R v Secretary of State for the Home Department, Ex p Venables (R v Secretary of State for the Home Department, Ex parte Thompson, Thompson, Ex parte, Venables, Ex parte)

Detention during Her Majesty’s pleasure includes punishment, so a provisional tariff may be set. The policy must, however, remain flexible enough to take account of a child’s welfare, progress and development. Those considerations must be balanced against retribution, deterrence and risk throughout the detention.

The release procedure in Part II of the Criminal Justice Act 1991 did not equate this sentence with mandatory life imprisonment for an adult. When fixing the punitive period, the Secretary of State performs a function analogous to sentencing. General concern about the prevalence or seriousness of an offence may be relevant, but public clamour for severe punishment of a particular offender is an irrelevant consideration.

Two children, each aged ten at the time of the offence, were convicted of murder and sentenced under section 53(1) of the Children and Young Persons Act 1933 to detention during Her Majesty’s pleasure. The trial judge recommended a punitive period of eight years and the Lord Chief Justice recommended ten years. The Secretary of State fixed a tariff of 15 years after considering, among other matters, petitions and correspondence demanding severe punishment.

The Divisional Court quashed the decisions, holding that a fixed penal element was incompatible with the continuing review required by the sentence. The Court of Appeal, in R v Secretary of State for the Home Department, Ex parte Venables and Thompson [1997] 2 W.L.R. 67, rejected that conclusion by a majority but unanimously found procedural unfairness and dismissed the Secretary of State’s appeal.

The Secretary of State appealed on procedural fairness. The children cross-appealed on whether his tariff policy was lawful when applied to detention during Her Majesty’s pleasure.

The Secretary of State’s appeal was dismissed and the children’s cross-appeals were allowed by a majority of three to two. The tariff decisions were quashed.

1. All five Law Lords agreed that detention during Her Majesty’s pleasure contains a punitive element. The Secretary of State may therefore identify a punitive period. Lord Browne-Wilkinson, Lord Steyn and Lord Hope held that any tariff for a child must be provisional and sufficiently flexible to permit reconsideration in light of the child’s progress and development.

2. Lord Browne-Wilkinson, Lord Steyn and Lord Hope held that detention during Her Majesty’s pleasure is distinct from mandatory life imprisonment imposed on an adult. The child’s welfare and eventual reintegration are relevant throughout the sentence, although welfare is not paramount. A policy excluding those matters until expiry of a fixed tariff unlawfully fetters the discretion.

3. The same majority held that sections 35 and 43 of the Criminal Justice Act 1991 assimilated the procedures governing release. They did not alter the nature of the sentence under section 53(1) of the Children and Young Persons Act 1933 or require the same substantive criteria as those applicable to adult mandatory life prisoners.

4. Lord Goff, Lord Steyn and Lord Hope held that fixing the penal element is closely analogous to a judicial sentencing function, consistently with R v Secretary of State for the Home Department, Ex parte Doody [1994] 1 AC 531. General public concern about offending and appropriate punishment may be considered. Petitions, correspondence and media campaigns demanding severe punishment of identified offenders are public clamour and are legally irrelevant to the tariff. Reliance on that material rendered the decisions unlawful and unfair.

5. Lord Goff, Lord Steyn and Lord Hope rejected the remaining procedural complaints. There was no unfair failure to disclose material, and no general duty to obtain additional psychiatric or social reports where the Secretary of State could properly rely on the trial judge’s assessment.

Lord Goff and Lord Lloyd would have dismissed the cross-appeals, considering the fixed penal-element policy lawful under the statutory release regime. Lord Lloyd would also have allowed the Secretary of State’s appeal and held that particularised public concern could be considered. Lord Browne-Wilkinson left the public-clamour issue open but joined the majority in allowing the cross-appeals because the policy excluded the children’s progress and welfare.

1. House of Lords: The Secretary of State’s appeal was dismissed. The children’s cross-appeals were allowed by a majority of three to two, and the tariff decisions remained quashed.
2. Court of Appeal: In R v Secretary of State for the Home Department, Ex parte Venables and Thompson [1997] 2 W.L.R. 67, a majority rejected the Divisional Court’s reasoning on the general lawfulness of a penal element. All three members nevertheless found procedural unfairness, although on differing grounds, and dismissed the Secretary of State’s appeal.
3. Divisional Court: The court quashed the tariff decisions. It held that detention during Her Majesty’s pleasure required continuing review and that the Secretary of State’s fixed-tariff policy was incompatible with that duty. It did not determine the procedural-fairness grounds.