LAW REPORT: Tariff element in girl's sentence too long

Regina v Secretary of State for the Home Department, ex parte Furber; Queen's Bench Divisional Court (Lord Justice Simon Brown and Mr Justice Owen) 30 June 1997

When determining the tariff element of a discretionery sentence of detention passed on a young person pursuant to section 53(2) of the Children and Young Persons Act 1933 the approach adopted should be the same as that in cases of murder under section 53(1) and, accordingly, it was no longer permissible to treat such young persons in the same way as adult offenders.

The Divisional Court allowed the applicant's application for judicial review of the tariff element of her sentence set by the Home Secretary.

In 1991, on the day after her 17th birthday, the applicant pleaded guilty to manslaughter on the grounds of diminished responsibility. At the time of the killing the applicant was aged 161/2.

She was sentenced to detention for life under section 53(2) of the Children and Young Person's Act 1933.

In his report to the Home Secretary the judge included a recommendation that the applicant should serve a minimum term of 10 years to meet the requirements of retribution and deterrence. The Lord Chief Justice, Lord Lane, suggested a nine- to ten-year minimum.

The case fell to be dealt with under the transitional provisions of the Criminal Justice Act 1991. The Home Secretary certified under paragraph 9 of Schedule 12 to the Act that section 34 of the Act should apply and that the relevant part of the applicant's sentence (the tariff) was 9 years.

Upon the applicant's claim that such a tariff was excessive, the Secretary of State referred the case back to the Lord Chief Justice. The then Lord Chief Justice, Lord Taylor of Gosforth, advised the Home Secretary that the tariff period should be reduced to seven years. The Home Secretary accepted that advice and reduced the tariff period accordingly. The applicant challenged that decision by way of judicial review.

Edward Fitzgerald QC and Phillippa Kaufman (Graysons, Sheffield) for the applicant; Hugo Keith (Treasury Solicitor) for the Home Secretary.

Lord Justice Simon Brown said that it had been submitted that the question of the appropriate tariff element in the applicant's sentence had been approached on an erroneous legal basis. In particular the requirement, it being a section 53(2) case, that regard be had to the applicant's welfare, had not been recognised. That consideration had only recently been highlighted by the decision of the House of Lords in R v Secretary of State for the Home Department, ex p Venables and ex p Thompson (Law Report, 18 June 1997).

In fixing a tariff under section 34 of the 1991 Act the judge had to decide first of all what determinate sentence he would have passed in the case if the need to protect the public and the potential danger of the offender had not required him to impose a life sentence. He then had to decide on such proportion of that determinate sentence as fell between a half and two-thirds of it.

The case of ex p Venables and ex p Thompson was itself a section 53(1) case, but was nevertheless one of great importance when it came to fixing tariffs for juveniles sentenced to detention for life under section 53(2). The majority of the House of Lords in that case had rejected the Home Secretary's view that the approach to juveniles should be same as to adults. In the case of young persons, the court should set the minimum tariff.

The court had decided in R v Carr [1996] 1 Cr App R (S) 191, another discretionary life sentence case under section 53(2), that half rather than two-thirds of the appropriate determinate sentence should be taken in arriving at the specified period under section 34. Following the House of Lords' decision, that should now generally be regarded as the correct approach in section 53(2) cases.

From all that it seemed inescapably to follow that the seven-year tariff period could not stand. In all the circumstances, the appropriate tariff could not properly exceed the six years which the applicant had now already been detained.

Start your day with The Independent, sign up for daily news emails
Latest stories from i100
Have you tried new the Independent Digital Edition apps?
Independent Dating
and  

By clicking 'Search' you
are agreeing to our
Terms of Use.

iJobs Job Widget
iJobs People

Recruitment Genius: HR Manager

£25000 - £30000 per annum: Recruitment Genius: They are in need of a HR Manage...

h2 Recruit Ltd: Business Development Manager - HR Consultancy - £65,000 OTE

£35000 - £40000 per annum + £65,000 OTE: h2 Recruit Ltd: London, Birmingham, M...

Day In a Page

Jeb Bush vs Hillary Clinton: The power dynamics of the two first families

Jeb Bush vs Hillary Clinton

Karen Tumulty explores the power dynamics of the two first families
Stockholm is rivalling Silicon Valley with a hotbed of technology start-ups

Stockholm is rivalling Silicon Valley

The Swedish capital is home to two of the most popular video games in the world, as well as thousands of technology start-ups worth hundreds of millions of pounds – and it's all happened since 2009
Did Japanese workers really get their symbols mixed up and display Santa on a crucifix?

Crucified Santa: Urban myth refuses to die

The story goes that Japanese store workers created a life-size effigy of a smiling "Father Kurisumasu" attached to a facsimile of Our Lord's final instrument of torture
Jennifer Saunders and Kate Moss join David Walliams on set for TV adaptation of The Boy in the Dress

The Boy in the Dress: On set with the stars

Walliams' story about a boy who goes to school in a dress will be shown this Christmas
La Famille Bélier is being touted as this year's Amelie - so why are many in the deaf community outraged by it?

Deaf community outraged by La Famille Bélier

The new film tells the story of a deaf-mute farming family and is being touted as this year's Amelie
10 best high-end laptops

10 best high-end laptops

From lightweight and zippy devices to gaming beasts, we test the latest in top-spec portable computers
Michael Carberry: ‘After such a tough time, I’m not sure I will stay in the game’

Michael Carberry: ‘After such a tough time, I’m not sure I will stay in the game’

The batsman has grown disillusioned after England’s Ashes debacle and allegations linking him to the Pietersen affair
Susie Wolff: A driving force in battle for equality behind the wheel

Susie Wolff: A driving force in battle for equality behind the wheel

The Williams driver has had plenty of doubters, but hopes she will be judged by her ability in the cockpit
Adam Gemili interview: 'No abs Adam' plans to muscle in on Usain Bolt's turf

'No abs Adam' plans to muscle in on Usain Bolt's turf

After a year touched by tragedy, Adam Gemili wants to become the sixth Briton to run a sub-10sec 100m
Calls for a military mental health 'quality mark'

Homeless Veterans campaign

Expert calls for military mental health 'quality mark'
Racton Man: Analysis shows famous skeleton was a 6ft Bronze Age superman

Meet Racton Man

Analysis shows famous skeleton was a 6ft Bronze Age superman
Garden Bridge: St Paul’s adds to £175m project’s troubled waters

Garden Bridge

St Paul’s adds to £175m project’s troubled waters
Stuff your own Christmas mouse ornament: An evening class in taxidermy with a festive feel

Stuff your own Christmas mouse ornament

An evening class in taxidermy with a festive feel
Joint Enterprise: The legal doctrine which critics say has caused hundreds of miscarriages of justice

Joint Enterprise

The legal doctrine which critics say has caused hundreds of miscarriages of justice
Freud and Eros: Love, Lust and Longing at the Freud Museum: Objects of Desire

Freud and Eros

Love, Lust and Longing at the Freud Museum