A policy whereby the Home Secretary set an inflexible tariff period to be served by a child sentenced to detention during Her Majesty's pleasure was unlawful. In deciding on the tariff period, it was legitimate for the Home Secretary to take account of public concern of a general nature, but not of public clamour directed towards the decision in a particular case.
The House of Lords, Lord Goff and Lord Lloyd dissenting, allowed cross- appeals by the applicants, and, Lord Lloyd dissenting, dismissed the appeal of the Home Secretary.
Jon Venables and Robert Thompson, both aged 11, were convicted of the murder of the two-year-old James Bulger. They were aged 10 at the time of the murder. They were sentenced to be detained during Her Majesty's pleasure pursuant to section 53(1) of the Children and Young Persons Act 1933. In his report to the Home Secretary, the trial judge recommended that the actual length of detention necessary to meet the requirements of the "penal element" or "tariff" should be eight years. The Lord Chief Justice advised the Home Secretary that it should be increased to 10 years.
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, decided that the penal element should be increased to 15 years. In his decision letters and other correspondence with the applicants' solicitors it was stated that he had had regard inter alia to public concern about the case, evidenced by petitions urging that the two boys should be detained for life or for a minimum of 25 years; and coupons cut from a popular newspaper, together with letters, demanding a life tariff. The Divisional Court quashed the Home Secretary's decisions, and his appeal to the Court of Appeal failed.
David Pannick QC and Mark Shaw (Treasury Solicitor) for the Home Secretary; Edward Fitzgerald QC and Ben Emmerson (Graysons, Sheffield) for Venables; Brian Higgs QC and Julian Nutter (Paul Rooney & Co, Liverpool) for Thompson.
Lord Browne-Wilkinson said that the Home Secretary had adopted a tariff policy in exercising his discretion whether to release adults who had been sentenced to life imprisonment. Having received advice from the trial judge and the Lord Chief Justice he made his own decision as to the minimum period to be served to satisfy the elements of retribution and deterrence. That was the tariff period.
The policy provided that, until three years before the tariff period expired, the Home Secretary would not refer the case to the Parole Board. Moreover, until the tariff period had expired, he would not exercise his discretion to release on licence. In a statement to Parliament on 27 July 1993 the Home Secretary had made clear that the tariff system applied to children sentenced to detention during Her Majesty's pleasure as it did to adult murderers.
The sentence of detention during Her Majesty's pleasure was not the same as a life sentence passed on an adult prisoner. In setting the tariff of 15 years for the applicants the Home Secretary was applying an unlawful policy. The unlawfulness lay in adopting a policy which totally excluded 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 was one of the factors which the Home Secretary had to take into account in deciding from time to time how long the applicant should be detained. That did not mean that in relation to children detained during Her Majesty's pleasure any policy based on a tariff would be unlawful, but it would have to be sufficiently flexible to enable the Home Secretary to take into account the progress of the child and his development. In relation to children the factors of retribution, deterrence and risk were not the only relevant factors: the welfare of the child was also a relevant factor.
Lord Goff said that the Home Secretary, in fixing the penal element of a life sentence or a sentence of detention during Her Majesty's pleasure, was exercising a function closely analogous to a judge's sentencing function. He was under a duty to act within the same constraints as a judge when exercising the sentencing function.
In considering whether he had been entitled to have regard to the petitions and other material referred to in his decision letters, a distinction should be drawn between public concern of a general nature with regard to, for example, the need to punish the perpetrators of certain prevalent offences, and public clamour that a particular offender should be singled out for severe punishment. It was legitimate for a sentencing authority to take the former into account, but not the latter, and the Home Secretary had erred in the present case.