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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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That oversight has, in its turn, vitiated the decision which he took in regard to the tariff which was to be served by the applicants. I agree with Pill L.J. in the Divisional Court that it was inconsistent with the duty to keep their detention under review to fix a tariff of 15 years in this case. The effect of such a long tariff was to preclude consideration of their case by the Parole Board for twelve years, by which time the applicants would have ceased to be young persons and would have been moved into prison conditions with adults. But it is not only the length of the tariff which gives rise to concern. The absence of any reference in the decision letters to a recognition by the Secretary of State of the duty to keep the progress and development of the children under review shows that he has proceeded upon an unlawful policy. I do not regard the assurance at the end of these letters that he was prepared to consider any fresh representations and to reduce the tariff if appropriate as providing an answer to this criticism. He made it clear in his policy statement that he would do this only in exceptional circumstances, and your Lordships were informed that this would not include the progress or development of the applicants while they were in custody. In paragraph 8 of his affidavit, Mr Ian Newton of H.M. Prison Service, whose responsibilities in the Lifer Section include consideration of and advice on the setting of the tariff period of imprisonment, states:
This statement is consistent with the view that the tariff period has fixed the penal element of the sentence. But it clearly has nothing to do with the question of keeping the period of detention under review in order to take account of the applicants' progress while in custody.
I agree also with the Master of the Rolls  2 W.L.R. 67, 92C that there was an almost irresistible case here for considering whether the tariff approach should be departed from. I mention this not by way of criticism of the decision on procedural grounds, but rather to emphasise what I see as a serious conflict between the process of tariff-fixing which the Secretary of State embarked upon in this case and his duty to keep the period of detention under review. It is to be noted that section 35(2) of the Act of 1991 does not require a tariff to be fixed in any of the cases to which that subsection applies. The subsection deals only with what the Secretary of State must do before he exercises his discretion to release. It does not oblige him to seek advice or to take any decisions about the period to be served at the outset, although he may of course do so. The tariff approach which is currently in use has its origins in a policy which was announced to Parliament by the Home Secretary, Mr Leon Brittan, on 30 November 1983. But what was contemplated in that policy statement was the seeking of an initial judicial view--the word "initial" was appropriate, because the Secretary of State was still required to consult the judiciary before release from custody--on the requirements of retribution and deterrence, in order to provide guidance to the Secretary of State as to the appropriate date for the first consideration of the case by the Parole Board. And it was made clear that it was to remain possible for the Secretary of State exceptionally to revise that view of the minimum period.
The use of the word "tariff," which implies fixture, as in a table of fixed charges for services, has led to a development of this policy which, in the case of detainees under section 53(1) of the Act of 1933, risks replacing the duty of review with the blanket of rigidity. If the matter had been allowed to rest in this case at the stage of seeking advice from the judiciary--advice which was relevant to the Secretary of State's function, but from which he could depart if and when he thought appropriate--that would have been one thing and no harm would have been done. But for the Secretary of State to set his own tariff, of the kind indicated by his present policy and then to communicate his decision to the applicants--as he was required to do by Regina v. Secretary of State for the Home Department, Ex parte Doody, but which had the inevitable result of publicity--seems to me to have had the unreasonable result of imposing a fetter on the discretion which he is required to exercise if these sentences are to be kept under review.
It is not necessary in this case to consider whether the tariff approach in its current form is objectionable where adult mandatory life prisoners are concerned. The objection with which we have to deal applies only in the case of children and young persons, whose sentence is one of detention under section 53(1) of the Act of 1933. The younger the child the more objectionable it becomes, because the factors which favour special treatment in their case grow stronger the closer they were to the minimum age of criminal responsibility when the offence was committed. The tariff as applied to them fails to recognise that the welfare of the child, in the light of progress and development while in custody, may require consideration of his case by the Parole Board at an earlier date than would otherwise be indicated by the application to his case of a fixed period in respect of the penal element. The contrast between the flexibility which regard for the protection and welfare of the child requires and the rigidity of the policy indicates the reason for regarding the policy, as it was applied in this case, as unlawful.
The Secretary of State's decision has been criticised on various procedural grounds, but the only ground which has any real force, in my opinion, is that he wrongly took into account in fixing his tariff of material derived from public petitions and through the media, and in this respect reached a decision which was unfair to the applicants. I agree entirely with what my noble and learned friend, Lord Goff of Chieveley, has said about all the other grounds, in which, as he has said, there is no substance.
In my opinion one need look no further than the two decision letters in order to see that this material was irrelevant to the tariff and that it should have been left entirely out of account at this stage. In the opening paragraph it was stated that the Secretary of State's decision was on the period to be served "to meet the requirements of retribution and deterrence ('the tariff')." But in the explanation which followed it was stated that he had had regard not only to the circumstances of the offence, the recommendations from the judiciary, the representations made on behalf of the applicants and the extent to which the case could be compared with other cases, but also "to the public concern about this case . . . and to the need to maintain public confidence in the system of criminal justice."
It seems to me that the Secretary of State has confused two quite different things in reaching his decision on this matter. On the one hand there is the minimum period to be fixed for retribution and deterrence. That is the matter on which advice is sought in the first instance from the judiciary. On the other hand there is the question whether the person should be released from custody once the tariff has been served, as a preliminary to which his case must be considered and he must then be recommended for release by the Parole Board. That is a matter which is at the discretion of the Secretary of State under section 35(2) and(3) of the Act of 1991. He is entitled then to decide, for policy reasons, that the case should not be referred to the Parole Board or, if the Parole Board have recommended release, that the prisoner should not be released from custody. The policy considerations to be applied at that stage are a matter for him, subject to what I have already said about his duty of review in the case of section 35(1) detainees.
But the imposition of a tariff, which is intended to fix the minimum period to be spent in custody is, in itself, the imposition of a form of punishment. This has, as Lord Mustill observed in Regina v. Secretary of State for the Home Department, Ex parte Doody, at p. 557A-B, the characteristics of an orthodox judicial exercise, which is directed to the circumstances of the offence and those of the offender and to what, having regard to the requirements of retribution and deterrence, is the appropriate minimum period to be spent in custody. The judge, when advising the Secretary of State about the tariff, must and does confine his attention to these matters. He does not take account of public petitions or public opinion as expressed through the media. Expressions of opinion from these sources, however sincere and well presented, are rarely based on a full appreciation of the facts of the case. More importantly, they cannot be tested by cross-examination or by any other form of inquiry in which the prisoner for his interest can participate. Natural justice requires that they be dismissed as irrelevant to the judicial exercise, as it would be unfair for the judge to allow himself to be influenced by them.
If the Secretary of State wishes to fix a tariff for the case--in order to replace the views of the judiciary with a view of his own about the length of the minimum period--he must be careful to abide by the same rules. He must leave out of account at this stage and for this purpose those factors which the judge would have to leave out of account in reaching a decision which was fair. It would be unfair for him to do otherwise. This is not to say that those other factors may not have a part to play when the time comes for the selection of a proposed release date. But circumstances may have changed by then, and the factors which at one time may have seemed important may by then have acquired a different significance. The more rigid the approach to the tariff--and the decisions which the Secretary of State took in this case in the light of his declared policy indicate a desire on his part for rigidity in order to maintain public confidence--the more important it is that these requirements should be observed. They were departed from in this case, and I regard the decisions as procedurally unreasonable on this ground.
The appeal was taken by the Secretary of State against the decision of the Divisional Court, which the Court of Appeal upheld, that the decision which he reached was unfair for procedural reasons. On the single ground which I have described in the previous paragraph I would dismiss the appeal. The cross-appeals were taken by the applicants against the decision of the Court of Appeal that the Secretary of State was entitled to adopt the same policy with regard to a child detained during Her Majesty's pleasure as in the case of an adult mandatory life prisoner. For the reasons which I have given in the earlier part of this speech I would allow the cross-appeals. In the result I agree with both the Divisional Court and the Court of Appeal that the decision must be quashed, and I would decline to grant declaratory relief on the ground that this is unnecessary.
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