Secretary of State v Smith

A sentence of detention during Her Majesty’s pleasure is distinct from a mandatory life sentence. The continuing-review obligation recognised by the House of Lords in [1998] AC 407 survives a later change under which the Lord Chief Justice fixes or recommends the tariff. The detainee’s welfare, development and progress must remain under review alongside retribution, deterrence and risk. Article 6 normally requires sentencing at a public hearing, but an oral hearing is not automatic in a routine transitional tariff review where written representations suffice and the public interest supports that procedure. A clear and unequivocal waiver is required; speed and written submissions alone do not establish waiver.

These conjoined appeals concerned two young persons convicted of murder and sentenced to detention during Her Majesty’s pleasure. Maria Smith challenged the Secretary of State’s policy of not periodically reviewing an existing tariff after the Lord Chief Justice had reviewed it. The Divisional Court upheld her claim on 3 April 2003.

Anthony Dudson challenged the tariff fixed after a similar review. He argued that he was entitled to an oral hearing and that the tariff failed to reflect his welfare and development. The Divisional Court rejected those arguments but held that the Secretary of State remained subject to a continuing-review obligation. The central issues were whether that obligation survived the changed tariff-setting procedure and whether Dudson’s procedural and substantive challenges succeeded.

1. Both appeals were dismissed. The Secretary of State’s appeal in Smith failed. Dudson’s appeal also failed. Permission to appeal to the House of Lords was refused in Dudson.
2. The sentence of detention during Her Majesty’s pleasure under section 53(1) of the Children and Young Persons Act 1933 is distinct from life imprisonment. Under section 44(1), the welfare of the young person is a relevant consideration. The reasoning of the majority in Venables required the detainee’s development and progress to be considered alongside retribution, deterrence and risk.
3. That continuing-review obligation was not removed in the transitional cases merely because the Lord Chief Justice reviewed or recommended the tariff and the Secretary of State undertook to accept the recommendation. The tariff could be provisional, but the individual’s position still had to be periodically reviewed so that release before expiry could be considered where welfare justified it.
4. The Lord Chief Justice’s review was a sui generis sentencing exercise. Article 6 normally requires sentencing to occur at a public hearing before an independent and impartial tribunal. An oral hearing was not automatic here. The review was routine, written representations and progress reports were adequate, and the public interest favoured avoiding the substantial delay and burden of oral hearings. Collozza did not materially assist; Botten, Goc and Easterbrook supported the contextual approach.
5. Dudson had not clearly and unequivocally waived any right to an oral hearing merely by seeking a speedy decision and providing written submissions. The point was immaterial because no oral hearing was required and, in any event, the later oral argument had caused no prejudice.
6. The Lord Chief Justice had carried out a fresh tariff assessment under his Practice Statement. The fact that the resulting tariff was close to the original recommendation did not show that he had treated the original tariff as binding or failed to consider welfare and progress. Future welfare requirements and exceptional progress were largely unforeseeable when the tariff was initially fixed; periodic review was the proper mechanism for addressing them.

• Court of Appeal (Civil Division): On 11 February 2004, both appeals were dismissed. Permission to appeal to the House of Lords was refused in Dudson.
• Divisional Court, Queen’s Bench Division: Smith’s judicial review claim was upheld on 3 April 2003. Dudson’s challenge was considered on 21 November 2003; the court rejected his oral-hearing and tariff arguments but held that periodic review remained required.