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Youth detention not akin to life sentence



(1997) The Times, June 13 HOUSE OF LORDS



Regina v Secretary of State for the Home Department, Ex parte Venables



Regina v Same, Ex parte Thompson



THE STATUTE


Section 53, as substituted, provides: "(1) A person . . . 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 . . . but in lieu thereof the court shall . . . sentence him to be detained during her Majesty's pleasure. . ."

LORD GOFF said that in November 1993 Venables & Thompson had been convicted of the murder of James Bulger, aged two, in February, when they had been 10 1/2 years old. The judge had described the killing as "an act of unparalleled evil and barbarity".

Before Sentence the trial Judge said, "This child of 2 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."

In his report to the Home Secretary the judge had said that if Venables & Thompson had been adults the actual length of detention necessary to meet the requirements of retribution and general deterrence should have been 18 years. Taking into account the appalling circumstances of the murder and Venables & Thompson' age when it had been committed the appropriate length was eight years: " 'very very many years' for a 10 or 11-year-old".

Lord Taylor, Lord Chief Justice, had advised that the period should be 10 years.

The Home Secretary had decided that it should be 15 years. He had said that he had had regard to public concern about the case which was evidenced by petitions and other correspondence.

In particular, there had been a petition signed by some 278,300 members of the public, with some 4,400 letters in support, urging that Venables & Thompson should remain in detention for life, a petition signed by nearly 6,000 members of the public asking for a minimum period of 25 years and over 20,000 coupons cut out of a popular newspaper (The Sun), with over 1,000 letters, demanding a life tariff. There had been only 33 letters agreeing with the judiciary or asking for a lower tariff.

Leading counsel for Venables submission that a sentence of detention during her Majesty's pleasure under section 53(1) of the 1933 Act contained no element of punishment was unsustainable.

The conclusion of the Divisional Court that such a sentence connoted a duty in the Home Secretary to keep the question of continued detention under review throughout the period of detention, with the effect that the imposition of a penal element that had to be served before release was inconsistent with such a sentence, flowed from a misunderstanding of the applicable legislation. His Lordship would dismiss the cross-appeals raising that issue.

The Home Secretary's appeal related to the issue of unfairness and breach of natural justice.

If the Home Secretary implemented a policy of fixing a penal element of the sentence of a mandatory life prisoner, he was to that extent exercising a function closely analogous to a sentencing function and was under a duty to act within the same constraints as a judge would when exercising the same function.

If he took into account public clamour directed towards the decision in the particular case under consideration, he would be having regard to an irrelevant consideration that would render the exercise of his discretion unlawful. The Home Secretary's appeal should be dismissed.

LORD BROWNE-WILKINSON said that it had been made clear to their Lordships both from the evidence and in submissions that in making any change to the tariff period initially fixed, the Home Secretary would only have regard to matters relevant to the circumstances of the commission of the offence or the applicant's state of mind when it had been committed. He would not in any circumstances vary the period by reason of events occurring after the commission of the crime.

Section 44 of the 1933 Act provided: "(1) Every court in dealing with a child or young person . . . shall have regard to the welfare of the child or young person."

That was one of the basic principles applicable to dealing with child offenders. The Home Secretary at all times had to be free to take into account as one of the relevant factors the welfare of the child and the desirability of reintegrating him into society.

The extent to which that was possible must depend, in the case of a young child at least, on the way in which that child was maturing through his formative years.

If he was making exceptional progress and it was clear that his welfare would be improved by release from detention, that was one of the factors the Home Secretary had to take into account and balance against the other relevant factors of retribution, deterrence and risk. The child's welfare was not paramount, but it had to be taken into account.

It followed that, unless the Criminal Justice Act 1991 had altered the position, the tariff policy adopted by the Home Secretary in 1993 was an unlawful policy in relation to child murderers.

In his Lordship's view the 1991 Act had not done so. Accordingly, in setting the tariff of 15 years for Venables & Thompson the Home Secretary had been applying an unlawful policy and his decisions should be quashed.

His Lordship expressed no final view as to whether it had been improper for the Home Secretary to take into account the petitions and other material.

Dissenting Judgement

LORD LLOYD said that Parliament in the 1991 Act had 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.

He could not see how, therefore, it could be unlawful for the Home Secretary to apply the same policy of indicating the minimum period to be served for the purposes of retribution and deterrence as soon as possible after the sentence had been imposed.

According to the evidence, the Home Secretary had had particular regard for the age of Venables & Thompson and their need for rehabilitation. But he had also been entitled to have regard to other factors, especially the need for maintaining public confidence in the criminal justice system.

In the light of those other factors it could not be said that his initial view of 15 years had been so far beyond what was reasonable as to point inevitably to a wrong approach. His Lordship could not accept that his whole policy was undermined by the absence of a formal review during that period. He would dismiss the cross-appeals.

On the Home Secretary's appeal, if the Home Secretary was entitled to take account of the need to maintain public confidence in the criminal justice system, as everybody agreed, his Lordship could not see why he should not take account of genuine public concern over a particular case.

The petitions and letters had surely demonstrated a certain level of concern. It was to the Home Secretary that Parliament had 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. It was not the function of the courts to tell him how to perform that task. His Lordship would allow the appeal.

Lord Steyn and Lord Hope delivered opinions in favour of allowing the cross-appeals and dismissing the appeal.

THE DECISION

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, as substituted by section 1(5) of the Murder (Abolition of Death Penalty) Act 1965, was not the same as a mandatory sentence of life imprisonment passed on an adult and required the Home Secretary to consider from time to time whether continued detention was justified.

An inflexible policy whereby a tariff set for a young offender regarding the minimum period of detention to be served by him by way of punishment and deterrence before he would be considered for release would in no circumstances be varied by reason of matters occurring subsequently to the offence was unlawful. In fixing the tariff period the Home Secretary should, like a sentencing judge, ignore as irrelevant public petitions or public opinions as expressed in the media.

The House of Lords (2 dissenting) allowed cross-appeals by Venables & Thompson, and (Lord Lloyd dissenting) dismissed an appeal by the Home Secretary from the Court of Appeal, The Times August 7 1996; [1997] 2 WLR 67, who had dismissed an appeal by the Home Secretary and cross-appeals by Venables & Thompson from the Divisional Court The Times May 7, 1996.

COMMENT

UK Police Training does not as such concern itself with sentencing, police training manuals do not address "The sentencing & treatment of offenders, which is taught at University. However this is such an authoritative review of the sentencing process that it cannot go unnoticed in Police Journal.

Thompson and Venables, both from Merseyside, were aged ten when they took James Bulger, aged 2, from a shopping centre at Bootle, murdered him and left his body on a railway line. They were convicted at Preston Crown Court in November 1993.

The parents of the murdered child condemned the law lords' ruling. Denise Bulger, James's mother, said: "I am bitterly disappointed about the ruling. Michael Howard took into account, and quite rightly so, the opinions of the public.

"The trial judge said that the murderers would serve very many years. In my opinion life is not eight years."

Ralph Bulger, the dead boy's father, added: "I am very disappointed. It is all so heartbreaking when it keeps coming back like this."

THE Lord Chief Justice has called for a Royal Commission to be set up into the effects of punishment on criminals, particularly young offenders.

Lord Bingham, said that it was now widely believed that a "significant number of teenagers were dangerous and a menace to society".

The time was ripe for a "comprehensive review" of crime and punishment either by a royal commission, or by reviving the Advisory Council on the Penal System, Lord Bingham said.

Giving the Prison Reform Trust's annual lecture, he said: "The beginning of a new Parliament is the ideal moment for such an initiative." If such a commission could reach "authoritative conclusions" which commanded public and professional respect and were enacted, this Parliament "would earn an assured place in the history of this country".

Lord Bingham continued, there was a "small but identifiable core" of young offenders whose criminal conduct called for serious punitive sentences. "'Nothing else will afford the public adequate protection, or satisfy the public that grossly antisocial behaviour is adequately punished." However, he added, "We should never lose sight of the human suffering so often involved."

Lord Bingham expressed support for the review that the Government is undertaking into the youth justice system, and for its moves to expedite the courts' handling of young offenders; provided that the legitimate interests of defendants and the independence of judges and magistrates were safeguarded. He also called for measures to be taken to divert young people from crime at the earliest opportunity, and to tackle the root causes of offending.

See also R v Secretary of State for the Home Department, ex parte Furber (1997) The Times, July 11, QBD, said that a court should set a minimum tariff when sentencing a young person to detention for life under (53(2) CYPA 1933 and that the tariff generally be half the appropriate determinate sentence.

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