Secretary of State for the Home Department ex parte Venables and Thompson, R v.

The House of Lords considered whether the Home Secretary lawfully could identify a fixed "penal element" (a tariff) for children sentenced to be detained during Her Majesty's pleasure under section 53(1) of the Children and Young Persons Act 1933 and whether the particular decisions fixing a 15-year tariff for the appellants were lawful. The court examined the effect of Part II of the Criminal Justice Act 1991 (notably ss.34, 35 and 43) on the Secretary of State's discretion and the statutory duty to have regard to the welfare of children (section 44 of the 1933 Act).

Key legal principles: (i) a sentence under section 53(1) may contain a punitive element but, because it applies to children, the Secretary of State must keep the child's welfare and development under review; (ii) Part II of the Criminal Justice Act 1991 did not remove the requirement that welfare and progress of the child be considered; (iii) where the Secretary of State, in fixing a tariff pursuant to his statutory discretion, performs an exercise closely analogous to sentencing he must act free of irrelevant considerations and observe procedural fairness; (iv) taking into account public clamour directed at a particular case (petitions and media campaigns) in fixing the tariff was an irrelevant consideration and rendered the exercise unlawful.

The appellants, Robert Thompson and Jon Venables, were convicted of murder when they were aged about 10½. At sentence the trial judge completed the customary report and recommended a penal element. The Lord Chief Justice expressed a view increasing the judge's figure. The Home Secretary, applying his policy under Part II of the Criminal Justice Act 1991, fixed a minimum period (a tariff) of 15 years and postponed first Parole Board review accordingly. Applications for judicial review challenged that decision.

• Nature of the claim: Applications for judicial review sought to quash the Home Secretary's decisions fixing the penal element at 15 years and postponing the first Parole Board review; one applicant also alleged unfairness and breaches of natural justice.
• Procedural history: The Divisional Court (Pill L.J. and Newman J.) quashed the Home Secretary's decision. The Court of Appeal dismissed the Secretary of State's appeal ([1997] 2 W.L.R. 67). The case was then before the House of Lords.
• Issues framed: (i) Whether a sentence to be detained during Her Majesty's pleasure under section 53(1) precludes the Secretary of State from identifying a penal element to be served; (ii) the effect of Part II of the Criminal Justice Act 1991 (ss.33–51, esp. ss.34,35,43) on that discretion; (iii) whether the Secretary of State acted unlawfully or in breach of natural justice by failing to disclose material, by not obtaining particular reports, or by having regard to public petitions and media correspondence.
• Reasoning: The Lords analysed the statutory history (Children Act 1908; Children and Young Persons Act 1933) and Part II of the 1991 Act. They held that: the sentence under s.53(1) can include punishment; Part II applies to young offenders but does not extinguish the statutory and historical requirement to have regard to the welfare and development of child detainees; when the Secretary of State fixes a penal element he is carrying out an exercise closely analogous to sentencing and must avoid irrelevant considerations; public clamour aimed at increasing punishment in a particular case is legally irrelevant to fixing the penal element and reliance on it amounted to an unlawful exercise of discretion in this case. The House therefore quashed the Home Secretary's decisions, on substantive and procedural grounds, and affirmed that children's welfare must be kept under review during detention.

The Lords also considered other procedural complaints (disclosure and obtaining of psychiatric/social reports) and rejected most of them on the facts while emphasising that material relevant to the judicial view should in general be disclosed.

The House (majority) allowed the cross-appeals and dismissed the Secretary of State's appeal in large part. The court held that, although a penal element can be identified, the Secretary of State must keep the welfare and progress of child detainees under review and must not fix or operate a tariff policy so inflexibly that it excludes relevant consideration of the child's development; moreover, treating petitions and media campaigns addressed to the Secretary of State as evidence to increase the tariff was an improper consideration that rendered his decisions unlawful. Consequently the Home Secretary's decisions fixing a 15-year tariff for the two children were quashed.

Divisional Court (Pill L.J. and Newman J.) quashed the Home Secretary's decisions (reported in the Divisional Court judgment). The Secretary of State's subsequent appeal to the Court of Appeal was dismissed ([1997] 2 W.L.R. 67). The matter was then determined by the House of Lords ([1997] UKHL 25).