Regina v. Secretary of State for the Home Department (Appellant) ex parte Smith (Respondent) and one other action

A sentence of detention during Her Majesty’s Pleasure imposed under section 53(1) of the Children and Young Persons Act 1933 for murder committed before 30 November 2000 carries an intrinsic duty of continuing review. The duty remains where the minimum term was fixed on the advice of a judge and where the offender has since become an adult.

The detainee’s progress must remain under review. An unexpired minimum term must be reconsidered where clear evidence of exceptional and unforeseen progress is reasonably judged to require it. The Secretary of State may seek the Lord Chief Justice’s advice on any reduction. The statutory regime for sentences passed from 30 November 2000 did not govern these older sentences.

At the age of 17 years and eight months, Maria Smith committed murder and was sentenced under section 53(1) of the Children and Young Persons Act 1933 to detention during Her Majesty’s Pleasure. The Secretary of State initially fixed a minimum term of 15 years. Following R v Secretary of State for the Home Department, Ex p Venables [1998] AC 407, it was reduced to 13 years.

Under a later non-statutory procedure, the Lord Chief Justice found no basis for a further reduction but expressed the hope that the case would remain under review. The Secretary of State subsequently refused to conduct any further review because the minimum term had effectively been set judicially.

The Divisional Court, [2003] EWHC 692 (Admin), [2003] 1 WLR 2176, and the Court of Appeal, [2004] EWCA Civ 99, [2004] QB 1341, held that the duty continued. The central issue was whether continuing review formed part of the nature of a pre-30 November 2000 sentence, irrespective of who fixed the minimum term.

1. Disposition. Lord Bingham of Cornhill delivered the leading speech. Lord Nicholls of Birkenhead, Lord Hoffmann, Lord Hope of Craighead and Baroness Hale of Richmond agreed with his reasons. The House unanimously dismissed the Secretary of State’s appeal.
2. Nature of the sentence. Per Lord Bingham, the majority reasoning in R v Secretary of State for the Home Department, Ex p Venables [1998] AC 407 established that detention during Her Majesty’s Pleasure was a special sentence reflecting the reduced responsibility and particular needs of a person who committed murder while young. Continuing review was an intrinsic feature of that sentence. A minimum term could therefore be only provisional because progress in custody might justify a downward revision.
3. Identity of the tariff-setter. Per Lord Bingham, the reasoning in Ex p Venables rested on the nature of the sentence, not on the Secretary of State’s involvement in fixing the minimum term. The duty of review consequently continued where the Lord Chief Justice had made the effective tariff decision.
4. Attaining adulthood. Per Lord Bingham, the duty did not expire when the detainee became an adult. The sentence depended on the offender’s age when the murder was committed. Subsequent maturation could permit a more reliable assessment of deserved punishment and the period needed for rehabilitation.
5. Applicable statutory regime. Per Lord Bingham, section 60 of the Criminal Justice and Court Services Act 2000 and section 82A of the Powers of Criminal Courts (Sentencing) Act 2000 applied only to sentences passed from 30 November 2000. They did not alter the continuing-review requirement governing earlier sentences. The House did not decide whether the new regime contained a comparable duty.
6. Performance of the duty. Per Lord Bingham, officials responsible to the Secretary of State necessarily had to monitor detainees because they possessed the relevant custodial information. Where clear evidence of exceptional and unforeseen progress was reasonably judged to call for reconsideration, the unexpired minimum term had to be reviewed. The Secretary of State could seek the Lord Chief Justice’s advice and was not required to resume routine sentencing adjudication.
7. Convention issue and additional reasoning. Per Lord Bingham, the authorities concerning article 6 of the Convention had addressed the initial fixing of the minimum term. They did not necessarily prevent an executive reduction, which might constitute clemency. Baroness Hale added that juveniles’ immaturity, vulnerability and less fixed character supported diminished blameworthiness and an emphasis on maturation and rehabilitation.

1. House of Lords: In [2005] UKHL 51, unanimously dismissed the Secretary of State’s appeal and affirmed that the continuing-review duty applied.
2. Court of Appeal: In [2004] EWCA Civ 99, [2004] QB 1341, affirmed the Divisional Court’s decision that the pre-30 November 2000 sentence remained subject to continuing review.
3. Queen’s Bench Divisional Court: In [2003] EWHC 692 (Admin), [2003] 1 WLR 2176, held that the Secretary of State remained under the continuing-review duty.