COUNSEL: David Pannick Q.C. and Mark Shaw for the Secretary of State.

Edward Fitzgerald Q.C. and Ben Emmerson for the first applicant.

Brian Higgs Q.C. and Julian Nutter for the second applicant.

 

SOLICITORS: (Court of Appeal) Solicitors: Treasury Solicitor; John Howell & Co., Sheffield; Paul Rooney & Co., Liverpool.

(House of Lords) Treasury Solicitor; Graysons, Sheffield; Paul Rooney & Co., Liverpool.

 

JUDGES: Lord Woolf M.R., Hobhouse and Morritt L.JJ.

Lord Goff of Chieveley, Lord Browne-Wilkinson,

Lord Lloyd of Berwick, Lord Steyn

and Lord Hope of Craighead

 

DATES: 1996 July 1, 2, 3; 30

1997 Jan. 27, 28, 29, 30; June 12

 

 

Prisons – Prisoners’ rights – Release on licence – Child offenders convicted of murder – Detention during Her Majesty’s pleasure – Secretary of State fixing tariff period by application of policy adopted for adult life prisoners – Whether policy appropriate – Secretary of State taking representations of public opinion into account – Whether relevant – Whether sufficient disclosure of material taken into account – Children and Young Persons Act 1933 (23 & 24 Geo. 5, c. 12), ss. 44(1) (as amended by Children and Young Persons Act 1969 (c. 54), s. 72(4), Sch. 6), 53(1) (as substituted by Murder (Abolition of Death Penalty) Act 1965 (c. 71), s. 1(5)) – Criminal Justice Act 1991 (c. 53), ss. 35(2)(3), 43

 

The applicants were convicted of the murder of a young child, committed when they were both 10, and sentenced to be detained during Her Majesty’s pleasure pursuant to section 53(1) of the Children and Young Persons Act 1933, as substituted.1 Following sentence, the trial judge, in a report to the Secretary of State, stated that in his view the minimum period of detention necessary to satisfy the requirements of retribution and deterrence was, given their youth, eight years. The Lord Chief Justice, agreeing that a shorter period was appropriate than that for an adult, recommended a tariff of 10 years. The Secretary of State, in the exercise of his powers under section 35 of the Criminal Justice Act 1991,2 as applied by sections 43 and 51, and in accordance with a policy statement made by him in July 1993, informed the applicants of the judicial recommendations and invited representations as to the appropriate length of the tariff. He informed them of extensive material that he had received from members of the public by way of petitions and correspondence, together with similar expressions of opinion supplied by a national newspaper, in support of a long or whole-life tariff. In July 1994, he informed each applicant that he had fixed a tariff of 15 years as appropriate to satisfy the requirements of retribution and deterrence. In accordance with his policy, it followed that the first review date for each applicant would take place after 12 years’ detention. In proceedings by way of judicial review the applicants sought orders of certiorari to quash the decisions. They further sought declaratory relief that their sentences under section 53(1) of the Act of 1933, as substituted, were not punitive but

 

1 Children and Young Persons Act 1933, s. 53(1), as amended: see post, p. 498C-D.

 

2 Criminal Justice Act 1991, s. 35(2)(3): see post, p. 485A-B.

 

S. 43: see post, p. 485C-E.

 

S. 51: see post, p. 485G. [*408]

 

reformatory and preventative in character and that in any event the Secretary of State’s decisions were vitiated by unfairness. The Divisional Court, declining to grant declaratory relief, concluded that a tariff based on the policy adopted in the case of an adult mandatory life prisoner could not be applied to a child detained during Her Majesty’s pleasure under section 53(1) of the Act of 1933, as substituted, and quashed the decisions. The Court of Appeal dismissed an appeal by the Secretary of State and cross-appeals by the applicants.

 

On appeals by the Secretary of State and cross-appeals by the applicants: –

 

Held, (1) allowing the applicants’ cross-appeals (Lord Goff of Chieveley and Lord Lloyd of Berwick dissenting), that a sentence of detention during Her Majesty’s pleasure passed on a young offender under section 53(1) of the Children and Young Persons Act 1933 was not properly to be equated with a mandatory sentence of life imprisonment imposed on an adult convicted of murder and Parliament in the Criminal Justice Act 1991 had not intended to assimilate those sentences; that a sentence under section 53(1) required the Secretary of State to consider from time to time whether the continued detention of the young offender was justified and, while he might in his discretion set a provisional and reviewable tariff as to the period of detention to be served by a young offender by way of punishment and deterrence, the policy adopted by him in 1993 whereby that period would in no circumstances be varied by reason of matters occurring subsequently to the commission of the offence was unlawful and (per Lord Browne-Wilkinson and Lord Hope of Craighead) contrary to the requirement of section 44(1) of the Act of 1933 that the welfare of the child be taken into account; and that the decision of the Secretary of State in pursuance of that unlawful policy to fix a tariff of 15 years in the cases of the applicants had been inconsistent with his duty to keep their detention under continuous review and should be quashed (post, pp. 496C-D, 498F,499G-H, 500D-E, 501F, 502F-G, 524C-F, 529F-530B, 532A-G, 534C -E,535A-C, 536F).

 

(2) Dismissing the Secretary of State’s appeals (per Lord Goff of Chieveley, Lord Steyn and Lord Hope of Craighead), that the Secretary of State in fixing a tariff in respect of the period of detention to be served by an offender by way of punishment and deterrence was exercising a function comparable to that of a sentencing judge; that, while a sentencing judge might take into account general considerations of public confidence in the administration of justice, natural justice would require him to ignore as irrelevant public petitions or public opinion as expressed in the media; and that in giving weight to public protests about the level of the tariff to be fixed to the detriment of the applicants the Secretary of State had misdirected himself and his exercise of discretion had been unlawful (post, pp. 490G-491A,525H-526H, 537D-538A).

 

Decision of the Court of Appeal, post, pp. 413D et seq.; [1997] 2 W.L.R. 67; [1997] 1 All E.R. 327 reversed in part.

 

The following cases are referred to in their Lordships’ opinions:

 

Associated Provincial Picture Houses v. Wednesbury Corporation [1948] 1 K.B. 223; [1947] 2 All E.R. 680, C.A.

 

Attorney-General ex rel. Tilley v. Wandsworth London Borough Council [1981] 1 W.L.R. 854; [1981] 1 All E.R. 1162, C.A. [*409]

 

British Oxygen Co. Ltd. v. Board of Trade [1971] A.C. 610; [1970] 3 W.L.R. 488; [1970] 3 All E.R. 165, H.L.(E.)

 

C. (A Minor) v. Director of Public Prosecutions [1996] A.C. 1; [1995] 2 W.L.R. 383; [1995] 2 All E.R. 43, H.L.(E.)

 

Duport Steels Ltd. v. Sirs [1980] 1 W.L.R. 142; [1980] 1 All E.R. 529, H.L.(E.)

 

Findlay, In re [1985] A.C. 318; [1984] 3 W.L.R. 1159; [1984] 3 All E.R. 801, H.L.(E.)

 

Hinds v. The Queen [1977] A.C. 195; [1976] 2 W.L.R. 366; [1976] 1 All E.R. 353, P.C.

 

Practice Direction (Crime: Life Sentences) [1993] 1 W.L.R. 223; [1993] 1 All E.R. 747, C.A.

 

Prem Singh v. United Kingdom (unreported), 21 February 1996; 1994/503/589, E.C.H.R.

 

R. (A Child) v. Whitty (1993) 66 A.Crim.R. 462

 

Reg. v. Abbott [1964] 1 Q.B. 489; [1963] 2 W.L.R. 1011; [1963] 1 All E.R. 738, C.C.A.

 

Reg. v. Chambers; Reg. v. Sorsby (1967) 51 Cr.App.R. 254, C.A.

 

Reg. v. Fairhurst [1986] 1 W.L.R. 1374; [1987] 1 All E.R. 46, C.A.

 

Reg. v. Secretary of State for the Home Department, Ex parte Doody [1993] Q.B. 157; [1992] 3 W.L.R. 956; [1993] 1 All E.R. 151, C.A.; [1994] 1 A.C. 531; [1993] 3 W.L.R. 154; [1993] 3 All E.R. 92, H.L.(E.)

 

Reg. v. Secretary of State for the Home Department, Ex parte Handscomb (1987) 86 Cr.App.R. 59, D.C.

 

Reg. v. Storey [1973] 1 W.L.R. 1045; [1973] 3 All E.R. 562, C.A.

 

Rex v. Port of London Authority, Ex parte Kynoch Ltd. [1919] 1 K.B. 176, C.A.

 

Thynne v. United Kingdom (1990) 13 E.H.R.R. 666

 

Wynne v. United Kingdom (1994) 19 E.H.R.R. 333

 

The following additional cases were cited in argument in the House of Lords:

 

Hussain v. United Kingdom (1996) 22 E.H.R.R. 1

 

Kanda v. Government of Malaya [1962] A.C. 322; [1962] 2 W.L.R. 1153, P.C.

 

Reg. v. Flemming [1973] 2 All E.R. 401, C.A.

 

Reg. v. Ford (1976) 62 Cr.App.R. 303, C.A.

 

Reg. v. Forshaw (1984) 6 Cr.App.R.(S.) 413, C.A.

 

Reg. v. Nicola G. (1992) 14 Cr.App.R.(S.) 349, C.A.

 

Reg. v. Parole Board, Ex parte Wilson (unreported), 20 March 1985, D.C.

 

Reg. v. Secretary of State for the Home Department, Ex parte Dowd (unreported), 24 November 1994, D.C.

 

Reg. v. Secretary of State for the Home Department, Ex parte H. [1995] Q.B. 43; [1994] 3 W.L.R. 1110; [1995] 1 All E.R. 479, C.A.

 

Reg. v. Secretary of State for the Home Department, Ex parte McCartney, The Times, 25 May 1994; Court of Appeal (Civil Division) Transcript No. 667 of 1994, C.A.

 

Reg. v. Secretary of State for the Home Department, Ex parte Pierson [1998] A.C. 539; [1996] 3 W.L.R. 547; [1996] 1 All E.R. 837, C.A.

 

Reg. v. Secretary of State for the Home Department, Ex parte Prem Singh, The Times, 27 April 1993, D.C.

 

Reg. v. Secretary of State for the Home Department, Ex parte Riaz (unreported), 16 December 1994, D.C.

 

Reg. v. Secretary of State for the Home Department, Ex parte Walsh, The Times, 18 December 1991, D.C.

 

State, The v. O’Brien [1973] I.R. 50 [*410]

 

The following cases are referred to in the judgments in the Court of Appeal:

 

C. (A Minor) v. Director of Public Prosecutions [1996] A.C. 1; [1995] 2 W.L.R. 383; [1995] 2 All E.R. 43, H.L.(E.)

 

Findlay, In re [1985] A.C. 318; [1984] 3 W.L.R. 1159; [1984] 3 All E.R. 801, H.L.(E.)

 

Hussain v. United Kingdom (1996) 22 E.H.R.R. 1

 

Kanda v. Government of Malaya [1962] A.C. 322; [1962] 2 W.L.R. 1153, P.C.

 

Practice Direction (Crime: Life Sentences) [1993] 1 W.L.R. 223; [1993] 1 All E.R. 747, C.A.

 

Reg. v. Abbott [1964] 1 Q.B. 489; [1963] 2 W.L.R. 1011; [1963] 1 All E.R. 738, C.C.A.

 

Reg. v. Civil Service Board, Ex parte Cunningham [1992] I.C.R. 816; [1991] 4 All E.R. 310, C.A.

 

Reg. v. Collins (1995) 16 Cr.App.R.(S.) 156, C.A.

 

Reg. v. Fairhurst [1986] 1 W.L.R. 1374; [1987] 1 All E.R. 46, C.A.

 

Reg. v. Ford (1976) 62 Cr.App.R. 303, C.A.

 

Reg. v. Forshaw (1984) 6 Cr.App.R.(S.) 413, C.A.

 

Reg. v. Secretary of State for the Home Department, Ex parte Causabon-Vincent, The Times, 19 July 1996, D.C.

 

Reg. v. Secretary of State for the Home Department, Ex parte Doody [1994] 1 A.C. 531; [1993] 3 W.L.R. 154; [1993] 3 All E.R. 92, H.L.(E.)

 

Reg. v. Secretary of State for the Home Department, Ex parte H. [1994] Q.B. 378; [1994] 2 W.L.R. 190; [1994] 1 All E.R. 794, D.C.; [1995] Q.B. 43; [1994] 3 W.L.R. 1110; [1995] 1 All E.R. 479, C.A.

 

Reg. v. Secretary of State for the Home Department, Ex parte Handscomb (1987) 86 Cr.App.R. 59, D.C.

 

Reg. v. Secretary of State for the Home Department, Ex parte Prem Singh, The Times, 27 April 1993, D.C.

 

Reg. v. Secretary of State for the Home Department, Ex parte Riaz (unreported), 8 December 1994, D.C.

 

Singh v. United Kingdom (unreported), 21 February 1996; 1994/503/589, E.C.H.R.

 

Thynne v. United Kingdom (1990) 13 E.H.R.R. 666

 

The following additional cases were cited in argument in the Court of Appeal:

 

Reg. v. Fuat [1973] 1 W.L.R. 1045; [1973] 3 All E.R. 562, C.A.

 

Reg. v. Parole Board, Ex parte Wilson (unreported), 20 March 1985, D.C.

 

Reg. v. Secretary of State for the Home Department, Ex parte Benson (unreported), 9 November 1988, D.C.

 

Reg. v. Secretary of State for the Home Department, Ex parte Chapman, The Times, 25 October 1994, D.C.

 

Reg. v. Secretary of State for the Home Department, Ex parte McCartney, The Times, 25 May 1994; Court of Appeal (Civil Division) Transcript No. 667 of 1994, C.A.

 

Reg. v. Secretary of State for the Home Department, Ex parte Pierson [1998] A.C. 539; [1996] 3 W.L.R. 547; [1996] 1 All E.R. 837, C.A.

 

Reg. v. Secretary of State for the Home Department, Ex parte Walsh, The Times, 18 December 1991, D.C.

 

State, The v. O’Brien [1973] I.R. 50 [*411]

 

The following additional cases, although not cited, were referred to in the skeleton arguments in the Court of Appeal:

 

Chandler v. Director of Public Prosecutions [1964] A.C. 763; [1962] 3 W.L.R. 694; [1962] 3 All E.R. 142, H.L.(E.)

 

Reg. v. Parole Board, Ex parte Bradley [1991] 1 W.L.R. 134; [1990] 3 All E.R. 828, D.C.

 

Reg. v. Secretary of State for the Home Department, Ex parte Brind [1991] 1 A.C. 696; [1991] 2 W.L.R. 588; [1991] 1 All E.R. 720, H.L.(E.)

 

Wynne v. United Kingdom (1994) 19 E.H.R.R. 333

 

APPEALS from the Divisional Court of the Queen’s Bench Division.

 

By notice of motion dated 17 November 1994 the applicant, Jon Venables, a minor then aged 12 years, sought (1) orders of certiorari quashing the decision of the Secretary of State for the Home Department communicated on 22 July 1994 that he should serve at least 15 years in custody to satisfy the requirements of retribution and deterrence in respect of his offence of murder and the consequential decision that the applicant’s first review by the Parole Board should not take place until he had served 12 years in prison; (2) declarations that (a) the Secretary of State had acted unlawfully by fixing a minimum punitive term in excess of that recommended either by the trial judge or the Lord Chief Justice, (b) the applicant was and remained entitled to full disclosure of the judicial recommendations, reports and factual summaries before the Secretary of State when he reached his decision as to the tariff, (c) alternatively, the applicant was entitled to make informed representations on the basis of disclosure of the full text of any factual summary of his case before the Secretary of State, and the full text of any psychiatric, probation or social inquiry report before the Secretary of State when he reached his decision on the tariff, (d) further, or alternatively, the Secretary of State should now refer the applicant’s case back to the Lord Chief Justice and the trial judge so as to afford the applicant an opportunity of making informed representations to the judiciary and to the Secretary of State on the basis of full psychiatric and social inquiry reports and then refix the tariff afresh, (e) the applicant’s release should not be determined by reference to the notion that he had served a minimum period of detention to satisfy the requirements of retribution and deterrence in respect of his offence, and (f) the applicant’s release should not be determined by reference to the notion that his case should not be reviewed by the Parole Board until he had served a minimum period fixed solely by reference to the requirements of retribution and deterrence.

 

By notice of motion dated 15 November 1994 the applicant, Robert Thompson, a minor then aged 12 years, having received the Secretary of State’s decision to the same effect as that in the case of Jon Venables, sought orders by way of judicial review in the same terms as those sought by Jon Venables.

 

On 2 May 1996 the Divisional Court (Pill L.J. and Newman J.) having heard both applications together, ordered that the decisions made by the Secretary of State should be quashed.

 

By notices of appeal dated 7 May 1996 and with leave of the Divisional Court the Secretary of State appealed on the grounds that the Divisional Court (1) erred in holding that (a) the decisions setting the applicants’ [*412] tariffs were made pursuant to an unlawful policy which provided for the fixing of tariffs in respect of young persons convicted of murder and sentenced to detention during Her Majesty’s pleasure in the same manner as for adults so convicted and sentenced to mandatory life sentences and (b) the Secretary of State’s policy unlawfully failed to provide sufficient flexibility to enable the period of detention to be regularly reviewed; (2) erred in law in failing to hold that (a) by section 35(2) read with section 43(2) of the Criminal Justice Act 1991 Parliament had left it to the Secretary of State’s discretion to decide what policies to adopt in relation to the detention and possible release of a young person convicted of murder; (b) it was within the Secretary of State’s discretion to decide that like a mandatory life prisoner a young person should serve a minimum period of punishment before release into the community since the same statutory scheme applied to each category of sentence; (3) failed to recognise that the Secretary of State was following the practice of his predecessors since 1983 in deciding on a tariff period for young offenders convicted of murder, and in the instant case, was following the advice of the trial judge and the Lord Chief Justice; (4) failed to recognise that it was inconsistent with the notion of a tariff to require reconsideration of its duration by reference to matters which did not relate to the circumstances of the offence committed; (5) erred in so far as the court considered that the Secretary of State had failed to comply with his responsibilities to maintain public confidence in the criminal justice system, since the Secretary of State had lawfully performed his functions in the exercise of the wide discretion conferred on him by section 35(2) of the Act of 1991 and had a set a tariff which was in relation to the maintenance of that confidence.

 

By a respondents’ notice by way of cross-appeal each applicant appealed against the Divisional Court’s refusal to grant the declaratory relief sought on the grounds, inter alia, (1) it was inappropriate and inconsistent to impose on children and young persons sentenced to detention during Her Majesty’s pleasure a period to mark the requirements of retribution and deterrence since such requirements were not legitimate objectives of such a sentence, the main rationale of which was preventative and therapeutic; (2) further, or alternatively, such a sentence was predominately reformatory and preventative.

 

The applicants further sought by their respondents’ notice to contend that the Divisional Court’s orders of certiorari should be upheld on the alternative or additional grounds that (1) it was inconsistent with the sentence imposed on the applicants to fix, by reference to retribution and deterrence, a tariff to be served before review of the merits of the detention; (2) even if retribution and deterrence were appropriate requirements it was unlawful to quantify at the outset and to fix a minimum period to be served irrespective of subsequent progress and to do so solely by reference to the requirements of retribution and deterrence; (3) even if the fixing of the tariff was legitimate, to do so in the present cases was unlawful because (a) the period fixed was not fixed in accordance (i) with the principle that a punitive sentence imposed on a child should be for the minimum period possible and should take account of the child’s rehabilitative needs, (ii) the judicial recommendations; (b) the period was fixed by scaling down that [*413] perceived to be appropriate for an adult murderer; (c) the Secretary of State wrongly took into account as a relevant factor petitions from the public which urged him to increase the tariff period recommended by the judiciary, and failed to have regard to relevant factors in so far as he reached his decisions without the benefit of any social inquiry or psychiatric report on the first applicant or to take account of the mitigating factors found by the trial judge; (d) the decisions were reached unfairly in so far as the full text of the materials before the Secretary of State was not disclosed to the applicants until after they were reached.

 

The facts are stated in the judgment of Lord Woolf M.R.

 

David Pannick Q.C. and Mark Shaw for the Secretary of State.

 

Edward Fitzgerald Q.C. and Ben Emmerson for the first applicant.

 

Brian Higgs Q.C. and Julian Nutter for the second applicant.

 

Cur. adv. vult.

 

30 July 1996. The following judgments were handed down.

 

LORD WOOLF M.R. This is an appeal from a decision of the Divisional Court (Pill L.J. and Newman J.) of 2 May. The Divisional Court quashed two decisions of the Home Secretary contained in letters dated 22 July 1994 written to Jon Venables and Robert Thompson (“the applicants”). The decisions were in the same terms. They set the period which would in the normal way elapse before the applicants were considered for release by the Home Secretary from detention during Her Majesty’s pleasure. This sentence followed their conviction for murder on 24 November 1993 after a trial before Morland J. and a jury at Preston Crown Court.

 

The circumstances of the murder were exceptionally horrific and for this reason attracted a vast amount of media attention. They were exceptional because of the treatment of the victim, James Bulger, who was only two years old at the time. They were also exceptional because at the time of the offence both Venables and Thompson were 10&12frac; years of age.

 

The period which is to elapse before the applicants would be considered for release was set by the Home Secretary at 15 years. This was to meet the requirements of retribution and deterrence and is known as “the tariff” or “penal element.” I emphasise that the 15-year period was not fixed by the Home Secretary as the period which the applicants are actually to spend in detention. That period can be substantially longer. Fifteen years is the minimum period which will normally elapse prior to release. It is a period fixed by the Home Secretary to enable his department and the applicants to know when the first review should take place. This review will commence three years before the expiry of the tariff to enable the Home Secretary to decide by the time it expires whether it is appropriate to release the applicants from detention on licence. This is necessary as the duration of Her Majesty’s pleasure is unspecified.

 

The Divisional Court was only entitled to interfere with the decision of the Home Secretary if his determination of the tariff would mean that he had or would exercise his discretion to release in a way which was not in accordance with the law as laid down by Parliament. The Divisional Court [*414] did not reach its decision because it would have fixed a different period as to the tariff. It did so because it considered that as a result of the tariff being fixed at a period as long as 15 years in the case of the applicants, the Home Secretary was preventing himself from exercising the discretion to release the applicants conferred on him by Parliament as the law by statute required. I emphasise this to make clear that the issues which the Divisional Court and this court are required to adjudicate are not as to sentencing policy.

 

The Home Secretary’s case in a nutshell is that Parliament has given him exactly the same breadth of discretion in the case of children and young persons who are sentenced for murder as he has in relation to adults who are sentenced to life imprisonment. Therefore he is exercising that discretion perfectly lawfully as long as he complies with the guidance given by the House of Lords as to the extent and nature of his discretion in the case of adults in Reg. v. Secretary of State for the Home Department, Ex parte Doody [1994] 1 A.C. 531. The Divisional Court did not accept that this is the position. The kernel of Pill L.J.’s reasoning (with whose judgment Newman J. agreed) appears in the following passage which comes towards the end of his judgment:

 

“The justification for a tariff in the case of a mandatory life prisoner is that the true and judicially imposed tariff is life and that stating a term of years by way of a tariff is a form of remission which the Secretary of State is entitled to grant. The nature of detention during Her Majesty’s pleasure does not permit of such an approach. There is no judicially imposed tariff from which to remit. However, the essence of the requirement upon the Secretary of State with respect to a child or a young person detained during Her Majesty’s pleasure is to keep the need for detention under regular review.”

 

Mr. Fitzgerald appeared both before the Divisional Court and this court on behalf of Venables. His argument is adopted by Mr. Higgs who appears for Thompson. Mr. Fitzgerald goes further than the Divisional Court in his criticism of the approach adopted by the Secretary of State. His case can be summarised.

 

(1) The sentence of detention during Her Majesty’s pleasure does not order detention for life as the punishment merited by the crime of murder; rather it authorises indeterminate detention only for as long as is necessary to meet objectives that are either wholly or predominantly reformatory and preventative.

 

(2) At least in the case of a 10-year-old offender the only legitimate objective of detention during Her Majesty’s pleasure is not retribution or deterrence but the reformation of the offender and the protection of society.

 

(3) As an alternative to (1) and (2), if it is permissible for the Home Secretary to have regard to retribution and deterrence it is wrong to determine the date of the review by reference to those objectives alone and so as to exclude for the period of the tariff a periodic review of the wider merits of continuing detention including the way in which the offender progresses and matures as time passes. [*415]

 

(4) As an alternative to (3) if it is legitimate to fix a tariff at the outset to reflect punishment and deterrence it is not appropriate to take into account in the case of a child or a young person the views of the public as to the period of detention which is appropriate or to adopt an approach which is greatly in excess of that which is adopted by the judiciary.

 

(5) The Home Secretary had come to his decision unfairly because he did not make full disclosure of the material on which he relied and did not have sufficient information as to the applicant’s background to entitle him to come to the decision which he did.

 

In order to determine the issues which Mr. Fitzgerald’s contentions raise, it is necessary to look with some care at the relevant statutory provisions. In doing so it is convenient to commence with the historical development of the powers of imprisonment for life of adults and then turn to the comparable powers in relation to children and young persons.

 

The position as to adults

 

The statutory provisions relating to adults currently make a distinction between sentences for a fixed period (determinative sentences) and sentences for life imprisonment (indeterminative sentences). They also make a distinction between sentences for life which are discretionary and those which are mandatory, that is to say prescribed by law.

 

In the case of determinative sentences in relation to adults, there is a long tradition of prisoners obtaining remission for good behaviour. The way the provisions operate is to give a defendant automatic credit for a fixed proportion of his sentence so that he is entitled to early release unless that remission is forfeited either in whole or in part because of bad conduct.

 

Discretionary, unlike the mandatory sentence life sentence for murder, can be imposed for different reasons. Either, because the offence is so serious that it is the only appropriate sentence or because a lesser fixed term sentence would amount to appropriate punishment but there is also a risk of repetition or mental instability so that an indeterminate period of imprisonment is required to protect the public from the risk of further offences. A prisoner sentenced in this way will only be released after he has served the period required as a punishment (the tariff period) when it is also safe for him to be released.

 

In the case of both categories of life imprisonment, life only very rarely in practice means life. In both cases the prisoner can be released on licence. If the terms of the licence are not observed, and in particular, if the defendant commits a further offence, he is liable to be recalled.

 

The first statute to which it is necessary to refer is the Homicide Act 1957. It created a category of non-capital murder for which there was a prescribed mandatory sentence of imprisonment for life. This was followed by the Murder (Abolition of Death Penalty) Act 1965 which made imprisonment for life mandatory for all murders. It also gave the trial judge a power to recommend to the Home Secretary the minimum period which should elapse before the release of the prisoner on licence. In addition the prisoner convicted of murder could not be released on licence unless the Home Secretary had previously consulted the Lord Chief Justice [*416] and the trial judge if available. The involvement of the judiciary at that stage was to avoid the Home Secretary being too lenient.

 

The Criminal Justice Act 1967 established the Parole Board. I set out section 61 because it applies to children or young persons sentenced to detention during Her Majesty’s pleasure the same provisions as to their release as apply to adults. The section is in these terms:

 

“(1) The Secretary of State may, if recommended to do so by the Parole Board, release on licence a person serving a sentence of imprisonment for life or a person detained under section 53 of the Children and Young Persons Act 1933 (young offenders convicted of grave crimes), but shall not do so in the case of a person sentenced to imprisonment for life or to detention during Her Majesty’s pleasure or for life except after consultation with the Lord Chief Justice of England together with the trial judge if available.”

 

The next step in the history was a parliamentary statement involving a radically different approach by the then Home Secretary Mr. Leon Brittan made on 30 November 1983. The relevant parts of the statement begin:

 

Life sentence prisoners

 

“The release of life sentence prisoners is at the discretion of the Home Secretary, subject to a favourable recommendation by the Parole Board and to consultation with the Lord Chief Justice and, if he is available, the trial judge:” see Hansard (H.C. Debates), 30 November 1983, col. 506.

 

The statement adds that in future because of public concern about violent crime, serious murderers can normally expect to serve at least 20 years in custody. The statement goes on to indicate that the Home Secretary would continue to look to the judiciary for advice on the time to be served “to satisfy the requirements of retribution and deterrence and to the Parole Board for advice on risk.” It also indicates that the first review by a local review committee would take place three years before the expiry of the period necessary to meet the requirements of retribution and deterrence so that this would give sufficient time for preparation for release if the Parole Board recommended it, “having considered risk.”

 

The following two paragraphs then follow:

 

“These new procedures will separate consideration of the requirements of retribution and deterrence from consideration of risk to the public, which always has been, and will continue to be, the pre-eminent factor determining release. They will enable the prison and other staff responsible for considering and reporting on life sentences cases, the local review committee and the Parole Board, to concentrate on risk. The judiciary will properly advise on retribution and deterrence. But the ultimate discretion whether to refuse will remain with me. . . .

 

“When a date for a first, or subsequent, formal review is set for several years ahead, the Home Office will review the case on the basis of reports of the kind now prepared for formal reviews, at regular, and in any event not longer than three-year, intervals. Moreover, governors will be told to report at once any exceptional development [*417] requiring action. These procedures will ensure that I can consider any special circumstances or exceptional progress which might justify changing the review date. But except where a prisoner has committed an offence for which he has received a further custodial sentence, the first formal review date will not be put back. In any event, ministers will review every case when a life sentence prisoner has been detained for 10 years.”

 

I draw particular attention to the final paragraphs of the statement because they do indicate that although consideration by the Parole Board would normally be deferred until after the tariff period had expired, the Home Secretary was mindful of the importance of monitoring progress and that it would be possible to depart from the normal procedure if this was appropriate; (a) if there are any special circumstances, (b) if there is exceptional progress by the prisoner, (c) after 10 years.

 

This was very much in accordance with the well known principles of administrative law which permit the adoption of a standard policy as long as the policy includes an appropriate provision enabling a departure from the policy in special circumstances. In the absence of such a provision the policy can amount to an unlawful fettering of the discretion given by the statute.

 

At least from this time on it was clearly established that in relation to both prisoners subject to mandatory and discretionary life sentences, there was a distinction between the penal or tariff element of the sentence for which the advice of the judiciary would be sought as to the appropriate period for deterrence and retribution and the risk element of the sentence, for which their advice would not be obtained.

 

The 1983 parliamentary statement was followed by a Parliamentary Statement by the then Home Secretary, Mr. Douglas Hurd, on 23 July 1987. This followed the decision of the Divisional Court in a case concerning discretionary life sentences: Reg. v. Secretary of State for the Home Department, Ex parte Handscomb (1987) 86 Cr.App.R. 59. It primarily dealt with discretionary life sentences. I will refer to it because the Home Secretary sets out fully the procedure with regard to those sentences and then applies the same procedure to mandatory sentences. The relevant paragraphs read:

 

“Following the consultation with the Lord Chief Justice it has been agreed that the most satisfactory way of obtaining the judicial view is to ask the trial judge to write to me, through him, in every case where a discretionary life sentence is passed giving his view on the period necessary to meet the requirements of retribution and deterrence. This view will be related to the determinate sentence that would have been passed but for the element of mental instability and/or public risk which led the judge to pass a life sentence and will also take account of the notional period of the sentence which the prisoner might expect to have been remitted for good behaviour had a determinate sentence been passed. The date of the first formal review by the Parole Board machinery will then be fixed in accordance with the judicial view on the requirements of retribution and [*418] deterrence: and the review will, as before, normally take place three years before the expiry of that period . . .

 

“Although the issues before the Divisional Court related only to prisoners serving discretionary life sentences. I have decided that the date of the first formal review of the cases of prisoners serving mandatory life sentences should also be fixed as soon as practicable after conviction and sentence. The procedure under which the views of the trial judge and the Lord Chief Justice about the requirements of retribution and deterrence are obtained will be the same as that proposed for discretionary life sentence cases:” see Hansard (H.C. Debates), 23 July 1987, cols. 346-347.

 

It will be observed that apparently at this stage the tariff was fixed in accordance with the judicial view.

 

The next step in the history to which it is necessary to refer, is a decision of the European Court of Human Rights in Thynne, Wilson and Gunnell v. United Kingdom (1990) 13 E.H.R.R. 666. In this case the European Court in relation to discretionary life sentences, held that once the prisoner had served the penal element of his sentence, he was entitled to have the remaining period of his detention under judicial control. This did not apply to mandatory life sentences because in their case the punishment for the offence of murder was considered to require life imprisonment which was not necessarily the case with discretionary life sentences where the sentence could be imposed because of mental instability or the risk of further offending on the part of the defendant.

 

To give effect to this decision of the European Court, the Criminal Justice Act 1991 was passed. This Act did not only deal with the position of prisoners serving discretionary life sentences, it also divided determinate sentences into short term and long term, four years being the dividing line between them. Short term prisoners were to be released after they had served one-half of their sentence and long term prisoners had to be released after serving two-thirds of their sentence: see section 33.

 

In addition the Home Secretary had a discretion under section 35(1) to release a long term prisoner after he had served one half of his sentence if recommended to do so by the board.

 

The position as to discretionary life prisoners was dealt with by section 34. The section gave a power to the court which sentenced such an offender to specify the penal part of the sentence and in doing so to take into account the seriousness of the offences involved and the provisions of the Act dealing with early release of long term prisoners to which I have already referred. The reason why it is necessary to take into account the early release provisions, is that if they were not taken into account the penal element of the sentence in the case of a discretionary life prisoner would be longer than the period which would actually be served by a prisoner serving an equivalent determinate sentence. Section 34 gives the responsibility for determining when, after the penal element of the sentence has been served, the risk to the public no longer requires the prisoner to remain in custody, to the Parole Board. Once this is the situation, the board has power to direct the prisoner’s release and it is then the duty of the Home Secretary to release him on licence. Furthermore once the penal [*419] period of the sentence has expired, the prisoner has the right to require the Home Secretary to refer the case to the board. In this way the decision of the European Court that the executive should not determine these matters is honoured.

 

Section 35(2) and (3) deal with the position of mandatory life prisoners in the following terms:

 

“(2) If recommended to do so by the 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 referred the particular case, or the class of case to which that case belongs, to the Board for its advice.”

 

Section 35 maintains the Home Secretary’s discretion in relation to mandatory life sentences. However, that the provisions of the Act were influenced by the Thynne case was made clear by the minister of state, Dame Angela Rumbold, in a statement to the House of Commons on 16 July 1991. Having referred to discretionary sentences, the minister said:

 

“The nature of the mandatory sentence is different. The element of risk is not the decisive factor in handing down a life sentence. 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 of a 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 prisoners release than by his continued detention. In exercising his continued discretion in that respect the Home Secretary must take account, not just of the question of risk, but how society as a whole would view the prisoners release at that juncture. The Home Secretary takes account of the judicial recommendation but the final decision is his:” Hansard (H.C. Debates), 16 July 1991, cols. 309-310.

 

The minister’s references to the offender forfeiting his liberty for the rest of his life and the presumption in the case of mandatory sentences of life imprisonment should be noted because on the approach of the Divisional Court they would not apply in the case of those sentenced to be detained during Her Majesty’s pleasure. This statement is also relevant to comments which I have to make about the fact that in this case the Home Secretary has taken into account in deciding on a tariff of 15 years the demands of the public contained in petitions and other documents that a long period should be fixed. The minister in the above statement appears to be saying that the public’s perception is relevant at the “juncture” when the Home Secretary is considering release and not when fixing the penal period.

 

The Doody case [1994] 1 A.C. 531 followed. It was concerned with the Home Secretary’s discretion in relation to mandatory life sentences for adults. It did not deal expressly with sentences of detention during Her [*420] Majesty’s pleasure. Lord Mustill in his speech with which the other members of the House agreed adopted the following approach to a number of issues which are relevant to this appeal.

 

(1) The Home Secretary’s decision relating to the release of life prisoners can only be interfered with by the court on an application for judicial review if it can be shown that it has been reached by a faulty process in one of the ways amenable to judicial review.

 

(2) The Home Secretary is not obliged to adopt the judicial view as to the appropriate tariff period in relation to mandatory life sentences although if he departed from it he is required to give reasons for doing so.

 

(3) The Home Secretary before fixing the tariff is required to afford the prisoner the opportunity of submitting in writing representations as to the tariff period. To enable a prisoner to do this he should inform the prisoner of the period recommended by the judiciary and of any other opinion expressed by the judiciary which is relevant to the Home Secretary’s decision as to the appropriate penal period but not as to the risk element. The general approach of Lord Mustill is apparent from these two short passages from his speech:

 

“Since the person affected usually cannot make worthwhile representations without knowing what factors may weigh against his interests fairness will very often require that he is informed of the gist of the case which he has to answer:” p. 560.

 

“I think it important that there should be an effective means of detecting the kind of error which would entitle the court to intervene, and in practice I regard it as necessary for this purpose that the reasoning of the Home Secretary should be disclosed:” p. 565.

 

The relationship between the judiciary and the Home Secretary is made particularly clear by the following passage in Lord Mustill’s speech, at pp. 558-559:

 

“I question the proposition that the judges are specially qualified to asses the penal element of a mandatory life sentence: I emphasise mandatory, because there are grounds for saying that in fixing the penal element of the discretionary sentence . . . the judge is simply pronouncing the tariff sentence which he would have imposed but for the element of risk, and that this is the kind of function in which the judiciary has unrivalled experience. But the position as to mandatory sentences is very different. Until Mr. Brittan completely changed the rules in 1983 the idea of a separate determinate penal element co-existing with the life sentence would have been meaningless. It is true that for the past 10 years the judges have been asked to advise upon it, and it may be that some consistent judicial practice now exists. Nevertheless, it is the Home Secretary who decides, and who has developed (with his predecessors) his own ministerial ideas on what the public interest demands. I can see no reason why the anomalous task of fixing a ‘tariff’ penal element for an offence in respect of which the true tariff sentence is life imprisonment is one for which the Home Secretary and his junior ministers, informed by his officials [*421] about the existing departmental practice, are any less experienced and capable than are the judges. In any event, however, even if the respondents’ argument is correct so far, it must in my opinion fail because Parliament has not by statute conferred on the judges any role, even as advisers, at the time when the penal element of a mandatory sentence is fixed. But for the fact that the Home Secretary decided, when formulating the new scheme, to retain in a modified shape the existing practice of inviting the opinion of the judges, they would never enter the picture at all. The Secretary of State is compelled, or at least entitled, to have regard to broader considerations of a public character than those which apply to an ordinary sentencing function. It is he, and not the judges, who is entrusted with the task of deciding upon the prisoner’s release, and it is he who has decided, within the general powers conferred upon him by the statute, to divide his task into two stages. It is not, and could not be, suggested that he acted unlawfully in this respect and I can see no ground whatever for suggesting that by doing so he deprived himself entirely of his discretion at the first stage, and delivered it into the hands of the judges.”

 

The Doody case was followed in turn by a further statement in Parliament by the present Home Secretary, Mr. Howard, on 27 July 1993. Having referred to the previous statements Mr. Howard continued in these terms, Hansard (H.C. Debates), 27 July 1993, cols. 863-864:

 

“Under those procedures, shortly after a person has received a mandatory life sentence, the Secretary of State invites the judiciary to give its views on the period to be served to satisfy the requirements of retribution and deterrence. The judiciary’s views presently comprised the advice of the trial judge and the Lord Chief Justice. Their advice is one factor among others which the Secretary of State considers before he sets the date for the first review by the Parole Board of the case for releasing the prisoner on licence. This review is timed to take place three years before the expiry of the minimum period which the Secretary of State considers necessary to satisfy the requirements of retribution and deterrence or, where that period is 20 years or more, 17 years after sentence. At present, a prisoner is not told the contents of the judicial recommendation, nor the length of the period which the Secretary of State has determined to be the minimum necessary to satisfy the requirements of retribution and deterrence. However, where the period so determined is less than 20 years, the prisoner can deduce its length by adding three years to the date which he is given for his first review; and where it is 20 years, he can deduce its length from the terms of the notice informing him that his first review will take place 17 years after sentence. But where the period is more than 20 years, the prisoner is not able to establish its total length. The House of Lords judgment requires me to inform the prisoner of the recommendations made by the judiciary as to the period necessary to satisfy the requirements of retribution and deterrence and of the substance of any opinions expressed by the judiciary which are relevant to my decision as to the appropriate minimum period to be [*422] served to satisfy those requirements. In addition, I am required to afford the prisoner the opportunity to submit written representations. Although I am not required to adopt the judicial advice, I must give reasons where I or a minister acting under my authority decides to depart from it. I propose to give effect to this judgment by informing all persons who are now serving a mandatory life sentence and any persons who may subsequently be so sentenced, as soon as is reasonably practicable, of the substance of the judicial recommendations which were made in their case as to the period to be served by them in order to satisfy the requirements of retribution and deterrence. I am consulting the Lord Chief Justice about the precise way in which this will be done. In addition, I have decided to disclose to both existing and future mandatory life sentence prisoners the Secretary of State’s decision, taken after consideration of the judicial advice, on the appropriate period in question. In accordance with the judgment, reasons will be given to the prisoner for any departure from the judicial view. As the judgment makes clear, successive Secretaries of State have been, and I continue to be, willing to consider any written representations by prisoners as to the minimum period to be served by them to satisfy the requirements of retribution and deterrence. In future, prisoners will be afforded the opportunity to submit such written representations at the beginning of the sentence and before I have formed a view as to the minimum period for retribution and deterrence. I take this opportunity to emphasise that the view which I or a minister acting under my authority takes, at the beginning of a mandatory life sentence, of the period necessary to satisfy the requirements of retribution and deterrence is an initial view of the minimum period necessary to satisfy those requirements. It therefore remains possible for me, or a future Secretary of State, exceptionally to revise that view of the minimum period, either by reducing it, or by increasing it where I, or a successor in my office, concludes that, putting aside questions of risk, the minimum requirements of retribution and deterrence will not have been satisfied at the expiry of the period which had previously been determined.”

 

The Home Secretary went on to say that if he was to increase the minimum period, it would give the prisoner an opportunity to make representations. The Home Secretary then refuted the suggestion which had been made by Lord Mustill in his speech that there was an illogicality involved in the statement made by Dame Angela Rumbold by saying that he wholly endorsed the latter’s description of the way in which he currently exercised his discretion and intended to do so in future. The Home Secretary concluded in these words:

 

“Accordingly, before any such prisoner is released on licence, I will consider not only (a) whether the period served by the prisoner is adequate to satisfy the requirements of retribution and deterrence and (b) whether it is safe to release the prisoner, but also (c) the public acceptability of early release. This means that I will exercise my discretion to release only if I am satisfied that to do so will not threaten the maintenance of public confidence in the system of [*423] criminal justice. Everything that I have said about the practice of the Secretary of State in relation to mandatory life sentence prisoners applies equally to persons who are, or will be, detained during Her Majesty’s pleasure under section 53(1) of the Children and Young Persons Act 1933, as well as to persons who have been, or will be, sentenced to custody for life under section 8 of the Criminal Justice Act 1982.”

 

There are a number of comments which it is relevant to make about this statement. First and most importantly the final paragraph of the statement was the first direct intimation of the approach of the Home Secretary to children who were detained during Her Majesty’s pleasure. This makes it clear that the policy is to treat them even if they are only 10 years of age in the same way as adults sentenced to mandatory life sentences. That this should be the first statement to deal with this is surprising since this is what had happened in practice since Mr. Brittan’s statement. Second, the references in Mr. Brittan’s statement to which I drew attention suggesting a degree of flexibility are no longer present except perhaps in cases were the penal element is 20 years or more. At least after 17 years there will always be a review irrespective of the longer length of the tariff. It is however to be noted that the Home Secretary refers to an “initial view” of the minimum period. Third, the element of preserving the public’s confidence in the system in determining the date of release is being kept separate from the element of punishment and deterrence.

 

Children and young persons convicted of murder

 

Having considered how the position developed in relation to adult prisoners, it is now possible to turn to the position as to children and young persons, concentrating in particular on those sentenced to be detained during Her Majesty’s pleasure. The relevant ages have varied but that of a child can be taken as being 10 to 14 and that of a young person 14 to 18.

 

The concept of detention during Her Majesty’s pleasure has a very considerable history. Mr. Fitzgerald relies upon that history as indicating that it is inappropriate to treat those detained in this way in the same way as if they had been sentenced to life imprisonment. Mr. Fitzgerald refers to the use of the phrase in relation to disposal under the Act of 1800 (39 & 40 Geo. 3, c. 94) entitled “An Act for the Safe Custody of Insane Persons Charged with Offences” and later Acts on the same subject. If a person was found to be insane by a jury lawfully empanelled for that purpose, they were to be “kept in strict custody until His Majesty’s Pleasure shall be known” (section 2). It was also provided that “in all cases of insanity so found, it shall be lawful for His Majesty to give such order for the safe custody of such person so found to be insane, during his Pleasure, in such place and in such manner as to His Majesty shall seem fit.”

 

This language was adopted when Parliament decided by section 103 of the Children Act 1908 to abolish sentences of death in relation to children and young persons. The Children Act 1908, section 103 provides:

 

“Sentence of death shall not be pronounced on or recorded against a child or young person, but in lieu thereof the court shall sentence [*424] 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 while so detained shall be deemed to be in legal custody.”

 

The language of section 53 of the Children and Young Persons Act 1933 reflects the provisions of the Act of 1908. The terms of section 53 of the Act, as amended, at the material times were:

 

“(1) A person convicted of an offence who appears to the court to have been under the age of 18 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 any such person; but in lieu thereof the court shall (notwithstanding anything in this or any other Act) sentence him to be detained during Her Majesty’s pleasure, and if so sentenced he shall be liable to be detained in such place and under such conditions as the Secretary of State may direct. (2) Where a child or young person is convicted on indictment of any offence punishable in the case of an adult with imprisonment for 14 years or more, not being an offence the sentence for which is fixed by law and the court is of opinion that none of the other methods in which the case may legally be dealt with is suitable, the court may sentence the offender to be detained for such period [not exceeding the maximum term of imprisonment with which the offence is punishable in the case of an adult] as may be specified in the sentence; and where such a sentence has been passed the child or young person shall, during that period . . . be liable to be detained in such place and on such conditions as the Secretary of State may direct. (3) A person detained pursuant to the directions of the Secretary of State under this section shall, while so detained, be deemed to be in legal custody . . .”

 

Section 53(1) which makes it clear beyond doubt that a sentence of detention during Her Majesty’s pleasure is not the same as a sentence of imprisonment for life. It is a sentence “in lieu of” such a sentence. The section does not provide any express guidance as to what Parliament intends as to the duration of such a sentence. It leaves that to the Home Secretary to determine on behalf of Her Majesty. However the important point for our purposes is that it only continues so long as that is Her Majesty’s, that is in practice the Home Secretary’s, pleasure. Under section 53(2) the court can also sentence a child or young person to a sentence of detention for life since such a “period” includes life for the purposes of that section: see Reg. v. Abbott [1964] 1 Q.B. 489. Such a period of detention would however be a discretionary sentence. In addition it would in practice be a sentence which it would be inappropriate to regard as involving, as does a mandatory life sentence, the implication that a young offender has forfeited any expectation of release.

 

Mr. Pannick on behalf of the Home Secretary draws a parallel between the discretionary sentences of detention for life and life imprisonment and between the mandatory sentences of detention during Her Majesty’s pleasure and life imprisonment. He submits the two discretionary sentences [*425] are treated in the same manner by the legislation and the same approach should be adopted as to the two mandatory sentences. He draws attention to the fact that in the case of both mandatory sentences after release the offender remains on licence for life.

 

Mr. Pannick argues that the correctness of the Home Secretary’s approach is confirmed by section 35(2) and (3) of the Criminal Justice Act 1991 when read with the relevant parts of sections 43 and 51 of the same Act. These provisions he submits make it clear that the duration of the two sentences are from a practical point of view indistinguishable. The terms of section 35(2) and (3) are:

 

“(2) If recommended to do so by the 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 the case belongs, to the Board for its advice.”

 

Section 43 assimilates the position of adult prisoners and children and young persons sentenced to detention by providing:

 

“Young offenders. 43(1) Subject to subsections (4) and (5) below, this Part applies to persons serving sentences of detention in a young offender institution, or determinate sentences of detention under section 53 of the Act of 1933, as it applies to persons serving equivalent sentences of imprisonment. (2) Subject to subsection (5) below, this Part applies to persons serving – (a) sentences of detention during Her Majesty’s pleasure or for life under section 53 of the Act of 1933; or (b) sentences of custody for life under section 8 of the Act of 1982, as it applies to persons serving sentences of imprisonment for life.”

 

Section 51 contains interpretation provisions in respect of Part II of the Act of 1991. The section includes a provision which provides that in this Part “‘life prisoner’ has the meaning given by section 34(7) above (as extended by section 43(2) above).” Section 51(1) also includes a definition of a “discretionary life prisoner” as having “the meaning given by section 34 above (as extended by section 43(2) above).” Section 43(2) does provide a further link between the provisions in the Act dealing with young offenders and those dealing with adult prisoners.

 

I accept there is a clear relationship between the provisions as to adults and those which relate to young offenders but it does not follow from this that the symmetry is necessarily exact so that the only difference between the mandatory sentences is the conditions in which the two age groups are to be housed while in custody. The provisions of sections 43 and 51 of the Act of 1991 are only for the purpose of Part II of the Act. This means the statutory source of the Home Secretary’s discretion to order the release is the same in the case of both classes of offenders but it does not mean that the sentences from which they are being released are necessarily the same.

 

Mr. Fitzgerald is therefore right in saying that Her Majesty’s pleasure remains a separate and different sentence from that of a mandatory life [*426] sentence. It is a sentence which still has something of the flavour of its use in connection with so called lunatics of retaining the individual in detention so long as there is reason to do so. In the case of an adult murderer as the sentence is one for life it is explicit from the sentence itself that the subject of the sentence is to forfeit for the period of life any right to be released. The terms of the sentence itself provide the justification for the continued imprisonment. It can be said as the minister of state did that there is a presumption of continued incarceration. In the case of a sentence of detention during Her Majesty’s pleasure there is no such explicit or implicit consequence to be derived from the language of the sentence. As one would expect of a sentence relating to a child or young person the sentence is more merciful. The subject of the sentence is not by its language deprived of all expectation of release. There can still be an expectation of release, not on a predetermined date, but when the Home Secretary determines that there is no reason for the detention to continue. The distinction is no more than that which flows from the fact that in the case of one sentence the discretion is to bring custody to an end despite the fact that the sentence is for life while in the case of the other sentence there is a discretion to continue custody which may result in custody lasting even for life. The distinction between the discretions remains even though in both cases on release the release is conditional for life and conditional on compliance with the conditions of the licence.

 

The distinction which I draw between the two mandatory sentences expresses in my own words the distinction which was recognised by Evans L.J. in Reg. v. Secretary of State for the Home Department, Ex parte Prem Singh (unreported), 20 April 1993, and by both the Commission and the European Court of Human Rights in Hussain v. United Kingdom (1996) 22 E.H.R.R. 1. A different view from that of Evans L.J. was taken by Kennedy L.J. in Reg. v. Secretary of State for the Home Department, Ex parte H. [1994] Q.B. 378 but that can be explained by the fact that the case only concerned the release provisions under the Act of 1991 when the statutory provisions themselves make it clear the same statutory provisions are to apply to both sentences.

 

I therefore accept that in many situations the distinction may not have any practical implications and the differences between the two mandatory sentences will be reduced normally to that as to the conditions in which the sentence is served. Nonetheless the distinction to which I have referred remains and should be remembered by the Home Secretary since it can affect the way the Home Secretary is required to exercise his discretion.

 

The Act of 1991 was at least in part intended to bring our law into line with the jurisprudence of the European Court of Human Rights. The consequence of this analysis of the sentence of detention during Her Majesty’s pleasure means that Parliament has not done so. The same is, however, probably true if Mr. Pannick’s arguments are correct. Further, it would be wrong on the basis of this general intention to change the underlying nature of the sentence of young offenders so it becomes materially more punitive by a side wind.

 

There are two other statutory provisions to which I need to make reference. The first is section 44 of the Children and Young Persons Act 1933. In subsection (1) it provides:

 

“Every court in dealing with a child or young person who is brought before it, either as . . . an offender or otherwise, shall have [*427] regard to the welfare of the child or young person and shall in a proper case take steps for removing him from undesirable surroundings, and for securing that proper provision is made for his education and training.”

 

Although this section is referring expressly to courts and not to the Home Secretary, if he chooses to adopt a practice which involves his performing the same role as a court then the section is clearly of relevance as indicating the importance that Parliament attaches to the welfare of children and young persons. Under the other statutory provision, section 50 of the Children and Young Persons Act 1933, a child under the age of 10 years cannot be guilty of any offence. Mr. Fitzgerald attaches importance to this because of the applicants’ age at the time of the crime. On the other hand, a child between the age of 10 and 14 can only be found guilty if he appreciates what he has done is seriously wrong and the applicants were found guilty.

 

The facts

 

The applicants were born in August 1982. The murder was committed in February 1993 when they were 10&12frac;. At the trial in November 1993, no defence of diminished responsibility was advanced and the psychiatric evidence given was called by the prosecution to establish that the applicants were capable of knowing the difference between right and wrong.

 

After they were convicted, because the sentence was mandatory under section 53(1) of the Act of 1933 no psychiatric or social inquiry reports were adduced for the purposes of mitigation. However the trial judge made a report to the Home Secretary dated 29 November 1993. The report was in the standard form. It summarised the facts of the offence and pointed out that the applicants did not give evidence and indicated that both boys were of average intelligence with no mental abnormality. The judge referred to two detailed reports which he had. One in the case of Thompson obtained by his solicitor and the other in the case of Venables obtained by the Crown. The judge indicated:

 

“Very great care will have to be taken before either defendant is allowed out into the general community. Much psychotherapeutic psychological and educational investigation assistance will be required. Not only must they be fully rehabilitated and no longer a danger to others but there is a very real risk of revenge attacks upon them from others.”

 

In answer to the question as to the trial judge’s view on the actual length of detention necessary to meet the requirements of retribution and general deterrence for the offence the judge said:

 

“If the defendants had been adults I would have said that the actual length of detention necessary to meet the requirements of retribution and general deterrence should have been 18 years.”

 

The judge then briefly described the background of the boys and continued:

 

“In my judgment the appropriate actual length of detention necessary to meet the requirement of retribution and general deterrence [*428] for murder, taking into account all its appalling circumstances and the age of the defendants when it was committed is eight years (subject to my comments . . . above) eight years is ‘very, very many years for a 10- or 11-year-old. They are now children. In eight years’ time they will be young men.’”

 

Lord Taylor of Gosforth C.J. commented:

 

“I have well in mind the trial judge is in a better position than I to assess these two boys and their crime, also I agree that a much lesser tariff should apply than in the case of an adult. I think the minimum period for punishment and deterrence should be 10 years.”

 

The doctors who were responsible for the report on Thompson were concerned for his future and wrote to the Home Secretary and the Secretary of State for Health indicating their reasons for concern and stated:

 

“Unfortunately the adversarial nature of the criminal proceedings meant that the bulk of our assessment, including our clinical hypothesis about the possible motivation for this crime, was never seen by the jury, read by the judge or reported in the press.”

 

They indicated that they felt that there was an urgent need for further psychiatric examination and assessment. The Home Secretary replied on 20 December 1993 indicating that a clear sentence plan would be drawn up for Thompson based on a full assessment which would include a full psychiatric assessment.

 

At the beginning of January 1994 each of the applicants was informed of the substance of the recommendations as to the tariff made by the judge and Lord Taylor of Gosforth C.J. In February 1994 representations as to the tariff were made by lawyers on behalf of Venables and in March 1994 by lawyers on behalf of Thompson. I was concerned that those lawyers who make the representations might be without any right to legal aid for this purpose and therefore without any entitlement to payment. That would be an unsatisfactory situation. However, as a result inquiries were made at the request of the court (for which we are grateful) and it appears that the position was improved from 1 May 1996 and that legal aid is now available under an extension of the green form scheme.

 

On 16 June 1994 a letter was written to each of the applicants by Mr. Newton on behalf of the Home Secretary. The letter referred to reports in the media about representations made to the Home Office by members of the Bulger family and other members of the public. It indicated that a petition had been received from about 250,000 members of the public indicating that the applicants should not be released in any circumstances and should be detained for life. The letter also mentioned some 4,400 letters from members of the public in support of the family. In addition there was reference to a Member of Parliament who had submitted a petition at the request of relatives of the Bulger family signed by nearly 6,000 people indicating that the minimum sentence should be 25 years and to 21,000 coupons published by the Sun newspaper which had been received in support of a whole life tariff. In addition there had been various letters and small petitions over 1,000 of which were in favour of a [*429] whole life tariff and only 33 of which agreed with the judiciary or suggested a lower tariff.

 

The Home Secretary’s decision letters stated that the Home Secretary:

 

“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” – to which I have just referred – “and to the need to maintain the public confidence in the system of criminal justice. The Secretary of State takes fully into account the fact that you were only 10 years old when the offence was committed. He further acknowledges that a much lesser tariff should apply than in the case of an adult.” (Emphasis added.)

 

The letter indicates that like the trial judge he was not able to reach any conclusion with regard to the relative responsibility of the applicants. The letter then sets out the views of the trial judge and Lord Taylor of Gosforth C.J. and continues by stating:

 

“The Secretary of State had regard to these views. He takes the view that this was an exceptionally cruel and sadistic offence against a very young and defenceless victim committed over a period of several hours. The Secretary of State believes that if the offence had been committed by an adult then the appropriate tariff would have been in the region of 25 years and not 18 years as suggested by the trial judge. For these reasons and bearing in mind your age when the offence was committed the Secretary of State has decided to fix a tariff of 15 years in your case. The Secretary of State is satisfied that such a tariff is consistent with tariffs fixed in other cases.”

 

The letter concludes by stating that the Secretary of State is prepared to consider any further representations which you or your representatives might wish to make about the length of the tariff and in the light of such fresh representations, to reduce the tariff if appropriate.

 

On 12 October 1994 further representations were made on behalf of Venables by a letter of that date. The letter indicated that judicial review would be sought on behalf of Venables. It added that the procedure adopted in fixing the period was unfair and that Venables had not been adequately informed of the information before the judiciary and the Home Secretary when they made their decision. The letter therefore asked the Secretary of State to reconsider the whole matter and for this purpose to consult the judiciary afresh. The letter points out that the psychiatric report before the judge had been limited and there had been no detailed mitigation. Similar representations were made in relation to Thompson also in a letter of 12 October 1994. By letters dated 24 January 1995 written on behalf of the Home Secretary, he indicated that he could not see that there was any reason to depart from his previous decision.

 

In an affidavit Mr. Newton, who is the author of the letters written on behalf of the Home Secretary, indicates that the Secretary of State when he made his decision had only a medical report on Thompson which he did not regard as containing information which assisted him. Mr. Newton [*430] drew attention to the fact that the report stated that it is not possible on the basis of the information currently available to reach a reliable conclusion about Thompson’s state of mind at the time of the alleged offence. The affidavit also refers to the criticisms which were made of the Secretary of State reaching a decision when fresh information may come to light in the future relating to the offences or the state of mind of the applicant, in particular psychiatric reports and then states:

 

“The Secretary of State is always prepared to consider such fresh information and to reduce the tariff if appropriate. This applies equally to any social inquiry or psychiatric reports commissioned by the applicants and containing information relevant to the length of tariff.” (Emphasis added.)

 

Mr. Newton also made clear as is accepted by Mr. Pannick on behalf of the Home Secretary that the Secretary of State would only be influenced by fresh information which comes to light which is “relevant to the circumstances of the offence, or the applicants’ state of mind when the offences were committed.” Other changes in circumstances are not regarded as being relevant. The reason for this approach, as I understand it, is that the Home Secretary regards subsequent events, such as changes in the character and personality of the offender, as irrelevant when determining the appropriate tariff. This approach means that if a detainee’s character changes beyond recognition for the better this cannot bring forward the first review date. Again it means that if an offender while in detention acted in a conspicuously brave manner this would not be regarded as relevant to changing the tariff. Mr. Pannick suggests that could constitute a compassionate ground for release under the special power contained in section 36 of the Act of 1991. I am not sure about this but in any event this approach substantially limits the scope of the suggestions made in the statement and by Mr. Newton in his evidence and in letters that the Secretary of State’s decision is not “immutable” and his statement that:

 

“The Secretary of State has had regard to the need for rehabilitation of the applicants. But on the facts of these cases, and in the light of the gravity of the offences and the need for punishment for them, he does not consider that the aim for rehabilitation can override the need for 15 years’ detention as punishment. Moreover the fixing of a tariff of 15 years does not preclude the need for periodic monitoring of rehabilitation of the applicants.”

 

While there is excellent monitoring and a care plan designed to achieve the best outcome which is possible for the applicants despite their circumstances, the results of this enlightened approach is apparently not to affect the operation of the tariff or the date of the first review.

 

Later in the affidavit Mr. Newton states:

 

“The Secretary of State did not seek to apply a mathematical formula. He selected that tariff which he thought was appropriate as punishment in the light of the gravity of the offence and all of the circumstances of this case, having particular regard to the age of the applicants.” [*431]

 

The affidavit also makes clear that in fixing the tariff the Secretary of State has had regard to public opinion and to public concern about the particular cases.

 

After the fixing of the tariff, a full psychiatric report was obtained in January 1995 on Venables. This indicated that he was making excellent response to the therapeutic work and current family support that he was receiving. It also indicates “there would be major concern for (Venables) to have to progress through young offender institutions to prison” which is what is likely to happen if the present tariff is maintained. Similar comments are made in a further psychiatric report obtained on behalf of Venables by a distinguished professor of child psychiatry at the University of London. He regards the tariff as long as 15 years as likely to have a damaging effect on the ability of a child of the age of the applicants to think constructively about preparing for the adult life. He also considers the adverse consequences of Venables being transferred either to a young offenders institution or to prison.

 

In response to questions by the parties it is stated on behalf of the Home Secretary that in the case of detainees under 14 years of age, 15 years is the longest tariff imposed. However there was one case of a tariff of 14 years set for a murderer aged 12. In that case the judge had recommended a tariff of 12 years and the Lord Chief Justice had recommended 14 years.

 

Having set out the background material necessarily at some length, I return to the issues. In doing so it is convenient to have in mind that the criticisms which are made of the decisions of the Home Secretary can be conveniently assessed under three heads.

 

1. The tariff policy which the Home Secretary has adopted is unlawful in the case of young offenders because it conflicts with statutory discretion which he is given to release young offenders. (The lawfulness of the policy.)

 

2. If the tariff policy is lawful it has been applied too inflexibly so that it unlawfully fetters this discretion. (The application of the policy.)

 

3. In applying the policy and fixing the tariff in the case of the applicants: (a) irrelevant material in the form of petitions and other documents calling for a long tariff period was unfairly or irrationally taken into account; or (b) information which should have been disclosed to the applicants was not disclosed; or (c) information which should have been obtained was not obtained or taken into account. (The fairness of the decision.)

 

The lawfulness of the policy

 

In the case of adult offenders who are found guilty of murder the decision in the Doody case [1994] 1 A.C. 531 makes it clear that the policy is lawful. Mr. Fitzgerald’s primary submission for saying that the policy cannot be applied to young offenders is based on the statutory description of the sentence and its history. He submits that either punishment should play no part in the sentence or only a limited role and therefore a policy relying substantially on a period representing punishment and deterrence is inappropriate.

 

I do not agree that punishment and deterrence necessarily have a limited role to play in the case of the detention of a young offender for [*432] murder during Her Majesty’s pleasure. Even without the sidenote to section 53 of the Act of 1933, which reads “punishment of certain grave crimes,” the sentence clearly involves a punitive element. The sentence after all was originally introduced as a substitute for capital punishment. The idea that there should be no room for punishment for murder when there is clearly provision for punishment for lesser offences would make nonsense of the legislation. The weight to be given to the need for punishment in the case of any particular offender, as against other legitimate considerations, is a matter for the Home Secretary to determine when deciding in the exercise of his discretion when a particular individual young offender should be released. As long as the Home Secretary exercises his discretion in a manner which accords with the requirements of the law, the courts cannot interfere with the significance which he attaches to the need for punishment. The policy cannot therefore be faulted for the importance it attaches to the need for punishment.

 

Obviously an allowance must be made for the age of the offender when determining the tariff since the more mature the offender the less excuse for offending. But this can be and is allowed for when fixing the tariff in accordance with the policy. The need for rehabilitation is also a relevant consideration. This can in part be catered for in the regime provided for the offender while in detention and it can also influence the decision as to when to release when punishment no longer requires continued detention.

 

Again the fact that the mandatory sentence of detention for young offenders has the distinction from the mandatory sentence of life imprisonment which I have described does not mean that the same tariff based approach cannot be deployed in relation to both. The distinction between the sentences can be accommodated in the application of the policy. This involves paying greater attention to the need for flexibility when circumstances require. In addition if the sentence does not involve the presumption to which the minister of state referred there should be a greater readiness to depart from the two stage policy. This is especially so in the case of a very young offender if otherwise there could be an inappropriate result. There appears to me no reason why the policy should not cater for this though under the next head it is necessary to consider the relevance of the absence of any recognition in the evidence of the Home Secretary of this requirement.

 

The application of the policy

 

The Home Secretary’s discretion as to release is very wide. It is the type of discretion which calls out for the development of policy as to the way it will in general be exercised. This should assist in providing consistency and certainty which are highly desirable in an area involving the administration of justice where fairness is particularly important.

 

Furthermore in general I cannot see any legal objection to the Home Secretary applying the two limb approach as modified and developed from time to time, which was regarded as unobjectionable in the Doody case [1994] 1 A.C. 531 in relation to adults, to young offenders as happened from 1983 although this was not mentioned to Parliament until a later date. This is because it allows a young offender to know the period during which he is unlikely to be released and when he should prepare himself to [*433] put forward representations. The objection which is most often made by those subject to an indeterminate sentence is its uncertainty. They need a target date. It is also sensible from the administrator’s point of view. It avoids conducting reviews which will serve no purpose at times when there is no question of the offender being released from custody which will only give rise to unjustified expectations on the part of the detainee. In addition it identifies the penal element which perfectly properly the young offender can normally be expected to serve by way of punishment.

 

Just as in exercising his discretion in an individual case the Home Secretary is required to exercise his discretion in the manner which accords with the law so he must also do so in determining his policy. If the position was otherwise the existence of policy would enable the discretion to be exercised in a way which would not be permissible in the absence of the policy. This means that the policy must not be so inflexible that it cannot accommodate the range of different situations to which it will have to apply. Here, in the case of young offenders, from the child just over the age of criminal responsibility to the 17-year-old.

 

In addition the policy must not be so rigid that it does not allow for the exceptional case which requires a departure from the policy, otherwise it could result in fettering of the discretion which would be unlawful.

 

The reason for the significance of the unlawful fettering of discretion is accurately described by Professor Sir William Wade in Administrative Law, 7th ed. (1994), p. 360, under the heading “Over-Rigid Policies:”

 

“It is a fundamental rule for the exercise of discretionary power that discretion must be brought to bear on every case: each one must be considered on its merits and decided as the public interest requires at the time.”

 

When the 1993 statement is compared with that of 1983 it is apparent that the policy of 1993 is more rigid. In the case of young offenders to put off the commencement of a general review of their position theoretically as long as 15 years appears to be totally unreasonable. Even, in the case of offenders of the age of the applicants, to put it off for 12 years appears to me to be unacceptable and contrary to the proper exercise of the discretion. If the tariff was fixed at a figure as high as this but there was to be a general reconsideration during the period of the tariff I would take a different view. The policy would then allow for the changes of circumstances which will inevitably occur in the case of young offenders as they grow up to be taken into account. The inconvenience that this would cause would be limited because of the monitoring that already takes place. How it could work is indicated in the policy statement of 1983.

 

Exceptional progress may be what is required for a departure from the tariff but where it occurs it cannot be excluded as irrelevant without fettering the discretion unlawfully in the case of applicants of this age. On Mr. Newton’s evidence this fettering now would or at least could occur because of the restriction on what is regarded as relevant when reconsidering the tariff.

 

The need for reconsideration is especially important if limited information is available to the Home Secretary at the time when he reaches his decision on tariff. The absence of full reports is understandable because [*434] to meet the views expressed in Reg. v. Secretary of State for the Home Department, Ex parte Handscomb, 86 Cr.App.R. 59 the tariff is fixed expeditiously. However when a decision is taken on limited material this makes reconsideration all the more important. After what period the reconsideration should take place is a matter for the Home Secretary but it cannot be postponed altogether for as long as 12 years for no good reason in the case of offenders of the age of these applicants. Mr. Fitzgerald in argument referred to five years and I would find this acceptable but I emphasise each case turns on its own circumstances and the nature of the new material which becomes available.

 

The position of adults is different. Their circumstances do not change to the same extent as those of children. A child of 10 by the time he reaches the age of 15 may have changed beyond recognition. I do not say that progress will entitle the younger offender to a review let alone release. All that is required is a willingness to reconsider the date of review if there is material available to the Home Secretary indicating that this is desirable. The statute gives the Home Secretary a discretion which allows him to exercise his power of release at any time. He cannot decline to consider exercising a discretion which he has throughout the period of the detention irrespective of the circumstances of an exceptional case. The tariff policy is perfectly permissible as an aid to the exercise of this discretion but it cannot excuse an unwillingness to depart from the policy.

 

The explanation for the Home Secretary adopting this approach to the policy could be a misapprehension as to the legal position to which it applies. His approach appears to be that there is no distinction between the mandatory sentences in the case of a child or young person detained during Her Majesty’s pleasure and an adult whereas as I have indicated above there is a distinction. The likelihood of the misapprehension is confirmed by Mr. Newton’s evidence which is totally lacking in any acknowledgement of such a distinction.

 

The failure to recognise the distinction between the two sentences may also be the explanation for Mr. Newton’s approach to fresh evidence which comes into existence after the tariff has been determined.

 

The difference between the judicial figures and that of the Home Secretary in this particular case as to the tariff are so different as to raise a doubt as to whether there is a difference of approach as to what the tariff covers. Unless the tariff is to bear some relationship to what punishment the judiciary would impose what is the purpose of consulting them? This is underlined when it is remembered that the tariff is a net figure, taking into account the right to remission, so the true difference is greater than appears from comparing 8 or 10 with 15. However I do not consider it is open for a court to interfere on this ground alone for the reasons indicated by Lord Mustill in the Doody case [1994] 1 A.C. 531 once it is accepted that punishment is part of the sentence.

 

The scale of the tariff selected in the case of the applicants is still of significance. It is another feature which highlights the exceptional nature of the position of the applicants. To the fact that at the time of their offence they were just over the age of criminal responsibility and the nature of their offence there has to be added the fact that the tariff considered appropriate was longer than had ever been selected for an [*435] offender of their age. Even the nearest example was less for an offender two years older and two years is a substantial difference at this age. When the limited evidence which was available about the applicants is also taken into account together with the public interest in the tariff figures which was quite out of proportion to the significance of the tariff there was an almost irresistible case for considering whether the tariff approach should not exceptionally be departed from. On the evidence this was not considered. It should have been. A departure from the tariff would allow the development of these young offenders to be considered. It would allow the full information to be obtained. It would avoid the Home Secretary publicly being in significant disagreement with the judiciary which could only tend to undermine the public confidence in the criminal justice system. It appears that either the ability to depart from the policy was not appreciated or if it was appreciated not considered.

 

In deciding whether consideration should have been given to departing from the policy in this case it is helpful to ask two questions. The first is whether if there was no policy would it be sensible to have come to this decision. To this question I unhesitantly say “No.” In addition to the features I have already identified which are disadvantages which follow from the application of the policy there is the crushing nature of the inevitable penal element of the sentence which puts off reconsideration for the same period as would a determinative sentence of 27 years. (I am taking into account the Home Secretary’s discretion to consider release after half the sentence and deducting three years. I appreciate there would in any event be a review after 17 years.) Fifteen years is 150 per cent. of the applicants’ lives so far. It is necessary to consider what effect this has on the rehabilitation which is the part of any sentence. How do the applicants and those whose task it is to be responsible for them cope with this? It is inconsistent with the very flexibility which must have been intended by Parliament in giving such a wide and untrammelled discretion to the Home Secretary.

 

The other question is: does the existence of the policy justify not at least considering departing from the policy? Again the answer I give is “No.” If there is ever going to be a justification for departing from the policy cases with the features of these cases must be at the top of the list justifying departure. As will be apparent from what I have to say under the third head, the application of the policy is going to produce injustice.

 

The fairness of the decision

 

Here it is clear that the Home Secretary took into account the petitions and other documents presented to him urging the fixing of a higher tariff than that fixed by the judiciary. This could well provide part of the explanation for the striking difference in the figures of the judiciary and the Home Secretary for the penal element. This I regard as being a departure from the standards of fairness the exercise of a discretion of this sort requires. I also regard this as the taking into account material which is not relevant at that stage but, if it is ever relevant, is relevant to the question of release after the tariff period has been served.

 

The fixing of a tariff involves determining the appropriate punishment within the scale of punishments which the Home Secretary applies [*436] generally. Those punishments should as the Home Secretary advocates take into account the need to ensure that the public has confidence in the criminal justice system if they are to be made public as happened in this case. I also accept that the Home Secretary is entitled to have his own scale which differs from that of the judges and that he is free to consider that the particular case requires particularly heavy punishment. However notwithstanding the width of his discretion he cannot apply his own policy unfairly or irrationally.

 

To take into account the petitions etc. is unfair because it is material which has come into existence in a way which it is impossible for the applicants to test or match. The petition may or may not have been conducted fairly. We do not know. We do not know how many people would have been prepared to sign the petition if they had been told that the tariff’s only purpose is to put off the date when the Home Secretary can consider the question of release at which time the Home Secretary would be able to take into account current public feeling. We also do not know what would be the response to a petition and public campaign on behalf of the applicants.

 

In addition to take into account public feeling of this nature for the purpose of increasing the tariff means that if the mood of the public were to change prior to the tariff being served a longer sentence than would otherwise be necessary would be served. This cannot be right and no doubt explains why the policy hitherto was to treat the attitude of the public as something separate from the tariff. To include it in the tariff could result in double accounting. The scale of punishment would in any event take into account the need for the public to have confidence in the scale. Unless care was exercised, to take into account the public clamour for a heavy penal element in a particular case could result in the influence of the same factor being repeated.

 

While the Home Secretary is not confined in his consideration of the tariff to the material a court would regard as relevant, he should at least bear in mind when performing a role similar to that of the courts how the courts perform that role. A court would regard it as quite improper for this type of material to be put before a court. I do not believe any prosecutor would seek to do this. Indeed to run a campaign designed to increase the punishment in a particular case could amount to an interference with the due administration of justice. This being the position as to the courts I find it difficult to see the justification for the Home Secretary taking a different view. I certainly do not consider Lord Mustill had this type of material in contemplation when he referred to the need to maintain the public’s confidence in the justice system.

 

The material which the Home Secretary should have before him when fixing the tariff has to be judged against the extent to which the tariff is capable of being reconsidered and the length of the tariff in the particular case. If it is not an initial view which will in due course be fully reviewed and the period is as long as 15 years in the case of children of this age then I can only describe the approach in these cases as perfunctory and as falling far below the standards that a court would adopt if contemplating sentencing a child for a period of 15 years’ detention. A court would require full social and psychiatric reports. [*437]

 

Mr. Pannick submits that what has happened, which is to sentence these children on a short summary of the views of the trial judge, is not unfair is demonstrated by the fact that Lord Taylor of Gosforth C.J. was prepared to act on the same material. While this is a proper point for an advocate to make it is without substance. If Lord Taylor of Gosforth C.J.’s figure was to be the decision I have no doubt that he would not perform the role in this way. The Home Secretary is well aware that Lord Taylor of Gosforth C.J. can in practice provide only a bird’s-eye view as to tariff, primarily to achieve consistency. He personally has to consider well over 200 new cases each year in addition to those which come back for the purposes of review. He is entitled to expect the Home Secretary to obtain any additional information which is needed and to ensure that the detainee has a proper opportunity to make any necessary representations as would happen if the matter comes before a court.

 

That brings me to the final point. In this case there should have been full disclosure of the nature of all the material before the Home Secretary which was to be taken into account. The applicants needed to know what was not available to him. Mr. Fitzgerald submitted that it was assumed there would be available the full reports which were absent. For these to be considered after the decision has been reached is not the same as for them to be taken into account before the decision is reached. There is natural reluctance in the case of any administrative decision to change it in the absence of very clear evidence and the applicants were entitled to a proper decision taken on the relevant material.

 

The remedy

 

In view of the conclusions to which I have come the proper course is for this appeal to be dismissed so the decisions can be taken again. This will involve first deciding whether there should be a tariff in these cases. If it is decided there should be a tariff it will be necessary to decide that tariff and whether there should be the possibility of review at some stage prior to the expiry of the tariff period and if so what steps should be taken to make that possibility a reality.

 

What I have said earlier in this judgment indicates that there is real need for reconsideration of how we are administering cases which will inevitably result in young children being detained for long periods in detention. The history of the statements made to Parliament suggests the policy in relation to child murderers may have been adopted as an after thought to that in the case of adults without the detailed consideration required. Why otherwise the delay in referring to it for 10 years? Approximately 90 years ago an enlightened Parliament recognised that a flexible sentence of detention is what is required in these cases with a very wide discretion being given to the person Parliament thought best suited to oversee that discretion so that the most appropriate decision as to release could be taken in the public interest. The subsequent statutes have not altered the nature of the discretion. Yet by a series of policy decisions that flexibility has in relation to these cases all but disappeared. This does not accord with what Parliament has laid down. Nor does it result in this case in a just result. [*438]

 

HOBHOUSE L.J. Both these appeals raise the same questions. The points for decision can be grouped under three headings. The first is whether there is any element of punishment involved in a sentence under section 53(1) of the Children and Young Persons Act 1933. The Divisional Court held that there was. The second heading is whether the Secretary of State is entitled to adopt the same approach to the exercise of his discretion whether or not to release a defendant detained under section 53(1) as for a defendant who, as an adult, has been convicted of murder and mandatorily sentenced to life imprisonment under section 1 of the Murder (Abolition of Death Penalty) Act 1965. The answer to this question depends upon whether the court accepts that a sentence under section 53(1) is a life sentence and the view it takes of the provisions of the Criminal Justice Act 1991. The Divisional Court held that the Secretary of State was not so entitled and quashed the decisions. The third heading, which the Divisional Court did not have to consider, concerns the decision-making process – whether the procedure was faulty and whether it involved any irrationality.

 

The applications for judicial review relate to the decision letters of the Secretary of State dated 22 July 1994 in which he informed each defendant of his “decision on the period to be served in your case to meet the requirements of retribution and deterrence.” The letters conclude:

 

“For these reasons, and bearing in mind your age when the offence was committed, the Secretary of State has decided to fix a tariff of 15 years in your case. The Secretary of State is satisfied that such a tariff is consistent with tariffs fixed in other cases. The Secretary of State is prepared to consider any fresh representations which you or your representatives might wish to make about the length of the tariff and, in the light of such fresh representations, to reduce the tariff if appropriate.”

 

In writing these letters, the Secretary of State was following the policy and procedure which he had outlined in his parliamentary answer of 27 July 1993 after the decision of the House of Lords in the Doody case [1994] 1 A.C. 531. That parliamentary answer was primarily concerned with adults who had been convicted of murder and had received a mandatory sentence of life imprisonment. The answer concluded with these words, Hansard (H.C.) Debates, 27 July 1993, col. 864:

 

“Everything that I have said about the practice of the Secretary of State in relation to mandatory life sentence prisoners applies equally to the persons who are, or will be, detained during Her Majesty’s pleasure under section 53(1) of the Children and Young Persons Act 1933 as well as to persons who have been, or will be, sentenced to custody for life under section 8 of the Criminal Justice Act 1982.”

 

I

 

Introduction

 

Before turning to the specific points raised for decision on these appeals, it is desirable to put them in their factual and legal context. [*439]

 

The trial and its aftermath

 

The murder of James Bulger was a truly horrific crime. This was because it involved the abduction of a two-year-old child from a shopping centre, taking him over a period of about two hours whilst he was showing increasing distress to the place where he was killed and there subjecting him to a sadistic and brutal attack until he was dead. The perpetrators were two boys themselves aged no more than 10&12frac; years old. It was the conclusion of the trial judge, Morland J., that the abduction was carried out for the purpose of killing the victim and the two boys had earlier made two unsuccessful attempts to abduct other children.

 

Why this crime provoked an extreme public reaction can be easily understood. The crime itself threatened the security of all mothers of young children. The crime was exceptionally cruel. The crime offended against the assumptions made by most members of the public about the criminal capabilities of pre-adolescent boys. The killing itself attracted enormous publicity as did the ensuing trial and the sentencing process. As the two defendants had been found guilty by the jury, the judge had only one sentence open to him: that each defendant be detained under section 53(1) during Her Majesty’s pleasure. Since this was a mandatory sentence no submissions about the sentence were heard and no further reports called for or made.

 

The trial judge sentenced the defendants on 24 November 1993. In his sentencing remarks he described the defendants’ killing of James Bulger as “an act of unparalleled evil and barbarity;” James Bulger was “battered to death without mercy;” “your conduct was both cunning and very wicked.” He told them that they would be “detained for very, very many years.” After he had passed sentence he made some broader comments which commenced: “How it came about that two mentally normal boys aged 10 of average intelligence committed this terrible crime is very hard to comprehend.” It therefore came as something of a surprise to many members of the general public when they read in their newspapers (from what source the affidavits do not say) that the judge had recommended to the Secretary of State a period of detention of no more than eight years; they did not feel that that was “very, very many years.” They might be released before they were 20. A press campaign ensued in which extreme views were expressed, including that the defendants should remain in custody for the rest of their natural lives. The family of James Bulger made representations. A petition with 250,000 signatures was presented. Several hundred thousand letters were received by the Home Department.

 

The situation in which the Secretary of State and his advisers found themselves was wholly exceptional. A climate of opinion had been built up in which it was very difficult to make an adequate decision on what was required for retribution and deterrence. The situation had become overlaid by a range of public pressures which lost sight of the two defendants as immature individuals and got bound up with when, many years later, it might become publicly acceptable to release the murderers of James Bulger from custody on licence. It also lost sight of the fact that the practical significance of any statement by the Secretary of State would simply be to the date upon which the Parole Board would first be allowed to express a view about the defendants: section 35(3) of the Act of 1991. It appears [*440] that there was no specific attempt to obtain or marshal whatever “mitigation” evidence might be available or to evaluate the maturity or immaturity of the defendants’ personalities; they were still only 11 years old. This is the context in which the letters of 22 July 1993 came to be written.

 

The pragmatic development of English law

 

It is essential to the understanding of the area of law and practice raised for consideration by these appeals to appreciate that its development has not proceeded from predetermined principles. It has rather been pragmatic and empirical. Contributions have been successively made by the legislature, by the Home Department and by the judges and, in addition, by the European Court of Human Rights at Strasbourg under the European Convention for the Protection of Human Rights and Fundamental Freedoms (1953) (Cmd. 8969). The history has been set out in a number of places. It suffices to refer the reader to the speech of Lord Mustill in the Doody case [1994] 1 A.C. 531, 551-556. Important though they are, I will not in this judgment trace again the stages by which the present position has been reached. I will concentrate upon the Acts of 1933 and 1991, their effect and the principles they embody.

 

Sentences and custody

 

In English criminal practice, sentencing has to take place as soon after conviction as is practicable. The power to defer sentence is circumscribed and rarely exercised. The sentencing judge may have to adjourn for pre-sentence reports: section 3(1) of the Act of 1991. It may take some time to obtain these but, subject to that need he will proceed to sentence straight away. The sentence has to take into account not only the seriousness of the crime and the need to deter but also the personal circumstances of the offender and the mitigation available to him, for example, his attitude to his offence: section 28(1) of the Act of 1991. The sentence is a sentence passed on an individual and has to be justified for that individual as well as for the crime.

 

The sentence is passed having regard to the state of affairs existing at the time sentence is passed. In principle things which occur subsequently are irrelevant to the propriety of that sentence. They fall within the control of those responsible for the custodial regime of the offender. Where the offender is eligible for early release, they will be taken into account as relevant to the decision whether to allow early release. But, apart from this, the requisite service of a custodial sentence can only be reduced as an exercise in executive mercy, now incorporated in various statutory provisions: see, for example, section 28 of the Prison Act 1952 and section 36 of the Act of 1991. This is the way in which the system accommodates the exceptional release from custody of those not eligible for early release. Later eventualities are not the concern of the sentencing judge and are not relevant to retribution and deterrence.

 

In the theory of penology, there have been recurrent arguments in favour of indeterminate sentences: thus, it has at times been suggested that the courts should not be concerned at all with sentence and that the [*441] disposal of offenders should be left to experts in the field of the treatment of criminals giving them the power to decide in the light of the response of the offender to the treatments they have chosen how long he should be detained in custody. However such policies have as a general rule proved unacceptable and unworkable in practice. The sentencing of those convicted of crimes has to be and to be seen to be the imposition of a punishment not merely a prescription for a social disease. Save in special situations, they fail to meet the needs of the offender and the criminal justice system. They give rise to serious feelings of grievance and injustice in the offender as well as the public. Offenders have a need, in their own interest as well as in the interests of justice, to know what their punishment is to be. In relation to indeterminate as well as determinate sentences it is widely accepted that it assists an offender and his rehabilitation that he should know, either at the time sentence is passed or, if not, as soon as possible thereafter, what his punishment is. This policy has been recognised in legislation and parliamentary answers as well as by the courts.

 

However there is superimposed upon this system an essentially executive system for the early release of offenders from custody. For reasons which lie beyond the scope of this judgment it has been a consistent feature of penal policy to retain and use a power to release those in custody before the end of their sentence. Over the years the rules have varied as has their administration. In Part II of the Act of 1991, for determinate sentences, they have been formalised in sections 33 and 35(1), with consequential provisions for licences and recall in sections 37 to 40.

 

For indeterminate sentences, in the present context life sentences, that is to say, sentences which apply for the remainder of the natural life of the offender, any release is by definition early release. Therefore such release is in principle a matter for the exercise of an executive discretion. However there has grown up a distinction between discretionary and mandatory life sentences. This has come about partly as a result of the abolition of the death penalty for murder and its replacement by a mandatory life sentence and partly by an express recognition that discretionary life sentences are only justified in two circumstances. One is where the offences are so serious that in the judgment of the sentencer the determinate period to be served in custody should be as long as the remaining life of the offender. The other is where it is necessary to protect the public from serious harm from the offender and in the opinion of the sentencing judge that the offender should not be released until that risk has been eliminated or acceptably reduced: sections 2 and 34 of the Act of 1991. The sentencing judge therefore now states, at the time that he sentences an offender to a discretionary life sentence, how long a determinate sentence he would have passed, whether life or a lesser period of years: sections 2 and 34 of the Act of 1991 and Practice Direction (Crime: Life Sentences) [1993] 1 W.L.R. 223. Further by section 34 of the Act of 1991 the procedure for the release of discretionary life prisoners has been further formalised so as to remove any element of executive discretion and make it depend wholly upon the assessment of the sentencing judge and the direction of the Parole Board.

 

This exercise makes use of the concept of assessing the period of custody required for punishment, or retribution and deterrence. This is the equivalent of the sentence that would have been passed under Part I of the [*442] Act of 1991: sections 2, 3 and 28. But the period is the period of actual custody that would have to be served taking into account the provisions for early release applicable to determinate sentences: see the cross-reference to sections 33(2) and 35(1) in section 34(2)(b). It will be thus between one-half and two-thirds of the equivalent determinate sentence.

 

It is this principle which has been adopted by successive Home Secretaries in relation to mandatory life sentences. The Act of 1991 has preserved the discretion of the Secretary of State to decide whether or not to release any person who has received a mandatory life sentence. Section 35(2) requires that he shall only do so after the release of the offender has been recommended by the Parole Board and after he has consulted the Lord Chief Justice; these are restrictions on his power to release. Where he has an unqualified statutory discretion is in deciding whether to refer any case to the Parole Board: section 35(3). However Home Secretaries have taken the view that they should formalise the discretion to refer. In doing so they have undoubtedly been influenced by the view expressed by judges and others that those sentenced need to know when their cases will first be considered by the Parole Board: Reg. v. Secretary of State for the Home Department, Ex parte Handscomb, 86 Cr.App.R. 59, 79. It is to this that the decision relates. But, as with discretionary life sentences, the Secretaries of State have adopted as their criterion the period of custody required for retribution and deterrence. This is logical because it corresponds to the period which should be served before the question of early release should arise. Any reference before that should be premature. But the criterion introduces an element of assessment directly analogous to the judicial exercise of sentencing. It is also an exercise which, for the reasons previously referred to, is undertaken by the Secretary of State shortly after conviction, its purpose being to provide certainty for the offender so he can come to terms with his future.

 

It will be appreciated that this policy raises three problems. The first is that the Secretary of State, having been given a general discretion which it is his duty to exercise, cannot by his own statements preclude himself from exercising it. Thus the policy has to include an element of flexibility and to recognise that whatever may be said he is still retaining a residual discretion. Secondly, there is a potential illogicality in saying at one and the same time that the punishment for murder is custody for the remainder of the offender’s natural life and at the same time recognising that some shorter period may meet the requirements of retribution and deterrence. This conflict was commented upon by Lord Mustill in the Doody case [1994] 1 A.C. 531, 557, but in the parliamentary answer of 27 July 1993 the Home Secretary reaffirmed the principle of the mandatory sentence for life. At no time is there a right to be released. Thirdly, the criterion adopted by the Secretary of State has drawn him into an exercise directly comparable to that performed under our constitution by judges. What are the implications of this was the subject of the Doody case and is in my judgment central to the decision of these appeals.

 

With this introduction I now turn to the questions arising under the Act of 1933. [*443]

 

II

 

The Children and Young Persons Act 1933

 

There are two points which arise under section 53 of this Act: whether it includes any provision for punishment and whether the order under section 53(1) is a life sentence. The two points are interlinked and it is not convenient to discuss them separately even though the Divisional Court decided the first against the defendants and the second in their favour.

 

English law, in common with other developed legal systems, has rules which govern the attribution of criminal responsibility to those who have not achieved adulthood. As is observed in the report published by Justice, “Children and Homicide:” February 1996, different countries have different rules. The rules of English law have recently been reconsidered by the House of Lords in C. (A Minor) v. Director of Public Prosecutions [1996] A.C. 1. A child under the age of 10 is not criminally responsible for his acts. Between 10 and 14, he is only criminally responsible if the prosecution prove that at the time of doing the act the child knew that what he was doing was seriously wrong. After a child reaches the age of 14 he has full criminal responsibility in English law although his age may be relevant in other respects.

 

These defendants being aged between 10 and 14 the prosecution had to discharge the appropriate burden of proof at the trial. The defendants were convicted because they were proved to have had a sufficient understanding to be held responsible for their acts and they therefore fell to be convicted of the crime which they had committed. There are those who do not wish to accept this conclusion; but it was the verdict of the jury after hearing the evidence and being properly directed on the law.

 

The question of passing sentence upon an offender only arises once he has been convicted. These defendants fell to be sentenced because they had been found criminally responsible and convicted of murder. This situation is to be contrasted with that of those who are suffering from mental incapacity or madness. Those who are unfit to plead are not convicted and no finding of guilt is made against them. Those who raise the defence of insanity at their trial are entitled to be acquitted. Such persons are still liable to be detained. Historically this was the context in which persons were ordered to be detained during Her Majesty’s pleasure. They were persons who were required to be detained for their own safety and the safety of the public. They were not convicts.

 

Despite the fact that the phrase “during Her Majesty’s pleasure” suggests some power of the sovereign falling outside the scope of the ordinary law and not regulated by statute, that impression had become obsolete by the end of the last century. It was an expression used to refer to orders for detention which were not subject to any time limit other than, by implication, the natural life of the person subject to the order and which required the exercise of discretionary powers by those having responsibility for such detention. The power of release was the subject of and defined by express statutory provision. It was no longer implicit in the use of the phrase itself. Any release was pursuant to a statutory provision permitting such release. Thus we will see in all the relevant Acts express provisions governing the release of the detainee. [*444]

 

The use of the expression “detained during Her Majesty’s pleasure” in the Children Act 1908 and the Act of 1933 has led to some confusion. As previously explained the premise upon which any offender, child or adult, falls to be sentenced is that he has committed a crime for which he is criminally responsible. Such responsibility being established, punishment will always be a legitimate element in such a sentence; normally it will be the only or primary element. There is nothing in the Act of 1908 nor the Act of 1933 which negatives the power of the sentencing court to pass a punitive sentence. Indeed, the drafting of those Acts contemplates that more lenient disposals will be inadequate as punishment. Section 104 of the Act of 1908 stated:

 

“Where a child or young person is convicted on indictment of an attempt to murder, or of manslaughter, or of wounding with intent to do grievous bodily harm, and the court is of opinion that no punishment which under the provisions of this Act it is authorised to inflict is sufficient, a court may sentence the offender to be detained for such period as may be specified in the sentence; . . .” (Emphasis added.)

 

This is specifically a provision for punishment. It is absurd to read section 103 of the same Act dealing with those convicted of murder rather than attempted murder or manslaughter as saying that they are not to be punished. Yet that was the primary submission of Mr. Fitzgerald in the present cases. The conclusion that section 53 of the Act of 1933 provides for punishment is clear from its wording whether or not one has regard to the sidenote.

 

It is also clear that the order for detention under section 53 covers either the whole of the natural life of the offender in the case of his conviction for murder or the period specified by the court under section 53(2) in the case of some lesser offence which may be life or some lesser period of years: Reg. v. Abbott [1964] 1 Q.B. 489. Under section 53(1) (like section 103 before it) the order continues to apply for the remainder of the life of the offender. Under section 53(2) (like section 104) the order continues for the duration of the period stated by the sentencing judge, either a term of years or the remainder of the offender’s life. This has been recognised by later legislation which refers to detention of young offenders “for life:” section 61(1) of the Criminal Justice Act 1967 and section 43(2)(a) of the Act of 1991. Here again the argument of Mr. Fitzgerald encounters an absurdity. Why should the sentence passed on a murderer under section 53(1) not be a life sentence when for lesser offences an offender can be given a life sentence under section 53(2)? It must also be remembered that the Acts of 1908 and 1933 applied to 17-year-olds as well as to 10-year-olds and in this respect made no distinction between them.

 

The discretionary element in relation to the duration of the young offender’s actual custody enters by way of giving the Secretary of State a statutory power to release on licence. This power was originally contained in section 105 of the Act of 1908 and can be traced through section 53(4) of the Act of 1933 and section 61(1) of the Criminal Justice Act 1967 to section 35 of the Act of 1991. It is a power which permits the Secretary of [*445] State at any time during the operation of the order to release the offender on licence, conditionally or unconditionally. But the licence is always liable to be revoked and the offender must in that event return to custody. The power to release is premised upon the fact that the offender is subject to an order for his detention. Release does not discharge the order. Thus where the offender has been sentenced to detention during Her Majesty’s pleasure under section 53(1) or to detention for life under section 53(2), he remains subject to that sentence for the remainder of his natural life. In this respect the offender is in the same position as an offender sentenced to a life imprisonment under the Act of 1965. He has received a life sentence. Release on licence does not alter the status of the offender.

 

The fact that a convicted murderer, whatever his age, is made subject to a mandatory life sentence in the relevant Acts in contrast to the range of sentences available for those convicted of lesser, though also grave, offences is attributable to the special position given by English law and culture (in common with very many other legal systems and cultures) to those who have deliberately and unjustifiably taken the lives of others. Whether or not this approach is still right is the subject of on-going debate but it is a matter for Parliament not the courts: the courts have to work within the existing law.

 

The submissions of Mr. Fitzgerald in the present case and the assumptions made by others about the purpose and effect of the Acts of 1908 and 1933 overlook what is the special and most important part of these sentencing provisions. It has consistently been the policy of English law that juvenile offenders should be detained under different conditions and in different institutions from adult prisoners. Paragraphs 698 and 699 of the Report of the Royal Commission on Capital Punishment 1949-1953 (Cmnd. 8932) are of interest in this connection. Discussing the distinction between the sentences of “imprisonment for life” and “detention during Her Majesty’s pleasure,” the Report says, at pp. 244-245, paras. 698-699:

 

“This difference of terminology does not make any difference to the actual duration of the sentence . . . the distinction between detention and imprisonment is a real one, for it may sometimes be desirable that a young offender should serve his sentence, or part of it, in a Borstal institution, or even in an approved school, and not in a prison.”

 

In English law the critical age governing whether an offender may be sent to prison is considered to be 21; and there are further graduated provisions regarding custodial sentences for ages down to 15. Those in custody who have not reached the age of 21 are not described as being prisoners or as being in prison, a distinction preserved by, inter alia section 1(5) of the Act 1965: see also sections 1A to 1C of the Criminal Justice Act 1982, as added by section 123 of the Criminal Justice Act 1988. They are detainees and, for example, for those between the ages of 14 and 20 the place of their detention under these provisions of the Act of 1982 is a young offender institution not a prison. That these distinctions are sometimes more apparent than real as regards those over 16 is not due to a lack of statutory intention. At younger ages and for those of the age of [*446] these defendants, the distinctions have real importance and practical effect: for example, Reg. v. Collins (1995) 16 Cr.App.R.(S.) 156. See now also the Criminal Justice and Public Order Act 1994.

 

Under section 53, whether it be under subsection (1) or subsection (2), the Secretary of State is required to decide both where and under what conditions the offender shall be detained. As is illustrated by the present cases this duty is conscientiously and carefully discharged by those responsible for deciding upon the care plan for the offender. The present defendants have, pursuant to expert advice, been provided with a custodial regime which has full regard to their age and immaturity and reflects their needs, including the need for rehabilitation, and this will continue until they reach an age when this is no longer necessary. The purpose of section 53 and its related provisions is not to excuse the offender from punishment but to ensure that the custodial punishment is served in appropriate conditions which will assist his rehabilitation and not, so far as is possible, expose him to further corruption. It is this feature, not the date of release (which is separately provided for), which is the hallmark of the sentence of detention under section 103 or 104 and section 53(1) or (2).

 

The correct understanding of the Acts of 1908 and 1933 is clear and it is regrettable that different views should have achieved currency both here and abroad. They provide for punishment. In respect of convicted murderers, sections 103 and 53(1) require the passing of a life sentence. I do not agree with what has been said by Evans L.J. in Reg. v. Secretary of State for the Home Department, Ex parte Prem Singh, 20 April 1993, followed by Pill L.J. in the present case. I also do not agree with the similar view expressed by Lord Woolf M.R., ante, pp. 425H-426E, which I have read in draft. I have gained the impression from the submissions of Mr. Pannick for the Secretary of State that he is not eager to emphasise the character of the sentence under section 53(1) as a life sentence, no doubt because it gives rise to arguments under article 3 of the 1953 Convention and article 37 of the United Nations Convention on the Rights of the Child (1992) (Cm. 1976): see Singh v. United Kingdom (unreported), 21 February 1996; 1994/503/585, paragraphs 62 and following. However its adoption is central to the last paragraph of the parliamentary answer and the drafting of the Act of 1991 and it represents the correct understanding of section 53(1).

 

The correct view of the powers of punishment under section 53 is implicit in a number of cases of which I will cite only two. The first is Reg. v. Ford (1976) 62 Cr.App.R. 303, where under section 53(2) deterrent sentences had been passed on young offenders for gang robberies and thefts. Scarman L.J., giving the judgment of the court, said, at p. 307:

 

“If one is confronted with circumstances of such gravity that a general deterrent sentence is necessary, then it appears to us plain that the court may well be of the opinion that no other method other than a long period of detention is suitable.”

 

Whilst rehabilitation is a relevant consideration it does not apply to the exclusion of the need to deter by punishment.

 

In Reg. v. Forshaw (1984) 6 Cr.App.R.(S.) 413, which concerned an appellant aged 15 who had pleaded guilty to manslaughter and had been [*447] sentenced to five years’ detention under section 53(2), Lord Lane C.J., delivering the judgment of the court, said, at p. 415:

 

“It is important that punishment should be inflicted upon people who commit crimes of this sort. It is important from this young man’s point of view that he should expiate his offence. It is important to remind others of the dangers of carrying knives, let alone the danger of taking them from their sheaths and using them. It is important that the public’s requirement that offenders should be made to suffer for their misdeeds should be satisfied. If that requirement is not satisfied, then people are apt to take matters into their own hands.”

 

These wise words identify a number of the factors which lead to the need to pass a sentence which punishes the responsible young offender who has committed a serious crime despite his age. If those convicted are not punished the criminal law and the criminal justice system will cease to carry confidence and fail to serve the purpose of fulfilling the need to demonstrate that those who commit crimes are punished. If they are not punished by the law, members of the public may unlawfully and disproportionately take that task upon themselves: punishment may thus in this respect also protect the offender. It is often necessary to punish in order to deter others who might be inclined to offend. Punishment may also often be an important part of the rehabilitation of an offender. It can puzzle an offender as much as it puzzles the general public if he does not receive the appropriate punishment. Punishment enables him to expiate his crime and assists his rehabilitation. This factor is as important for the young as for the older, but repentant, offender.

 

III

 

The Criminal Justice Act 1991

 

The Act of 1991 made radical changes to various aspects of the criminal law of this country. Part I of the Act restructured in a comprehensive fashion the powers of courts to deal with offenders. Part II made radical changes in the scheme for early release of prisoners. Part III included provisions relating to children and young persons.

 

In Part I, section 2 provides that, where a court passes a custodial sentence other than one fixed by law, the length of the sentence must be commensurate with the seriousness of the relevant offence or offences save where the relevant offence was a violent or sexual offence in which case the court should pass such sentence as in its opinion is necessary to protect the public from serious harm from the offender. In such a case the court is required to state that this is what it is doing and give its reasons. Thus the Act like others before it recognises the role of custodial sentences in providing protection to the public from those likely to reoffend and it expressly distinguishes between this part of the custodial sentence and that required to reflect the seriousness of the offence or offences for which the offender was being sentenced. An example of a sentence containing a protective element is a discretionary life sentence. In Part II of the Act, section 34 introduced a scheme for those sentenced to a discretionary sentence of life imprisonment. The judge identifies and states the penal [*448] element in the sentence, that is to say, the part of the sentence which relates to the seriousness of the offence, either a period of years or the natural life of the offender. It is this which Lord Taylor of Gosforth C.J. in Practice Direction (Crime: Life Sentences) [1993] 1 W.L.R. 223 referred to as “the period of detention imposed for punishment and deterrence, taking into account the seriousness of the offence.” Section 34 goes on to provide that once that period has been served the question of the release of the offender shall be determined by the Parole Board if it is satisfied that it is no longer necessary for the protection of the public that the offender should be confined: see also section 32(6).

 

The release of those who have been sentenced to a mandatory sentence of life imprisonment is covered by section 35(2) and (3). It gives the Secretary of State a discretion to release such an offender on licence. But, as previously observed, it limits his discretion. He is precluded from releasing such an offender unless he has received a recommendation to do so from the Parole Board and even then he may not do so unless he has first consulted with the Lord Chief Justice together with the trial judge if available. Further, the Parole Board is precluded from making any such recommendation unless the case of the offender has been referred by the Secretary of State to the Board for its advice. Thus, the Secretary of State is given an unqualified discretion which operates at two stages. The first is when he decides to refer the case to the Parole Board. The second is when, after having received a recommendation to release (pursuant to a referral) and having consulted the Lord Chief Justice, he exercises his discretion to release the offender: cf. section 34 where he has no discretion.

 

By his parliamentary answer of 27 July 1993, the Secretary of State has undertaken to exercise his discretionary powers under section 35 following certain principles. Thus, he has recognised in relation to mandatory life sentences the same distinction between the punitive element and the risk element. In doing so he was continuing the practice adopted by Mr. Leon Brittan in 1983. In his speech in the Doody case [1994] 1 A.C. 531, 551-557, Lord Mustill commented upon the inconsistency between the principle that the crime of murder required that the offender should forfeit his right to liberty for the remainder of his natural life and the idea that custody for some limited period of years would suffice to meet the penal element in the sentence. The parliamentary answer was made in response to what had been said in the Doody case. The Secretary of State did not accept the inconsistency and said both that he would continue the previous procedure of taking the judges’ advice and giving his decision on the minimum period to be served “to satisfy the requirements of retribution and deterrence” and that a person convicted of murder “has committed a crime of such gravity that he forfeits his liberty to the state for the rest of his days.” The Secretary of State thus chose to preserve the principle of the sentence for life. He has not qualified the full breadth of his statutory discretion not to release any such person. He has simply preserved, as part of the procedure which he chooses to follow in deciding when to refer a case to the Parole Board, an assessment of the period of custody which will meet the requirements of retribution and deterrence.

 

I have elaborated the effect of Parts I and II of the Act of 1991 to demonstrate that they include a code for both sentencing and the release [*449] of offenders. In Part II, under the heading “Special Cases,” section 43 makes provision for young offenders. Section 43(2) expressly provides that Part II shall apply to persons serving sentences of detention during Her Majesty’s pleasure or for life under section 53 of the Act of 1933 as it applies to those serving sentences of imprisonment for life. Section 43(3) states that references to “life prisoners” in Part II of the Act and to “prison” or “imprisonment” shall be construed accordingly, that is to say, the references to prisoners include young offender detainees and to life imprisonment include detention under section 53(1) or (2) during Her Majesty’s pleasure or for life. Further, section 51(1) defines the term “life prisoner” by reference, inter alia, to section 43(2) and therefore as including young offenders sentenced to detention during Her Majesty’s pleasure. The statutory intention is clear and is not open to argument. Young offenders sentenced under section 53(1) of the Act of 1933 to be detained during Her Majesty’s pleasure are governed, as regards their release, by section 35. The breadth of the Secretary of State’s discretion is the same in both classes of case. The Secretary of State was entitled in his answer of July 1993 to confirm that what he had said “in relation to mandatory life sentence prisoners applies equally to persons who are or will be detained during Her Majesty’s pleasure under section 53(1) of the Children and Young Persons Act of 1933.”

 

Mr. Fitzgerald’s argument that the Secretary of State does not have the same statutory discretion in respect of young offenders detained during Her Majesty’s pleasure under section 53(1) as he does in respect of mandatory life prisoners is contrary to the terms of the Act. Whatever room for argument may or may not have existed at earlier stages of the legislative history under different Acts, the matter is now concluded by the express and unambiguous provisions of the Act of 1991. The arguments and material upon which Mr. Fitzgerald sought to rely in aid of the construction of a statute which was ambiguous do not assist him: the statute is unambiguous. In any event they did not lead to the conclusion for which he was arguing.

 

In my judgment the conclusion of the Divisional Court cannot be supported. However it is still necessary to consider whether these applications for judicial review should succeed on some other ground.

 

IV

 

The decision-making process: faulty procedure

 

This is the aspect of the case which causes me anxiety. But it is necessary first to identify what is the permissible role of the court in relation to the procedure which the Secretary of State has followed. The governing authority is the decision of the House of Lords in the Doody case [1994] 1 A.C. 531. One of the questions there considered was whether the Secretary of State by his practice of consulting the judges about the requirements of retribution and deterrence had surrendered any part of his broad general discretion under the Act of 1991. Lord Mustill concluded, at pp. 558-559, that he had not:

 

“Nevertheless, it is the Home Secretary who decides, and who has developed (with his predecessors) his own ministerial ideas on what [*450] the public interest demands. I can see no reason why the anomalous task of fixing a ‘tariff’ penal element for an offence in respect of which the true tariff sentence is life imprisonment is one for which the Home Secretary and his junior ministers, informed by his officials about the existing departmental practice, are any less experienced and capable than are the judges. In any event, however, even if the respondents’ argument is correct so far, it must in my opinion fail because Parliament has not by statute conferred on the judges any role, even as advisers, at the time when the penal element of a mandatory sentence is fixed. But for the fact that the Home Secretary decided, when formulating the new scheme, to retain in a modified shape the existing practice of inviting the opinion of the judges, they would never enter the picture at all. The Secretary of State is compelled, or at least entitled, to have regard to broader considerations of a public character than those which apply to an ordinary sentencing function. It is he, and not the judges, who is entrusted with the task of deciding upon the prisoner’s release, and it is he who has decided, within the general powers conferred upon him by the statute, to divide his task into two stages. It is not, and could not be, suggested that he acted unlawfully in this respect and I can see no ground whatever for suggesting that by doing so he deprived himself entirely of his discretion at the first stage, and delivered it into the hands of the judges.”

 

The House of Lords therefore decided that, despite the fact that the Secretary of State was undertaking an exercise which was directly analogous to the judicial determination of a sentence and separating it from his discretionary decision to release a life prisoner, nevertheless his unqualified discretion was preserved.

 

However, the House of Lords had also to deal with the requirement to follow proper procedures and held that the fact that the Secretary of State’s discretion was not qualified did not relieve him from the obligation to be fair in the procedures which he followed. Thus, the House of Lords declared, at pp. 567-568:

 

“1. The Secretary of State is required to afford to a prisoner serving a mandatory life sentence the opportunity to submit in writing representations as to the period he should serve for the purposes of retribution and deterrence before the Secretary of State sets the date of the first review of the prisoners sentence. 2. Before giving the prisoner the opportunity to make such representations, the Secretary of State is required to inform him of the period recommended by the judiciary as to the period he should serve for the purposes of retribution and deterrence, and of any other opinion expressed by the judiciary which is relevant to the Secretary of State’s decision as to the appropriate period to be served for these purposes. 3. The Secretary of State is obliged to give reasons for departing from the period recommended by the judiciary as the period to which he should serve for the purposes of retribution and deterrence.”

 

Lord Mustill expressly contemplated that the decision of the House gave scope, albeit limited, for the judicial review of decisions of the Secretary of [*451] State upon the requirements of retribution and deterrence for individual mandatory life prisoners, at p. 566:

 

“Only if it can be shown that the decision may have been arrived at through a faulty process, in one of the ways now so familiar to practitioners of judicial review, will they have any serious prospect of persuading the court to grant relief.”

 

An example of the exercise of the jurisdiction to review the decision of the Home Secretary on the grounds of procedural unfairness is provided by Reg. v. Secretary of State for the Home Department, Ex parte Riaz (unreported), 8 December 1994, D.C.

 

In his speech Lord Mustill explained why he considered that proper procedures were necessary, at pp. 561-565:

 

“The decision is simply to fix the penal element. On occasions this will involve a divergence from the judges; on others not. In each case the requirements of fairness and rationality will be the same. So also are the familiar requirements that the decision-maker should take into account all relevant considerations, amongst which are the opinions of the judges; that he should not take into account irrelevant considerations; and that his decision should be rational:” p. 561.

 

“. . . I would simply ask whether a life prisoner whose future depends virtually on the decision of the Home Secretary as to the penal element and who has a right to make representations upon it should know what factors the Home Secretary will take into account. In my view he does possess this right, for without it there is a risk that some supposed fact which he could controvert, some opinion which he could challenge, some policy which he could argue against, might wrongly go unanswered:” p. 563.

 

“. . . I think it clear that the prisoner needs to know the substance of the judges’ advice, comprising not only the term of years which they recommended as the penal element, but also their reasons: for the prisoner cannot rationalise his objections to the penal element without knowing how it was rationalised by the judges themselves:” p. 564.

 

“the requirement is only that the prisoner shall learn the gist of what the judges have said:” p. 564.

 

“It is not, as I understand it, questioned that the decision of the Home Secretary on the penal element is susceptible to judicial review. To mount an effective attack on the decision, given no more material than the facts of the offence and the length of the penal element, the prisoner has virtually no means of ascertaining whether this is an instance where the decision-making process has gone astray. I think it important that there should be an effective means of detecting the kind of error which would entitle the court to intervene, and in practice I regard it as necessary for this purpose that the reasoning of the Home Secretary should be disclosed. If there is any difference between the penal element recommended by the judges and actually imposed by the Home Secretary, this reasoning is bound to include, either explicitly or implicitly, a reason why the Home Secretary has taken a different view:” p. 565. [*452]

 

Lord Mustill cited two cases in relation to the need to act fairly and give reasons: Kanda v. Government of Malaya [1962] A.C. 322 and Reg. v. Civil Service Board, Ex parte Cunningham [1992] I.C.R. 816. Neither of these cases concerned life prisoners nor the exercise of a discretion that is as wide as that of the Secretary of State under section 35. It is implicit in what Lord Mustill said that, if, having regard to the circumstances including the breadth of the discretion, the reasons given by the Secretary of State are not rational, judicial review would be available and the decision would be liable to be quashed.

 

In my judgment an unsatisfactory state of affairs is disclosed by the documents and procedures followed in the present case. As I stressed at the outset, this is an exceptional case. The Secretary of State was having to approach the exercise of his discretion in extremely difficult circumstances and the full glare of inflamed public opinion. He was dealing with defendants who at the time of the offence were only just past the threshold of criminal responsibility. In the event the Home Secretary adopted the exceptional course of increasing the period to be served to meet the requirements of retribution and deterrence so as nearly to double the assessment of the trial judge and so as to arrive at a figure 50 per cent. higher than that considered appropriate by Lord Taylor of Gosforth C.J. The decision was his, but, as stated by Lord Mustill, it means that the procedures he followed before arriving at that conclusion merit close consideration.

 

Morland J. sentenced the defendants on 24 November 1993. His confidential report to the Secretary of State was dated 29 November 1993. It included in paragraph 5 a summary of the evidence in the case and his conclusions as to what “in all probability” had happened. It concluded with his view that he could not determine the relative culpability of the two defendants. In paragraph 6, he summarised the defences which had been run by the defendants referring also to certain of the answers they gave in interview. In paragraph 7, he dealt with the very limited psychiatric evidence which was called at the trial. In paragraph 10, he made his recommendation on the actual length of detention necessary to meet the requirements of retribution and general deterrence. He said:

 

“If the defendants had been adults, I would have said that the actual length of detention necessary to meet the requirements of retribution and general deterrence would have been 18 years. . . . [In the next three sentences the judge briefly refers to serious defects in the backgrounds from which the defendants came.] . . . In my judgment the appropriate actual length of detention necessary to meet the requirement of retribution and general deterrence for the murder taking into account all these appalling circumstances and the age of the defendants when it was committed is eight years. . . . eight years is ‘very, very many years’ for a 10- or 11-year-old. They are now children. In eight years’ time they will be young men.”

 

Lord Taylor of Gosforth C.J. on 4 December 1993, whilst recognising that the trial judge was in a better position than he to assess the two boys and their crime and agreeing that a much lesser tariff should apply than in the [*453] case of an adult, considered that the minimum period for punishment and deterrence should be 10 years.

 

It will be appreciated that the trial judge’s report did not solely involve the making of a recommendation. It properly included the trial judge’s own assessment of the salient features of the case and of the effect of the evidence which he had heard during the trial. On 7 January 1994 letters were written on behalf of the Secretary of State to, nominally, the defendants. The letters purported to inform the defendants, pursuant to the decision in the Doody case [1994] 1 A.C. 531, “of the substance of the judicial recommendations which were made in your case.” The letter fairly summarised the judges’ recommendations, giving the gist of paragraph 10 and quoting Lord Taylor of Gosforth C.J.’s remarks in full. It also stated that the trial judge had not felt able to determine the relative culpability of the two defendants. But it did not include the trial judge’s summary of the facts and the view that he had taken of them.

 

The position was therefore that, although those representing the defendants would be well aware of the evidence given at the trial and the submissions made to the judge and jury at the trial, they would not be aware of how the trial judge had summarised them, which features he had chosen to include or stress, nor what comments he had made or what inferences he had drawn. We have been told, and this is in accordance with the affidavit evidence, that the Home Secretary reached his decision to increase the penal period to 15 years without having seen any of the trial papers or having read the judge’s summing up. It appears that the Home Secretary, for his information about the offences and their seriousness and the level of premeditation and responsibility of the defendants was entirely dependent upon the judge’s summary.

 

This is a remarkable situation for two reasons. First, this is a case in which the Secretary of State was considering increasing the period recommended by a very substantial margin. This he is of course entitled to do in an appropriate case. But if he was going to do so it is essential that he should be fully informed of all the material facts and circumstances. Otherwise he cannot know whether, to quote Lord Mustill, he has taken into account “all relevant circumstances.” The Court of Appeal on a reference by the Attorney-General seeking the increase of a sentence would certainly not reach a decision without fully considering the actual facts and circumstances of the case before it – and having the assistance of submissions upon those facts. On the face of it, the Secretary of State was reaching an important decision concerning the custody of these defendants without in the special circumstances of this case feeling obliged to inform himself fully of all the relevant circumstances. Similarly, he appears to have made no inquiries about the degree of the responsibility of these 10-year-olds. There are gradations of responsibility: see, for example, section 22 of the Homicide Act 1957. The Secretary of State appears to have had no material upon which to form a view as to the level of the personal responsibility which should be ascribed to these defendants on account of their age, immaturity and personal circumstances nor is it possible to tell from the letters what in fact his view was.

 

This leads me to the second comment. The defendants and their representatives were never informed at this stage of the terms in which the [*454] judge had summarised the facts of the case and what inferences he had drawn notwithstanding that it was this very information which was to form the basis for the Secretary of State’s decision. Any short summary, however impartial and fair (as was the summary of Morland J.), has inevitably to be selective and include the summary writer’s perceptions of the effect of the evidence. In the present case what the judge had chosen to say was material. For instance, it was the prosecution case at the trial, accepted by the judge, that there was a considerable element of premeditation and that the crime had not been spontaneous or adventitious. It had been the case of one of the defendants, not accepted by the judge, that the killing had not been part of the original plan and had only come about later. I do not consider that, in the circumstances of this case, the information which the defendants and their representatives were given prior to 22 July 1994 was adequate to enable them to make full representations nor did it comply with the guidance given by Lord Mustill in the Doody case.

 

Under the same heading, one of the defendants has a further ground of complaint. In the interval between the time the defendants were sentenced and July 1994, the Secretary of State received an apparently unsolicited report from a psychiatrist who had been advising those representing that defendant. It bore upon the view to be taken of the seriousness of the defendant’s offence. Until after these proceedings were started, his representatives were wholly unaware of the existence of this additional report or what it said and had no opportunity to comment upon or respond to it. In my judgment, this should not have occurred.

 

The next aspect which causes me concern is the treatment by the Secretary of State of material supplied to him through the media which was of a quality which no person exercising an assessment of what was required for retribution and deterrence would properly take into account and which was only properly relevant to a different question. This is not to say that the Secretary of State cannot properly take into account the need to uphold public confidence in the criminal justice system. Both Lord Lane C.J. and Lord Mustill have said, as is obvious, that this is an element in a proper sentencing process. Lord Scarman in In re Findlay [1985] A.C. 318, 333, said:

 

“Deterrence, retribution, and public confidence in the system are factors of importance. The Parole Board, through its judicial and other members, can offer advice on these aspects of the question. But neither the board nor the judiciary can be as close, or as sensitive, to public opinion as a minister responsible to Parliament and to the electorate. He has to judge the public acceptability of early release and to determine the policies needed to maintain public confidence in the system of criminal justice.”

 

Similarly the Secretary of State is not as narrowly constrained as would be a judge in what he can take into account: for example, Reg. v. Secretary of State for the Home Department, Ex parte Causabon-Vincent, The Times, 19 July 1996. But it appears that the Secretary of State was in the present case prepared to take into account a large amount of material which in effect amounted to taking a hopelessly unscientific poll from members of [*455] the public without any satisfactory checks or without any confidence as to the factual or legal basis upon which the responses were made. If the Secretary of State is choosing to assume the role of deciding the period necessary for these defendants for retribution and deterrence, he should not only disregard but be seen to disregard material of this kind.

 

On 16 June 1994 letters were sent on behalf of the Secretary of State to those representing the defendants informing them of the petitions which he had received and the quantities of newspaper coupons and other correspondence. The letter enumerated them as if they were the results of a poll. The defendants and those representing them were thus informed of the attempts that had been made by members of the public to influence his decision and that there were those who were urging the Secretary of State to adopt life as a tariff or a period as long as 25 years. What causes serious anxiety is that the Secretary of State has at no stage either by affidavit or in the decision or other letters stated that he gave this material no weight. The most it could properly do was indicate that he must consider his decision particularly carefully conscious of a need to justify his decision, whether he was going to accept the judicial recommendations or depart from them.

 

The quality of this material was such that it should not be given any weight at all in the assessment of the period required for retribution and deterrence. It might relate to another aspect of the discretion of the Secretary of State – whether ultimately to licence the release of the defendants having regard to the public acceptability of such release; but this is a decision which will not, on any view, have to be taken for many years to come by which time a different climate of public opinion may or may not prevail. I am concerned that the Secretary of State may have elided the one with the other.

 

The procedure followed by the Secretary of State in making the decisions communicated in his letters on 22 July 1994 was in my judgment unsatisfactory for the following reasons.

 

(1) He did not sufficiently inform those representing the defendants of the factual basis, including the inferences of fact, upon which he was going to exercise his discretion so as to give those representing the defendants an adequate opportunity to controvert supposed facts or challenge opinions expressed upon them. (And see further below.)

 

(2) The Secretary of State failed to exclude, and did not state he was excluding, material of a quality inappropriate to be taken into account in reaching the relevant decision and further he did not exclude the use of that material in relation to a question to which it was irrelevant.

 

(3) The Secretary of State, in view of the fact that he was minded substantially to increase the assessment of the judges, did not adequately inform himself of the full facts and circumstances of the case and did not consider whether his decision was premature or inappropriate having regard to the exceptional character of the case.

 

One can add to these criticisms of the procedure, one’s concern at the apparent absence of State provision for those who will be affected by the Secretary of State’s decision to obtain legal aid at the stage of evaluating the relevant material and responding to it in the manner visualised by Lord Mustill. They would have that assistance on an appeal against [*456] sentence (where such an appeal is available) and, after the Secretary of State has made his decision, on a subsequent application for judicial review (as has now occurred). But they have no assistance at the critical stage before the Secretary of State makes his decision.

 

It has also been suggested on behalf of the defendants that the decision was on its face irrational. I do not accept this criticism. It was based upon the comment that the Secretary of State made about the trial judge’s view that 18 years would have been an adequate period in respect of adult offenders who had committed the same offence. Speaking for myself, I am not surprised that the Secretary of State took the view that for a murder such as this, which was premeditated, brutal and sadistic and derived from a course of conduct which was persisted in over a period of hours, if committed by two adults, a longer period than 18 years would have been required for retribution and deterrence. The Secretary of State referred to his own view that a period of 25 years would be required. His view was not unreasonable.

 

It was submitted on behalf of the defendants that on this basis, 15 years was out of line with the guidance contained in decisions of the Court of Appeal (Criminal Division) for the reduction in the length of sentences to take account of the extreme youth of the offender. There is more force in this submission but it does not show that the assessment of 15 years in these cases is necessarily wrong nor does it show that it was manifestly unreasonable. The Secretary of State has expressly stated in his decision letters that he has taken into account the age of the defendants and his reference to the respective periods of 25 and 15 years shows that he clearly has done so. His decision was not on its face disproportionate for this terrible crime.

 

However, taking into account the age of the defendants also involves taking into account their immaturity and the fact that at the age of 10&12frac; although criminally responsible, their degree of responsibility may be reduced. It is not clear what account the Secretary of State took of this consideration nor that he took any steps to inform himself of the relevant facts. Nor is there any indication that the Secretary of State considered whether in the exceptional circumstances of this case he should not have exercised his discretion to refrain from giving a specific decision in the form that he did until he was better informed and the true level of responsibility of the defendants had been better assessed.

 

This links in with another difficulty. Essentially the Secretary of State is seeking to determine a minimum period. It is in effect the minimum period that is to elapse before he refers the case to the Parole Board for their recommendation. On any view this will not be for some considerable time. It leaves open whether his decision was not in principle unsound and premature in an exceptional case such as this. Applying what he said in the parliamentary answer, he has applied a rigid criterion. He does not appear to have considered whether in the exercise of his over-riding discretion, which he is under an obligation to retain, he should not have exceptionally chosen to adopt a more flexible approach better able to accommodate the extremely unusual features of this case and suitable to the unsatisfactory character and incompleteness of the material on which he was having to base his decision. [*457]

 

The Secretary of State has been able to refer in his evidence to another apparently not dissimilar case (of which we have only very limited details) in which the Secretary of State accepted the Lord Chief Justice’s recommendation of 14 years for an offender who was 12 years old at the time of the commission of the crime. The Secretary of State was therefore able to say in his letter of 22 July 1994 that he was satisfied that 15 years in the instant case was “consistent with tariffs fixed in other cases.” But here again there is an element of procedural unfairness. The Secretary of State is treating as important the decisions of Secretaries of State in other cases. It is right that he should do so. But those decisions, let alone the actual facts upon which they were based, are not a matter of general knowledge nor are they readily available to those representing other offenders. So here again the Secretary of State is basing his decision on material of which the defendants have no prior knowledge and upon which, and the use of which, they have no opportunity to comment. Applying what Lord Mustill has said, this is not acceptable.

 

A final criticism of the Secretary of State’s decision was based upon section 44(1) of the Act of 1933. This provides:

 

“Every court in dealing with a child or young person who is brought before it, either as an offender or otherwise, shall have regard to the welfare of the child or young person and shall in a proper case take steps for removing him from undesirable surroundings, and securing that proper provision is made for his education and training.”

 

It is submitted that although this statutory provision does not as such apply to the Secretary of State’s exercise of his discretion under section 35 of the Act of 1991, it should nevertheless be a factor in his decision and his reasons should disclose how he has taken it into account.

 

In my judgment section 44 does not assist the defendants’ case. First, it is primarily directed to factors such as the place and conditions of detention. In that respect, the undisputed evidence is that the Secretary of State and those acting on his behalf have given effect to such principles both conscientiously and effectively. Secondly, in so far as it affects any question of the duration of the custody of the defendants, it is academic. On any view of the period during which these defendants must be detained to meet the requirements of retribution and deterrence, they must be detained until they reach 18 – indeed, save on the trial judge’s view, until after they are 21. This being so, section 44 has no application to the question with which we are concerned.

 

V

 

Conclusion

 

In view of my decision under the second head relating to the construction and effect of the Acts of 1933 and 1991, I consider that the reasoning of the Divisional Court cannot stand. In so far as Lord Woolf M.R. has based his decision on the same view of section 53(1), I must respectfully dissent. Accordingly, unless the decision of the Secretary of State is to be quashed on some other ground, the defendants’ motions must be dismissed. However I have concluded that faulty procedures were [*458] followed in taking the decisions recorded in the decision letters in July 1994 and they raise the concern that the Secretary of State failed to have regard to the full extent of his discretion. In these circumstances I consider that the decisions should be quashed and, in the result, the appeals dismissed.

 

I recognise that the Secretary of State and those advising him were faced with a difficult question. On his behalf, it has also been said repeatedly that his was an initial view and that he is willing to review his decision in the light of any new evidence affecting retribution and deterrence, an approach which is appropriate once it has been decided that those are the criteria to apply. There are therefore forceful arguments in leaving matters to such a review. It can also be reasonably urged that since these proceedings have been launched, the defendants’ representatives have seen much additional material, for example, the full reports of the judges, and have had the opportunity to make extensive further submissions, apparently without having caused the Secretary of State to change his mind. But one cannot be confident that the present decisions, if allowed to stand, will not in practice lead to a postponement of further consideration – this was after all one of the purposes of the procedures referred to in the parliamentary answers – nor can one be confident that any further review will not be infected by the faulty procedures which preceded the decisions of July 1994.

 

I am satisfied that in these exceptional cases, the just and appropriate order for the court to make is one which requires the Secretary of State to make his decisions afresh and to give his reasons for his new decisions. Whether or not he comes to the same conclusions as before is for the Secretary of State to decide. But the procedures followed in the making of the original decisions were so seriously flawed and lacking in fairness and are so open to criticism, that I have concluded that it is not safe to allow them to stand. The Secretary of State must, in accordance with the law as stated by Lord Mustill, adopt fair procedures, inform himself of and take into account the relevant circumstances, exclude what is irrelevant and, here, have regard to his full statutory discretion. The passage of time since July 1994 and the more appropriate climate may well assist a better decision-making process.

 

In conclusion, I would add that there are clearly cogent arguments in favour of the reconsideration by the legislature and the executive of the present state of the law and practice concerning the treatment of those subject to mandatory sentences, especially young offenders, and the fulfilment by the United Kingdom government of its obligations under international conventions. The submissions of Mr. Pannick before us on behalf of the Secretary of State accepted as much. It is also clear that such reconsideration is becoming increasingly urgent.

 

MORRITT L.J. The circumstances in which these appeals arise have been fully described in the judgments of Lord Woolf M.R. and Hobhouse L.J. and I do not need to repeat them. The questions to be answered are (1) whether, as the Divisional Court held, the Secretary of State acted unlawfully in applying to the applicants, being persons sentenced to be detained during Her Majesty’s pleasure, the same policy [*459] as he applies in the case of persons serving mandatory life sentences; and if so (2) whether his decision as to the application of that policy to the applicants was reached in a manner which was procedurally unfair so as to be liable to be quashed on that account.

 

Counsel for the applicants submitted that the resolution of the first question depends on three issues which he helpfully analysed. The first is whether the sentence to detention during Her Majesty’s pleasure is solely preventive and reformatory. The second is whether if retribution and deterrence is a legitimate objective of such a sentence the tariff period for that purpose and hence the date of the first review may be set at the outset of the sentence by reference to those objectives alone. The third is whether, even if retribution and deterrence is a legitimate objective and if the tariff may be determined at the outset, it should be fixed so as to be for the shortest possible duration and so as to balance the requirements of retribution against the welfare of the child. It seems to me that those issues depend on the legislative history and treatment of the sentence of detention during Her Majesty’s pleasure on a child or young person and the extent of the relevant statutory powers conferred on the Secretary of State.

 

Detention during Her Majesty’s pleasure originated in the prerogative treatment of those found unfit to plead to a criminal charge due to insanity. By the end of the 19th century it had become largely statutory. It was introduced in respect of children and young persons by the Children Act 1908. Section 103 provided that sentence of death should not be pronounced 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 . . . 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.”

 

Section 104 contained power to impose such a sentence in the case of a child or young person who was convicted of an attempt to murder, of manslaughter or wounding with intent to do grievous bodily harm if the court considered that the punishment otherwise authorised by the Act was insufficient. By section 105 the Secretary of State was empowered “at any time” to discharge the child or young person so sentenced on a revocable licence in such form as the Secretary of State might determine. It is common ground that the express statutory power to release on licence overrode any prerogative or other power to release implicit in the description of the sentence. Accordingly no implication as to the nature or duration of the sentence can be made from its description. It was (and is) a sentence for life subject to release on a revocable licence at the discretion of the Secretary of State.

 

Those provisions were repealed and re-enacted in the Children and Young Persons Act 1933, section 53. The provisions of subsection (1) of that section were amended by the Murder (Abolition of Death Penalty) Act 1965 and the express power to release contained in subsection (4) was repealed by the Criminal Justice Act 1967 so that the power to release children and young offenders serving such a sentence might be assimilated [*460] into the general arrangements for the creation of the Parole Board and the release of prisoners on licence introduced by the latter Act. Section 53 of the Children and Young Persons Act 1933 as so amended and in force at the times relevant to this case provided:

 

“(1) A person convicted of an offence who appears to the court to have been under the age of 18 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 any such person; but in lieu thereof the court shall (notwithstanding anything in this or any other Act) sentence him to be detained during Her Majesty’s pleasure, and if so sentenced he shall be liable to be detained in such place and under such conditions as the Secretary of State may direct. (2) Where a child or young person is convicted on indictment of any offence punishable in the case of an adult with imprisonment for 14 years or more, not being an offence the sentence for which is fixed by law and the court is of opinion that none of the other methods in which the case may legally be dealt with is suitable, the court may sentence the offender to be detained for such period not exceeding the maximum term of imprisonment with which the offence is punishable in the case of an adult as may be specified in the sentence; and where such a sentence has been passed the child or young person shall, during that period . . . be liable to be detained in such place and on such conditions as the Secretary of State may direct.”

 

The Criminal Justice Act 1967 authorised the establishment of the Parole Board. Section 60 empowered the Secretary of State if recommended so to do by the board to release on licence persons serving sentences of imprisonment other than for life and section 61 entitled him to do so in the case of a person serving a sentence of imprisonment for life or a person detained under section 53 of the Children and Young Persons Act 1933 if recommended by the board and after consultation with the Lord Chief Justice and the trial judge if available. These provisions were amended and re-enacted in the Criminal Justice Act 1991. The latter Act contains the provisions relevant to the actions of the Secretary of State in this case.

 

The material provisions of the Criminal Justice Act 1991 are:

 

“34(1) A life prisoner is a discretionary life prisoner for the purposes of this Part if – (a) his sentence was imposed for a violent or sexual offence the sentence for which is not fixed by law; and (b) the court by which he was sentenced for that offence ordered that this section should apply to him as soon as he had served a part of his sentence specified in the order. (2) A part of a sentence so specified shall be such part as the court considers appropriate taking into account – (a) the seriousness of the offence, or the combination of the offence and other offences associated with it; and (b) the provisions of this section as compared with section 33(2) above and section 35(1) below. (3) As soon as, in the case of a discretionary life prisoner – (a) he has served the part of his sentence specified in the order (‘the relevant part’); and (b) the Board has directed his release under this [*461] section, it shall be the duty of the Secretary of State to release him on licence . . .

 

“Power to release long-term and life prisoners. 35(1) After a long-term prisoner has served one-half of his sentence, the Secretary of State may, if recommended to do so by the Board, release him on licence. (2) If recommended to do so by the 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 . . .”

 

“Young offenders. 43(1) Subject to subsections (4) and (5) below, this Part applies to persons serving sentences of detention in a young offender institution, or determinate sentences of detention under section 53 of the Act of 1933, as it applies to persons serving equivalent sentences of imprisonment. (2) Subject to subsection (5) below, this Part applies to persons serving – (a) sentences of detention during Her Majesty’s pleasure or for life under section 53 of the Act of 1933; or (b) sentences of custody for life under section 8 of the Act of 1982, as it applies to persons serving sentences of imprisonment for life . . .”

 

“Interpretation of Part II. 51(1) In this Part – ‘life prisoner’ has the meaning given by section 34(7) above (as extended by section 43(2) above) . . .”

 

In my view the current legislation and its provenance clearly demonstrates a number of material propositions. It shows that whatever Parliament might have considered to be the purposes of a sentence on a child of detention during Her Majesty’s pleasure when enacting the Children Act 1908 by 1991 Parliament intended that it should include purposes of retribution and deterrence. The terms of section 53(2) of the Children and Young Persons Act 1933 clearly envisage that the punishment of such persons is one of the purposes of sentences for the crimes to which it applies. This was emphasised by Lord Lane C.J. in Reg. v. Forshaw (1984) 6 Cr.App.R.(S.) 413, 415, and further exemplified in Reg. v. Fairhurst [1986] 1 W.L.R. 1374. It would be surprising if punishment was one of the purposes of the sentence for the lesser offences to which section 53(2) applies but not for the graver offence for which section 53(1) makes provision. Moreover if punishment was not one of the purposes it is hard to see what was the point of requiring the Secretary of State to consult the Lord Chief Justice and the trial judge under section 35(2) of the Criminal Justice Act 1991 as well as requiring the recommendation of the Parole Board before a release on licence. Section 43(2) of the Criminal Justice Act 1991 equates a child serving a sentence of detention during Her Majesty’s pleasure with the mandatory life prisoner for whom the sentence is, in part, intended to be punishment; further as the relevant provisions apply to a young person of 17 as well as to one of 10 it is unlikely that Parliament could have intended that punishment should not have been a purpose of the sentence. Accordingly I would resolve the first issue [*462] formulated by counsel for the applicants in the negative. In my view Parliament did not intend that a sentence of detention during Her Majesty’s pleasure imposed on a child or young person should be solely preventive and reformatory. In consequence I would dismiss the cross-appeal.

 

The determination of the second issue as formulated by counsel for the applicants depends on the nature and extent of the discretion conferred on the Secretary of State by section 35(2) of the Criminal Justice Act 1991. In considering that point it is necessary to have regard to the position of the discretionary life prisoners for whom section 34(1) makes provision. In their case the section contemplates that the part of their life sentence, which was discretionary anyway, as the judge at trial may have specified as appropriate to the offence should be served before any question of release on licence is normally considered. That part is what the judge considered was required for the purposes of punishment and deterrence: Practice Direction (Crime: Life Sentences) [1993] 1 W.L.R. 223. It seems to me to be plain that section 35(2), which confers the relevant power on the Secretary of State in wide terms, cannot have been intended to preclude the Secretary of State adopting and applying a comparable policy in the case of a life prisoner, as defined, who is not a discretionary life prisoner. The statutory definition of that person includes a young offender serving a sentence of detention during Her Majesty’s pleasure under section 53(1) of the Children and Young Persons Act 1933. As I have already indicated I do not think that the description of the sentence of detention during Her Majesty’s pleasure carries any inference that its nature or duration is different to the life sentences passed on adult offenders who the Act treats as the same.

 

A number of objections to this conclusion were raised by counsel for the applicants. It was submitted that the imposition of a tariff for the purpose of punishment and deterrence, thereby postponing the time at which the Parole Board would consider a release, would frustrate the reformative nature of the sentence by precluding any earlier consideration of the offender’s progress. But, for the reasons I have already given, the sentence is not wholly reformative and in the case of the lesser offences for which section 34 provides Parliament has clearly enacted just such a scheme. Arising from the same objection it was contended that the statutory power did not authorise the Secretary of State to fix the earliest time at which the Parole Board might consider a release on licence without regard to the progress towards rehabilitation made by the offender and whether it would be safe to release him on licence. But this objection falls with the first and for similar reasons. The regime envisaged by section 34 for those detained for lesser offences requires the offender to serve the part specified by the judge as requisite for the purposes of punishment and deterrence before any question of his release is considered by the Parole Board and therefore by the Secretary of State.

 

In the affidavit sworn on behalf of the Secretary of State by Mr. Newton he points out that the applicants are undergoing an in-depth psychiatric assessment and that any fresh information which comes to light will be considered by the Secretary of State. However this assurance is qualified by the condition that such fresh information is relevant to the circumstances [*463] of the offences or the applicants state of mind when they were committed and therefore to the length of the tariff. This attitude is confirmed by the concluding passage of the decision letters. Thus the Secretary of State does not accept any obligation to consider fresh information relevant to the progress towards rehabilitation which either applicant may show as a part of the normal process of maturation. The concern of the applicants is wholly understandable; but, in agreement with Hobhouse L.J., I am unable to accept that the Secretary of State is not legally entitled to adopt the policy and take the view he has. Accordingly I would resolve the second issue as formulated by counsel for the applicants in the affirmative.

 

The nature of the discretion conferred on the Secretary of State was considered by the House of Lords in Reg. v. Secretary of State for the Home Department, Ex parte Doody [1994] 1 A.C. 531. That case concerned an adult who had been convicted of murder and the provisions of section 61(1) of the Criminal Justice Act 1967 which was re-enacted in the same terms in section 35(2) of the Criminal Justice Act 1991. The issues included the questions whether the prisoners were entitled to be told what the recommendations as to the length of the tariff given by the trial judge and of the Lord Chief had been and their reasons and whether the Secretary of State was entitled to depart from those recommendations and if so whether he should give his reasons for doing so.

 

Lord Mustill with whom the other members of the Judicial Committee agreed specifically decided that the Secretary of State was entitled to depart from the recommendations of the judges. He said, at pp. 558-559:

 

“Until Mr. Brittan completely changed the rules in 1983 the idea of a separate determinate penal element co-existing with the life sentence would have been meaningless. It is true that for the past 10 years the judges have been asked to advise upon it, and it may be that some consistent judicial practice now exists. Nevertheless, it is the Home Secretary who decides, and who has developed (with his predecessors) his own ministerial ideas on what the public interest demands. I can see no reason why the anomalous task of fixing a ‘tariff’ penal element for an offence in respect of which the true tariff sentence is life imprisonment is one for which the Home Secretary and his junior ministers, informed by his officials about the existing departmental practice, are any less experienced and capable than are the judges. In any event, however, even if the respondents’ argument is correct so far, it must in my opinion fail because Parliament has not by statute conferred on the judges any role, even as advisers, at the time when the penal element of a mandatory sentence is fixed. But for the fact that the Home Secretary decided, when formulating the new scheme, to retain in a modified shape the existing practice of inviting the opinion of the judges, they would never enter the picture at all. The Secretary of State is compelled, or at least entitled, to have regard to broader considerations of a public character than those which apply to an ordinary sentencing function. It is he, and not the judges, who is entrusted with the task of deciding upon the prisoner’s release, and it is he who has decided, within the general powers conferred upon him by the statute, to divide his task into two stages. It is not, and could not be, suggested that he acted unlawfully in this respect and [*464] I can see no ground whatever for suggesting that by doing so he deprived himself entirely of his discretion at the first stage, and delivered it into the hands of the judges. If the decision in Ex parte Handscomb, 86 Cr.App.R. 59 is to a contrary effect, then with due respect to a very experienced court, I must disagree.”

 

It seems to me that a number of the submissions made on behalf of the applicants are inconsistent with the nature of the discretion Parliament has conferred on the Secretary of State as described by Lord Mustill. First it was suggested that because that case concerned an adult convicted of murder and sentenced to prison for life the observations of Lord Mustill were inapplicable to the case of a young offender sentenced to be detained during Her Majesty’s pleasure. I do not agree. The provisions of the Criminal Justice Act 1991 which I have quoted earlier show that Parliament intended the regime it laid down to apply to both adults and young offenders and that that regime included tariffs to indicate the part of the sentence required for punishment and deterrence. It follows that, contrary to the submission made on behalf of the applicants, the Secretary of State is entitled to depart from the recommendations of the judges.

 

Then it was suggested that the Secretary of State was not entitled to take account of the “broader considerations of a public character” constituted by public concern or, more specifically, public concern as demonstrated by the petitions submitted to the Secretary of State in this case and described in the judgment of Lord Woolf M.R. But, in my view, the decision of the House of Lords shows that he is; and in relation to both stages, that is fixing the tariff and deciding whether or not to release after the tariff has been served. It is true that the material in this case is open to the criticisms made by Lord Woolf M.R. and Hobhouse L.J. But public concern is not necessarily either logical, fully informed or free from prejudice. It is the fact that the concern is public that gives it significance; what weight, if any, to attach to it is a matter for the Secretary of State. Accordingly however alien such a consideration may be to a judge sentencing an offender it is not one which, in my view, the Secretary of State is legally precluded from taking into account.

 

Then it was contended that the Secretary of State was not entitled to fix the tariff at 15 years and wrongly disregarded the need for rehabilitation and the shortest possible tariff. But it is not suggested that the decision of the Secretary of State was perverse in either of these respects. It must be inherent in the Secretary of State’s ability not to adopt the judicial recommendations that he may increase the tariff above what the judges had thought appropriate.

 

Reliance was also placed on section 44(1) of the Children and Young Persons Act 1933, which has been quoted by Lord Woolf M.R. But, as it seems to me, that subsection is dealing with courts and not the Secretary of State and the conditions of detention rather than its duration. In any event it was not disputed that the Secretary of State has, as the Master of the Rolls has pointed out, put in place an excellent monitoring and care plan designed to achieve the best outcome for the applicants despite their circumstances. [*465]

 

In the light of all these matters I conclude that the third issue as formulated by counsel for the applicants should be answered in the negative. Their case depended, as their counsel accepted, on placing a sentence of detention during Her Majesty’s pleasure in a wholly separate category from that of mandatory life prisoners and imposing fetters on the discretion of the Secretary of State in relation to the former which do not exist in the case of the latter. This was the basis of the decision of the Divisional Court. For the reasons I have endeavoured to explain I think that such a case is inconsistent with the intention of Parliament as expressed in the legislation to which I have referred. Accordingly I agree with Hobhouse L.J. on this issue and respectfully disagree with Lord Woolf M.R. and the Divisional Court. I would answer the first question I referred to at the beginning of this judgment in the negative.

 

In these circumstances the question of procedural unfairness, which the Divisional Court did not deal with as on the view they took on the first question it did not arise, must now be resolved. The complaint of the applicants is that there was inadequate disclosure to them or their advisers of the material which would be considered by the Secretary of State when he decided the tariff to be served and that the Secretary of State reached his decision without considering all relevant matters.

 

The extent of the disclosure required was one of the issues considered by the House of Lords in Reg. v. Secretary of State for the Home Department, Ex parte Doody [1994] 1 A.C. 531. This was considered by Lord Mustill, where he said, at p. 564:

 

“In the present instance, the opinion of the judges (or opinions, if the Lord Chief Justice differs from the charge judge) are weighed in the balance when the Secretary of State makes his decision. Beyond the fact that the opinion is not invariably decisive (as witness the statistics previously cited) there is no means of knowing how it figures in the Home Secretary’s reasoning. That it does so figure is quite plain from the statements made by successive ministers from which I have quoted. This being so, I think it clear that the prisoner needs to know the substance of the judges’ advice, comprising not only the term of years which they recommended as the penal element, but also their reasons: for the prisoner cannot rationalise his objections to the penal element without knowing how it was rationalised by the judges themselves. This does not mean that the document(s) in which the judges state their opinion need be disclosed in their entirety. Those parts of the judges’ opinions which are concerned with matters other than the penal element (for example any observation by the judges on risk) need not be disclosed in any form, and even in respect of the relevant material the requirement is only that the prisoner shall learn the gist of what the judges have said. This will not necessarily involve verbatim quotation from the advice, although this may often be convenient. If the Home Secretary’s duty is approached in this way I doubt whether the fact that in the past the advice has been given in documents intended to be confidential will often prove to be troublesome; and in the few cases where problems do arise it may well be that, upon request, the judges are prepared to waive the confidentiality of the documents.” [*466]

 

The first complaint of the applicants is that the Secretary of State did not disclose the full text of the trial judge’s letter, in particular that part of it which contained his summary of the facts. In my view there is substance in this complaint. The judge’s summary went further than merely to set out the relevant facts as demonstrated at the trial. As the judgment of Hobhouse L.J. demonstrates he made important inferences of his own which would not have been apparent from the parts of the letter which were disclosed to the applicants. The applicants had no opportunity to refute or comment on those inferences.

 

Then it is submitted that the applicants were not warned that the Secretary of State might set a tariff higher than that recommended by the trial judge and Lord Taylor of Gosforth C.J. I do not regard this complaint as having any substance. It is inherent in the nature of the discretion conferred on the Secretary of State by section 35(2) and the statements of policy made by the Secretary of State from time to time that the tariff may be increased. But, in addition, it must have been apparent to the applicants and their advisers that a longer tariff than the judges had recommended was likely to be considered. In the letter from Mr. Newton, writing on behalf of the Secretary of State on 16 June, it was specifically stated:

 

“if he [the Secretary of State] decides to set a period different from that recommended by the judiciary (the details of which have already been sent to you) you will also be informed the reason why he has done so.”

 

The letter went on to give details of representations made to the Home Office most of which sought the imposition of a tariff longer than that recommended by the judges.

 

The applicants submitted that the Secretary of State failed to take account of all relevant considerations in that he made his decision without having more than the form as completed by the trial judge and the comments thereon of Lord Taylor of Gosforth C.J. It is suggested that he should have had all the trial papers and such psychiatric and pre-sentencing reports as would have been available had the trial judge been passing a determinate sentence on an adult. It was suggested on behalf of the Secretary of State that there was nothing in this point because Lord Taylor of Gosforth C.J. was able to make his recommendation on the same information in this respect as the Secretary of State had. I do not think that that is a sufficient answer for we are not concerned with the advice tendered by Lord Taylor of Gosforth C.J.

 

In my view there is substance in this complaint too. The wider the discretion conferred on the Secretary of State the more important it must be that he has all relevant material to enable him properly to exercise it. The fact is that in this case the Secretary of State did not ensure that he was at least in possession of such material as would be available to a judge sentencing an offender to a determinate term a good deal shorter than the tariff period he had in mind. I do not suggest that the parallel is exact but in my view it cannot be right that the Secretary of State should exercise this very wide and onerous discretion with less. [*467]

 

For these reasons I agree with both Lord Woolf M.R. and Hobhouse L.J. that the decision of the Secretary of State should be quashed on the grounds that the manner in which it was reached was procedurally unfair. This will enable the Secretary of State to reconsider the matter having obtained all relevant information, having disclosed all material matters to the applicants and having considered any representations they may wish to make in the light of all such information and other matters.

 

No doubt in the course of that reconsideration he will reflect on whether the policy should be applied at all to persons of the age of the applicants at the time they committed the dreadful offences of which they were convicted. If the policy is to be applied it is to be expected that he will have in mind many of the other matters raised in the course of argument on this appeal including the weight, if any, to be attached to public concern evidenced by the petitions and other correspondence Lord Woolf M.R. has described in the light of the possibility of the double counting to which he has referred and the inherent weaknesses in such petitions and correspondence to which Hobhouse L.J. has drawn attention. In my view the decision, in the light of all those matters, is entrusted by Parliament to the Secretary of State alone subject only to the requirement that he reaches his decision in a manner which is procedurally fair.

 

Appeals and cross-appeals dismissed with costs to be taxed if not agreed and one-half thereof to be paid by each respondent in the appeals.

 

Leave to amend form 86A to include declaration as requested.

 

Applications for declarations (9) and (10) refused.

 

Leave to appeal refused.

 

Legal aid taxation as required.

 

 

The Secretary of State appealed and the applicants cross-appealed. The appeals were conjoined.

 

David Pannick Q.C. and Mark Shaw for the Secretary of State. As required by Reg. v. Secretary of State for the Home Department, Ex parte Doody [1994] 1 A.C. 531, 564A-E, the Secretary of State informed the applicants of the gist of the advice from the judiciary on tariff, and invited them to make representations on tariff. The applicants’ representatives knew the facts of the offences and did make representations about them. They also knew the views expressed by the trial judge in open court when sentencing the applicants. In those circumstances, there was no breach of fairness and no relief should be granted by way of judicial review: see Reg. [*468] v. Secretary of State for the Home Department, Ex parte Pierson [1998] A.C. 539, 556C-F, 557F-558A.

 

There was no unfairness to the first applicant in the Secretary of State not disclosing the psychiatric report about the second applicant by Dr. Vizard and Mr. Hawkes to his advisers. The report related to the second applicant and expressed no conclusion. The Secretary of State did not regard it as containing information that assisted him. The first applicant has not suggested that the report contained information of relevance to his tariff on which he would have wished to make comments.

 

There was no procedural unfairness in that the Secretary of State did not disclose information about an earlier case. He was entitled to have regard to the tariff set in comparable cases in deciding what tariff to set in a particular case. He had no obligation to disclose such information to the applicants. He has no duty to disclose the confidential advice received from his civil servants: see Reg. v. Secretary of State for the Home Department, Ex parte Doody [1993] Q.B. 157, 198A-B, 203A-B.

 

The Secretary of State did not act in an irrational or procedurally unfair manner in not obtaining material to assist him in forming a view about the level of responsibility to be attributed to the applicants having regard to their age, immaturity and personal circumstances. When deciding on the appropriate tariff period, he had sufficient material to enable him to make a properly informed decision and had no duty to obtain further material. Neither the trial judge nor the Lord Chief Justice suggested that further material had to be obtained before the period was fixed. The Secretary of State was under no duty to look at reports ordinarily available to the court, such as social welfare reports. It was proper for him to adopt a backward-looking approach: that the tariff depended on what the applicants had done and the circumstances in which they had done it. He did not have to have regard to future matters.

 

As to whether the Secretary of State acted in an irrational or procedurally unfair manner in taking account of petitions from members of the public, Parliament by section 35(2) of the Criminal Justice Act 1991 has conferred a broad discretion on the Secretary of State in relation to the release of murderers on life licence because it thought that it should be for him to decide what policies to adopt and apply so as to maintain public confidence in the criminal justice system: see In re Findlay [1985] A.C. 318, 333B-C and Reg. v. Secretary of State for the Home Department, Ex parte Doody [1994] 1 A.C. 531, 559B-C. What weight to give such representations is a matter for the Secretary of State. He was entitled to regard the petitions and other material as evidence of public concern about the case.

 

The applicants’ contention on issues arising on the cross-appeals is inconsistent with the terms of the Act of 1991 and the intentions of Parliament. Section 35(2) of the Act (as applied by section 43(2)) confers a broad discretion on the Secretary of State to decide the circumstances in which it is appropriate to release from detention a young person convicted of murder: see In re Findlay [1985] A.C. 318, 333C, 338E-G; Reg. v. Secretary of State for the Home Department, Ex parte Doody [1994] 1 A.C. 531, 559A-G and Reg. v. Secretary of State for the Home Department, Ex parte Pierson [1998] A.C. 539, 555D. [*469]

 

The discretion conferred on the Secretary of State by section 35(2) permits him to adopt a policy involving the punishment (prior to release on life licence) of young offenders convicted of murder. Section 53(2) of the Act of 1933 allows for the punishment of young offenders convicted of serious crimes other than murder: see Reg. v. Forshaw (1984) 6 Cr.App.R.(S.) 413 and Reg. v. Fairhurst [1986] 1 W.L.R. 1374. It would make no sense if section 53(1) were to prohibit punishment for young offenders convicted of murder and sentenced to detention during Her Majesty’s pleasure. If punishment were prohibited, a murderer could (if reformed) be released much sooner than a young offender given a determinate sentence for a far less serious offence. Section 53 has the side-note “Punishment of certain grave crimes.”

 

When the Secretary of State says that he applies the same policy for the release of a young offender as for an adult convicted of murder, this means that he imposes a tariff, on the expiry of which the dangerousness of the offender is considered with a view to his possible release. If this is a lawful exercise of the discretion conferred by section 35(2), it cannot be a basis for objecting to the policy that it is the same policy as is applied to the possible release of adult murderers. The special nature of the sentence of detention during Her Majesty’s pleasure relates primarily to the place and conditions of detention. The imposition of a tariff does not mean that the welfare and rehabilitation of the young offender are ignored.

 

Section 43(2) of the Act of 1991 allows the Secretary of State to adopt a policy that young offenders convicted of murder must serve a period as punishment prior to consideration being given to their possible release on life licence. It would be odd if section 35(2) implicitly prohibited such a decision in relation to young offenders serving a sentence of detention during Her Majesty’s pleasure. Other categories of detained offender serve a penal period prior to consideration being given to their release, whether they are serving a determinate term or an indeterminate term. Section 35(2) does not prohibit such an approach for adult murderers. In relation to discretionary life prisoners who receive an indeterminate sentence, section 34 provides for a penal period to be stated by the trial judge at the outset of the sentence. Only after that punitive period has been served can the Parole Board consider whether it is safe to release the offender on life licence. Under section 53(2) of the Act of 1933, a young offender may be sentenced to detention for life for an offence less grave than murder: see Reg. v. Abbott [1964] 1 Q.B. 489. In such a case, the offender would, under section 43(2) of the Act of 1991, be treated as a discretionary life prisoner under section 34 and so would have to serve a tariff (set by the trial judge) as punishment prior to the Parole Board considering whether it would be safe to release him on life licence. Parliament cannot have intended to prohibit the Secretary of State from setting a tariff under section 35(2) in the case of a young offender convicted of murder. The Secretary of State was aware of his discretion to depart from his policy if it was appropriate to do so but was entitled to conclude, as did the trial judge and the Lord Chief Justice, that the circumstances of these offences of murder required a long period of detention as punishment for what the applicants did. [*470]

 

There are good public policy reasons why he should notify the offender and his family (and other interested persons, such as the victim’s family) about the tariff in his case as soon as practicable. A tariff of 15 years was not perverse in the circumstances of this case. Because the Secretary of State was entitled to require the applicants to serve a period of punishment before release, he was also entitled to have a policy that he would not seek the views of the Parole Board on the risks of release until near (three years before) the time when that tariff period had expired. The Parole Board does not advise on tariff. That is why, in discretionary lifer cases, Parliament itself has required by section 34(3) to (5) of the Act of 1991 that cases should be considered by the Parole Board after the offender has served the tariff period.

 

Subsequent events may be relevant to the proper period of punishment, for example, if psychiatric or other evidence reveals a mitigating factor or throws new light on the nature of the offence or the offender’s state of mind at the time of the offence. If such further evidence becomes available, the Secretary of State will consider whether to amend the tariff. The progress made by the offender, or his reaction to his punishment, may justify early release on compassionate grounds under section 36 of the Act of 1991. Such progress is also material to the later assessment of the risk posed by the offender to the public. But the Secretary of State is entitled to regard such matters as not affecting the punishment, which is based on the nature of the offence and the circumstances in which it was committed. In the context of the Act of 1991, the applicants cannot sustain the argument that the absence of regular review of the tariff, and alteration of it in the light of the offender’s progress, frustrates the nature of a sentence that contemplates the possibility of change. Section 34 of the Act of 1991 shows that the adoption of a tariff period that must be served prior to Parole Board consideration of whether it is safe to release the offender on life licence is not inconsistent in principle with an indeterminate sentence based on changing factors. A discretionary lifer (who may be mentally unstable or dangerous) serves such a sentence, but section 34 of the Act of 1991 recognises that the sentence contains a punitive period. The punitive (tariff) period is set at the outset and is not subject to regular review. Good progress in prison does not reduce the length of that punitive period.

 

The applicants have relied on the judgment of the European Court of Human Rights in Strasbourg in Hussain v. United Kingdom (1996) 22 E.H.R.R. 1, but the European Court was concerned with release post-tariff and recognised that the sentence of detention during Her Majesty’s pleasure involved a tariff being served prior to consideration of release by reference to risk: see pp. 21-22, paras. 43-44 and pp. 24-25, paras. 53-54. In any event, the European Convention on Human Rights is not part of the domestic law.

 

Edward Fitzgerald Q.C. and Ben Emmerson for the first applicant. The sentence to detention during Her Majesty’s pleasure is a special type of indeterminate sentence devised for juveniles convicted of murder and modelled on the sentence imposed on criminal lunatics. Its express indeterminacy distinguishes it from the sentence of imprisonment for life imposed on adult murderers. It was therefore wrong for the Secretary of State to treat it as a sentence of the same type as the mandatory life [*471] sentence imposed on adult murderers. The correct interpretation of the sentence is as one that does not order lifelong detention but rather authorises detention for only as long as proves necessary and therefore necessarily anticipates periodic review as the offender progresses and matures: see per Lord Woolf M.R., ante, pp. 425H-426D, Hussain v. United Kingdom, 22 E.H.R.R. 1; The State v. O’Brien [1973] I.R. 50, 59-70 and Reg. v. Secretary of State for the Home Department, Ex parte Prem Singh, The Times, 27 April 1993. Any contrary interpretation would contradict the express language of section 53(1) of the Act of 1933 (compare sections 100, 103 and 104 of the Children Act 1908) and render English law in conflict with article 3 of the European Convention for the Protection of Human Rights and Fundamental Freedoms (1953) (Cmd. 8969): see Hussain v. United Kingdom, pp. 24-25, para. 53; Morris, The Habitual Criminal (1951), p. 37 and Radzinowicz and Hood, A History of English Criminal Law (1986), vol. 5, p. 273. Moreover, it would attribute too much significance to the fact that Part II of the Act of 1991 provides that the same release procedures should apply to both sentences. The fact that the same statutory procedures must be gone through before release is authorised does not mean that the sentences are the same, nor that the same substantive criteria apply. Section 35(2) of the Act of 1991 has no significance in determining what the criteria are. The criteria that govern continuing detention must be derived from the rationale of the sentence itself. The Secretary of State cannot start from the premise that the offender has forfeited his liberty for life as punishment for the crime of murder, as in the case of a mandatory life sentence. He must consider from time to time whether continued detention is justified and, in doing so, review all the circumstances that apply at that time, including the offender’s progress in custody. Because the sentence defies analysis in purely retributive terms, considerations of reform and rehabilitation of the offender must always play a part in the consideration of his case at each of these periodic intervals.

 

As to whether the Home Secretary can lawfully apply the “tariff policy” to the applicants, first, in the case of two such young detainees considerations of retribution and general deterrence should not be taken into account in determining the period of actual custody they should serve; secondly, even if these are relevant factors in determining the period of actual custody, they should not be the exclusive determinants of the first review date so as to rule out review of the merits of continuing detention by reference to other relevant factors, such as the applicants’ ongoing progress in custody, for as long as 15 years. The period of actual custody should be determined primarily by reference to considerations of prevention and reformation, as befits a sentence expressly modelled on the non-punitive sentence imposed on criminal lunatics. That approach accords with the essentially preventative approach to release decisions concerning both Borstal detainees and section 53(2) detainees by the courts and executive prior to 1980. In the case of offenders as young as 10, the very flexibility of the sentence enables the Secretary of State not to adopt an approach based on considerations of retribution or the still less appropriate objective of general deterrence, and in this case he should have excluded them. Such an approach would better accord with the requirements of [*472] article 3 of the European Convention on Human Rights and Fundamental Freedoms (1953) (Cmd. 8969), article 37(b) of the United Nations Convention on the Rights of the Child (1989) 28 International Legal Materials 1448 and rule 17.1(d ) of the Beijing Rules (United Nations Standard Minimum Rules of the Administration of Juvenile Justice (1985)).

 

Even if it is legitimate to fix a “tariff” in a juvenile detainee’s case, such a tariff has a different status from that in a mandatory lifer’s case and should be fixed on different criteria, just as the courts have imposed different criteria for the fixing of the tariff in discretionary lifer cases from those in mandatory lifer cases: see Reg. v. Secretary of State for the Home Department, Ex parte Handscomb (1987) 86 Cr.App.R. 59; Reg. v. Secretary of State for the Home Department, Ex parte Walsh, The Times, 18 December 1991 and Reg. v. Secretary of State for the Home Department, Ex parte McCartney, The Times, 25 May 1994; Court of Appeal (Civil Division) Transcript No. 667 of 1994. In the case of juvenile detainees the fixing of the tariff is a quasi-judicial act to fix for the first time the punitive period where none has been predetermined: see The State v. O’Brien [1973] I.R. 50, 59-60. Any punitive period that the Secretary of State fixes for the first time as a primary sentencer should be the minimum possible and should balance the welfare of the offender (see section 44(1) of the Act of 1933) against the perceived requirements of punishment. The period fixed should not exceed that recommended by the judiciary unless it is manifestly inadequate, for, otherwise, it will not be the minimum possible. It should not be fixed by determining the appropriate tariff for an adult and then making a discount for youth. That approach fails to give effect to the totally different nature of the two sentences. If the Secretary of State does fix a punitive period by reference to the tariff for an adult, he must make a discount that truly reflects a graduated scale from no penalties at all for 9&12frac;-year-olds to full responsibility for those in their 20s. To give a 10-year-old 60 per cent. of the adult’s punishment makes a wholly insufficient discount. The Secretary of State must also give effect to any mitigating factors in the detainee’s background such as were found by the trial judge. There is no evidence that he did so. He should, further, ensure that he is fully informed of the detainee’s psychiatric and social background, which he did not do. [Reference was made to Reg. v. Storey [1973] 1 W.L.R. 1045, 1049A-1050G, 1051F-G; Reg. v. Forshaw, 6 Cr.App.R.(S.) 413, 415-416; Reg. v. Ford (1976) 62 Cr.App.R. 303; Reg. v. Flemming [1973] 2 All E.R. 401, 403G; Reg. v. Secretary of State for the Home Department, Ex parte H. [1995] Q.B. 43; Reg. v. Nicola G. (1992) 14 Cr.App.R.(S.) 349 and Kanda v. Government of Malaya [1962] A.C. 322.]

 

On the appeal the Court of Appeal rightly ruled that the Secretary of State should not have had regard to public petitions for an increase in the tariff of the kind that were submitted in this case and that he failed to have regard to relevant circumstances by increasing the judicial tariff without considering any social inquiry or psychiatric reports on the first applicant. Since the trial judge found substantial mitigation in the applicant’s background, the Secretary of State could not rationally or fairly increase the tariff without properly informing himself of the social and psychological background. The Court of Appeal rightly found that the failure of the Secretary of State to make full disclosure of the materials [*473] before him, including the factual summary of the judge and the full text of his recommendations, constituted a breach of the rules of natural justice.

 

The proper remedy is to quash the Secretary’s decision and order him to take it again. The offer now made to consider any further representations is manifestly inadequate. That leaves intact the decision to impose a 15-year tariff and puts the burden on the applicants to persuade the Secretary of State to change a decision that has now become public and been publicly defended. The proper remedy for an unfair decision-making process is an order of certiorari, so that the process is genuinely gone through de novo: see Reg. v. Parole Board, Ex parte Wilson (unreported), 20 March 1985; Reg. v. Secretary of State for the Home Department, Ex parte Dowd (unreported), 24 November 1994 and Reg. v. Secretary of State for the Home Department, Ex parte Riaz (unreported), 16 December 1994. The decision in Reg. v. Secretary of State for the Home Department, Ex parte Pierson [1998] A.C. 539 is not authority for the proposition that certiorari will be refused because an offer to reconsider is made after the occurrence of some procedural unfairness in the decision-making process.

 

Brian Higgs Q.C. and Julian Nutter for the second applicant, adopting the submissions of the first applicant. Where an infant defendant is to be detained until Her Majesty’s pleasure be known the setting of a tariff period is as inappropriate as it would be in the case of a lunatic or a person of unsound mind. It is inconceivable that either of the applicants will be released until they are rehabilitated and it is safe to effect release. An order for detention during Her Majesty’s pleasure necessarily contains a penal element, but in the circumstances argument as to whether it does so is wholly or largely academic, for to a child every day spent in rehabilitative custody is necessarily punishment as well. The effect of such punishment cannot be predicted or calculated. The decision as to when the time has been reached by which a child in such detention has been punished enough cannot be made other than retrospectively. The question that the Secretary of State should ask himself in the circumstances is not, prospectively, how long the child should serve as a punishment but, at such time as he is deemed or found to be rehabilitated and is no longer a risk to the public and is otherwise fit to be released, whether he has at that time been sufficiently punished. Of course, confidence in the system must be maintained, but the development of boys of this age should be under constant review.

 

Pannick Q.C. in reply. The Act of 1908 is irrelevant because so much has happened since: the distinction that has grown up between mandatory and discretionary sentences and so on. One should look at what Parliament has done in 1991-92. The courts cannot rewrite the tariff scheme by judicial review: see Reg. v. Secretary of State for the Home Department, Ex parte Doody [1994] 1 A.C. 531, 559F. [Reference was also made to Reg. v. Secretary of State for the Home Department, Ex parte Handscomb, 86 Cr.App.R. 59; The State v. O’Brien [1973] I.R. 50 and In re Findlay [1985] A.C. 318.]

 

There is nothing in the history of section 53(1) that could lead to the conclusion that punishment is prohibited. An 11-year-old may be more deserving of punishment than a 17-year-old. [*474] As to discount for youth, it is an error to suppose that the judicial approach is anything other than advice. Parliament could have imposed the responsibility on the Parole Board but gave it instead to the Secretary of State, someone close to and sensitive to public opinion. In deciding on the length of the tariff, the Secretary of State takes account of the youth of the offender.

 

The distinctions made by the applicants with regard to the material receivable by the Secretary of State are unsustainable: he has to maintain public confidence in the judicial system and for him to have to say to those who petition him that he is prohibited from taking the petition into account would undermine that confidence.

 

Their Lordships took time for consideration.

 

12 June 1997. LORD GOFF OF CHIEVELEY. My Lords,

 

The sentence of the judge

 

On 24 November 1993 two young boys, Robert Thompson and Jon Venables, were convicted of the murder of a two-year-old boy, James Bulger. The murder had taken place on 12 February 1993, when Thompson and Venables were 10&12frac; years old. Since a child under 10 cannot be guilty of a criminal offence in English law, they were only just over the age of criminal responsibility. They were 11 years old at the time of their trial, which took place before Morland J. and a jury. After conviction, the judge sentenced each of them to be detained during Her Majesty’s pleasure, such a sentence being mandatory in the case of young offenders convicted of murder: see section 53(1) of the Children and Young Persons Act 1933.

 

Before sentencing them, the judge said:

 

“Robert Thompson and Jon Venables, the killing of James Bulger was an act of unparalleled evil and barbarity. This child of two was taken from his mother on a journey of over two miles and then, on the railway line, was battered to death without mercy and then his body was placed across the railway line so that his body would be run over by a train in an attempt to conceal his murder. In my judgment, your conduct was both cunning and very wicked. The sentence that I pass upon you both . . . is that you shall be detained during Her Majesty’s pleasure in such a place and under such conditions as the Secretary of State may direct and that means that you will be securely detained for very, very many years until the Home Secretary is satisfied that you have matured and are fully rehabilitated and are no longer a danger to others.”

 

After sentencing them the judge continued, in their absence:

 

“How it came about that two mentally normal boys aged 10 of average intelligence committed this terrible crime is very hard to comprehend . . .”

 

The judge’s report to the Home Secretary

 

On 29 November 1993 the judge completed a report on a standard form headed:

 

“Mandatory Life Sentence Case. Trial Judge’s Report to the [*475] Home Secretary.” In section 5 of the report the judge provided, as required, a description of the offence and the circumstances in which it was committed, together with his assessment of the relative culpability of the two defendants, which was that he was unable to determine their relative culpability. In section 10 he gave, again as required, his view on the actual length of detention necessary to meet the requirements of retribution and general deterrence for the offence (known as “the penal element” or “the tariff”). He wrote:

 

“If the defendants had been adults I would have said that the actual length of detention necessary to meet the requirements of retribution and general deterrence should have been 18 years . . . In my judgment the appropriate actual length of detention necessary to meet the requirement[s] of retribution and general deterrence for the murder, taking into account all its appalling circumstances and the age of the defendants when it was committed, is eight years . . . Eight years is ‘very, very many years’ for a 10- or 11-year-old. They are now children. In eight years’ time they will be young men.”

 

The advice of the Lord Chief Justice

 

On 4 December 1993 Lord Taylor of Gosforth C.J. advised the Home Secretary that the penal element should be increased from eight years to 10 years. He wrote:

 

“I have well in mind that the trial judge is in a better position than I to assess these two boys and their crime; also I agree that a much lesser tariff should apply than in the case of an adult. But I think the minimum period for punishment and deterrence should be 10 years.”

 

The decision of the Home Secretary

 

Having received this advice from the trial judge and the Lord Chief Justice, the Home Secretary, acting pursuant to his discretion under section 35 of the Criminal Justice Act 1991, and a policy statement dated 27 July 1993 (Hansard (H.C. Debates), cols. 861-864: written answer), proceeded to consider the question of the penal element in the sentence for the two boys, and decided that it should be increased to 15 years. In his decision letters, dated 22 July 1994, it was stated that the Home Secretary had regard, inter alia, 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 confidence in the system of criminal justice.”

 

The letter dated 16 June 1994 referred in particular to a petition, signed by some 278,300 members of the public (with some 4,400 letters in support) urging that the two boys should remain in detention for life; a petition, signed by nearly 6,000 members of the public, asking for a minimum period of detention of 25 years; and over 20,000 coupons, cut out of a popular newspaper, together with over 1,000 letters, demanding [*476] a life tariff. There were only 33 letters agreeing with the judiciary, or asking for a lower tariff.

 

The proceedings for judicial review

 

Applications were then made on behalf of both Thompson and Venables to quash the decision of the Home Secretary on the penal element, and in addition to quash the consequential decision of the Home Secretary that the first review of their cases by the Parole Board should not take place until they had served 12 years in custody. In addition, it was submitted on behalf of Venables that the decision of the Home Secretary was in certain respects reached unfairly and in breach of the rules of natural justice.

 

The decision of the Divisional Court

 

The matter came before a Divisional Court consisting of Pill L.J. and Newman J. They concluded that a sentence on a young offender to be detained during Her Majesty’s pleasure pursuant to section 53(1) of the Act of 1933 created not only a power but a duty in the Secretary of State to keep the question of continued detention under review throughout the period of detention. They further held that Part II of the Criminal Justice Act 1991, in which such a sentence was assimilated with a sentence of mandatory life imprisonment, did not affect this characteristic of a sentence of detention during Her Majesty’s pleasure. They accordingly held that the practice of the Home Secretary, expressed in a policy statement made by the present Home Secretary, Mr. Michael Howard, in July 1993 (Hansard (H.C. Debates), 27 July 1993, cols. 861-864: written answer), that young offenders sentenced to detention during Her Majesty’s pleasure should, like adults upon whom mandatory life sentences have been imposed, have to serve an identified penal element in their sentence before their release could be considered, was unlawful. They nevertheless rejected a submission that such detention was exclusively preventative and rehabilitative, and that punishment and deterrence should play no part in the Home Secretary’s decision upon a release date.

 

In delivering the judgment of the court, Pill L.J. said that the duty on the Secretary of State required him:

 

“not to make a fixed decision as to minimum length of detention at the commencement of the detention or to have an intention which can be changed only exceptionally. . . . The rationale is in the requirement to have regard to the age of young offenders and, especially in the case of children, their change beyond recognition during the running of a tariff period. When I say that the tariff of 15 years in this case is inappropriate, I am expressing a view not as to its merit by way of length but the lack of merit in fixing it at this stage. Mr. Fitzgerald [counsel for Venables] did accept that the tariff figure recommended by Morland J. did not exclude the underlying purpose of the sentence. It would provide a review after five years.”

 

In the result the Home Secretary’s decisions of 22 July 1994 were quashed. The court expressed no opinion on the points concerned with unfairness [*477] or breach of natural justice because, in the light of their decision, those points did not arise for decision.

 

The decision of the Court of Appeal

 

The Secretary of State then appealed against that decision to the Court of Appeal and the two applicants raised by way of respondent’s notices the issues of unfairness and breach of natural justice. The Court of Appeal dismissed the appeal. A majority (Hobhouse and Morritt L.JJ., Lord Woolf M.R. dissenting) held that the conclusion of the Divisional Court on what I shall call the main issue – that the concept of a penal element in the sentence which must be served could not stand with the continuing duty of the Secretary of State to keep the detention of the detainee under continuous review – must be rejected as inconsistent with the intention of Parliament as expressed in Part II of the Act of 1991. Lord Woolf M.R., in his dissenting judgment on this point, took a different view. He too rejected the argument that punishment formed no part of a sentence to detention under section 53(1); and he accepted that it was not unlawful for the Secretary of State to adopt, in relation to young offenders so sentenced, a policy involving the identification of a penal element in the sentence which the detainee would have to serve. He said, ante, pp. 432H-433B:

 

“This is because it allows a young offender to know the period during which he is unlikely to be released and when he should prepare himself to put forward representations. The objection which is most often made by those subject to an indeterminate sentence is its uncertainty. They need a target date. It is also sensible from the administrator’s point of view . . . In addition it identifies the penal element which perfectly properly the young offender can normally be expected to serve by way of punishment.”

 

In his opinion, however, the difference between a mandatory sentence of life imprisonment and a mandatory sentence of detention for a young offender can be accommodated in the application of the policy. This required that the policy must not be so inflexible that it cannot accommodate the range of situations to which it has to apply, nor must it be so rigid that it does not allow for exceptional cases; otherwise it will result in an unlawful fetter on the discretion. In the present case, to postpone review for 12 years was unacceptable, though it would be different if there were to be a general reconsideration during the period of the tariff. If the decision to fix the tariff was taken on limited material, that would make reconsideration all the more important. The position of adults was different, because their circumstances do not change to the same extent as do those of children. In the present case there was an almost irresistible case for considering whether the tariff approach should not exceptionally be departed from. It appears that either the ability to depart from the tariff was not appreciated or, if it was appreciated, it was not considered.

 

In the circumstances, it was necessary for the majority to consider whether there had been procedural unfairness or a breach of natural justice by the Secretary of State; and Lord Woolf M.R. also considered these [*478] questions. All three members of the court considered that such breaches had occurred, though they were not all agreed on their identity. In the result, therefore, it was on these grounds that the Divisional Court’s decision was upheld and the Secretary of State’s appeal was dismissed. I shall in due course refer to the matters in question when I come to consider this aspect of the case.

 

The appeal to the House of Lords

 

Before your Lordships, therefore, the Secretary of State was the appellant on the issues of procedural unfairness and breach of natural justice, and the two applicants were cross-appellants on the main issue. I propose however to consider first the main issue which arises on the cross-appeals, and then to turn to the issues arising on the appeals.

 

An overview

 

Before I turn to consider the main issue, I wish to preface my consideration of it with certain introductory comments. In the present case, we see a marked divergence between the successive penal elements chosen as appropriate for these two applicants. The judge selected a period of eight years’ detention. He expressed the opinion that, had they been adults, the appropriate period would have been 18 years, but reduced this to eight years for these two children. In his sentencing remarks, he warned them that they would be detained for “very, very many years”; and in his Report to the Home Secretary he stated that eight years is “very very many years” for a 10- or 11-year-old. It may justly be said that eight years is a very long time for a boy of that age; but I doubt very much if ordinary people would think that 8 years was “very, very many years.” Hobhouse L.J., ante, p. 439E thought that, as a result of the judge’s sentencing remarks, the public may well have been surprised when it was later revealed in the press that the judge had recommended a period of detention of no more than eight years. I am inclined to agree. At all events, a press campaign then developed in which demands were made that the two applicants should remain in detention or custody for the rest of their lives.

 

Lord Taylor of Gosforth C.J., when he came to express an opinion on the penal element, concluded that, despite the fact that the judge had had the benefit of presiding over the trial and therefore a fuller opportunity of assessing the two applicants, nevertheless the penal element in their sentence should be increased to 10 years. Since he agreed with the judge that a much lesser tariff should apply than in the case of an adult, it is not difficult to infer that he thought that the period of 18 years chosen by the judge for the hypothetical adult offender was considerably too low. It may not be without significance that the period chosen by him would have the effect that the two applicants’ cases would fall to be reviewed when they were 18 years old, and their release would be possible when they were 21. He did not, therefore, contemplate the possibility that the penal element requiring their continued detention should persist after they had come of age.

 

It is against this background that the choice by the Secretary of State of a penal element of 15 years has to be seen. We know that he, like (in [*479] all probability) the Lord Chief Justice, thought that the judge’s figure for an adult was too short; he preferred a period of 25 years to the judge’s 18 years. But he then proceeded to select a period of 15 years for the two boys. This is a period which is 50 per cent. longer than that chosen by the Lord Chief Justice, who had already significantly increased that chosen by the judge. Such an increase must be regarded as very substantial; moreover it extended the almost inevitable period of their detention for a number of years after the time when they would become adults. It is obvious however that the Secretary of State chose this figure in good faith as the appropriate figure for the penal element, having reduced the figure from 25 years to 15 years to allow for the fact that they were children.

 

I have specifically referred to these matters, because it appears to me that the real complaint of the two applicants is not so much against the fact that the Home Secretary specified a penal element which had to be served by them before they might be released under licence as against the length of the period chosen by him. As appears from the judgment of the Divisional Court, there was no complaint against the period recommended by the trial judge; and it may be that the period recommended by the Lord Chief Justice might also have been reluctantly accepted. However, the ground upon which the Divisional Court held that the Home Secretary’s decisions should be quashed was that he had no power to impose any penal element. I shall bear these considerations in mind when I address the question of statutory construction which arises on the main issue in this appeal, to which I now turn.

 

The relevant statutory provisions: the Children Act 1908 and the Act of 1933

 

I start with the Act of 1908, and the subsequent consolidating Act, the Act of 1933. It was under section 53(1) of the latter Act (as substituted by section 1(5) of the Murder (Abolition of Death Penalty) Act 1965) that the two applicants in the present case were sentenced to be detained during Her Majesty’s pleasure; but since that subsection reflects without material alteration section 103 of the Act of 1908, it is right that I should begin with the earlier statute. Sections 103 to 105 of that Act provide:

 

“103. 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.

 

“104. Where a child or young person is convicted on indictment of an attempt to murder, or of manslaughter, or of wounding with intent to do grievous bodily harm, and the court is of opinion that no punishment which under the provisions of this Act it is authorised to inflict is sufficient, the court may sentence the offender to be detained for such period as may be specified in the sentence; and where such a sentence is passed the child or young person shall, during that period, notwithstanding anything in the other provisions of this Act, be liable to be detained in such place and on such [*480] conditions as the Secretary of State may direct, and whilst so detained shall be deemed to be in legal custody.

 

“105(1) A person in detention pursuant to the directions of the Secretary of State under the last two foregoing sections of this Act may, at any time, be discharged by the Secretary of State on licence. (2) A licence may be in such form and may contain such conditions as the Secretary of State may direct. (3) A licence may at any time be revoked or varied by the Secretary of State, and where a licence has been revoked the person to whom the licence related shall return to such place as the Secretary of State may direct, and if he fails to do so may be apprehended without warrant and taken to that place.”

 

The Act of 1933 was a consolidating Act. We find the provisions of 103 to 105 of the Act of 1908 gathered into section 53 of the Act of 1933, with minor alterations none of which are material for the present case. Section 53 in its original form provided:

 

“(1) Sentence of death shall not be pronounced on or recorded against a person under the age of 18 years, but in lieu thereof the court shall sentence him 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. (2) Where a child or young person is convicted on indictment of an attempt to murder, or of manslaughter, or of wounding with intent to do grievous bodily harm, and the court is of opinion that none of the other methods in which the case may legally be dealt with is suitable, the court may sentence the offender to be detained for such period as may be specified in the sentence; and where such a sentence has been passed the child or young person shall, during that period, notwithstanding anything in the other provisions of this Act, be liable to be detained in such place and on such conditions as the Secretary of State may direct. (3) A person detained pursuant to the directions of the Secretary of State under this section shall, while so detained, be deemed to be in legal custody. (4) Any person so detained as aforesaid may, at any time, be discharged by the Secretary of State on licence. Such a licence may be in such form and may contain such conditions as the Secretary of State may direct, and may at any time be revoked or varied by the Secretary of State. Where a licence has been revoked the person to whom the licence related shall return to such place as the Secretary of State may direct, and if he fails to do so may be apprehended without warrant and taken to that place.”

 

Section 53 was subsequently amended in certain respects. First, following the abolition of the death penalty in 1965, section 53(1) was amended (by sections 1(5) and 4 of the Act of 1965) to make a sentence of detention during Her Majesty’s pleasure mandatory, in place of a mandatory life sentence, for young offenders convicted of murder. Second, following the introduction of the Parole Board by the Criminal Justice Act 1967, the power to release young offenders sentenced under section 53 of the Act of 1933 was made dependent upon a recommendation by the Board and, in the case of those sentenced to imprisonment for life or to detention during [*481] Her Majesty’s pleasure, prior consultation with the Lord Chief Justice and (if available) the trial judge: see section 61 of the Act of 1967. Finally, the whole regime was subject to major revision in Part II of the Act of 1991. The relevant provisions of that Act are of great importance in the present case; but the form of section 53 of the Act of 1933 (as previously amended) was left untouched. Before I turn to the impact of the Act of 1991, I wish first to consider section 53 itself.

 

First of all, I am satisfied that the submission of Mr. Fitzgerald for Venables that a sentence to detention during Her Majesty’s pleasure under section 53(1) contains no element of punishment is unsustainable. Section 104 of the Act of 1908, which is the direct precursor of section 53(2) of the Act of 1933, expressly refers to cases in which punishment provided for elsewhere in the Act is insufficient. It is plain, therefore, that a sentence under section 104 involved punishment of the young offender; and this is all the more obvious when it is seen that, among the lesser sentences which might then be imposed, was a sentence of whipping (see section 107(g)). That being so, it is inconceivable that a sentence of detention under section 103 for the greater offence of murder should not likewise involve punishment of the offender. Furthermore, there is nothing in section 53 of the Act of 1933 to indicate that any different conclusion should be drawn in respect of a sentence of detention under section 53(1); on the contrary, consistently with that conclusion, section 53 is headed by the words “Punishment of certain grave crimes.” Since, therefore, a sentence of detention under section 53(1) involves punishment, it is difficult at first sight to see why, as a matter of policy, the Home Secretary should not be entitled to identify a penal element and require that it should be served before release on licence.

 

I turn next to the conclusion of the Divisional Court that a sentence of detention during Her Majesty’s pleasure under section 53(1) connotes “not only a power but a duty in the Secretary of State to keep the question of continued detention under review throughout the period of detention,” with the effect that the imposition of a penal element which must be served before release is inconsistent with such a sentence. In my opinion this conclusion flows from a misunderstanding of the applicable legislation.

 

I have read with great interest the paper prepared by Professor A. W. B. Simpson for submission to the European Court of Human Rights in Prem Singh v. United Kingdom (unreported), 21 February 1996. The theme of the paper is that a sentence on a young offender (whether under section 103 of the Act of 1908 or section 53(1) of the Act of 1933) to detention during Her Majesty’s pleasure should not be viewed as equivalent to a mandatory life sentence. That the two should be differentiated is explained in the paper, essentially because the introduction of such a sentence for young offenders “formed part of an elaborate legislative scheme which reflected a general policy of treating young offenders quite differently from older ones” (p. 22). A similar policy no doubt underlay the amendment to section 53(1) in 1965 to make a sentence of detention during Her Majesty’s pleasure mandatory, in place of a mandatory life sentence, for young offenders convicted of murder. But this policy relates to “making a special arrangement for the disposal of juvenile murderers” (p. 26). It does not relate to arrangements for their discharge; indeed it [*482] would be surprising if it did so because, unlike the case of young offenders, detention during Her Majesty’s pleasure as originally applied to lunatics was regarded as purely preventative, and so was an interim order pending their release if they recovered (pp. 13-14). In such cases, continuous review was no doubt necessary (p. 13). But the same does not necessarily apply in the case of young offenders, where the sentence involves punishment.

 

At all events, the position is made clear in both the Act of 1908 and the Act of 1933, where the power of discharge is expressly provided for, and is a power vested in the Secretary of State to discharge the young offender at any time on licence, subject to revocation of that licence by him at any time: see section 53(4) of the Act of 1933 (now repealed by section 103(2) of and Part I of Schedule 7 to the Act of 1967), formerly section 105 of the Act of 1908. Furthermore, these statutory provisions for discharge are likewise applicable to sentences of detention under section 53(2) of the Act of 1933, formerly section 104 of the Act of 1908. In my opinion, the adoption of the expression “during Her Majesty’s pleasure” in relation to one form of detention under the Acts of 1908 and 1933 cannot of itself give rise to any impact upon discharge, when identical provision is expressly made in each statute for a power of discharge applicable to both forms of detention.

 

Furthermore, no implication can in my opinion be derived from these words that cases of detention for murder under section 53(1) of the Act of 1933 (or under section 103 of the Act of 1908) should be kept under continuous review. It would be most extraordinary if the presence of these words in the sections applicable in cases of murder should have that effect, when the absence of those words in section 53(2) (or section 104) should have the effect that offenders sentenced to detention for life for lesser offences under those provisions would be deprived of the benefit of any such review. That no distinction can be drawn in this way between the two provisions is made plain by the fact that, in the days before the time when identification of a penal element in the sentence was considered desirable, the flexible regime applicable to young offenders was considered to be equally appropriate to those sentenced under section 53(2) and section 53(1). This is made plain in the decision of the Court of Appeal (Criminal Division) in Reg. v. Storey [1973] 1 W.L.R. 1045. There the Court of Appeal upheld a sentence of 20 years’ detention imposed under section 53(2) on a 16-year-old boy held guilty of attempted murder and robbery. In the course of his judgment, Lord Widgery C.J., at pp. 1049, stressed that section 53 created:

 

“an entirely flexible procedure in which, as the subject develops and his character matures, the Home Secretary can direct him to appropriate training and eventually secure his release when that release is possible and consistent with the safety of the public.”

 

This was as true of a young offender sentenced to life or a fixed period of detention under section 53(2) as it was of one sentenced to detention during Her Majesty’s pleasure under section 53(1). In this connection, Lord Widgery C.J., at p. 1050, relied upon a passage from the judgment of [*483] Lord Parker C.J. in Reg. v. Chambers (1967) 51 Cr.App.R. 254, 256, when he said of sentences under section 53(2):

 

“Although these sentences take the form of 10 years and 12 years fixed terms, it is quite clear that under the Children and Young Persons Act [1933] the Home Secretary has an absolute discretion at any time to let them out on licence. As the judge said, he was giving these sentences in order in effect to make them into indeterminate sentences whereby the Home Secretary could, whenever it was thought safe, let these boys out.”

 

It follows that the flexible procedures then applied did not owe their origin to the fact that some young offenders (those sentenced under section 53(1)) were sentenced to be detained during Her Majesty’s pleasure. On the contrary, they applied to all young offenders, whether sentenced under section 53(1) or section 53(2). Indeed, it would have been most surprising if any distinction had in this respect been drawn between the two categories of young offenders.

 

In more recent years, it has been recognised in the case of adult prisoners that it is desirable to fix a penal element which has to be served before release, a policy which has been recognised by your Lordships’ House to be unobjectionable (see Reg. v. Secretary of State for the Home Department, Ex parte Doody [1994] 1 A.C. 531, 559C, per Lord Mustill). As Lord Woolf M.R. pointed out in his dissenting judgment in the Court of Appeal in the present case, at p. 90, there can be no legal objection to the Home Secretary applying the same approach to young offenders. As I have already recorded, he said:

 

“This is because it allows a young offender to know the period during which he is unlikely to be released and when he should prepare himself to put forward representations. The objection which is most often made by those subject to an indeterminate sentence is its uncertainty. They need a target date.”

 

It would be very strange if the benefit (such as it is) of such a policy should be available to young offenders sentenced to detention for life under section 53(2), but not to those sentenced to detention during Her Majesty’s pleasure under section 53(1). Certainly, I can derive no such conclusion from the words “during Her Majesty’s pleasure.”

 

For these reasons, quite apart from the impact of the Act of 1991, I am unable to accept the reasoning or conclusion of the Divisional Court on this point.

 

The relevant legislation: the Act of 1991

 

It is against that background that I now turn to the impact on these cases of Part II of the Act of 1991, which in my opinion puts the matter beyond all doubt. The Act made important changes in respect of the administration of criminal justice in this country; but it is Part II of the Act, concerned with the early release of prisoners, with which your Lordships are directly concerned. In order to understand the relevant provisions of the Act, however, it is necessary that I should first refer to developments in the policy applied by successive Home Secretaries in [*484] relation to release on licence, and to a decision of the European Court of Human Rights.

 

First of all, in a statement made by Mr. Leon Brittan on 30 November 1983 (Hansard (H.C. Debates), cols. 505-507: written answer), he stated that, in the case of life sentence prisoners, he looked to the judiciary for advice on the period to be served to satisfy the requirements of retribution and deterrence and to the Parole Board for advice on risk. This appears to have been the origin of the penal element or “tariff.” He further stated that the first review by the local review committee would normally take place three years before the expiry of that period, which would give time for preparation for release if the Parole Board recommended it, having considered risk. The ultimate discretion when to release would remain with the Home Secretary. This policy was further developed in a statement by Mr. Douglas Hurd on 23 July 1987 (Hansard (H.C. Debates), cols. 347-349: written answer), following the decision of a Divisional Court in Reg. v. Secretary of State for the Home Department, Ex parte Handscomb (1987) 86 Cr.App.R. 59, which was concerned with discretionary life sentences. Next, following the decision of your Lordships’ House in Reg. v. Secretary of State for the Home Department, Ex parte Doody [1994] 1 A.C. 531, a statement was made by Mr. Michael Howard on 27 July 1993 (Hansard (H.C. Debates), cols. 861-864: written answer) giving effect to that decision (with which your Lordships are not here directly concerned), in which he reiterated (with amendments) the policy with regard to the penal element referred to in previous policy statements in relation to mandatory life sentence cases, and concluded with the following words:

 

“Everything that I have said about the practice of the Secretary of State in relation to mandatory life sentence prisoners applies equally to persons who are, or will be, detained during Her Majesty’s pleasure under section 53(1) of the Children and Young Persons Act 1933, as well as to persons who have been, or will be, sentenced to custody for life under section 8 of the Criminal Justice Act 1982.”

 

Finally, I must refer to the decision of the European Court of Human Rights in Thynne v. United Kingdom (1990) 13 E.H.R.R. 666, in which it was held that, in the case of discretionary life sentence prisoners the penal element in whose sentences has expired, their continued detention should be subject to judicial control by virtue of article 5(4) of the Convention for the Protection of Human Rights and Fundamental Freedoms (1953) (Cmd. 8969).

 

It is against this background that the effect of Part II of the Act of 1991 can be understood. Section 34 of the Act is concerned with the release of discretionary life prisoners, and it is plain that this section has been drafted to give effect to the decision of the European Court in Thynne’s case. Although the section is drafted with reference to the requirement that a part of the prisoner’s sentence is to be served before his release is considered, nevertheless that part is to be determined by the court which sentenced him. Furthermore, once he has served that part of his sentence, and the Parole Board has directed his release, it is the duty of the Secretary of State to release him; and a discretionary life prisoner may require the Secretary of State to refer his case to the Board at any [*485] time after, inter alia, he has served the relevant part of his sentence. It follows that, in the case of such prisoners, the question of his release has been entirely “judicialised,” to use the current jargon.

 

The case of mandatory life prisoners is dealt with in section 35(2) and (3), which provide:

 

“(2) If recommended to do so by the 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.”

 

It is apparent that, in such cases, the Secretary of State retains his discretion both when to refer a case to the Parole Board and, if the Board recommends his release, whether to release him as so recommended.

 

Section 43 is concerned with young offenders. Subsections (1) (2) and (3) provide:

 

“(1) Subject to subsections (4) and (5) below, this Part [II] applies to persons serving sentences of detention in a young offender institution, or determinate sentences of detention under section 53 of the 1933 Act, as it applies to persons serving equivalent sentences of imprisonment. (2) Subject to subsection (5) below, this Part applies to persons serving – (a) sentences of detention during Her Majesty’s pleasure or for life under section 53 of the 1933 Act; or (b) sentences of custody for life under section 8 of the 1982 Act, as it applies to persons serving sentences of imprisonment for life. (3) References in this Part to prisoners (whether short-term, long-term or life prisoners), or to prison or imprisonment, shall be construed in accordance with subsections (1) and (2) above.”

 

Subsections (4) and (5) refer respectively to short-term prisoners under the age of 18 years, and persons under the age of 22 years who are released on licence.

 

It follows therefore that Part II of the Act (which is concerned with the early release of prisoners) applies both to young offenders sentenced to detention during Her Majesty’s pleasure under section 53(1) of the Act of 1933 and to those sentenced to detention for life under section 53(2). However, since the sentence on the former is a mandatory sentence, and the sentence on the latter is discretionary, their cases fall to be considered under different sections of the Act – the former under section 35, and the latter under section 34 (as is made plain by section 51(1) which provides that “‘life prisoner’ has the meaning given by section 34(7) above (as extended by section 43(2) above)” (emphasis added)). The practical result is that young offenders sentenced to detention for life fall within the judicialised regime in section 34, which makes express provision for the fixing of a part of the sentence which must be served before release, whereas those sentenced to detention during Her Majesty’s pleasure fall to be considered by the Secretary of State under the broad discretion now conferred upon him by section 35. Although the regime now applicable [*486] under the statute to the latter class of young offenders is that applicable in the case of adult life prisoners subject to mandatory life sentences (i.e., adult murderers), it would not, in my opinion, be strictly correct to describe such young offenders as subject to a life sentence. What has happened is that Parliament has recognised that sentences to detention during Her Majesty’s pleasure under section 53(1) have sufficient similarity to sentences of life imprisonment imposed upon adults to render it appropriate that the question of release should in both cases be provided for in the same statutory provision. This is no doubt because in both cases a mandatory sentence of indeterminate length has been imposed for murder, and if release is permitted on licence that licence will remain thereafter revocable by the Secretary of State for the rest of the offender’s natural life – as is made plain by section 37(3) of the Act, which is rendered applicable to young offenders detained during Her Majesty’s pleasure by section 43(2) and (3) and section 51(1).

 

There is nothing in the Act of 1991 to suggest that the discretion vested in the Secretary of State by section 35 is to be the subject of any special criteria when he considers the cases of young murderers sentenced to detention under section 53(1) of the Act of 1933, as opposed to adult murderers sentenced to mandatory life imprisonment in the ordinary way. Certainly there is nothing in section 35 itself to suggest that that is the case. Furthermore, there are contrary indications in the statute when provision is made for those serving determinate sentences and those sentenced to discretionary life imprisonment. The early release of young offenders sentenced to determinate sentences of detention under section 53(2) is governed by section 33(1) and (2) and section 35(1), applicable to short-term and long-term prisoners. It is true that Parliament, in section 43(4) and (5) of the Act of 1991, made special provision for young offenders; but that only emphasises the fact that, subject to such special provisions, the cases of such young offenders are governed by the provisions in the statute for adults serving similar terms of imprisonment: see section 43(1). Even more striking, however, is the fact that the release of young offenders sentenced to detention for life under section 53(2) of the Act of 1933 falls to be considered under section 34, under which Parliament has made express provision for a part of the sentence to be identified and served before they can be released: see section 34(3). It is, in my opinion, inconceivable that Parliament should have so provided in the case of those sentenced to detention for life under section 53(2), while contemplating that no penal element could be required to be served by young offenders convicted of the graver offence of murder under section 53(1). Plainly, in my opinion, Parliament proceeded on the basis that the Secretary of State was free to apply (as he had done in the past) a sentencing policy under section 35 which required the identification of a penal element which must be served before release, and was as free to apply that policy to murderers who were young offenders as he was in the case of adult murderers; and, having regard to the legislative history to which I have already referred, Parliament was fully entitled to do so. For these reasons, I find myself to be in agreement with the majority of the Court of Appeal on the main issue. [*487]

 

I wish to add that none of this means that the Secretary of State is entitled to ignore the fact that the offender in question is a young offender. It was, of course, for this reason that he reduced the penal element for the two applicants from 25 years (considered appropriate for an adult who had committed a similar offence) to 15 years. Moreover, the fact that the Secretary of State specifies a penal element which has to be served by a young offender sentenced to detention under section 53(1) of the Act of 1933 does not mean that his welfare or rehabilitation are being ignored. On the contrary, a regime is established for his detention which is specifically directed towards matters of this kind. But it does mean that good progress during detention does not have the effect of reducing the penal period. That is regarded as being consistent with the nature of punishment. This is no doubt why, under the statutory regime in section 34 which is applicable in the case of young offenders sentenced to life imprisonment under section 53(2) of the Act of 1933, no provision is made for any such reduction, the only statutory power of release during the penal period being on compassionate grounds: see section 36, which is equally applicable to discretionary life prisoners and to mandatory life prisoners (including young offenders sentenced to detention under section 53(1)). It would be very strange if the Secretary of State should be required, when exercising his discretion under section 35(2), to take account of good progress during detention with a view to reducing the penal period in the case of a young offender who is a murderer, when that course has not been made available by Parliament in the case of a young offender sentenced to detention for life for a lesser offence, for example, one who has attempted to kill but has only succeeded in maiming his victim. I cannot believe that Parliament should have contemplated so extraordinary and anomalous a differentiation as this.

 

For the same reasons I do not, with all respect, feel able to accept the reasoning of Lord Woolf M.R. in his dissenting judgment in the Court of Appeal. Since there is no basis in the statute for departure, on the ground of good progress during detention, from a penal element set under section 34 in the case of a young offender sentenced to detention for life under section 53(2) of the Act of 1933, Parliament cannot have contemplated that the Secretary of State should, in the exercise of his discretion under section 35(2), have been bound to consider departing, on the ground of good progress during detention, from a penal period specified by him in respect of a young offender sentenced to detention for the greater offence of murder under section 53(1).

 

For these reasons I would dismiss the cross-appeals of the two applicants. I turn therefore to the question whether the Home Secretary has erred in the exercise of his discretion.

 

The appeal of the Secretary of State

 

I now turn to the appeal of the Secretary of State, and I must first identify the grounds upon which the Court of Appeal, ante, pp. 413D et seq. decided to quash his decisions. They were: (1) failure to disclose material. (a) Failure to disclose the judge’s summary of the facts contained in his report to the Home Secretary (per Lord Woolf M.R., Hobhouse and Morritt L.JJ.). (b) Failure to disclose a psychiatric report about Thompson [*488] which was sent to the Home Secretary (per Hobhouse L.J.). (c) Failure to disclose information about an earlier case relied on by the Home Secretary (per Hobhouse L.J.). (2) Failure by the Home Secretary himself to obtain material such as psychiatric and social inquiry reports, to enable him to form his own view about the responsibility to be attributed to the applicants (per Lord Woolf M.R., Hobhouse and Morritt L.JJ.). (3) Taking into account petitions and other material from the public demanding an increase in the tariff recommended by the judiciary (per Lord Woolf M.R. and Hobhouse L.J.; Morritt L.J. disagreed).

 

Of these various complaints, I have come to the conclusion that there is substance in the last; and for that reason I would dismiss the appeal of the Secretary of State. I do not consider that there was substance in the other complaints; but, in view of my conclusion on the last one, I trust that I will be forgiven if I give my reasons for rejecting the others comparatively briefly.

 

(1)(a) Failure to disclose the judge’s summary of the facts. It is obviously desirable that, in cases such as these, the applicants and their advisers should know the facts set out in the judge’s summary, on which the Secretary of State will rely. It is therefore most satisfactory that the Secretary of State should have adopted the practice of disclosing the relevant judicial comments in full. In the present case, the Secretary of State sought to act in accordance with the principle stated by Lord Mustill in Reg. v. Secretary of State for the Home Department, Ex parte Doody [1994] 1 A.C. 531, 564, and so informed the applicants of the gist of the advice received by him from the judiciary. However on 23 January 1995, in accordance with the new policy, the applicants were sent the full text of the judge’s observations excluding one paragraph relating to future risk (which was later supplied on 19 May 1995). The applicants were then invited to make any further representations they wished about their tariff. I should add that, at the hearing before the Appellate Committee, your Lordships went through the judge’s summary of the facts line by line with Mr. Fitzgerald, and it transpired that the omitted matters complained of by him were relatively slight. In all the circumstances, I can see no unfairness in this respect on the part of the Secretary of State.

 

(1)(b) Failure to disclose a psychiatric report. With great respect to Hobhouse L.J., this point (which was not relied on by the applicants before the Court of Appeal) is, in my opinion, without substance. The report related to Thompson, and was voluntarily sent to the Secretary of State; but it concluded that that no reliable view could be reached about Thompson’s state of mind at the material time, and the Secretary of State understandably concluded that it did not assist him. There was, in my opinion, no unfairness in not disclosing it.

 

(1)(c) Failure to disclose information about an earlier case. Again there is, in my opinion, no substance in this point, which was not previously relied upon by the applicants. The Secretary of State is fully entitled to have regard to other comparable cases, and there is no suggestion that disclosure of a particular case would have enabled the applicants to advance any further representations.

 

(2) Failure by the Secretary of State himself to obtain material in the form of psychiatric or other reports. In my opinion, there is no duty on the [*489] Secretary of State to obtain such reports in every case, though sometimes it may be desirable for him to do so. In the present case, the Secretary of State had the benefit of the assessment by the trial judge, who expressed his views to the Secretary of State based upon detailed reports and upon the evidence. It must not be forgotten that the judge had the benefit of presiding over the whole trial, and hearing the whole evidence and submissions by counsel. It is plain that the Secretary of State formed the opinion that he, like Lord Taylor of Gosforth C.J., could safely proceed upon the basis of the judge’s assessment. His view that he could do so was reinforced by the conclusion reached in the psychiatric report voluntarily sent to him, in which the opinion was expressed that no reliable conclusion could be reached about Thompson’s state of mind at the relevant time. In my opinion, the Secretary of State was entitled to form this view and act upon it. In any event, the Secretary of State has stated that if any information of a psychiatric nature comes to light which is relevant to the tariff, it will be considered. In all the circumstances, I can see no unfairness in this respect.

 

(3) Having regard to petitions and other material. As I have already indicated, I see great substance in this point. I will therefore consider it in some detail.

 

It is plain from his decision letters that the Secretary of State did indeed have regard, when he made his decision to fix the penal element in the applicants’ sentences at 15 years, to the petitions and letters to which I have already referred. As stated in the decision letters, he did so as evidence of the public concern about this case.

 

That there was public concern about this terrible case, there can be no doubt. Any humane person must have felt, not only the deepest sympathy for little James Bulger and his family, but horror that two boys as young as the two applicants should have perpetrated such a brutal crime. The Home Secretary hardly needed the media to inform him of this. But events such as this tend to provoke a desire for revenge, and call for the infliction of the severest punishment upon the perpetrators of the crime. This elemental feeling is perhaps natural, though in today’s society there is a tendency for it to be whipped up and exploited by the media. When this happens, it can degenerate into something less acceptable. Little credit can be given to favourable responses to a campaign that the two applicants should “rot in jail” for the rest of their lives, especially when it is borne in mind that those who responded may well have been unaware that, even after the penal element in their sentences had been served, their release would not be automatic but would be the subject of very careful consideration by the responsible authorities. It was the submission of Mr. Fitzgerald for Venables that material such as that which the Secretary of State had regard to in the present case was no more than public clamour, and as such worthless. It should therefore have been disregarded by the Secretary of State. In the Court of Appeal this submission was accepted by Lord Woolf M.R. and Hobhouse L.J., but rejected by Morritt L.J.

 

I approach the matter as follows. Under section 35 of the Act of 1991, the Secretary of State has a discretion regarding the release of mandatory life prisoners, including young offenders sentenced to detention during Her [*490] Majesty’s pleasure. In the case of such prisoners, there is no statutory provision requiring the fixing of a penal element which must be served. That arises from the policy that there should be such an element, first established by Mr. Leon Brittan in 1983 (Hansard (H.C. Debates), 30 November 1983, cols. 505-507: written answer), and subsequently continued by later Secretaries of State. It may therefore be said that the same considerations apply to the implementation of this policy as apply to the decision to release when taken in cases such as these. Moreover, in Reg. v. Secretary of State for the Home Department, Ex parte Doody [1994] 1 A.C. 531, 559, Lord Mustill, speaking of the Secretary of State’s discretion with regard to release, spoke of the Secretary of State as being entitled “to have regard to broader considerations of a public character than those which apply to an ordinary sentencing function.”

 

Even so, when it comes to fixing the penal element, different considerations apply. In doing so, the Secretary of State is not looking at the whole picture at the material time when deciding whether in all the circumstances it is appropriate for a life prisoner to be released, when considerations of a broader character may properly be relevant. On the contrary, he is deciding what in future will be the period of time which a prisoner must serve, compassionate considerations apart, before he may be released, if it is then thought fit. It is scarcely surprising that, in Ex parte Doody, at p. 557, Lord Mustill said of this exercise that:

 

“Even if the Home Secretary still retains his controlling discretion as regards the assessment of culpability the fixing of the penal element begins to look much more like an orthodox sentencing exercise, and less like a general power exercised completely at large.”

 

Furthermore this approach derives strong support from the statutory context in which the discretion is now to be found. For in the same Part [II] of the same statute, the fixing of the penal element for discretionary life prisoners is, by section 34 of the Act of 1991, performed by the judges. They will undoubtedly act in a judicial manner when doing so; and indeed that they should do so must have been the intention of Parliament when entrusting this function to them. In so doing, they will disregard any evidence of the kind now under consideration as irrelevant and prejudicial. It follows that, if the Secretary of State was right to have regard to it, there will exist an extraordinary and anomalous conflict between neighbouring sections, sections 34 and 35, in the same statute.

 

It is, in my opinion, impossible to explain this conflict on the basis that a relevant distinction is to be drawn in this context between discretionary and mandatory life sentences. In my opinion the only way in which the conflict can be resolved is by recognising that, if the Secretary of State implements a policy of fixing a penal element of the sentence of a mandatory life prisoner pursuant to his discretionary power under section 35, he is to this extent exercising a function which is closely analogous to a sentencing function with the effect that, when so doing, he is under a duty to act within the same constraints as a judge will act when exercising the same function. In particular, should he take into account public clamour directed towards the decision in the particular case which [*491] he has under consideration, he will be having regard to an irrelevant consideration which will render the exercise of his discretion unlawful.

 

In so holding, I wish to draw a distinction in the present context between public concern of a general nature with regard to, for example, the prevalence of certain types of offence, and the need that those who commit such offences should be duly punished; and public clamour that a particular offender whose case is under consideration should be singled out for severe punishment. It is legitimate for a sentencing authority to take the former concern into account, but not the latter. In my opinion, by crossing the boundary from one type of public concern to the other, the Secretary of State erred in the present case. In reaching this conclusion, I find myself to be in substantial agreement with the opinion expressed by Lord Woolf M.R. on this point.

 

For these reasons, I would dismiss the appeal of the Secretary of State.

 

LORD BROWNE-WILKINSON. My Lords,

 

Introduction

 

The murder of James Bulger by the two applicants, Robert Thompson and Jon Venables, was a cruel and sadistic crime. It is made even more horrific by the fact that the applicants were only 10&12frac; years old at the time. It is not surprising that the case has given rise to much public concern and, indeed, outrage. There is room for a wide range of attitudes to the proper treatment of the two murderers. At one extreme there are those who consider that, even though the applicants were only 10&12frac; years old at the time, the crime was so terrible that they should spend the rest of their life in detention. At the other extreme, there are those who take the view that punishment as such is inappropriate for those of such tender age as the applicants and that the treatment that they should receive should be purely remedial, save so far as the public need to be protected from risk. I suspect that most people take a view somewhere between these two extremes.

 

It cannot be too strongly emphasised that it is not for the courts or for your Lordships’ House to determine how long these two boys should be detained. Parliament has laid down in section 53(1) of the Children and Young Persons Act 1933 (as substituted) that a child shall not be sentenced to life imprisonment but in lieu thereof the courts shall sentence him to be detained during Her Majesty’s pleasure. That is the sentence which has been passed on these two applicants. It is accepted by all parties that the decision how long the two applicants shall remain subject to detention is a decision which lies within the discretion of the Secretary of State, i.e. the Home Secretary. By decision letters dated 22 July 1994 the Secretary of State determined that the applicants should be detained for a minimum of 15 years. The question is not whether your Lordships agree that such a period is appropriate. The only question is whether the Secretary of State acted lawfully in fixing that period.

 

The discretion to release

 

Although there is dispute as to the meaning of the sentence of detention “during Her Majesty’s pleasure,” no doubt surrounds the [*492] discretion of the Secretary of State to release such a prisoner. Under section 43(2) of the Criminal Justice Act 1991, the provisions of Part II of the Act of 1991 (relating to the release of adult prisoners serving life sentences) are made applicable to children who are serving sentences of detention during Her Majesty’s pleasure. The Secretary of State may release the detained child if recommended to do so by the Parole Board and after consultation with the Lord Chief Justice and the trial judge if available: section 35(2) of the Act of 1991. Before the Parole Board can make any such recommendation, the Secretary of State has to refer the case to the Board for its advice: section 35(3) of the Act of 1991. Therefore the release of a child detained during Her Majesty’s pleasure is wholly dependent on, first, the Secretary of State exercising a discretion whether or not to refer the case to the Parole Board and, second, the Secretary of State deciding whether or not to adopt any recommendation made by the Parole Board that the detained person should be released.

 

If the Secretary of State determines to release a person detained during Her Majesty’s pleasure, such release is made on licence which may either be conditional or unconditional. If unconditional, the licence remains in force until his death unless, in the meantime, it has been revoked by the Secretary of State on one of the grounds laid down in section 39 of the Act of 1991: see section 37(3) of the Act of 1991. Under section 39(1) and (2) once the Secretary of State has released on licence, apart from cases of emergency, he can revoke that licence so as to recall the former detainee only upon the recommendation of the Parole Board. If the detainee is recalled, he has a right to have his case considered by the Board and, if the Board so recommends, to be released by the Secretary of State on licence.

 

Therefore the effect of a sentence of detention during Her Majesty’s pleasure is: (a) the child is to be detained for an indeterminate period, the duration of which is wholly within the discretion of the Home Secretary; and (b) when the Home Secretary, on the recommendation of the Parole Board, releases the detainee on licence, the detainee is liable to be recalled throughout his life but such recall is subject to the decision of the Parole Board and not within the discretion of the Home Secretary.

 

The policy of the Secretary of State

 

(a) The tariff

 

Over the years, the Secretary of State has adopted a tariff policy in exercising his discretion whether to release adults who have been sentenced to life imprisonment. This was first publicly announced in Parliament by Mr. Leon Brittan on 30 November 1983 (Hansard (H.C. Debates), cols. 505-507: written answer). In essence, the tariff approach is this. The life sentence is broken down into component parts, viz., retribution, deterrence and protection of the public. The trial judge and the Lord Chief Justice advise the Secretary of State as to the sentence which would be appropriate for the crime having regard to the elements of retribution and deterrence. In the light of that advice (and not being in any way bound by it) the Secretary of State makes his own decision as to the minimum period which the prisoner will have to serve in order to satisfy the requirements [*493] of retribution and deterrence. This is the tariff period. The policy provides that, until three years before the tariff period expires, the Secretary of State will not refer the case to the Parole Board for its advice as to whether the prisoner should or should not be released. Moreover, until the tariff period has expired the Secretary of State will not exercise his discretion to release on licence.

 

This basic approach to adult prisoners has developed over the years. In particular, as a result of the decision of the European Court of Human Rights in Thynne v. United Kingdom, 13 E.H.R.R. 666, a distinction has had to be drawn between murderers for whom the sentence of life imprisonment is mandatory under English law and others sentenced to life imprisonment where the sentence is not mandatory and has been imposed by the judge because he considers that the prisoner may, if released after a determinate sentence appropriate to the crime, present a continuing risk to society (a discretionary life sentence). The Strasbourg court held that under article 5(4) of the European Convention for the Protection of Human Rights and Fundamental Freedoms a discretionary life prisoner who had served the tariff period was entitled to have the question whether his continuing detention thereafter on the grounds of risk was justified determined by “a court.” In order to comply with this decision, Part II of the Act of 1991 was passed by Parliament. It provides that the treatment of discretionary life prisoners is (to use an unpleasant but invaluable word) “judicialised.” In the case of discretionary life prisoners, the tariff is fixed by the trial judge and the risk after expiry of the tariff period is determined by the Parole Board, to whom the Secretary of State is bound to refer the case. The Secretary of State is bound to release the discretionary life prisoner if the Parole Board so directs: see section 34.

 

However, in Thynne, a distinction was drawn between discretionary life prisoners and mandatory life prisoners. The Strasbourg decision in Thynne did not affect mandatory life prisoners: the Secretary of State’s discretion as to their release is preserved by section 35 of the Act of 1991, as is his discretion whether or not to refer the case to the Parole Board. Since, under section 53(1) of the Act of 1933, it is mandatory to sentence a child murderer to detention during Her Majesty’s pleasure, the effect of section 43 of the Act of 1991 is to preserve the Secretary of State’s discretions in relation to a child detained during Her Majesty’s pleasure.

 

It follows that it is within the Secretary of State’s discretion whether or not to release both mandatory life prisoners and children detained during Her Majesty’s pleasure. The statement to Parliament made by Mr. Howard, the Secretary of State, on 27 July 1993 (Hansard (H.C. Debates), cols. 861-864: written answer) made it clear that the tariff principle first enunciated publicly by Mr. Leon Brittan in 1983 would continue to apply to adults sentenced to mandatory life imprisonment. The tariff period (being the minimum period necessary to reflect the elements of retribution and deterrence) would be fixed by the Secretary of State at the beginning of the sentence after receiving judicial advice. The Secretary of State would then fix the date for the first review (i.e. the first reference of the matter to the Parole Board), as being a date three years before the expiry of the tariff. The statement emphasised that the tariff was only being fixed as an initial view. The Secretary of State said (col. 863):

 

“It therefore remains possible for me, or a future Secretary of State, exceptionally to revise that view of the minimum period, either by [*494] reducing it, or by increasing it where I, or a successor in my office, concludes that, putting aside questions of risk, the minimum requirements of retribution and deterrence will not have been satisfied at the expiry of the period which had previously been determined.”

 

The statement further emphasised (col. 864) that the Secretary of State endorsed the statement of policy made on 16 July 1991 by Dame Angela Rumbold (Hansard (H.C. Debates), cols. 311-312):

 

“In a discretionary case, the decision on release is based purely on whether the offender continues to be a risk to the public. The presumption is that once the period that is appropriate to punishment has passed, the prisoner should be released if it is safe to do so. The nature of the mandatory sentence is different. The element of risk is not the decisive factor in handing down a life sentence. 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. In exercising his continued discretion in that respect, the Home Secretary must take account, not just of the question of risk, but of how society as a whole would view the prisoner’s release at that juncture. The Home Secretary take[s] account of the judicial recommendation, but the final decision is his.”

 

Up to this point, the Home Secretary’s 1993 statement had been dealing with the release of adults sentenced to mandatory life imprisonment. However, at the end of this statement the Home Secretary said this:

 

“Everything that I have said about the practice of the Secretary of State in relation to mandatory life sentence prisoners applies equally to persons who are, or will be, detained during Her Majesty’s pleasure under section 53(1) of the Children and Young Persons Act 1933, as well as to persons who have been, or will be, sentenced to custody for life under section 8 of the Criminal Justice Act 1982”

 

Accordingly, the tariff system, whereby the punitive and deterrent element is set by the Secretary of State soon after the date of conviction, applies in just the same way to children sentenced to detention during Her Majesty’s pleasure as it applies to adult murderers.

 

(b) Flexibility

 

There are passages in the Court of Appeal judgment which suggest that the only question in this case is whether the Secretary of State was entitled to adopt any tariff policy in dealing with children sentenced to be detained during Her Majesty’s pleasure. In my judgment that is not the decisive point. What is crucial is whether the particular policy adopted is, in relation to children, sufficiently flexible to permit the Secretary of State [*495] to take into account all those factors to which he ought to have regard in exercising his discretion in relation to children if he is to act lawfully.

 

Mr. Leon Brittan’s 1983 statement contained the following paragraph:

 

“When a date for a first, or subsequent, formal review is set for several years ahead, the Home Office will review the case on the basis of reports of the kind now prepared for formal review, at regular, and in any event not longer than three-year, intervals. Moreover, governors will be told to report at once any exceptional development requiring action. These procedures will ensure that I can consider any special circumstances or exceptional progress which might justify changing the review date. But except where a prisoner has committed an offence for which he has received a further custodial sentence, first formal review date will not be put back. In any event, ministers will review every case when a life sentence prisoner has been detained for 10 years.” (Emphasis added.)

 

Thus under the 1983 policy statement it was clear, even in the case of adult life prisoners, that their position would be kept under tri-annual review and that the Secretary of State would consider any special circumstances “or exceptional progress” which might justify bringing forward the review date and hence the earlier release of the prisoner, i.e. the facts relating to the prisoner’s behaviour after the commission of the offence could be taken into account. It was the presence of this flexibility which proved decisive in In re Findlay [1985] A.C. 318.

 

Policy in this regard seems to have changed since 1983. The passage from the Secretary of State’s statement in 1993 which I have quoted refers to “exceptionally” revising the tariff period by “reducing it.” However, it was made clear to your Lordships both from the evidence and in submissions that in making any change to the tariff period the Secretary of State would only have regard to matters relevant to the circumstances of the commission of the crime or the applicant’s state of mind when the offence was committed. The Secretary of State would not in any circumstances vary the tariff period by reason of events occurring after the commission of the crime.

 

Therefore, under the policy applied by the Secretary of State to these applicants, the way in which they mature hereafter or behave is irrelevant: however they develop, the tariff period will remain fixed at a minimum of 15 years.

 

The consequences of the Secretary of State’s decisions

 

The position of these applicants is therefore as follows. Although they were only 10&12frac; years old at the date of the crime, until they have reached the age of 21 or 22 the Parole Board will not have an opportunity to consider their progress in detention. During that period they will have passed through puberty, adolescence and young manhood. Even when the Parole Board considers the matter, the applicants will not be released until the age of 24 or 25 at the earliest. For 12 years (that is to say, throughout their minorities) the welfare of the applicants themselves will be wholly irrelevant to the question of their release and will not be considered. The [*496] only exception to this will be if fresh facts emerge as to their state of mind when they were 10&12frac; and committed the offence.

 

My Lords, it would be surprising if such a policy towards young children (however heinous their offence) is lawful in this country. As the speeches of my noble and learned friends Lord Steyn and Lord Hope of Craighead demonstrate, ever since the Children Act 1908 there has been legislation in this country requiring child offenders to be dealt with on a basis different from that applicable to adults. In the case of children, Parliament has directed that attention should be given not only to the requirements of punishment and protection of the public from risk but also to the welfare of the child offender. What was, in my view, tacit in the Act of 1908 was made explicit by section 44(1) of the Act of 1933 (as amended by section 72(4) of and Schedule 6 to the Children and Young Persons Act 1969) which provides:

 

“Every court in dealing with a child or young person who is brought before it, either as . . . an offender or otherwise, shall have regard to the welfare of the child or young person . . .”

 

That subsection is still in force and is one of the basic principles applicable to dealing with child offenders. It is clear from the statutory direction that in dealing with children (whether by sentencing or otherwise) a court is bound to take into account the welfare of the child. Mr. Pannick, for the Secretary of State, felt unable to contend that the Secretary of State in exercising his discretion in relation to child offenders was not under the same duty.

 

The relevant question

 

In these circumstances, the first question to be determined is whether the Secretary of State, by adopting a policy (not laid down by Parliament) which precludes both himself and the Parole Board from having any regard to the circumstances and welfare of the applicants for a period of 12 years, has acted within the discretionary powers conferred on him in relation to children detained during Her Majesty’s pleasure. The answer to this question depends upon the following points: (1) In what circumstances is it lawful to adopt a non-statutory policy in exercising a statutory discretionary power? (2) What are the factors relevant to the exercise of the discretion conferred on the Secretary of State in relation to children detained during Her Majesty’s pleasure? and (3) Did the Act of 1991 change the nature of that discretion?

 

I will consider these in turn.

 

Discretion and policy – the law

 

When Parliament confers a discretionary power exercisable from time to time over a period, such power must be exercised on each occasion in the light of the circumstances at that time. In consequence, the person on whom the power is conferred cannot fetter the future exercise of his discretion by committing himself now as to the way in which he will exercise his power in the future. He cannot exercise the power nunc pro tunc. By the same token, the person on whom the power has been conferred cannot fetter the way he will use that power by ruling out of [*497] consideration on the future exercise of that power factors which may then be relevant to such exercise.

 

These considerations do not preclude the person on whom the power is conferred from developing and applying a policy as to the approach which he will adopt in the generality of cases: see Rex v. Port of London Authority, Ex parte Kynoch Ltd. [1919] 1 K.B. 176; British Oxygen Co. Ltd. v. Board of Trade [1971] A.C. 610. But the position is different if the policy adopted is such as to preclude the person on whom the power is conferred from departing from the policy or from taking into account circumstances which are relevant to the particular case in relation to which the discretion is being exercised. If such an inflexible and invariable policy is adopted, both the policy and the decisions taken pursuant to it will be unlawful: see generally de Smith, Woolf and Jowell, Judicial Review of Administrative Action, 5th ed. (1995), pp. 506 et seq., paras. 11-004 et seq.

 

The position is well illustrated by your Lordships’ decision in In re Findlay [1985] A.C. 318 which was itself concerned with the legality of the tariff policy announced in 1983 by Mr. Leon Brittan (Hansard (H.C. Debates), 30 November 1983, cols. 505-507: written answer). Your Lordships held that the policy was lawful because it provided for a departure from the policy in exceptional circumstances. Lord Scarman said, at p. 336:

 

“The question, therefore, is simply: did the new policy constitute a refusal to consider the cases of prisoners within the specified classes? The answer is clearly ‘no.’ Consideration of a case is not excluded by a policy which provides that exceptional circumstances or compelling reasons must be shown because of the weight to be attached to the nature of the offence, the length of the sentence and the factors of deterrence, retribution, public confidence, all of which it was the duty of the Secretary of State to consider. . . . I see nothing wrong in classifying offenders according to the character and gravity of their offences and to the length of sentences imposed provided always that the classification does not preclude consideration of other relevant factors such as prison record, personal or family circumstances and the element of risk (or its absence) in the event of early release.”

 

In my judgment this passage demonstrates that what saved Mr. Brittan’s 1983 policy from being unlawful was that it contained within it the flexibility, in exceptional circumstances, to have regard to relevant circumstances and such circumstances included not only those factors relevant to the culpability of the offence but also “other relevant factors such as prison record, personal or family circumstances.”

 

It is not necessary in this case to consider how far the 1993 policy (Hansard (H.C. Debates), 27 July 1993, cols. 861-864: written answer) (which precludes consideration of matters occurring after the date of the offence such as prison record and personal circumstances) is lawful in relation to adult life prisoners. In this appeal, your Lordships are only concerned with the lawfulness of the policy as applied to children sentenced to be detained during Her Majesty’s pleasure. In relation to such children, the question is whether it is lawful to adopt a policy which, even in exceptional circumstances, treats as irrelevant the progress and development [*498] of the child who has been detained. This is plainly the effect of the inflexible 1993 policy. The answer to that question must depend upon the character of a sentence of detention during Her Majesty’s pleasure. If such a sentence requires the Secretary of State to have regard not only to those factors relevant in considering an adult life prisoner (retribution, deterrence and risk) but also to the progress and development of the child whilst detained, it seems to me clear that the policy is unlawful since it excludes from consideration, even in exceptional circumstances, a factor relevant to the decision whether or not to release the child.

 

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:

 

“A person convicted of an offence who appears to the court to have been under the age of 18 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 any such person; but in lieu thereof the court shall (notwithstanding anything in this or any other Act) sentence him to be detained during Her Majesty’s pleasure, and if so sentenced he shall be liable to be detained in such place and under such conditions as the Secretary of State may direct.”

 

In the Court of Appeal, ante, p. 446D, Hobhouse L.J. 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 Lord Woolf M.R. 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 [*499] 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 (Treaty Series No. 44 of 1992) (Cm. 1976), which was drawn to our attention in a helpful brief lodged by Justice. The Convention provides, inter alia:

 

“3.1 In all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies, the best interests of the child shall be a primary consideration . . . 40.1 States parties recognise the right of every child alleged as, accused of, or recognised as having infringed the penal law to be treated in a manner consistent with the promotion of the child’s sense of dignity and worth, which reinforces the child’s respect for the human rights and fundamental freedoms of others and which takes into account the child’s age and the desirability of promoting the child’s reintegration and the child’s assuming a constructive role in society.”

 

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 3.1 requires that in the exercise of administrative, as well as court, powers the best interests of the child are a “primary consideration.” Article 40.1 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 [*500] 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 (Hansard (H.C. Debates), 16 July 1991, cols. 311-312) 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” (subsection (1)(b)) (“the tariff”); after the tariff has expired, the Secretary of State is bound, if so requested, to refer the case to the Parole Board (subsection (5)(a)) and if they recommend release to release the prisoner (subsection (3)). 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 [*501] 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 (subsection (3)) 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 of Human Rights in Thynne v. United Kingdom, 13 E.H.R.R. 666 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 and Fundamental Freedoms 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 prisoner 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 [*502] 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 (“Crime, Justice and Protecting The Public” (1990) (Cm. 965)) 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.

 

Conclusion

 

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 [*503] children, the factors of retribution, deterrence and risk are not the only relevant factors: the welfare of the child is also a relevant factor.

 

Other points

 

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” (Reg. v. Secretary of State for the Home Department, Ex parte Doody [1994] 1 A.C. 531, 559, perLord Mustill) 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 appeals.

 

LORD LLOYD OF BERWICK. My Lords,

 

Introduction

 

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 His 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’ [*504] 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 [1964] 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 (Hansard (H.C. Debates), cols. 505-507: written answer) 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 Act of 1933.

 

It was not long before Mr. Leon Brittan’s new policy was challenged. In In re Findlay [1985] A.C. 318, it was argued that the new policy was unlawful. The classification of offences by reference to their gravity was said to be inconsistent with each case being considered individually on its merits. The gravity of the offence was only one factor. It should not be considered to the exclusion of other relevant factors. This was the argument which was accepted by Browne-Wilkinson L.J. in his dissenting judgment in the Court of Appeal: see at p. 334. In the House, Lord Scarman said, at p. 335, that he had difficulty in understanding how a Secretary of State could properly manage the complexities of his statutory duty without a policy. After referring to an observation of Templeman L.J. in Attorney-General ex rel. Tilley v. Wandsworth London Borough Council [1981] 1 W.L.R. 854, he continued:

 

“But the duty of the Secretary of State in this case is, as I have already shown, a very complex one. Indeed, the complexities are such that an approach based on a carefully formulated policy could be said to be called for. There is, as I understand the law, nothing to prevent such an approach, where it is appropriate.”

 

So there was no objection to the Home Secretary adopting a policy in guiding the exercise of his discretion.

 

On 23 July 1987 (Hansard (H.C. Debates), cols. 347-349: written answer) Mr. Douglas Hurd made a further statement in the light of the decision of the Divisional Court in Reg. v. Secretary of State for the Home Department, Ex parte Handscomb, 86 Cr.App.R. 59. He announced that the first formal review by the Home Office would take place as soon as [*505] practical after conviction, instead of being postponed for three or four years as had been the practice hitherto. The Home Secretary would then determine the date for the first formal review by the Parole Board, which would normally be three years before the earliest release date. Mr. Hurd made clear that in setting the first review date he would take account not only of the requirement of retribution and deterrence, but also, among other factors, the need to maintain public confidence in the criminal justice system:

 

“I shall ensure that the timing of the first formal review in such cases is fixed in accordance with my overall policy for ensuring that the time served by prisoners serving sentences for the worst offences of violence fully reflects public concern about violent crime:” col. 349.

 

Then in 1990 came the decision of the European Court of Human Rights in Thynne v. United Kingdom, 13 E.H.R.R. 666. That decision is not of direct relevance, since it was concerned with adults serving discretionary life sentences after the punitive period of their imprisonment had expired. The court held that their continued detention was in violation of article 5(4) of the European Convention on Human Rights and Fundamental Freedoms. Accordingly it became necessary for the Government to legislate. Part II of the Criminal Justice Act 1991 is headed “Early Release of Prisoners.” It is based on the recommendations of the committee chaired by Lord Carlisle of Bucklow Q.C. in their review of the parole system (“The Parole System in England and Wales” (1988) (Cm. 532)). Section 34 was the Government’s specific response to the decision of the European Court in Thynne’s case. It imposes a duty on the Secretary of State to release a discretionary life prisoner once he has served that part of his sentence which is set by the court as “the tariff” for retribution and deterrence, and once the Parole Board has directed his release. In the case of discretionary life prisoners the Secretary of State no longer has any discretion as to the release date.

 

Section 35 is different. It covers long-term and life prisoners, other than those serving a discretionary life sentence. Subsection (2) confers on the Secretary of State the power to release a prisoner serving a mandatory life sentence, if recommended to do so by the Parole Board, but only after consultation with the judiciary. Subsection (3) prohibits the Board from making a recommendation for release unless the Secretary of State has first referred the case to the Board. There is nothing in section 35 which requires the Secretary of State to refer the case to the Board at any particular time or at all. It is left to the discretion of the Secretary of State.

 

Section 43 concerns young offenders. Section 43(1) covers those serving determinate sentences of detention under section 53(2) of the Act of 1933. It provides that Part II of the Act of 1991 shall apply to such persons as if they were serving an equivalent sentence of imprisonment. Section 43(2) covers those serving indeterminate sentences of detention under section 53, that is to say, those who are detained during Her Majesty’s pleasure under section 53(1) of the Act of 1933, and those detained for life under section 53(2). It provides that Part II of the Act of 1991 shall apply to such persons as if they were serving sentences of imprisonment for life. [*506]

 

Finally, section 51(1) provides that “life prisoner” in Part II means a life prisoner as defined in section 34(7), but extended to include those covered by section 43(2).

 

It is on the interaction of section 35(2) and section 43(2) that the outcome of the main issue in this appeal depends. But it is first necessary to complete the background material, by referring to the next occasion on which the Home Secretary’s procedures for releasing life prisoners was challenged. This came with the decision of the House in Reg. v. Secretary of State for the Home Department, Ex parte Doody [1994] 1 A.C. 531. It was held in that case that the Secretary of State must afford a person found guilty of murder an opportunity to make effective representations as to the date of his first referral to the Parole Board, and hence, by adding three years, his earliest date of release. The offender must be informed of the tariff recommended by the judges, and the gist of their advice to the Home Secretary. I return to these points later. At this stage I wish only to draw attention to what Lord Mustill had to say as to a further argument advanced by the applicants in that case, namely, that the Home Secretary acted unlawfully by setting a tariff period in excess of that recommended by the judiciary. It was submitted that the judges were uniquely skilled and experienced in matching punishment to the needs of retribution and deterrence, and that the Secretary of State should not interfere. This argument was roundly rejected by the House. Lord Mustill said, at p. 559:

 

“The Secretary of State is compelled, or at least entitled, to have regard to broader considerations of a public character than those which apply to an ordinary sentencing function. It is he, and not the judges, who is entrusted with the task of deciding upon the prisoner’s release, and it is he who has decided, within the general powers conferred upon him by the statute, to divide his task into two stages. It is not, and could not be, suggested that he acted unlawfully in this respect and I can see no ground whatever for suggesting that by doing so he deprived himself entirely of his discretion at the first stage, and delivered it into the hands of the judges. If the decision in Ex parte Handscomb, 86 Cr.App.R. 59 is to a contrary effect, then with due respect to a very experienced court, I must disagree.”

 

Within a month of the decision of the House in Ex parte Doody, the Secretary of State, Mr. Michael Howard, made a further policy statement (Hansard (H.C. Debates), 27 July 1993, cols. 861-864: written answer). He announced that he would give effect to the judgment of the House in Doody by arranging for those convicted of murder to be informed of the substance (“gist”) of the judicial recommendations. He continued:

 

“I take this opportunity to emphasise that the view which I or a minister acting under my authority takes, at the beginning of a mandatory life sentence, of the period necessary to satisfy the requirements of retribution and deterrence is an initial view of the minimum period necessary to satisfy those requirements. It therefore remains possible for me, or a future Secretary of State, exceptionally to revise that view of the minimum period, either by reducing it, or by increasing it where I, or a successor in my office, concludes that, putting aside questions of risk, the minimum requirements of [*507] retribution and deterrence will not have been satisfied at the expiry of the period which had previously been determined:” col. 863.

 

He went on to outline the factors which he would take into account before releasing a convicted murderer:

 

“. . . I will consider not only (a) whether the period served by the prisoner is adequate to satisfy the requirements of retribution and deterrence and (b) whether it is safe to release the prisoner, but also (c) the public acceptability of early release. This means that I will exercise my discretion to release only if I am satisfied that to do so will not threaten the maintenance of public confidence in the system of criminal justice:” col. 864.

 

Finally, he said that the practice which he had described would apply also to persons detained during Her Majesty’s pleasure under section 53(1) of the Act of 1933, as well as to persons sentenced to custody for life under section 8 of the Criminal Justice Act 1982. This was the first time that the practice in relation to juvenile offenders had been mentioned in a policy statement. But it was not suggested that the 1993 statement marked any change in the Home Secretary’s previous practice in setting a tariff for juvenile offenders convicted of murder.

 

With that rather lengthy introduction I can now turn to the issues in the appeal.

 

The substantive issue

 

The first question is whether the Home Secretary is entitled to have a policy at all with regard to juvenile offenders convicted of murder, whereby he determines in advance a minimum period which the offender must serve before he is considered for release. The second question is whether he is entitled to have the same policy as he has in the case of adult murderers.

 

As to the first question, all three judges of the Court of Appeal answered in the affirmative. I do not see how any other answer is possible, bearing in mind the width of the discretion conferred on the Secretary of State, the age range of those under consideration, namely, 10 to 21, and the number of those convicted of murder within that age-range. Thus Lord Woolf M.R. (who in the event was in a minority on the substantive issues) said, ante, p. 432:

 

“Again the fact that the mandatory sentence of detention for young offenders has the distinction from the mandatory sentence of life imprisonment which I have described does not mean that the same tariff-based approach cannot be deployed in relation to both. The distinction between the sentences can be accommodated in the application of the policy. This involves paying greater attention to the need for flexibility when circumstances require.”

 

A little later he said, ante, p. 432:

 

“The Home Secretary’s discretion as to release is very wide. It is the type of discretion which calls out for the development of policy as to the way it will in general be exercised. This should assist in providing consistency and certainty which are highly desirable in an [*508] area involving the administration of justice where fairness is particularly important.”

 

As to informing the young offender of the minimum period to be served, views might differ. Lord Woolf M.R. had this to say, ante, p. 433:

 

“The objection which is most often made by those subject to an indeterminate sentence is its uncertainty. They need a target date. It is also sensible from the administrator’s point of view. It avoids conducting reviews which will serve no purpose at times when there is no question of the offender being released from custody which will only give rise to unjustified expectations on the part of the detainee. In addition it identifies the penal element which perfectly properly the young offender can normally be expected to serve by way of punishment.”

 

These are wise words with which I wholly agree. But it is worth repeating (it cannot be said too often) that the question is not whether the policy is wise or unwise. The question is whether it is lawful.

 

I need not quote from the majority judgments on this point. They both affirm the lawfulness of the Home Secretary’s policy.

 

I have some difficulty in understanding the judgment of the Divisional Court, given by Pill L.J. Having pointed out that the sentence on a young offender should be kept under regular review, the Divisional Court continued:

 

“That requirement does not prevent the Secretary of State forming an initial and provisional view as to what punishment and deterrence requires. That may well be helpful to him in performing his later duties. He can take judicial advice before forming that view. What I cannot accept is that in the case of an offender aged 10 or 11 he can fix a tariff of 15 years as if the offender were an adult.”

 

This seems to be saying that it is not the policy that is wrong, but the length of the tariff in this particular case. This is borne out by other passages in the Divisional Court’s judgment as follows:

 

“It is inconsistent with the requirement to keep under review to fix a 15-year tariff at the beginning of a sentence on a child of 11 . . . The need to keep an open mind, and to keep the whole question under review, is stronger as the age of the offender at time of sentence is younger. In the case of an offender aged 16 or 17, it will usually be possible to express a firmer initial view than in the present case.”

 

It is true that the Divisional Court went on to say that they were not expressing any view as to the merits of the sentence by way of length, but only as to the lack of merit in fixing it so early. But I find this difficult to reconcile with what follows. The Divisional Court record, and appear to accept, Mr. Fitzgerald’s concession that the tariff figure of eight years recommended by the trial judge would have accorded with “the underlying purpose of the sentence.” It would not have been unlawful, since it would have allowed for a review after five years. This seems to be an acceptance by the Divisional Court that it is lawful to fix the tariff at the beginning of the sentence, even in the case of a 10-year-old child, provided the tariff is not too long. [*509]

 

So I am driven to the conclusion that in the eyes of the Divisional Court the real objection to the 15-year tariff was not the fixing of the tariff at the beginning of the sentence, but the length of the tariff in the case of these two children. If a tariff of eight years would have been consistent with “keeping an open mind” and “keeping the whole question under review,” why not a tariff of 15 years?

 

I now turn to the argument on behalf of the two applicants. The starting-point was that the sentence of detention during Her Majesty’s pleasure is preventive and therapeutic by nature, and contains no punitive element. The Divisional Court rejected this proposition; so did all the members of the Court of Appeal, and so would I. Section 53 of the Act of 1933 is headed “Punishment of certain grave crimes.” Section 53(2) which enables the court to impose a determinate sentence, i.e. detention for a period of years, is clearly punitive in character, or at least contains a punitive element. In Reg. v. Fairhurst [1986] 1 W.L.R. 1374, a case which concerned a number of appellants who had been sentenced to various periods of detention under section 53(2) for crimes such as burglary, rape and arson, Lord Lane C.J. said, at pp. 1376-1377:

 

“On the one hand there exists the desirability of keeping youths under the age of 17 out of long terms of custody. This is implicit in the provisions of the Criminal Justice Act 1982 already referred to. On the other hand it is necessary that serious offences committed by youths of this age should be met with sentences sufficiently substantial to provide both the appropriate punishment and also the necessary deterrent effect, and in certain cases to provide a measure of protection to the public. A balance has to be struck between these objectives.”

 

If a sentence under section 53(2) is punitive in character, or contains a punitive element, as it obviously does, it would be preposterous if the sentence for the gravest crime of all under section 53(1) did not contain a punitive element. It was conceded by Mr. Higgs that this must be so in the case of a young person of 17 convicted of murder, but he submitted that the position was different for a child of 10. But the wording of section 53(1) is the same in both cases. If a sentence of detention during Her Majesty’s pleasure is capable of containing a punitive element in the case of a murderer aged 17, it must also be capable, as a matter of language, of including a punitive element in the case of a child aged 10. The age of the offender is, of course, highly relevant to the length of the minimum period of detention. But it cannot be said that at the age of 10 the sentence is purely rehabilitative or therapeutic. Otherwise there would be no purpose in requiring the prosecution to prove, as they did in these cases, that the applicants knew that what they were doing was seriously wrong.

 

If it be right that the sentence of detention during Her Majesty’s pleasure contains a punitive element, then the rest seems to follow. The Home Secretary was entitled to set a policy which covers the imposition of a sentence on those within the age group 10 to 17, just as he can have a policy for those in the age group 18 to 21 sentenced to custody for life, and for those serving an adult sentence of life imprisonment, provided always he considers each case on its own merits. No doubt opinions will [*510] differ greatly as to the length of the appropriate tariff in a given case. But as to that, the only opinion which matters is that of the Home Secretary. The decision is always one of the utmost gravity, especially so in the present case. The courts cannot interfere on the ground that 15 years was too long, or even that it was half as long again as the tariff proposed by the Lord Chief Justice: see Reg. v. Secretary of State for the Home Department, Ex parte Doody [1994] 1 A.C. 531, 559. The only ground on which the courts could interfere would be if the sentence were beyond all reason, or irrational in the Wednesbury sense (Associated Provincial Picture Houses Ltd. v. Wednesbury Corporation [1948] 1 K.B. 223). This was not suggested. If it was intended to be suggested, I would not accept the suggestion.

 

That brings me to the second question. If it is lawful for the Home Secretary to have a policy at all in relation to the 10 to 17 age group, as it clearly is, is it lawful for him to have the same policy as he has in relation to adults, or (presumably) the 18 to 21 age group, although the latter comparison was hardly mentioned in the course of the hearing? It was pointed out – correctly – that the origin of the expression “detention during Her Majesty’s pleasure” lies in the sentence first imposed on criminal lunatics in the time of George III (Trial of Lunatics Act 1800 (39 & 40 Geo. 3, c. 94)), and its adoption by Parliament in section 103 of the Children Act 1908, from whence it found its way into section 53 of the Act of 1933. When in 1908 Parliament abolished the death sentence for children and young persons, it might have chosen life imprisonment or custody for life as the alternative punishment. But it did not. It chose detention during Her Majesty’s pleasure. It was argued that, by announcing that he would apply the same policy in the case of children and adults, the Home Secretary obliterated this distinction. The last paragraph of his 1993 policy statement was thus said to be unlawful. This was the ground on which the Divisional Court decided against the Home Secretary. I return to this argument later.

 

Whatever merit the argument may have had in the past, it cannot possibly survive the passing of the Act of 1991. It was common ground that the relevant release power is contained in section 35(2) of the Act, which provides:

 

“If recommended to do so by the 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.”

 

In order to understand the operation of section 35(2) in relation to young offenders, it is necessary to refer in greater detail to some of the other provisions of Part II of the Act of 1991. As already mentioned, section 34 imposes a duty to release discretionary life sentence prisoners when certain conditions have been satisfied. Section 33 imposes a duty to release short-term and long-term prisoners after half and two-thirds of their sentences, respectively, and section 35(1) grants a power to release a long-term prisoner after one-half of his sentence. Then comes section 43 [*511] which is the all-important section. It is necessary to set out this section in full:

 

“Young offenders. (1) Subject to subsections (4) and (5) below, this Part applies to persons serving sentences of detention in a young offender institution, or determinate sentences of detention under section 53 of the 1933 Act, as it applies to persons serving equivalent sentences of imprisonment. (2) Subject to subsection (5) below, this Part applies to persons serving – (a) sentences of detention during Her Majesty’s pleasure or for life under section 53 of the 1933 Act; or (b) sentences of custody for life under section 8 of the 1982 Act, as it applies to persons serving sentences of imprisonment for life. (3) References in this Part to prisoners (whether short-term, long-term or life prisoners), or to prison or imprisonment, shall be construed in accordance with subsections (1) and (2) above. (4) In relation to a short-term prisoner under the age of 18 years to whom subsection (1) of section 33 above applies, that subsection shall have effect as if it required the Secretary of State – (a) to release him unconditionally if his sentence is for a term of 12 months or less; and (b) to release him on licence if that sentence is for a term of more than 12 months. (5) In relation to a person under the age of 22 years who is released on licence under this Part, section 37(4) above shall have effect as if the reference to supervision by a probation officer included a reference to supervision by a social worker of a local authority social services department.”

 

Section 43(1) and (3) applies the provisions of section 33 (short- and long- term prisoners) and section 35(1) (long-term prisoners) to those detained under section 53(2) of the Act of 1933. There cannot be any doubt as to that, since the provisions are applied with the modifications set out in section 43(4) and (5). Similarly, section 43(2) and (3) apply section 35(2) to two classes of offenders under the age of 22, namely, those detained during Her Majesty’s pleasure under section 53(1) of the Act of 1933 and those sentenced to custody for life under section 8 of the Act of 1982. They also apply section 34 of the Act to those detained for life under section 53(2) of the Act of 1933. Again there can be no doubt as to the intention, since the provisions are applied with the modifications set out in section 43(5). But section 35(2) can only apply at all to those detained during Her Majesty’s pleasure if they are treated, for the purposes of section 35(2), as life prisoners. Hence the definition in section 51(1) of the Act of 1991 which provides that “life prisoner” has the meaning given by section 34(7) of the Act as extended by section 43(2). Against this statutory background, it hardly matters whether a sentence of detention during Her Majesty’s pleasure is correctly described as a “life” sentence or not. Since it is assimilated to a life sentence for all purposes of release, it is certainly a sentence which covers the offender for the rest of his natural life. Like an adult murderer, a juvenile murderer released on licence can be recalled at any time: see section 37(3). In these circumstances, the distinction urged on your Lordships between a sentence which orders detention for life and a sentence which authorises detention for life cannot be sustained. In the light of section 43(2) of the Act of 1991 it is a distinction without practical [*512] difference. It is said that an adult convicted of murder has “forfeited” his liberty for the rest of his life. But this is only because, after release, he is liable to be recalled. Exactly the same applies to a juvenile detained during Her Majesty’s pleasure.

 

Since Parliament has created a direct link between the mandatory life sentence and sentence of detention during Her Majesty’s pleasure, and provided the same release procedure for both, I cannot see how it can be said to be unlawful for the Secretary of State to apply the same policy of indicating the minimum period to be served for the purposes of retribution and deterrence as soon as practicable after the sentence has been imposed. This is made all the more manifest by comparison with the discretionary life sentence. As already mentioned, a discretionary sentence for life can be imposed, and is from time to time imposed, under section 53(2) of the Act of 1933: see Reg. v. Abbott [1964] 1 Q.B. 489. That would bring the case within section 34 of the Act of 1991. The judge then sets the tariff in accordance with the 1993 Practice Direction (Crime: Life Sentences) [1993] 1 W.L.R. 223. If a judge can set a tariff in respect of a sentence under section 53(2), as Parliament has provided, how can it be unlawful for the Secretary of State to fix a tariff in respect of the more serious conviction under section 53(1)? Contrary to the view of the Divisional Court, I cannot accept that there was anything unlawful in the last paragraph of the Home Secretary’s 1993 policy statement. On this aspect of the case I find myself in complete agreement with the views expressed by Hobhouse and Morritt L.JJ.

 

I cannot, with respect, agree with Lord Woolf M.R. that the Home Secretary must have been guilty of an over-rigid application of his policy, or must have misunderstood the nature of the tariff. The only evidence for this conclusion is Lord Woolf M.R.’s view, ante, p. 433E that 15 years would appear to be “totally unreasonable” in the case of a child of 10. But according to Mr. Newton’s affidavit (on behalf of the Secretary of State), the Home Secretary had particular regard for the age of these offenders, and their need for rehabilitation. Indeed this appears in each case from the decision letter itself. For if he had not had regard to their age, he would presumably have imposed a tariff of 25 years. But the age of the applicants, and their need for rehabilitation, were not the only factors. In addition to the punitive element in the sentence, the Home Secretary was entitled to have regard to other factors, and especially the need for maintaining public confidence in the criminal justice system: see In re Findlay [1985] A.C. 318, 333B, per Lord Scarman, and Reg. v. Secretary of State for the Home Department, Ex parte Doody [1994] 1 A.C. 531, 559B, per Lord Mustill. In the light of these other factors it cannot be said that the Home Secretary’s initial view of 15 years was so far beyond what was reasonable as to point inevitably to a wrong approach. If the figure had been 10 years (the tariff suggested by the Lord Chief Justice) or even 12 years the argument could hardly have got off the ground.

 

I accept, of course, that a policy otherwise lawful may be attacked on the ground of its over-rigid application. Each case must be considered on its merits before the policy is applied. If, for example, the Home Secretary had announced a policy that all children found guilty of murder should be detained for at least seven years, such a policy might well have been [*513] unlawful if it did not allow for exceptions: see In re Findlay, per Lord Scarman, at p. 336G. But the Home Secretary’s decision in the present case cannot be faulted on that ground. The minimum detention of 15 years was not fixed by reference to a predetermined scale. It was decided by reference to the facts of the case, and the circumstances of these two applicants. So there was no need to allow for any exceptions. If the minimum period of detention were a “tariff” sentence in the true sense of the word, there might be grounds for criticism. But it is not. As Lord Mustill observed in Ex parte Doody, at pp. 556-558, the use of the word “tariff” in that context is apt to be misleading.

 

Then it is said that the policy is over-rigid because it does not allow for a reconsideration of the tariff on the ground of exceptional progress during detention. This limitation is not, in fact, spelt out in the 1993 policy statement. The statement expressly contemplates that the initial tariff period may be reduced or increased. The argument therefore depends on the way the policy is currently being applied. According to Mr. Newton’s affidavit, the Home Secretary does not currently consider exceptional progress in detention as a ground for reconsidering the tariff. Is this enough to make the policy as a whole unlawful?

 

There is a danger here that the courts, by insisting on flexibility in every aspect of the policy, may emasculate the policy itself, and deprive it of all utility. If the Home Secretary is entitled to have a policy at all in relation to young offenders by which he announces the tariff period as soon as possible after the start of the sentence (as to which I entirely agree with what Lord Woolf says) I cannot for my part accept that the whole policy is undermined by the absence of a formal review during that period. I say that for three reasons.

 

In the first place, the progress of these two applicants in detention, while not qualifying them for release until after 15 years, will certainly be monitored during that period; no doubt exceptional progress will be an important factor in deciding how soon thereafter they may be released. Secondly, Parliament has itself provided for early release on compassionate grounds: see section 36 of the Act of 1991. Thirdly, there is no special provision for early release on the grounds of exceptional progress where a young offender is serving a determinate sentence or a discretionary life sentence under section 53(2) of the Act of 1933. Subject to section 43(4) and (5) of the Act of 1991, Parliament intended that they should be dealt with in the same way as adult offenders. So why should there be any provision for early release on the grounds of exceptional progress in the case of young offenders serving the equivalent of a mandatory life sentence? For these reasons, and especially the third, I cannot agree that the Home Secretary’s policy announced in 1993 is unlawful on the ground that it lacks sufficient flexibility, nor that its application in the case of these two applicants was unlawful on that ground.

 

Finally, I return to the argument accepted by a majority of your Lordships that a sentence of detention during Her Majesty’s pleasure is, and has always been, different in conception from a sentence of life imprisonment. The argument is that when Parliament abolished the death sentence for children and young persons in 1908, it might have substituted a sentence of life imprisonment. Instead it substituted a sentence of [*514] detention during Her Majesty’s pleasure. It is said that the Home Secretary failed to appreciate this conceptual distinction when he announced in 1993 that he would adopt the same practice in the case of children and young persons as in the case of adult murderers, and when, in particular, he fixed the tariff for these two applicants.

 

I do not myself get much assistance from the legislative history in this case. We know that one of the objectives of the Act of 1908 was to ensure that children and young persons did not mix with adult prisoners in ordinary jails. This is a sufficient explanation for why Parliament avoided the use of the term “imprisonment,” and chose instead detention “in such place and under such conditions as the Secretary of State may direct.” We do not know why Parliament chose the words “during Her Majesty’s pleasure.” If the intention had been to secure that the sentence should be purely preventative and therapeutic, as in the case of criminal lunatics, then there would indeed have been a conceptual difference. But none of your Lordships are of that view. For my part I cannot read anything more into the words “during Her Majesty’s pleasure” than that they were intended to describe a sentence which is indeterminate in length, like a life sentence. Nor is there anything in the language of section 103 which required the sentence to be kept under continual review, any more than a determinate sentence for less serious offences under section 104. So I do not accept that a sentence of detention during Her Majesty’s pleasure was conceptually different from a life sentence in 1908, save in relation to the place and conditions of detention; and if there ever was such a difference, it soon became obscured. For it seems to have escaped the attention of the Departmental Committee which reported on the Treatment of Young Offenders in 1927, Cmd. 2831, and the Ingleby Committee which reported in 1960 (Report of the Committee on Children and Young Persons (Cmnd. 1191)).

 

It is unfortunate that Parliament continues to use archaic language in a modern statute. Your Lordships are all agreed that “during Her Majesty’s pleasure” does not mean what it meant when the phrase originated nearly 200 years ago. What it meant in 1908 must remain a matter for speculation. Even if the legislative background sounded with a more certain note, I would not myself allow the history of the phrase to influence, still less control, the meaning which Parliament plainly intended in 1991.

 

Like my noble and learned friend, Lord Goff of Chieveley, I would dismiss the applicants’ cross-appeals.

 

Procedural issues

 

As to the Home Secretary’s appeal, I have the misfortune to find myself again in a minority.

 

I can deal briefly with two of the three points. It is said that the Secretary of State had insufficient material on which to exercise his discretion. For example, it is said that if he had been sentencing the applicants in court he would have asked for psychiatric reports as to their level of responsibility having regard to their age. At the very least he would have asked for a social inquiry report. With all respect to the judges of the Court of Appeal who expressed their views in strong terms (Lord Woolf M.R., ante, p. 436H described the Secretary of State’s approach as [*515] “perfunctory”), I cannot agree with this conclusion. The Secretary of State was not bereft of material. He had the judge’s report, which summarised the medical evidence. It is worth quoting the following passage:

 

“Both Thompson and Venables were healthy boys of average intelligence with no mental abnormality . . . However, these two boys came from homes and families with great social and emotional deprivation. They grew up in an atmosphere of matrimonial breakdown where they were exposed to, saw, heard or suffered abuse, drunkenness and violence. I have no doubt both boys saw video films frequently showing violent and aberrant activities.”

 

The Secretary of State was entitled to accept the judge’s report at its face value. He was not obliged to look for corroboration. If he had been minded to disagree with the judge’s view of the mental state of the applicants, then of course he would have been obliged to seek further psychiatric advice, as Mr. Pannick accepted. But he was not. Moreover, if the Home Secretary was obliged to seek further reports, so also was the Lord Chief Justice, when he increased the judge’s tariff from eight years to 10 years. If the courts are going to tell the Home Secretary how to perform a function which has been entrusted to him, and to him alone, by Parliament, then there would appear to be no limit to the bounds of judicial review. Of course, the court will interfere if the Home Secretary acts unlawfully or abuses his powers, or behaves unfairly, or on any of the other well-established grounds of judicial review. But there was nothing remotely unfair in the Secretary of State assessing the tariff on the information which he already had, without calling for further reports.

 

Secondly, it is said that the Home Secretary ought to have made full disclosure of all the material on which he relied, and in particular should have disclosed the whole of the judge’s report, in order to enable the applicants to make adequate representations, and to correct any mistakes of fact. It was not enough, so it was said, that the Secretary of State should have made known the recommendations of the trial judge and the Lord Chief Justice, as required by the House in Reg. v. Secretary of State for the Home Department, Ex parte Doody [1994] 1 A.C. 531; the applicants were entitled to the full text of the judge’s report. Indeed the applicants were said to be entitled to disclosure of all the materials before the Home Secretary, including details of any comparable cases on which the Home Secretary proposed to rely, and, I suppose, any comparable cases which might assist the applicants.

 

But this goes much too far. In my opinion the appropriate limit was set in Ex parte Doody, which required no more than that the Home Secretary should disclose the gist of the judge’s advice. That would almost always be enough, as it was in this case, to enable the applicants to know the case against them. We were informed that it is now the practice of the Home Secretary to disclose the judicial comments in full, other than material relating to future risk. This does not, of course, mean that the previous practice was unlawful. The full report was disclosed to the applicants on 23 January 1995, when they were invited to make further representations if they wished. This was as far, and maybe further, than the Home Secretary was obliged to go. How could he sensibly disclose all [*516] the material which weighed with him when considering the need to maintain public confidence in the rule of law?

 

I come now to the third and last point of criticism. The relevant paragraph in the decision letter dated 22 July 1994 reads:

 

“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.”

 

The facts are that the Home Secretary received a petition signed by 278,000 members of the public submitted by the victim’s family. The petition called for a full-life sentence. The family also submitted some 4,400 letters. Another petition was signed by 5,900 members of the public calling for a minimum of 25 years’ detention. On 28 June 1994 one of the applicants’ solicitors wrote to the Home Office

 

“object[ing] most strongly to the reception of ‘political’ representations made to the Secretary of State behind the back of the applicant and his family and without a proper opportunity to respond.”

 

The solicitors asked to be sent the full text of any petition, letters or representations received by the Secretary of State; in addition they asked for all materials which would be before the Secretary of State when he reached his decision. On 7 July 1994 the Home Office replied that the applicant already had the full text of the petitions (other than the signatures) and that it was not practicable to make all the letters available. No further representations were received from the applicant before the Secretary of State reached his decision.

 

The complaint is, first, that the Home Secretary is not entitled to have regard to public concern in relation to an individual case, and, secondly, that he was not entitled to take account of the petitions and other correspondence as evidence of public concern in the present case.

 

I am bound to note that this complaint, however it may be put, forms no part of the grounds on which relief is sought. The original complaint related only to the failure to disclose the material.

 

When the case came before the Divisional Court, Pill L.J. drew attention to the “massive representations” which the Home Secretary had received. He acknowledged the Secretary of State’s responsibility to maintain public confidence in the system of justice. “The public can,” he said,

 

“be expected to express overwhelmingly their support for Mr. and Mrs. Bulger in the tragic loss they have suffered and support measures to prevent such a crime happening again. I am confident that many more than 300,000 people would share those views.”

 

There was no suggestion at the hearing before the Divisional Court or in the judgment that the Secretary of State had been wrong to take [*517] the petitions or the correspondence into account as evidence of public concern.

 

It therefore comes as something of a surprise to find the point featuring so strongly in the judgments of Lord Woolf M.R. and Hobhouse L.J. in the Court of Appeal. I quote from the judgment of Hobhouse L.J., ante, pp. 454-455:

 

“But it appears that the Secretary of State was in the present case prepared to take into account a large amount of material which in effect amounted to taking a hopelessly unscientific poll from members of the public without any satisfactory checks or without any confidence as to the factual or legal basis upon which the responses were made. If the Secretary of State is choosing to assume the role of deciding the period necessary for these defendants for retribution and deterrence, he should not only disregard but be seen to disregard material of this kind.”

 

It was the “quality” of the material, to use his own expression, at p. 111, which Hobhouse L.J. found so alien and, perhaps, distasteful.

 

Morritt L.J. took a different line, ante, p. 464:

 

“It is true that the material in this case is open to the criticisms made by Lord Woolf M.R. and Hobhouse L.J. But public concern is not necessarily either logical, fully informed or free from prejudice. It is the fact that the concern is public that gives it significance; what weight, if any, to attach to it is a matter for the Secretary of State. Accordingly however alien such a consideration may be to a judge sentencing an offender it is not one which, in my view, the Secretary of State is legally precluded from taking into account.”

 

I find myself in agreement with Morritt L.J. If the Home Secretary is entitled to take account of the need to maintain public confidence in the criminal justice system, as everybody agrees, I can see no reason why he should not take account of genuine public concern over a particular case. If he were to ignore such genuine concern (and nobody has suggested that the petitions and the correspondence were not genuine) it would have direct impact on public confidence for the future. Judges also take account of public concern over the level of sentencing; and so they should, as witness the increase over the last 20 years in the tariff for causing death by dangerous driving. In Reg. v. Secretary of State for the Home Department, Ex parte Doody [1993] Q.B. 157, 197-198 Staughton L.J. suggested that a distinction should be drawn between material received by the Home Secretary which is directed to penal policy in general, and material directed to a particular case. The latter should be disregarded. But how can such material be distinguished? The observations of Hobhouse L.J., which I have quoted, read far too much into the decision letters. The petitions and the letters were not, of course, evidence of anything in any legal sense. But surely they demonstrated a certain level of concern. It is to the Home Secretary that Parliament has entrusted the task of maintaining public confidence in the criminal justice system, and as part of that task gauging public concern in relation to a particular case when deciding on the earliest release date. I do not regard it as the function of the courts to tell him how to perform that task. [*518]

 

I would therefore allow the Home Secretary’s appeal on the procedural issues. This means that of the 10 judges who have taken part in these proceedings, I am the only one to have accepted Mr. Pannick’s submissions on all points. I would uphold the lawfulness of the Home Secretary’s decision to impose a minimum tariff of 15 years’ detention in the case of these two applicants. That does not, of course, mean that I would necessarily have imposed the same tariff myself, had I been Home Secretary. But that is not the issue.

 

LORD STEYN. My Lords, when they were both aged 10 years Venables and Thompson committed a vicious and cold-blooded murder of a two-year-old boy. The inexpressible grief of the family of the murdered boy will never cease. The family, the local community and society generally are morally outraged. Venables and Thompson will have to spend many years in detention. The only question is whether the Home Secretary in deciding to fix a “tariff” sentence of 15 years acted lawfully. It does not follow that after Venables and Thompson have served any applicable “tariff” sentence they will be released. That is a different question involving an assessment of the risk of releasing them. There appears to be very little that can be said for Venables and Thompson. But they have rights under our law: they are entitled to the full measure of the protection from unlawful action by the executive afforded by the common law even to prisoners convicted of murder. And in my judgment the Home Secretary’s decisions affecting them are unlawful.

 

My conclusions on the principal issues

 

In my view in making his decision to fix a tariff of 15 years the Home Secretary exceeded the statutory powers which he has been given. I will summarise at the outset my conclusions on the principal issues. Following the same structure I will then explain my reasons for each conclusion.

 

Contrary to the submissions of counsel for Venables, my view is that a major purpose of a sentence of detention during Her Majesty’s pleasure imposed upon a child under section 53(1) of the Children and Young Persons Act 1933 is punishment. Consequentially on this holding I conclude, contrary to the submissions of counsel for Venables, that in principle it is within the power of the Home Secretary to fix a provisional and reviewable tariff under section 53(1).

 

But I have come to the conclusion that the decisions of the Home Secretary as contained in his letters of 22 July 1994, which fixed a 15-year tariff for both Venables and Thompson, were unlawful for substantive reasons as well as a breach of the principles of procedural fairness. There are two separate substantive reasons why I conclude that the Home Secretary’s decisions were unlawful. First, the Home Secretary regarded a sentence of detention during Her Majesty’s pleasure under section 53(1) imposed on a child convicted of murder as in law equivalent to a mandatory sentence of life imprisonment imposed on an adult convicted of murder. His legal premise was wrong: the two sentences are different. A sentence of detention during Her Majesty’s pleasure requires the Home Secretary to decide from time to time, taking into account the punitive element, whether detention is still justified. The Home Secretary [*519] misunderstood his duty. This misdirection by itself renders his decision unlawful. Secondly, the Home Secretary misdirected himself by giving weight to public protestations about the level at which the tariff in the cases of Venables and Thompson should be fixed. In doing so the Home Secretary took into account in aggravation of the appropriate level of punishment legally irrelevant considerations. This was a material defect in the reasoning of the Home Secretary. It rendered his decisions unlawful.

 

On the issues of alleged procedural unfairness, I have concluded that the decisions of the Home Secretary were also procedurally flawed by the credence and weight which he gave to public clamour for an increase in the level of the tariff. This point overlaps with my second substantive conclusion. It may be two sides of the same coin: either way the quality of the decision-making was adversely affected in a material way. I will deal with this point under the procedural heading quite briefly. I would reject the other procedural complaints about the decision of the Home Secretary.

 

Punishment

 

Counsel for Venables submitted that the sentence of detention during Her Majesty’s pleasure for murder committed by children has always been a sentence designed solely for the reformation of youthful offenders and for the protection of the public. He argued that punishment has never had any part to play in respect of such a sentence. On this supposition he submitted that the imposition of a tariff is always inappropriate in the case of young murderers sentenced under section 53(1). In my view the premise of this argument is wrong. The Children Act 1908 provided that a child or young person charged with any offence might upon conviction be sentenced to, inter alia, a whipping or detention. That was a provision for the punishment of children for lesser offences than murder. When Parliament dealt with murder committed by a child or young person, the sentence of detention during Her Majesty’s pleasure cannot credibly have been intended to have been entirely non-punitive. Moreover the fact that children between the ages of 10 and 14 years may be criminally responsible demonstrates that in law they may deserve punishment. And that consideration must apply to murder as much as to lesser offences.

 

The applicability of a tariff to detention during Her Majesty’s pleasure

 

Counsel for the applicants had a more formidable argument against the applicability of a tariff in cases governed by section 53(1). By way of alternative submission counsel for Venables said that the sentence must be regarded as partly punitive and partly rehabilitative. But because it is indeterminate and provides for release “at any time” (section 53(4)), the concept of a predetermined initial punitive phase to be served before release is inconsistent with the purpose of the sentence. Counsel for Thompson also argued that a tariff was inappropriate. He said that the correct approach is that at such time as the particular young offenders involved in this case are found to be rehabilitated the Home Secretary should ask himself whether they have been sufficiently punished.

 

Initially I was attracted to a line of reasoning that any tariff is contrary to the purpose and policy of a sentence under section 53(1). On balance [*520] I have come to the conclusion that this is not a correct analysis. If punishment is a purpose of such a sentence, as it is, it is difficult to say that a Home Secretary charged with the decision of giving content to what “detention during Her Majesty’s pleasure” means in a particular case may not in his discretion make a provisional and subsequently reviewable judgment as to what ought to be the period to be served as punishment by a particular offender. And, if that it so, it is clearly right that his decision should be notified to the offender. In other words, I regard the discretionary power to set a provisional and reviewable tariff as inherent in the statutory power entrusted by Parliament to the Home Secretary since 1908, i.e. the power to decide how in an individual case the power to detain during Her Majesty’s pleasure should be exercised.

 

The misconception as to the nature of the sentence

 

The Home Secretary treated two sentences for murder as exactly alike, namely (1) a mandatory sentence of life imprisonment passed on an adult convicted of murder and (2) a mandatory sentence of detention during Her Majesty’s pleasure passed on a child or young person convicted of murder. He emphasised that in a policy statement to the House of Commons of 27 July 1993 (Hansard (H.C. Debates), cols. 861-864: written answer) in the following words:

 

“Everything that I have said about the practice of the Secretary of State in relation to mandatory life sentence prisoners applies equally to persons who are, or will be, detained during Her Majesty’s pleasure under section 53(1) of the Children and Young Persons Act 1933 . . .”

 

In the same policy statement he contrasted the position of a prisoner subject to a mandatory life sentence with that of a prisoner subject to a discretionary life sentence. Once the minimum period fixed for retribution and deterrence has been satisfied, and provided that he is no longer a risk, a prisoner serving a discretionary life sentence is entitled to be released: section 34 of the Criminal Justice Act 1991. But a more severe regime applies to prisoners convicted of murder who are subject to mandatory life sentences. The Home Secretary endorsed the “practice” that an adult prisoner subject to a mandatory life sentence has forfeited his liberty to the state for the rest of his days. He said that the “presumption” is that such a prisoner should remain in custody until the Home Secretary concludes that the public interest would be better served by the prisoner’s release than by his continued detention. This is how the Home Secretary also viewed the nature of a sentence of detention during Her Majesty’s pleasure under section 53(1).

 

It is now necessary to examine the correctness of the Home Secretary’s view of a section 53(1) sentence. In order to understand the nature of a sentence of detention during Her Majesty’s pleasure it is necessary to start with the position before the Act of 1908 was enacted. For this purpose I gratefully draw on a report prepared by Professor A. W. B. Simpson, the distinguished legal historian, and submitted to the European Court in Prem Singh v. United Kingdom (unreported), 21 February 1996; 1994/503/589, E.C.H.R. Until the Act of 1908 the formal law (as opposed to Home [*521] Office practice) made no special provision for children or young persons convicted of murder. In strict law youthful convicted murderers could be executed. But it became the practice not to execute murderers who were under the age of 18 years. It is probable that whenever a convicted murderer was reprieved on account of youth, a life sentence of penal servitude would have been imposed, and the individual would only have been released after serving a conventional period of 20 years unless he was then thought to be still dangerous. This practice was consistent with the notion that if children were criminally responsible they were amenable to exactly the same punishments as adults. Gradually, that policy fell into disfavour: the view gained ground that all juvenile offenders formed a distinct category of offenders for whom special arrangements for disposal should be made. The Act of 1908 was a reforming measure which throughout reflected this change in attitude to young offenders. Thus it abolished the use of prisons for offenders under 14; it abolished penal servitude for those under it; and it permitted imprisonment for those between 14 and 16 only exceptionally. Section 103 formally abolished a sentence of death against a child or young person. That left the important question of the substitute penalty. Following previous practice regarding the punishment of children convicted of murder Parliament could have provided for a sentence of life imprisonment, or for detention for life. But Parliament chose not to do so. Instead the Act of 1908 provided that the new sentence to be imposed on children (those between 8 and 14) and young persons (those between 14 and 16) would be detention during His Majesty’s pleasure. And the statute provided that, if so sentenced, the child or young person would be liable to be detained in such place and under such conditions as the Secretary of State directed. Professor Simpson commented on this change in the following terms:

 

“If, as I think very probable, the practice before 1908 when a young (under 18) murderer was reprieved was to grant a conditional pardon, with commutation to penal servitude for life, then the provision in the Act of 1908 involved a deliberate change in practice, and shows an intention to set up a regime for young persons convicted of murder which was significantly different from that for reprieved adults. At the time this Act was passed the conception of ‘detention during H.M.’s pleasure’ existed in statutory form only in relation to criminal lunatics. When it was transferred to this new context, it formed part of an elaborate legislative scheme which reflected a general policy of treating young offenders quite differently from older ones. It would therefore be a misunderstanding of the policy of the Act to view detention at H.M.’s pleasure under the 1908 Act as the same in all but name as the life sentence of imprisonment imposed under conditional pardon granted to adult reprieved murderers.”

 

This reasoning seems correct. Counsel for the Home Secretary, despite express invitation to comment on the purpose of section 103 of the Act of 1908, offered no argument to the contrary. Detention during His Majesty’s pleasure, the term of sentence selected by Parliament in 1908 for children convicted of murder, was intended to involve (subject to matters of the risk of releasing the individual) a less severe form of sentence than [*522] imprisonment for life. After all, a sentence of life imprisonment involves an order that an individual be imprisoned for life. By contrast a sentence of detention during Her Majesty’s pleasure merely authorises detention of an individual for life.

 

Subsequently, Parliament revisited this subject. Section 53(1) of the Act of 1933 re-enacted section 103 in respect of persons under 18 convicted of murder. The Act of 1933 was preceded by a detailed inquiry into the way in which the criminal justice system treated children and young persons: Report of the Departmental Committee on the Treatment of Young Offenders (1927) (Cmd. 2831). The report did not specifically deal with detention during His Majesty’s pleasure: the matter had been settled in 1908. On the other hand, the report described the Act of 1908 as “a notable piece of legislation, enshrining as it did in almost every section the principle that a young offender shall receive different treatment from an adult . . .” (p. 8). And that philosophy of differentiating between sentences imposed on adults and children and young persons was carried forward in the report and the resulting statute of 1933.

 

The Murder (Abolition of Death Penalty) Act 1965 repealed section 53(1) and (by section 1(5)) substituted the following section:

 

“A person convicted of an offence who appears to the court to have been under the age of 18 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 any such person; but in lieu thereof the court shall (notwithstanding anything in this or in any other Act) sentence him to be detained during Her Majesty’s pleasure, and if so sentenced he shall be liable to be detained in such place and under such conditions as the Secretary of State may direct.”

 

Before this provision was enacted the Ingleby Committee (Report of the Committee on Children and Young Persons (1960) (Cmnd. 1191)) had made a wide-ranging report on the position of children and young persons in the criminal justice system. The report and the subsequent statute did not specifically deal with detention during Her Majesty’s pleasure. The report did, however, emphatically endorse the policy differentiating between the sentencing of adults and juvenile offenders. The report observed that originally the principle of equality before the law meant that children were hanged, transported or imprisoned on the same principles as those applicable to adults: paragraph 53(d). The report stated in categorical terms that the conception of a standard or ordinary punishment applicable to everyone, child or adult, had gone: paragraph 58. This is the culture in which section 53(1) was re-enacted.

 

In respect of persons convicted of murder who were between the ages of 18 and 21 Parliament provided for a sentence of custody for life: section 8 of the Criminal Justice Act 1982. This section expressly distinguishes between the two forms of sentence. The new philosophy which was adopted in 1908 has therefore repeatedly been reaffirmed by Parliament. The effect of the relevant legislation is as follows. Parliament differentiated between the two sentences. An order of detention during Her Majesty’s pleasure involves merely an authority to detain indefinitely. That [*523] means that the Home Secretary must decide from time to time, taking into account the punitive element, whether detention is still justified. Life imprisonment involves an order of custody for life. That means, as the Home Office has interpreted the sentence of mandatory life imprisonment, that the Home Secretary must consider whether and when release is justified. These are obviously wholly different approaches.

 

It was, of course, possible for Parliament subsequently to reverse the policy adopted in 1908 and repeatedly reaffirmed. Counsel for the Home Secretary said that Parliament did so by provisions in the Act of 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 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 Act of 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,” 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 [*524] became an axiom of our criminal justice system. The reason for this change in public perception was neatly encapsulated in the following proposition: “No civilised 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, ante, p. 426B-C. 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 (Hansard (H.C. Debates), cols. 861-864: written answer) 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 [*525] 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 25 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 [*526] 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 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 administration 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. [*527] It follows that for substantive reasons I would allow the cross-appeals and for a procedural reason I would dismiss the appeals. In my judgment declaratory relief is not necessary.

 

LORD HOPE OF CRAIGHEAD. 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 10 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 13 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 10 but under 14 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 [*528] 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 R. (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, 40:

 

“‘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 (1800 ed.), 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 14, and even more clearly those under 12, the presumption was that [*529] 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 14 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 10 years: see section 50 of the Act of 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.

 

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 Act of 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 [*530] 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, 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 35(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 (Hansard (H.C. Debates), cols. 861-864: written answer), 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 (Hansard (H.C. Debates), cols. 311-312):

 

“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.”

 

The theory as restated in that passage was said in Reg. 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 [*531] 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 Act of 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 (Hansard (H.C. Debates), 30 November 1983, cols. 505-507: written answer) 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 Act of 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 18 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 21, 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 18 years when he committed the murder. [*532] 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 Lord Woolf M.R., ante, p. 426C-D 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 Act of 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 Act of 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. [*533]

 

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 are 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 provides:

 

“(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 v. United Kingdom, 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 on Human Rights and Fundamental Freedoms, the Secretary of State was to release this category [*534] 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 (Hansard (H.C. Debates), cols. 861-864: written answer), 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 (20 & 21 Vict. c. 71) and section 2 of the Trial of Lunatics Act 1883 (46 & 47 Vict. c. 38). 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 [*535] life imprisonment. The Secretary of State’s policy has overlooked that distinction.

 

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 12 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:

 

“If, as a result of Home Office psychiatric assessments of the applicants, any fresh information comes to light which is relevant to the circumstances of the offences, or the applicants’ state of mind when the offences were committed, the Secretary of State will consider its relevance to the tariff, and act accordingly (whether or not he is asked to do so by the applicants or their representatives).”

 

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 Lord Woolf M.R., ante, p. 435A 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 (Hansard (H.C. Debates), cols. 505-507: written answer). But what was contemplated in that policy statement was the seeking of an initial [*536] 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 Reg. v. Secretary of State for the Home Department, Ex parte Doody [1994] 1 A.C. 531, 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 decision

 

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 [*537] 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 53(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 Reg. 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 [*538] 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.

 

Conclusion

 

The appeals were 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 appeals. 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.

 

Appeals dismissed.

 

Cross-appeals allowed.

 

Secretary of State to pay applicants’ costs in Court of Appeal and House of Lords.