Smith, R (on the application of) v Secretary of State for the Home Department

A sentence of detention during Her Majesty’s pleasure imposed on a child convicted of murder is not equivalent to an ordinary life sentence. The Secretary of State must determine how long detention should continue, having regard to punishment, deterrence, risk and the child’s welfare. The child’s progress and development must remain capable of affecting that decision.

For pre-30 November 2000 cases, a policy preventing any further review after a minimum term has been fixed in accordance with the Lord Chief Justice’s recommendation is unlawful. The Secretary of State must keep open the possibility of further review. Relief may nevertheless be limited to the claimant where a wider declaration would be excessive.

The claimant had been convicted of murder while under eighteen and sentenced under Children and Young Persons Act 1933, section 53(1), to detention during Her Majesty’s pleasure. Her minimum term had initially been fixed at 15 years, later reduced to 13 years, and was subsequently confirmed following a recommendation by the Lord Chief Justice.

The Secretary of State relied on a transitional policy announced in March 2000 and refused to review the minimum term further. The claimant sought judicial review, contending that the policy was inconsistent with the House of Lords’ decision in R v Home Secretary ex parte Venables [1998] AC 407. The central issue was whether the Secretary of State remained under a continuing obligation to review the term in light of progress made during detention.

1. Nature of the sentence. Detention during Her Majesty’s pleasure is not a life sentence in the ordinary sense. It is detention for so long, but only for so long, as continued custody is appropriate. The statutory scheme requires a flexible approach to child offenders, including consideration of welfare and reintegration alongside retribution, deterrence and risk.
2. Continuing review. The House of Lords’ decision in R v Home Secretary ex parte Venables [1998] AC 407 continued to govern pre-30 November 2000 cases. The unlawfulness identified in that case arose because the policy excluded consideration of the child’s progress and maturation during detention. The claimant’s legal right to further review did not depend on the fact that the minimum term had been fixed following the Lord Chief Justice’s recommendation.
3. Section 28(4). Crime (Sentences) Act 1997, section 28(4), preserved the Secretary of State’s discretion to direct the period to be served before referral to the Parole Board. That discretion required him to keep open the possibility of a further review of the claimant’s minimum term. The refusal to consider the claimant’s individual merits, pursuant to a settled policy of no further review, was unlawful.
4. The perceived anomaly between this class of offender and other young offenders had already been recognised in Venables and could not be resolved by the court without a relevant statutory change. The arguments based on article 7 of the European Convention did not alter the conclusion, and article 8 was not relied upon.
5. The claimant was entitled to relief, but the court declined to make the wide declaration sought. The March 2000 statement, read with the letter of 10 June 2002, disclosed an unlawful policy insofar as it excluded further review of this claimant’s minimum term. Mr Justice Mitchell agreed.