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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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      The age of criminal responsibility in England and Wales is lower that it is in most other European countries, but that in itself does not seem to me to be a ground for criticism. One has to look at the whole picture, including the nature of the sentences which the court can impose and the way in which they are administered, in order to see whether the effect of placing criminal responsibility on children as young as the applicants are in this case is objectionable. Nor is the fact that the United Kingdom stands alone in Europe in requiring the court to impose an indeterminate sentence on children and young persons convicted of murder which is not to be judicially supervised necessarily a ground for criticism either, provided that the right policy is applied to the working out of these sentences. It is not for your Lordships to say what that policy should be. This is a matter which must be left to the Secretary of State, to whom the discretion in this matter has been entrusted by Parliament. But the policy must be a lawful policy. It is this requirement which ensures that children are treated in the way to which they are entitled. It is the responsibility of the judges in the exercise of their supervisory jurisdiction in matters of public law to intervene if the policy which is applied to them is unlawful.

      The context for the decision which is under review in this case is provided by Part III of the Children and Young Persons Act 1933, in which section 53(1) of that Act appears. That Part is entitled "Protection of Children and Young Persons in relation to Criminal and Summary Proceedings." Section 44 of the same Act, which also appears in Part III and has as its headnote the words "Principles to be observed by all Courts in dealing with Children and Young Persons," states that every court in dealing with a child or young person who is brought before it "shall have regard to the welfare of the child or young person." Protection and welfare thus lie at the heart of the provisions in this Part of the Act, although many of the sections which it contains are concerned also with punishment. Your Lordships were not referred to any enactment which suggests that these principles are not still applicable to the way children and young persons are entitled to be treated by the courts. It was suggested that section 44 could not apply to the provisions of section 53(1), as the sentence which is laid down by that section is mandatory. But there is no indication in Part III of the Act that this subsection is in a different position from the other provisions which that Part of the Act contains. Where there is a discretion to be exercised--and the discretion to make a recommendation under section 1(2) of the Murder (Abolition of Death Penalty) Act 1965 is one example--the welfare of the child must be taken into account by the court. In my opinion the same principles apply to the exercise by the Secretary of State of his discretion in the case of section 53(1) detainees. That seems to me to follow from the fact that the sentence which he is required to administer is one which has been laid down by this Part of the Act.

      The principles of protection and welfare are therefore as relevant to section 53(1) detainees as they are to those who are serving determinate sentences. They apply to plans for the future of these detainees as well as to the conditions under which they are presently being held. While punishment is plainly one of the purposes to which section 53(1) is directed--I agree with your Lordships that Mr. Fitzgerald's argument to the contrary must be rejected--it cannot at any stage in the sentence be allowed to override consideration for the detainee's protection and welfare. It is worth noting also that the United Nations Convention on the Rights of the Child (1989) 28 International Legal Materials 1448, which was ratified by the United Kingdom on 16 December 1991, draws attention to the rights of the child who has committed an offence. Article 40.1 states that there is an obligation to take into account the desirability of promoting the child's reintegration into society. Children who are convicted of crime are entitled to be treated in a way which is consistent with their age when the crime was committed. The sentence must be approached from the outset with a view to their rehabilitation and reintegration into society, once they have served the requirements of punishment and it is safe for them to be released.

      Mr. Pannick's submission for the Secretary of State was that the nature of the sentence under section 53(1) of the Act of 1933 did not confine the discretion of the Secretary of State as to release under section 53(2) of the Act of 1991. It was on this ground that he sought to defend the policy which the Home Secretary announced to Parliament on 27 July 1993, when he stated that everything he had said about the practice of the Secretary of State in relation to mandatory life prisoners applied equally to prisoners who were, or would be, detained during Her Majesty's pleasure under section 53(1) of the Act of 1933 and to persons who had been, or would be, sentenced to custody for life under section 8 of the Criminal Justice Act 1982. In his statement he specifically endorsed this part of a statement to Parliament by the then Minister of State, Dame Angela Rumbold, on 16 July 1991:

     "According to the judicial process, the offender has committed a crime of such gravity that he forfeits his liberty to the State for the rest of his days--if necessary, he can be detained for life without the necessity for subsequent judicial intervention. The presumption is, therefore, that the offender should remain in custody until and unless the Home Secretary concludes that the public interest would be better served by the prisoner's release than by his continued detention."
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      The theory as restated in that passage was said in Regina v. Secretary of State for the Home Department, Ex parte Doody [1994] 1 A.C. 531, 556B-C by Lord Mustill to be the only theory which could justify the retention of the mandatory sentence of imprisonment for life for adult persons convicted of murder, which the court must impose under section 1(1) of the Murder (Abolition of Death Penalty) Act 1965. As he pointed out in the same passage, the theory and the practice for convicted murderers are out of tune, as the practice established by Mr. Leon Brittan, the then Home Secretary, in 1983 is based on the proposition that within the life term there is concealed a fixed period of years which is the penal element. It is this practice which has led to the fixing of the "tariff" by the Home Secretary. The release of the mandatory life sentence prisoner on life licence is a measure of leniency, as the proper "tariff" sentence for murder is life imprisonment. But I do not think that the same theory, and the practice which has been developed from it, can be applied to persons who have been sentenced to be detained during Her Majesty's pleasure under section 53(1) of the Act of 1933 as substituted by section 1(5) of the Act of 1965. If the same theory could be applied to them as to adult prisoners there would have been no point in providing for the imposition on them of a different penalty. Yet section 1(5) of the Act of 1965 went out of its way to require that a different sentence from that of life imprisonment under section 1(1) of that Act was to be imposed in the case of children and young persons. It did not just re-enact the provisions of section 53(1) of the Act of 1933, which had re-enacted in almost precisely the same words the provisions of section 103 of the Children Act 1908, which was in these terms:

     "Sentence of death shall not be pronounced on or recorded against a child or young person, but in lieu thereof the court shall sentence the child or young person to be detained during His Majesty's pleasure, and, if so sentenced, he shall, notwithstanding anything in the other provisions of this Act, be liable to be detained in such place and under such conditions as the Secretary of State may direct, and whilst so detained shall be deemed to be in legal custody."

      What section 1(5) of the Act of 1965 did was to amend that section by directing attention to the age of the person at the time when the offence was committed. It provides that a person convicted of an offence:

     "who appears to the court to have been under the age of eighteen years at the time the offence was committed shall not, if he is convicted of murder, be sentenced to imprisonment for life, nor shall sentence of death be pronounced on or recorded against him."

There is here an express prohibition against the imposition on him of a sentence of life imprisonment. And it is not just the word "imprisonment," which is plainly inappropriate in the case of a child or young person, that has been removed by this direction. The word "life" also has been removed. The sentence which is to be imposed instead is that of "detention," which is to be not for life but "during Her Majesty's pleasure." Moreover that direction is related specifically to the age of the person at the time of the offence, not at the time of sentence. It does not matter how old the person is at the time when he is convicted of the crime and is being sentenced for his offence. Even if he is over twenty-one, and thus liable to be imprisoned as an adult prisoner, his sentence must be one of detention during Her Majesty's pleasure if he was under eighteen years when he committed the murder.

      In my opinion the effect of section 1(5) of the Act of 1965 is that the sentence of detention during Her Majesty's pleasure is a separate and distinct sentence from that of life imprisonment. It recognises the special characteristics of the young offender, and especially of the child offender. There is built into the sentence a measure of leniency in view of the age of the offender at the time of the offence. The measure of that leniency is that, in his case, in the working out of the sentence punishment and welfare, present and future, are both equally relevant. He is to be detained without limit of time, but expressly on terms which do not deprive him of his liberty for the rest of his days. I agree with the Master of the Rolls [1997] 2 W.L.R. 67, 83H-84A, that the discretion as to release which is to be exercised by the Secretary of State in the case of these two sentences is a different one. In the case of the mandatory life sentence it is a discretion to bring custody to an end. In the case of the detainee during Her Majesty's pleasure, it is a discretion to continue custody for as long, but only for as long, as this is appropriate. This means that the child's progress and development while in custody, as well as the requirements of punishment, must be kept under review throughout the sentence. A policy which ignores at any stage the child's development and progress while in custody as a factor relevant to his eventual release date is an unlawful policy. The practice of fixing the penal element as applied to adult mandatory life prisoners, which has no regard to the development and progress of the prisoner during this period, cannot be reconciled with the requirement to keep the protection and welfare of the child under review throughout the period while he is in custody.

      It may be said that this approach is so out of line with what happens in the case of children and young persons who are sentenced to determinate sentences, or to detention for life at the discretion of the trial judge under section 53(2) of the Children and Young Persons Act 1933, that it is not sustainable and must be rejected. But I am not persuaded by this objection. The sentences which are imposed in these cases are all judicial sentences. A determinate sentence is one which has been selected by the trial judge, having due regard to the provisions of section 44 of the Act of 1933. A discretionary life sentence also is one which the trial judge has selected, and to which he has applied the penal element as he is required to do by section 34(2) of the Criminal Justice Act 1991. In neither case is the child or young person exposed to the determination of the penal element by the Secretary of State after taking into account considerations of policy. And if, as cannot be doubted, section 44 of the Act of 1933 must be taken into account by the judge when passing the sentence which he decides to impose, it would seem both illogical and unfair if the child or young person were to be deprived of that protection in cases where the mandatory sentence under section 53(1) was pronounced.

      Mr. Pannick submitted that it was clear that Parliament had not adopted a special regime for those sentenced to detention under section 53(1) of the Act of 1933 because it had expressly provided in section 43(2) of the Act of 1991 that, for the purpose of release, the provisions relating to life sentences were to apply also to section 53(1) sentences. There is no doubt that section 43(2)(a) of the Act of 1991 does have that effect, but that does not mean that the whole regime is the same. What section 43(2)(a) does is to apply the provisions of Part II of the Act to those sentenced to detention under section 53(1) of the Act of 1933 as well as to those sentenced to life imprisonment--that is, to discretionary life imprisonment--under section 53(2) of the same Act. In the result those sentenced to discretionary life imprisonment under section 53(2) are classed as discretionary life prisoners. They require to be dealt with under the same procedure for early release as adult life sentence prisoners under section 34 of the Act of 1991. Those sentenced to detention during Her Majesty's pleasure as classed as life prisoners for the purposes of that Part of the Act. In this respect, but in this respect only, they are to be dealt with in the same way as adult mandatory life sentence prisoners under section 35(2) and (3) of the Act of 1991, which provide:

      "(2) If recommended to do so by the [Parole] Board, the Secretary of State may, after consultation with the Lord Chief Justice together with the trial judge if available, release on licence a life prisoner who is not a discretionary life prisoner.

       (3) The Board shall not make a recommendation under subsection (2) above unless the Secretary of State has referred the particular case, or the class of case to which that case belongs, to the Board for its advice."

      Where I part company with Mr. Pannick's argument is with respect to the conclusion which he sought to draw from the assimilation of the section 53(1) detainee with the adult mandatory life prisoner for the purposes of the Act of 1991. He said that this meant that the Secretary of State was entitled to apply the same criteria in regard to the exercise of discretion about the release of prisoners in each of these two categories. His argument was that Parliament was satisfied that the two sentences had sufficient similarities to make it appropriate to deal with them under the same provisions when it came to their release on life licence, and that if Parliament had intended different criteria to apply it was impossible to understand why it had provided for the release of prisoners in both categories under the same general provision which conferred a broad discretion on the Secretary of State as to their release. In my opinion this argument confuses questions of procedure with questions as to the criteria which may be applied.

      Part II of the Act of 1991 was concerned essentially with questions of procedure. It set out to classify the various categories of prisoner with a view to providing for their early release from custody. A distinction was drawn, as regards the duty to release, between short-term and long-term prisoners. These were to be the two categories which were to be applicable to those sentenced to determinate sentences. A further distinction was drawn between discretionary life sentence prisoners and mandatory life prisoners, who were described as life prisoners for the purposes of the Act. In the case of discretionary life prisoners, section 34 laid down the conditions under which there was to be a duty to release this category of prisoner on licence. Following the decision of the European Court of Human Rights in Thynne, Wilson and Gunnell v. United Kingdom (1990) 13 E.H.R.R. 666 that the applicants were entitled to judicial control of their detention by virtue of Article 5(4) of the European Convention, the Secretary of State was to release this category of life prisoner or detainee when the Parole Board directed his release. In the case of mandatory life prisoners there was to be no such duty. Instead, in their case, there was to be a power to release under the procedure which section 35(2) and (3) laid down. But nothing is said in either of these two subsections about the criteria which the Secretary of State is to apply. They are concerned only with the procedure which he has to follow, which involves a recommendation for release by the Parole Board and prior consultation with the judiciary. Furthermore the procedure which these two subsections lay down is precisely the same as that which was set out for all life prisoners, and for all detainees under section 53 of the Act of 1933, in section 61(1) of the Criminal Justice Act 1967. What the Act of 1991 did, when it repealed that section, was to separate out the various kinds of life prisoners and detainees into two different categories. It did so in order to distinguish between those sentences which were discretionary and those which were mandatory.

      I can find nothing in the legislative history or in the terminology of these provisions which would entitle the Secretary of State to conclude that the distinction between the sentences of life imprisonment and of detention during Her Majesty's pleasure, which was preserved so clearly by section 1(1) and (5) of the Act of 1965, has been removed by the Act of 1991. Nor can I find anything which would entitle him to conclude that he was entitled to treat them, for the purposes of their consideration for release on life licence, as if the effect of the Act of 1991 was that the section 53(1) detainee had had imposed on him the same consequences in regard to punishment as in the case of the mandatory life sentence prisoner.

      In my opinion the Secretary of State's policy, as described by him in his statement of 27 July 1993, was unlawful because it failed to recognise that different criteria continue to apply to those sentenced to detention during Her Majesty's pleasure, having regard both to the terms of the sentence and to its history. The wording of the sentence indicates that the duration of the sentence, as well as the place and the conditions of the detention, must be kept under review by the Secretary of State during the time while the detainee remains in custody. At one time a direction that a convicted person was to be detained during His Majesty's pleasure was a means of enabling the execution of the sentence to be deferred with a view to the possibility of a reprieve. Then the phrase came to be used for the disposal where the person was suffering from a mental disorder or, in Scotland, was unable to stand trial for this reason or was found to be insane by the jury: see section 87 of the Lunacy (Scotland) Act 1857 and section 2 of the Trial of Lunatics Act 1883. Neither consideration is, of course, relevant to a sentence of detention which is passed under section 53(1) of the Act of 1933. But the selection of the words appropriate for this form of disposal cannot be regarded as wholly detached from their historical background. It is the concept of continuing review, with the prospect of rehabilitation and release from custody at some time in the future, albeit on life licence, which marks this sentence out for the application of different criteria from the sentence of life imprisonment. The Secretary of State's policy has overlooked that distinction.

 
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