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Regina v. Secretary of State for the Home Department (Appellant)
ex parte Smith (FC) (Respondent) and one other action
HOUSE OF LORDS
OPINIONS OF THE LORDS OF APPEAL FOR JUDGMENT
IN THE CAUSE
Regina v. Secretary of State for the Home Department (Appellant)
ex parte Smith (FC) (Respondent) and one other action
 UKHL 51
LORD BINGHAM OF CORNHILL
1. The question in this appeal is whether a sentence of detention during Her Majesty's Pleasure imposed before 30 November 2000 on conviction of a child or young person for murder imports a requirement that the minimum term to be served by that person be subject to periodic review, even though the length of that term has in effect been fixed by the Lord Chief Justice of England and Wales. The Court of Appeal (Lord Phillips of Worth Matravers MR, Mantell and Carnwath LJJ), affirming the decision of a Queen's Bench Divisional Court (Kennedy LJ and Mitchell J), held that it does:  EWCA Civ 99,  QB 1341;  EWHC 692 (Admin),  1 WLR 2176. The Secretary of State challenges that conclusion.
2. On 8 March 1993 the respondent, Maria Smith, and a co-defendant pleaded guilty to murdering an elderly woman on 16 July 1992. At the time of the murder the respondent was aged 17 years 8 months, her co-defendant some six weeks younger. As required by section 53(1) of the Children and Young Persons Act 1933, the judge directed that each defendant be detained during Her Majesty's Pleasure. Under the sentencing regime then in force it was for the Secretary of State, having obtained the advice of the trial judge and the Lord Chief Justice, to fix the minimum (or tariff) term to be served before parole could be granted, that is, the punitive term judged necessary to meet the requirements of retribution and general deterrence. The trial judge drew no distinction between the culpability of the two defendants and rightly regarded the killing as exceptionally brutal. He advised a minimum term of 16 years in each case. The Lord Chief Justice, whilst recognising the horror of the crime, advised that a term of 14 years in each case would be sufficient. The Secretary of State fixed terms of 15 years.
3. In R v Secretary of State for the Home Department, Ex p Venables and R v Secretary of State for the Home Department, Ex p Thompson  AC 407 the House held, by a majority, that the Secretary of State was bound to keep under review the minimum term to be served by a person sentenced to detention during Her Majesty's Pleasure, and quashed the terms fixed in the applicants' cases. On 10 November 1997, following that decision, the Secretary of State announced the policy which he would in future adopt after the initial fixing of the minimum or tariff term, to give effect to the judgment (Hansard (HC Debates), written answers, cols 421-422):
Pursuant to his duty of periodic review the Secretary of State invited and received representations on the minimum term to be served by the respondent and her co-defendant and refixed it at 13 years.
4. In V v United Kingdom (1999) 30 EHRR 121 the European Court of Human Rights unanimously held, affirming a decision reached by the Commission with a single dissentient vote, that the procedure adopted to fix the minimum term to be served by the child applicant had violated his rights under article 6 of the Convention. The Court held (in paras 109, 111 and 114 of its judgment) that the fixing of a minimum term was part of the proceedings and amounted to a sentencing exercise; that article 6(1) was therefore applicable; that that article guaranteed a fair hearing by an impartial tribunal independent of the executive; and that the Secretary of State was clearly not independent of the executive.
5. This decision prompted the Secretary of State to revise the procedures adopted to fix the minimum terms of children and young persons sentenced to HMP detention on conviction of murder. He informed the House of Commons of his new policy in that regard on 13 March 2000 (Hansard (HC Debates), cols 22-23):
Thus the Secretary of State proposed a two-pronged response: a legislative scheme to govern new cases, and an informal ad hoc procedure to govern the cases of HMP detainees sentenced before the legislation would take effect.
6. Effect was given to the first of these proposals by section 60 of the Criminal Justice and Court Services Act 2000. Three points about that section are noteworthy for present purposes. First, it inserted a new section 82A into the Powers of Criminal Courts (Sentencing) Act 2000. This, in brief and simple summary, requires trial judges, when imposing sentences of HMP detention (otherwise than in exceptional circumstances) to specify the minimum term to be served by the detainee before he or she becomes eligible for release, if recommended by the Parole Board, on parole. Thus the judge (not the Secretary of State) fixes the minimum term and the Parole Board (not the Secretary of State) decides whether it is safe to release the detainee. Secondly, it is provided in section 60(3) that "This section", and thus section 82A, "has effect in relation to sentences passed after the coming into force of this section". Thus neither section applies to sentences passed before that date. Thirdly, section 60 came into effect on 30 November 2000, the date on which the Criminal Justice and Court Services Act 2000 received the royal assent. Thus 30 November 2000 marks the legislative divide between what may loosely be called old and new sentences of HMP detention. The respondent's sentence, passed well before that date, was an old sentence. Hence it is governed by the informal ad hoc procedure already mentioned and not by the new legislative scheme.
7. Pursuant to this new procedure the respondent was given the opportunity to make written representations for consideration by the Lord Chief Justice if she wished to contend that the minimum period set in her case should be reduced below 13 years. She made such representations, as did her co-defendant. Having considered these representations the Lord Chief Justice, sitting in court on 21 November 2001, delivered his written decision. He referred to representations made by the respondent's solicitors on her behalf and said:
The Lord Chief Justice found nothing in the papers to indicate grounds for reducing the minimum term to be served by the respondent but added an expression of his hope that the Secretary of State would keep her case under review. He made a reduction of one year in the case of her co-defendant, whose conduct had improved markedly in recent years.
8. Solicitors for the respondent pressed the Secretary of State to review her minimum term again, but on 10 June 2002 the Secretary of State made clear his unwillingness to do so. He contended that the decision of the House in Ex p Venables related only to minimum terms set by the executive. In Practice Statement (Crime: Life Sentences)  1 WLR 1789 issued a little earlier, on 31 May 2002, paras 26-27, the Lord Chief Justice had recorded the Secretary of State's stance on this issue, pointing out that "the Home Secretary's view means that apparently exceptional progress by a child while in detention will not influence the date his case is considered by the Parole Board". On 28 June 2002 the respondent applied for judicial review of the Secretary of State's decision. The present appeal arises in those proceedings.
9. As foreshadowed in the foregoing paragraphs, the parties are sharply divided in their understanding of the decision of the majority of the House in Ex p Venables. The Secretary of State reads that decision as applicable only where the minimum term of an HMP detainee is set by the executive, and as having no application where (as here) it has been set by a judge. Thus he rejects any duty of continuing review even in an old (pre-30 November 2000) case. The respondent does not accept this reading. She contends that the decision describes and defines the essential nature of a sentence of HMP detention as including a duty of continuing review. Whatever the position of a detainee to whom section 82A applies, on which the respondent makes no concession, her position is unaffected: the new legislation does not apply to her; her minimum term remains subject to continuous review; and the fact that the term was approved by the Lord Chief Justice does not alter that condition.
10. Recognising the central importance of this issue in the proceedings, the Divisional Court and the Court of Appeal analysed the majority opinions of the House in Ex p Venables in careful and accurate detail: see  1 WLR 2176, paras 7-12;  QB 1341, paras 57-73. The parties also advanced detailed submissions in their written submissions and in oral argument. It would be a work of supererogation to repeat the citations which have been relied on. Instead I shall summarise the propositions which, in my judgment, are clearly established by these opinions:
These propositions point towards the correctness of the respondent's submission and the conclusions reached by the courts below. For if (as was held) the sentence of HMP detention under section 53(1) imports a duty of continuing review and the Acts of 1965 and 1991 have not removed that feature, and if (as is clear) section 82A of the Powers of Criminal Courts (Sentencing) Act 2000 does not affect the respondent's sentence because it was imposed before 30 November 2000, the respondent remains subject to a sentence which imports a duty of continuing review and the Secretary of State cannot absolve himself from that duty by indicating that he will not perform it.
11. Mr Pannick QC, for the Secretary of State, advances five main reasons for rejecting this conclusion. First, he takes issue with the proposition that Ex p Venables upholds a duty of continuing review not only where, as in that case, the minimum term is set by the Secretary of State but also where, as here, it is set judicially. He points to passages in the majority opinions in which the role of the Secretary of State is treated as significant. But authorities must be read in context. In Ex p Venables there was, and at the time could be, no challenge in principle to the Secretary of State's involvement in the process of setting a minimum term. There was, however, on the facts of the case, a marked contrast between the Secretary of State's approach to that task and that which a judge would have adopted. No doubt that contrast coloured the majority's thinking and reinforced their opinion that protection of the proper interest of the young offender called for continuing review. But their decisive conclusions, summarised in para 10. (1) and (2) above, rested on the inherent nature of the sentence of HMP detention, not on the identity of the authority setting the minimum term if, varying the sentence as originally conceived and enacted, there was to be a minimum term. The majority would have upheld a requirement of continuing review even if the minimum term had been set judicially, because that was an intrinsic feature of the sentence.
12. Secondly, Mr Pannick submits that there is no inherent requirement of continuing review where the detainee is no longer a child or young person. He points out that the respondent was aged 27 when the Lord Chief Justice set her minimum term in November 2001, and informs the House that none of the HMP detainees sentenced before 30 November 2000 and still in custody is now under the age of 18. He points out, correctly, that the welfare principle laid down in section 44 of the 1933 Act, as amended by section 72(4) of and Schedule 6 to the Children and Young Persons Act 1969, applies only to children and young persons. Thus in the respondent's case any duty of continuing review is, in effect, spent. This is not a submission which I can accept. The requirement to impose a sentence of HMP detention is based not on the age of the offender when sentenced but on the age of the offender when the murder was committed, and it reflects the humane principle that an offender deemed by statute to be not fully mature when committing his crime should not be punished as if he were. As he grows into maturity a more reliable judgment may be made, perhaps of what punishment he deserves and certainly of what period of detention will best promote his rehabilitation. It would in many cases subvert the object of this unique sentence if the duty of continuing review were held to terminate when the child or young person comes legally of age.
13. Thirdly, Mr Pannick submits that the House should be slow to reimpose a duty on the Secretary of State to review sentences of HMP detention or refer them back to the court. In V v United Kingdom, above, the European Court condemned the Secretary of State's involvement in what it held to be a sentencing exercise. Her Majesty's Government sought to comply with that ruling by promoting and securing enactment of section 82A and by establishing the informal ad hoc procedure already described to achieve judicial resolution of challenges to pre-30 November 2000 sentences of HMP detention. It would be entirely retrograde if the Secretary of State were now to be required to take part again in the process of setting a minimum term. I sympathise entirely with the desire of the Secretary of State to have nothing to do with the setting of a minimum term, whether in connection with the initial imposition of the sentence of HMP detention or subsequently. It should however be observed that the authorities on article 6, whether in Strasbourg or the United Kingdom, have so far considered the application of article 6 only in relation to the initial setting of the minimum term. While it would obviously be wrong for that term to be subsequently increased by executive decision, it does not follow that the same considerations necessarily apply to a reduction, even if pursuant to a review mandated by domestic law. A reduction in the sentence imposed by a court is a well-recognised exercise of executive clemency. If the Secretary of State should prefer the decisions on whether to reduce the minimum sentence to be taken by the judiciary, it is open to him to adopt the same informal procedure for seeking the advice of the Lord Chief Justice as he has done for the purpose of reconsidering the original minimum terms. It would in any case be impracticable for him to expect the judiciary to perform the task of reviewing and monitoring the progress of the detainee in custody. That is a task which only those for whom the Secretary of State is answerable can perform, since only they have physical custody of the detainee and the opportunity to observe and record his progress. This was recognised by Mr Brittan QC as Secretary of State when, in his parliamentary statement of 30 November 1983, he said with reference to dates set for parole reviews (Hansard (HC Debates), written answers, col 507):
An instruction to similar effect can readily ensure that the Secretary of State is alerted to any exceptional progress made by an HMP detainee such as might warrant reconsideration of the minimum term previously set by the Lord Chief Justice. Such a procedure for reconsideration is not provided for in the informal ad hoc scheme established by the Secretary of State, but nor is it excluded, and under the legislation governing pre-30 November 2000 cases such as the respondent's it could not lawfully be excluded.
14. Mr Pannick's fourth submission is defensive in character, directed to meet a point made by the respondent that even under the informal ad hoc procedure now adopted in cases such as the respondent's the role of the Lord Chief Justice is only advisory and authority to decide remains with the Secretary of State under section 28(4) of the Crime (Sentences) Act 1997. That, says Mr Pannick, is to mistake form for substance, appearance for reality. I agree. The Secretary of State has publicly bound himself to accept and give effect to the advice of the Lord Chief Justice. He has done so. His good faith is not in doubt. I am content to treat the Lord Chief Justice as making the effective decision. But that has no bearing on the duty of continuing review.
15. Fifthly, Mr Pannick submits that a continuing duty to review the progress of pre-30 November 2000 HMP detainees would be anomalous, since no such duty obtains in the case of HMP detainees covered by section 82A of the Powers of Criminal Courts (Sentencing) Act 2000, nor in the case of those detained under section 53(2) of the 1933 Act or sentenced to long determinate sentences; and it would be anomalous both to impose a duty on the Secretary of State and to impose it in relation to a detainee who has come of age. To my mind, an argument based on anomaly is not initially persuasive. Over the last two decades or so, the law governing the imposition and administration of sentences of life imprisonment and HMP detention has been the subject of many changes. Not infrequently these changes have been made in response to judicial decisions adverse to the Secretary of State, whether made by the domestic courts as in R v Secretary of State for the Home Department, Ex p Handscomb (1987) 86 Cr App R 59, R v Secretary of State for the Home Department, Ex p Doody  1 AC 531, Ex p Venables  AC 407 and R (Anderson) v Secretary of State for the Home Department  1 AC 837, or by the European Court, as in Thynne, Wilson and Gunnell v United Kingdom (1990) 13 EHRR 666, Hussain v United Kingdom (1996) 22 EHRR 1 and V v United Kingdom (1999) 30 EHRR 121. The legislative response to these adverse decisions has been reactive, piecemeal and particular. In the absence of any comprehensive approach to the issues, anomalies are all but inevitable. But whether an anomalous distinction exists between pre- and post- 30 November 2000 HMP detainees depends on the interpretation of section 82A, an issue not now before the House. It is true that no continuing duty of review applies to other sentences imposed on young offenders, because other sentences do not have the special features of HMP detention: that is anomalous only if it is thought that they should have those features. There is nothing anomalous in according a monitoring role to the Secretary of State, as described above. Nor, in my opinion, is it anomalous to continue to treat a person who committed a crime as a child or young person differently from one who committed a crime as an adult. In referring to detention during Her Majesty's Pleasure the 1908 and 1933 Acts used a form of words first found in the Criminal Lunatics Act 1800 (39 & 40 Geo III, c 94), a clear indication that those so sentenced were not regarded as fully responsible. A crime committed by a person who is insane or under age does not cease to be such because he later regains his sanity or becomes adult.
16. The respondent's case, as I understood it, envisaged a continuing power in the Secretary of State to reduce the minimum term of a pre- 30 November 2000 HMP detainee even though the term had been set by the Lord Chief Justice. As I have already suggested, such a procedure might well be a legitimate act of executive clemency, violating no domestic statute or Convention principle. But I fully understand the Secretary of State's reluctance to be drawn back into any routine process of adjudication, and that should in my view be respected. A routine process of monitoring the progress of detainees is, however, undertaken by his officials anyway, and it imposes no undue burden on him to require a review which, if the Secretary of State thinks fit, may be on the advice of the Lord Chief Justice if, in the case of any of the 114 pre- 30 November 2000 HMP detainees still in custody pending completion of their minimum term, there is clear evidence of exceptional and unforeseen progress such as may reasonably be judged to call for reconsideration of the detainee's minimum term. The decision of the Secretary of State not to seek the advice of the Lord Chief Justice should not be readily susceptible to challenge.
17. I accordingly conclude that the progress of those sentenced to HMP detention before 30 November 2000, whose minimum terms have been set by the Lord Chief Justice and have not expired, should remain subject to continuing review for reconsideration of the minimum term imposed if clear evidence of exceptional and unforeseen progress is reasonably judged to require it. I would dismiss this appeal.LORD NICHOLLS OF BIRKENHEAD
18. I have had the advantage of reading in draft the speech of my noble and learned friend Lord Bingham of Cornhill. For the reasons he gives, with which I agree, I too would dismiss this appeal.