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The factors relevant to the exercise of the discretion.
The mandatory sentence of detention during Her Majesty's pleasure is imposed by section 53(1) of the Act of 1933 which, as currently in force, provides as follows:
In the Court of Appeal, Hobhouse L.J. (at p. 102G) concluded that the sentence under section 53(1) was a life sentence. This view was not supported by Mr. Pannick in argument before your Lordships and, as the Master of the Rolls points out,at p. 82, is inconsistent with the express words of the section: the section states in terms that the child shall not be sentenced to imprisonment for life and provides that detention during Her Majesty's pleasure is to be "in lieu of" such imprisonment. The words of the section itself make it clear that detention during Her Majesty's pleasure is wholly indeterminate in duration: it lasts so long as Her Majesty (i.e. the Secretary of State) considers appropriate. Therefore, in relation to a person sentenced to be detained during Her Majesty's pleasure the Secretary of State is not dealing with a sentence of the same kind as the mandatory life sentence imposed on an adult murderer, the duration of which is determined by the sentence of the court and is for life. In cases of detention during Her Majesty's pleasure the duty of the Secretary of State is to decide how long that detention is to last, not to determine whether or not to release prematurely a person on whom the sentence of the court is life imprisonment. This factor by itself suggests that there are risks in adopting the same policy in relation to two different categories of offenders who are subject to two different sentences.
Why did Parliament in 1908 introduce for child murderers a mandatory sentence of indefinite duration instead of a sentence of detention for life? Lord Steyn and Lord Hope of Craighead have set out the history of the legislation which shows that since 1908 Parliament has adopted a different policy towards child offenders from that adopted towards adults. In particular, in the case of child offenders the courts have to have regard not only to retribution, deterrence and prevention of risk but also to the welfare of the child offender himself. This has been made demonstrably clear since 1933 by section 44(1) of the Act of 1933 which I have already quoted and which Mr. Pannick accepts must also guide the Secretary of State in the exercise of his discretion. That subsection is still part of the law of England: it cannot just be ignored. It provides that in dealing with a child or young person the court shall have regard to the welfare of the child. In the face of that clear statutory provision it seems to me inescapable that, in adopting a sentence of detention during Her Majesty's pleasure, the legislature have in mind a flexible approach to child murderers which, whilst requiring regard to be had to punishment, deterrence and risk, adds an additional factor which has to be taken into account, the welfare of the child.
This conclusion is reinforced by the fact that the United Kingdom (together with 186 other countries) is a party to the United Nations Convention on the Rights of the Child (1989), which was drawn to our attention in a helpful brief lodged by Justice. The Convention provides, inter alia:
The Convention has not been incorporated into English law. But it is legitimate in considering the nature of detention during Her Majesty's pleasure (as to which your Lordships are not in agreement) to assume that Parliament has not maintained on the statute book a power capable of being exercised in a manner inconsistent with the treaty obligations of this country. Article 3(i) requires that in the exercise of administrative, as well as court, powers the best interests of the child are a "primary consideration." Article 40(i) shows that the child offender is to be treated in a manner which takes into account "the desirability of promoting the child's reintegration and the child's assuming a constructive role in society." The Secretary of State contends that he is entitled to fix a tariff which will endure throughout the childhood of the offender and that neither in fixing that tariff nor in considering any revision of it will he have any regard to the welfare of the child. Such a policy would infringe the treaty obligations of this country.
Therefore the Secretary of State in exercising his discretion as to the duration of the detention of the child must at all times be free to take into account as one of the relevant factors the welfare of the child and the desirability of reintegrating the child into society. The extent to which this is possible must depend, in the case of a young child at least, on the way in which that child is maturing through his formative years. If the child is making exceptional progress and it is clear that his welfare would be improved by release from detention, that is one of the factors the Secretary of State must take into account and balance against the other relevant factors of retribution, deterrence and risk. The child's welfare is not paramount: but it is one of the factors which must be taken into account.
It follows that, unless the position has been altered by the Act of 1991, the tariff policy adopted by the Secretary of State in 1993 is an unlawful policy in relation to child murderers. First, it expressly applies to children the approach of Dame Angela Rumbold that under the sentence of the court "he forfeits his liberty to the State for the rest of his days." The child murderer sentenced to be detained during Her Majesty's pleasure does no such thing: under the sentence of the court, he forfeits his liberty only so long as, taking all relevant matters into account, the State determines to detain him. Second, by applying the adult murder policy (in relation to which the welfare of the adult murderer is not a relevant factor) to the child murderer (in relation to whom the welfare of the child murderer is a relevant factor) the adoption of the policy in relation to child murderers is unlawful: it requires a relevant factor to be left out of account. Third, and most important, the policy precludes any regard being had to how the child has progressed and matured during his detention until the tariff originally fixed has expired. It therefore precludes the Home Secretary during that period from giving weight to the circumstances directly relevant to an assessment of the child's welfare.
I am not suggesting that if, for other good reasons, the Home Secretary thinks it desirable to adopt some form of tariff policy in relation to the child detained during Her Majesty's pleasure he cannot do so. If he considers that it is advantageous to set a provisional tariff, I can see no reason why he should not do so, provided that the policy is sufficiently flexible to enable him to reconsider the position from time to time in the light of the development and progress of the child.
The Act of 1991
Part II of the Act deals with "early release of prisoners." So far as life prisoners are concerned, they are divided into two categories, discretionary life prisoners and mandatory life prisoners. The release of a discretionary life prisoner is "judicialised" by section 34: the trial judge fixes "a part of his sentence specified in the order" (the tariff); after the tariff has expired, the Secretary of State is bound, if so requested, to refer the case to the Parole Board and if they recommend release to release the prisoner. By section 43(2) this judicialised regime is applied to those sentenced under section 53(2) of the Act of 1933 to detention for life (as opposed to detention during Her Majesty's pleasure) since such sentence is discretionary.
Adult murderers under a mandatory life sentence are left under a regime very similar to that which was applicable before 1991. Under section 35(2) of the Act of 1991 the Secretary of State, after consultation, has an absolute discretion whether or not to release on licence. This non-judicialised system is also applied to child murderers subject to the mandatory sentence of detention during Her Majesty's pleasure: section 43(2).
An adult murderer serving a mandatory life sentence and a child murderer detained during Her Majesty's pleasure are both subjected to the same procedural regime for release. Under section 37, the licence for release (unless revoked) remains in force until death but the licence can be revoked under section 39.
It is first argued that since Part II of the Act of 1991 confers the same powers and consequences of release to children detained during Her Majesty's pleasure as to adult mandatory life prisoners, the ambit of the powers of the Secretary of State to release both classes of prisoner must be the same. Since it is lawful for the Secretary of State to apply the 1993 tariff policy to adult murderers, it must be equally lawful to apply the same policy to children detained during Her Majesty's pleasure. I do not accept this argument.
The decision of the European Court on Human Rights in Thynne (supra) drew a distinction between discretionary life prisoners and mandatory life prisoners. As to discretionary life prisoners, the court held that the system for release had to be subject to judicial control in order to satisfy the requirement of Article 5(4) of the European Convention on Human Rights that a person deprived of his liberty must have access to "a court" to determine the lawfulness of his detention. However, the Strasbourg court treated those subject to mandatory sentences as being in a different position: since detention for life was the sentence prescribed by law and imposed by a court there was no need to have further court intervention in order to satisfy the requirements of Article 5(4). This same distinction was subsequently adhered to by the Strasbourg court in Wynne v. United Kingdom (1994) 19 E.H.R.R. 333. It is common ground that the different regimes applicable to discretionary and mandatory life prisoners were introduced by the Act of 1991 so as to comply with the decision in Thynne. Although the Strasbourg court had not at that stage considered the position of children detained during Her Majesty's pleasure, the Act of 1991 groups them with mandatory life prisoners since in both cases their sentences are mandatory.
Against this background, I am unable to accept that Parliament by making the same release provisions applicable to both mandatory life prisoners and those subject to mandatory sentence during Her Majesty's pleasure intended to effect any change in the nature of the sentences themselves. The Act of 1991 was not dealing with sentences at all. Any intention to alter the indeterminate duration of detention during Her Majesty's pleasure would surely have been spelt out much more clearly. The mere fact that the powers relating to the release of both categories of mandatory sentence are contained in the same statutory provisions does not mean that the same considerations have to be taken into account in exercising those powers, irrespective of the nature of the sentence.
A more formidable argument was founded on the fact that, in relation to a discretionary sentence to detention for life under section 53(2) of the Act of 1933, the tariff period has to be fixed by the judge at trial. A tariff so fixed cannot be varied subsequently by the judge so as to take account of the child's progress in detention nor can the child be released by the Secretary of State having regard to his progress until the judicially fixed tariff has expired. Would it not be strange, it is asked, that Parliament should envisage that an unalterable tariff set at trial (and therefore by definition unable to take account of the subsequent progress of the child) should apply to a child sentenced to detention for life under section 53(2) of the Act of 1933 but that the Secretary of State should be unable himself to set such an unalterable tariff in relation to those detained during Her Majesty's pleasure under section 53(1)?
There is here an anomaly but it is not sufficient to persuade me that Parliament, by a side-wind, meant to change the nature of the sentence of detention during Her Majesty's pleasure into one where the development of a child can be ignored during the tariff period. To effect such a change would have represented a major policy shift not in any way foreshadowed by the White Paper which preceded the passing of the Act of 1991. Nor do I think that the anomaly is as great as it seems at first sight. In setting the judicialised tariff period under section 34(2) of the Act of 1991, the judge is directed to specify such a period as is "appropriate" taking into account the seriousness of the offence. The section does not say that that is the only matter to be taken into account. No doubt the judge, in fixing the period, will also take into account all other normal sentencing considerations. In relation to a child sentenced to detention for life the judge is bound by section 44(1) of the Act of 1933 (which was not repealed or altered in any way by the Act of 1991) to have regard to the welfare of the child. Therefore, in imposing such a tariff he must take into account the need for flexibility in the treatment of the child and, in so doing, will set the minimum tariff so as to ensure that at the earliest possible moment the matter comes under consideration of the Parole Board who will be able to balance the relevant factors including the development and progress of the child.
In my view, therefore, the Act of 1991 did not affect the nature of the sentence of detention during Her Majesty's pleasure or the factors which are relevant to be taken into account by the Secretary of State in exercising his discretion as to the duration of the sentence.
For these reasons, I reach the conclusion that in setting the tariff of 15 years for these two applicants the Secretary of State was applying an unlawful policy and his decisions should be quashed. The unlawfulness lies in adopting a policy which totally excludes from consideration during the tariff period factors (i.e. their progress and development) necessary to determine whether release from detention would be in the interests of the welfare of the applicants. Such welfare is one of the factors which the Secretary of State has to take into account in deciding from time to time how long the applicant should be detained. This does not mean that in relation to children detained during Her Majesty's pleasure any policy based on a tariff would be unlawful. But any such tariff policy would have to be sufficiently flexible to enable the Secretary of State to take into account the progress of the child and his development. In relation to children, the factors of retribution, deterrence and risk are not the only relevant factors: the welfare of the child is also another relevant factor.
A number of other points were argued before your Lordships. In view of the decision which I have reached, it is only necessary for me to express a concluded view on one of those points. It will be clear from what I have said that I reject the submission that there is no punitive element at all involved in the sentence of detention during Her Majesty's pleasure. On this point I gratefully adopt the reasoning of Lord Goff of Chieveley.
Finally, I would add a word on the issue whether it was procedurally improper for the Secretary of State to take into account the petitions and other material sent to him. The Court of Appeal and, I understand, the majority of your Lordships take the view that this was improper. I find it unnecessary to express any final view but I would sound a word of caution. Parliament has entrusted decisions relating to the future of these applicants to the executive, not to the judiciary. Whilst it is right for the courts to ensure that in making his decision the Secretary of State acts in accordance with natural justice, in my view the court should be careful not to impose judicial procedures and attitudes on what Parliament has decided should be an executive function. I understand it to be common ground that the Secretary of State, in setting the tariff, is entitled to have regard to "broader considerations of a public character" including public respect for the administration of justice and public attitudes to criminal sentencing. How is the Secretary of State to discover what those attitudes are except from the media and from petitions? To seek to differentiate between the Secretary of State discovering public feeling generally (which is proper) and taking into account distasteful public reactions in a particular case (which is said to be unlawful) seems to me too narrow a distinction to be workable in practice. Public attitudes are ill-defined and are usually only expressed in relation to particular cases.
I would, therefore, allow the cross-appeals and make no order on the appeal.
LORD LLOYD OF BERWICK
A child below the age of 10 cannot be guilty of any offence in English law. A child between the age of 10 and 14 can only be guilty of an offence if it is proved by the prosecution, as it was in these cases, that he knew that what he was doing was "seriously wrong." The punishment of those between the ages of 10 and 17 is governed by section 53 of the Children and Young Persons Act 1933. Under section 53(1) a child or young person who is convicted of murder is sentenced to be detained "during Her Majesty's pleasure . . . in such place and under such conditions as the Secretary of State may direct." The sentence is mandatory, just as it is in the case of an adult convicted of murder.
Section 53(2) covers other grave crimes, which would, in the case of an adult, carry a sentence of 14 years' or more imprisonment. In such a case the court may pass a determinate sentence of detention, not exceeding the maximum sentence of imprisonment for an adult, or it may pass an indeterminate sentence, that is to say a sentence of detention for life: see Reg. v. Abbott  1 Q.B. 489. Unlike the sentence of detention under section 53(1) the sentence of detention for life under section 53(2) is discretionary.
The release of life sentence prisoners convicted of murder lies in the discretion of the Home Secretary. On 30 November 1983 the then Home Secretary, Mr. Leon Brittan, announced a new policy covering the release of life sentence prisoners convicted of murdering police officers, and certain other categories of offender, including those guilty of the sexual or sadistic murder of children. Such offenders could expect to serve at least 20 years in prison. The effect of the new policy was to separate consideration of the punitive element in the sentence, that is to say, the period of imprisonment required for retribution and deterrence, from the consideration of risk to the public. For the former he would continue to ask the judiciary for advice. For the latter he would look to the Parole Board. The Home Secretary would himself decide when to refer the case to the Parole Board. This would usually be three years before the expiry of the punitive element in the sentence. In the meantime the Home Office would review each case at three-yearly intervals on the basis of reports of the kind prepared for formal reviews. Nothing was said in the policy statement about juvenile offenders sentenced under section 53(1) of the Children and Young Persons Act.