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.  continued

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      It was, of course, possible for Parliament subsequently to reverse the policy adopted in 1908 and repeatedly re-affirmed. Counsel for the Home Secretary said that Parliament did so by provisions in the Criminal Justice Act 1991. Carefully distancing himself from the view that a section 53(1) sentence "is the same" as a sentence of life imprisonment, counsel for the Home Secretary said that the Criminal Justice Act of 1991 shows that Parliament was satisfied that a section 53(1) sentence had sufficient similarities to a mandatory life sentence imposed on an adult murderer to make it appropriate to deal with the question of release on life licence of prisoners in both categories under the same provisions. As I understood the argument it involves saying that Parliament in effect assimilated the two sentences and that in fixing a tariff for Venables and Thompson the Home Secretary was entitled to proceed on the basis that, like adults serving mandatory life sentences, they had forfeited the rest of their lives to the state. This argument crucially depends on two sections in the Criminal Justice Act 1991. Section 43(2) of the Act of 1991 provides that the provisions for release apply to section 53(1) sentences. This is a reference to section 35(2) which provides that if the Parole Board so recommends, the Home Secretary may, after consulting the Lord Chief Justice and the trial judge, release on life licence a life prisoner who is not a discretionary life prisoner. By section 35(2) "life prisoner" includes a child or young person sentenced under section 53(1). These provisions are perfectly consistent with the policy that a sentence of detention during Her Majesty's pleasure is a sentence different in conception from a sentence of mandatory life imprisonment. These are procedural provisions which do not alter the nature of the section 53(1) sentence. It is true that there is similarity between a section 53(1) sentence and a sentence of life imprisonment in the sense that all persons released on licence shall remain in force until their death: section 37(3) of the Act of 1991. That is unremarkable. It tells us nothing about the nature of a section 53(1) sentence.

      It is necessary to put counsel's arguments in context. It postulates that in 1991 Parliament reversed the policy it had adopted in 1908, and reaffirmed subsequently, by assimilating the sentences of children and young persons convicted of murder with adults convicted of murder. Given that no dissatisfaction with the conception of a sentence of detention during Her Majesty's pleasure ever became public such a change of direction would have been surprising. The merits of such a radical change, contrary to the long standing policy of differentiating between the sentences of adults and children, were never debated in public or in Parliament. The Act of 1991 was preceded by a White Paper published by the Government: Crime, Justice and Protecting the Public, February 1990, reprinted in (1990), (Cm. 965). The White Paper contained no proposal for assimilating the two sentences. Moreover, since 1908 there has been an ever-increasing awareness of the need to treat juvenile criminals as a separate class. It became an axiom of our criminal justice system. The reason for this change in public perception was neatly encapsulated in the following proposition:

     "No civilized society regards children as accountable for their actions to the same extent as adults" (Howard, Criminal Law, 4th ed. (1982), p. 343).

This proposition is a quotation endorsed by Lord Lowry in C. (A Minor) v. Director of Public Prosecutions [1996] 1 A.C. 1, 40C, in a speech which carried the agreement of all his fellow Law Lords. Against this contextual scene an express legislative proposal to assimilate section 53(1) sentences for juvenile murderers with mandatory life sentences for adult murderers, or to substitute for the sentence of detention during Her Majesty's pleasure for children a sentence of detention for life, would have been deeply controversial. In effect counsel for the Home Secretary has put forward an argument that Parliament achieved this radical result by an oblique legislative method. If his argument were to be accepted it would amount to legislation by stealth. But the truth is that the argument that in 1991 Parliament intended to assimilate section 53(1) sentences and mandatory life sentences is misconceived.

      It follows that in making his decisions the Home Secretary wrongly equated the sentences of Venables and Thompson with that applicable to adults convicted of murder. I will assume that the Home Secretary was entitled to apply a "practice" that a prisoner serving a mandatory life sentence has forfeited his life to the State and that the "presumption" must be that the prisoner will spend the rest of his days in prison. But in my judgment this practice is plainly not legitimate in respect of the different sentence of detention during Her Majesty's pleasure. Section 53(1) is based on the premise that, to some extent, children are less accountable for their actions than adults. Subject to continued detention for reasons of risk, a section 53(1) was intended to be a more merciful punishment than life imprisonment: see Lord Woolf M.R.'s observations on this point in: Reg. v. Home Secretary, Ex parte Venables and Thompson [1997] 2 W.L.R. 67, 83H. The Home Secretary misunderstood the legal nature of the sentence in respect of which he was called upon to exercise a discretion. He did take the ages of Venables and Thompson into account. But he misinterpreted the sentence prescribed by law for children convicted of murder. He did so to the detriment of Venables and Thompson. The Home Secretary's decisions were therefore unlawful. For the same reasons his policy statement of 27 July 1993 to the House of Commons was unlawful so far as it related to section 53(1) sentences.
The public clamour for an increase in the tariff

      The Home Secretary rightly invited representations about the level of the tariff from solicitors acting for the two young prisoners. The letter written on his behalf included the following paragraph:

      "The Bulger family have submitted a petition, signed by some 278,300 members of the public, in the following terms:

      'We, the undersigned, urge the Home Secretary when considering the "tariff" sentence to be imposed on Robert Thompson and Jon Venables to take account of our belief that they should not be released in any circumstances and should be detained for life.'

      At the same time, the family submitted some 4,400 letters to them from members of the public in their support.

      Mr. George Howarth M.P. (Knowsley North) has submitted a petition at the request of relatives of the Bulger family. It is signed by some 5,900 members of the public, and is in the following terms:

      'We the undersigned are of the opinion that the minimum sentence served by Robert Thompson and Jon Venables should be twenty-five years.'

      A total of 22,638 items of correspondence has been received directly by the Home Office at the time of writing. This comprises 21,281 Sun newspaper coupons in support of a whole life tariff, and 1,357 letters and small petitions.

      The coupons linked with the Sun newspaper followed a campaign under headlines such as "80,000 call T.V. to say Bulger killers must rot in jail." Each coupon contained the word "Dear Home Secretary I agree with Ralph and Denise Bulger that the boys who killed their son James should stay in jail for LIFE."

      The decision letters of the Home Secretary dated 22 July 1994 contained the following paragraph:

      "In making his decision, the Secretary of State had regard to the circumstances of the offence, the recommendations received from the judiciary, the representations made on your behalf and the extent to which this case could be compared with other cases. He also had regard 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 public confidence in the system of criminal justice." (My emphasis)

The Home Secretary regarded "the public concern about this case" as evidenced by the "petitions and other correspondence" as evidence in favour of increasing the tariff. It is clear from the earlier letter that the "correspondence" included the 21,281 Sun coupons which were treated as part of the 22,638 items of correspondence.

      It is perfectly understandable that the family of the murdered boy felt very strongly about the sentence to be served by the killers of the little boy. But it is quite another matter whether the Home Secretary was entitled to take into account such protests, and other media inspired protests, about the level of the tariff. The Home Secretary in fixing a tariff may, like a sentencing judge, take into account the general consideration of public confidence in the criminal justice system. He may also take into account a more specific feature such as public concern about the severity, or lack of severity, of sentences imposed on children for crimes of violence. But may the Home Secretary take into account public clamour about the tariff to be fixed in a particular case? May he treat as relevant a newspaper campaign to obtain an increase in the tariff? May he take into account a demonstration in Queen Anne's Gate to protest about the tariff to be imposed?

      For my part the matter can be decided on a twofold basis. First, the material in fact taken into account by the Home Secretary was worthless and incapable of informing him in a meaningful way of the true state of informed public opinion in respect of the tariff to be set in the cases of Venables and Thompson. By "informed public opinion" I mean public opinion formed in the knowledge of all the material facts of the case. Plainly, the "evidence" to which the Home Secretary referred did not measure up to his standard. It was therefore irrelevant. But the Home Secretary was influenced by it. He gave weight to it. On this ground his decision is unlawful. But the objection to the course adopted by the Home Secretary is more fundamental. The starting point must be to inquire into the nature of the power to fix a tariff which the Home Secretary exercised. Writing on behalf of the Home Secretary the Home Office explained in correspondence placed before us that:

     "[The Home Secretary] must ensure that, at all times, he acts with the same dispassionate sense of fairness as a sentencing judge."

The comparison between the position of the Home Secretary, when he fixes a tariff representing the punitive element of the sentence, and the position of a sentencing judge is correct. In fixing a tariff the Home Secretary is carrying out, contrary to the constitutional principle of separation of powers, a classic judicial function: see Lord Diplock's explanation of the importance of the separation of powers between the Executive and the judiciary in Hinds v. The Queen [1977] A.C. 195, 212; and Dupont Steels Ltd. v. Sirs [1980] 1 W.L.R. 142, 157. Parliament entrusted the underlying statutory power, which entailed a discretion to adopt a policy of fixing a tariff, to the Home Secretary. But the power to fix a tariff is nevertheless equivalent to a judge's sentencing power. Parliament must be assumed to have acted have entrusted the power to the Home Secretary on the supposition that, like a sentencing judge, the Home Secretary would not act contrary to fundamental principles governing the administrative of justice. Plainly a sentencing judge must ignore a newspaper campaign designed to encourage him to increase a particular sentence. It would be an abdication of the rule of law for a judge to take into account such matters. The same reasoning must apply to the Home Secretary when he is exercising a sentencing function. He ought to concentrate on the facts of the case and balance considerations of public interest against the dictates of justice. Like a judge the Home Secretary ought not to be guided by a disposition to consult how popular a particular decision might be. He ought to ignore the high voltage atmosphere of a newspaper campaign. The power given to him requires, above all, a detached approach. I would therefore hold that public protests about the level of a tariff to be fixed in a particular case are legally irrelevant and may not be taken into account by the Home Secretary in fixing the tariff. I conclude that the Home Secretary misdirected himself in giving weight to irrelevant considerations. It influenced his decisions. And it did so to the detriment of Venables and Thompson.

      For this further reason I conclude that his decisions were unlawful.

Procedural unfairness

      For the reasons I have already given I would also hold that by giving weight to public clamour about the tariff the Home Secretary acted in a procedurally unfair way.

      In my judgment the remaining allegations of procedural unfairness are not made out.

Form of relief

      It follows that for substantive reasons I would allow the cross-appeals and for a procedural reason I would dismiss the appeal. In my judgment declaratory relief is not necessary.


My Lords,

      Two questions require to be answered in this case. The first is whether the Secretary of State acted unlawfully when he applied to the applicants, who had been sentenced to be detained during Her Majesty's pleasure under section 53(1) of the Children and Young Persons Act 1933, the same policy as he applies to adult mandatory life sentence prisoners in regard to the period to be served by them in custody to satisfy the requirements of retribution and deterrence--the tariff period. The second is whether his decisions on the tariff, as set out in the letters dated 22 July 1994 which were written on his behalf to the applicants, were reached in a manner which was procedurally unfair to them and was thus an improper exercise of the discretion which is vested in him by section 35(2) of the Criminal Justice Act 1991. I have come to the view that each of these two questions should be answered in the affirmative.

      The offence of which the applicants were convicted was, when measured by the ordinary standards of human conduct, an exceptionally cruel and sadistic one. As the writer of the two decision letters has pointed out, it was committed over a period of several hours against a victim who was very young and defenceless. It was all the more horrifying because the two perpetrators were themselves of such a young age. If it had been committed by an adult an exceptionally long tariff period would have been entirely justified. But the applicants were not adults when they committed this offence. They were children, and because they were only ten years old at the time they were only just within the age of criminal responsibility.

      Had the applicants been only a few months younger--Jon Venables was born on 13th August 1982, Robert Thompson was born on 23 August 1982 and the murder was committed ten years and six months later on 12 February 1993--they could not have been held responsible for this crime. As it was, since they were over ten but under fourteen years old, and of an age when the understanding, knowledge and ability to reason of children is still developing, the presumption that they were doli incapax had to be rebutted in their case. The fact that it was rebutted meant that they could be convicted of the crime, on the view that they were fully responsible for their actions because they knew that what they were doing was seriously wrong. But the fact that they were under the age of 18 when the offence was committed meant that they could not be sentenced to life imprisonment The mandatory sentence which was passed in their case was that they were to be detained during her Majesty's pleasure. It is this feature of the case which has presented and will continue to present the Secretary of State with questions of unusual difficulty. It was inevitable that the trial and the conviction of the applicants would attract widespread publicity and that strong emotions would be aroused. The fact that the tariff-fixing process has been conducted in public also and that it has resulted in this litigation, one effect of which will be to prolong that publicity, has greatly increased the difficulty of dealing with the case in a just way, which takes proper account of the age of the applicants and the nature of the sentences which were passed by the court.

      I believe that some measure of detachment from the pressure of public opinion is essential if a just result which is consistent with the rights of the applicants as children is to be achieved in this case. A judge when passing a determinate sentence or when advising the Secretary of State about the tariff to be served by a life prisoner is expected to be able to resist that pressure. Indeed he can be relied upon to do so, in view of his independence which is such a vital characteristic of the judiciary. It is so much more difficult for the Secretary of State to do this as he is, in the exercise of the discretion which is given to him by section 35(2) of the Act of 1991, in the end answerable to Parliament. But there are limits to his discretion, as he cannot adopt a policy which is unlawful or act unfairly in matters of procedure in the application of his policy to the case. It is at this point that his decisions appear to have come into conflict with the rights of the applicants who, although convicted of a crime of such extreme gravity, were and are nevertheless still children. They are entitled to be dealt with fairly according to a policy which is lawful as they begin to serve the sentences which were imposed on them as required by the law.

The policy

      Every system of criminal justice has had to face up to the problem of how to deal with children who commit crimes. It is worth repeating here the words with which Harper J. began his judgment in Regina (A Child) v. Whitty (1993) 66 A.Crim.R. 462 in the Supreme Court of Victoria, which Lord Lowry quoted in his speech in C. (A Minor) v. Director of Public Prosecutions [1996] A.C. 1, 40C-D:

     "'No civilised society,' says Professor Colin Howard in his book entitled Criminal Law, 4th ed. (1982), p. 343, 'regards children as accountable for their actions to the same extent as adults.' . . . The wisdom of protecting young children against the full rigour of the criminal law is beyond argument. The difficulty lies in determining when and under what circumstances that protection should be removed."

      The protection comes in two forms--the selection of the age of criminal responsibility and the nature of the sentences which can be imposed by the court. The two go hand in hand and can be balanced one against the other. The public interest in holding even quite young children accountable for their actions can be satisfied by requiring that a more lenient and reformative penalty should be imposed in their case. It has for a long time been recognised that the ordinary consequences of a conviction ought to be modified where the offender is of less than full age. The position in England and Wales prior to the intervention of more recent statutes as described in Hale's Pleas of the Crown, 6th ed., Leach (1788), vol. I, pp. 25 et seq., was that in the case of persons under the age of seven years the presumption that they were not criminally responsible was absolute, so they could not be convicted of any crime. In the case of persons under the age of fourteen, and even more clearly those under twelve, the presumption was that they were doli incapax, but this was rebuttable. If it was rebutted the court could delay judgment, so that the King's pleasure considering a pardon might be known. But if it chose to proceed, the penalty was that appropriate to the offence in the ordinary way whatever that might be. In the case of those over the age of fourteen years there was full criminal responsibility and the sentence was the same as that ordinarily passed in the case of an adult offender, even if it was the death penalty. These rules have now been modified (1) by raising the threshold of criminal responsibility, first to eight years and then to ten years: see section 50 of the Children and Young Persons Act 1933, as amended by section 16(1) of the Children and Young Persons Act 1963; and (2) by introducing a system of penalties and other disposals which have been designed specially for young offenders: see Part V of the Children Act 1908, on which all subsequent statutes dealing with this matter have been based.