixed at a minimum of 15 years.
The consequences of the Secretary of State's decisions
The position of these applicants is therefore as
follows. Although they were only 10½ years old at the date of the crime, until they have
reached the age of 21 or 22 the Parole Board will not have an opportunity to consider their
progress in detention. During that period they will have passed through puberty, adolescence
and young manhood. Even when the Parole Board considers the matter, the applicants will
not be released until the age of 24 or 25 at the earliest. For 12 years (that is to say,
throughout their minorities) the welfare of the applicants themselves will be wholly irrelevant to
the question of their release and will not be considered. The only exception to this will be if
fresh facts emerge as to their state of mind when they were 10½ and committed the
My Lords, it would be surprising if such a policy
towards young children (however heinous their offence) is lawful in this country. As the
speeches of my noble and learned friends Lord Steyn and Lord Hope of Craighead
demonstrate, ever since the Children Act 1908 there has been legislation in this country
requiring child offenders to be dealt with on a basis different from that applicable to adults. In
the case of children, Parliament has directed that attention should be given not only to the
requirements of punishment and protection of the public from risk but also to the welfare of the
child offender. What was, in my view, tacit in the Act of 1908 was made explicit by section
44(1) of the Act of 1933 which provides:
That subsection is still in force and is one of the basic principles applicable to dealing with
child offenders. It is clear from the statutory direction that in dealing with children (whether by
sentencing or otherwise) a court is bound to take into account the welfare of the child. Mr.
Pannick, for the Secretary of State, felt unable to contend that the Secretary of State in
exercising his discretion in relation to child offenders was not under the same duty.
In these circumstances, the first question to be
determined is whether the Secretary of State, by adopting a policy (not laid down by
Parliament) which precludes both himself and the Parole Board from having any regard to the
circumstances and welfare of the applicants for a period of 12 years, has acted within the
discretionary powers conferred on him in relation to children detained during Her Majesty's
pleasure. The answer to this question depends upon the following points:
(3) Did the Act of 1991 change the nature of that discretion?
I will consider these in turn.
Discretion and policy--the law
When Parliament confers a discretionary power
exercisable from time to time over a period, such power must be exercised on each occasion
in the light of the circumstances at that time. In consequence, the person on whom the power
is conferred cannot fetter the future exercise of his discretion by committing himself now as to
the way in which he will exercise his power in the future. He cannot exercise the power nunc
pro tunc. By the same token, the person on whom the power has been conferred cannot
fetter the way he will use that power by ruling out of consideration on the future exercise of
that power factors which may then be relevant to such exercise.
These considerations do not preclude the
person on whom the power is conferred from developing and applying a policy as to the
approach which he will adopt in the generality of cases: see Rex v. Port of London
Authority, Ex parte Kynoch Ltd.  1 K.B. 176; British Oxygen Company Ltd. v.
Board of Trade  A.C. 610. But the position is different if the policy adopted is such
as to preclude the person on whom the power is conferred from departing from the policy or
from taking into account circumstances which are relevant to the particular case in relation to
which the discretion is being exercised. If such an inflexible and invariable policy is adopted,
both the policy and the decisions taken pursuant to it will be unlawful: see generally de
Smith, Woolf and Jowell: Judicial Review of Administrative Action, 5th ed. (1995), para.
11.004 et seq., pp. 506 et seq.
The position is well illustrated by your
Lordships' decision in In re Findlay (supra) which was itself concerned with the legality
of the tariff policy announced in 1983 by Mr. Leon Brittan. Your Lordships held that the policy
was lawful because it provided for a departure from the policy in exceptional circumstances.
Lord Scarman said, at p. 336G:
In my judgment this passage demonstrates that
what saved Mr. Brittan's 1983 policy from being unlawful was that it contained within it the
flexibility, in exceptional circumstances, to have regard to relevant circumstances and such
circumstances included not only those factors relevant to the culpability of the offence but also
"other relevant factors such as prison record, person or family
It is not necessary in this case to consider how
far the 1993 policy (which precludes consideration of matters occurring after the date of the
offence such as prison record and personal circumstances) is lawful in relation to adult life
prisoners. In this appeal, your Lordships are only concerned with the lawfulness of the policy
as applied to children sentenced to be detained during Her Majesty's pleasure. In relation to
such children, the question is whether it is lawful to adopt a policy which, even in
exceptional circumstances, treats as irrelevant the progress and development of the child
who has been detained. This is plainly the effect of the inflexible 1993 policy. The answer to
that question must depend upon the character of a sentence of detention during Her Majesty's
pleasure. If such a sentence requires the Secretary of State to have regard not only to those
factors relevant in considering an adult life prisoner (retribution, deterrence and risk) but also
to the progress and development of the child whilst detained, it seems to me clear that the
policy is unlawful since it excludes from consideration, even in exceptional circumstances, a
factor relevant to the decision whether or not to release the child.