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

The House held that a sentence of detention during Her Majesty's Pleasure imposed under section 53(1) of the Children and Young Persons Act 1933 before 30 November 2000 retains an intrinsic requirement of continuing review. Section 60 of the Criminal Justice and Court Services Act 2000 and the inserted section 82A of the Powers of Criminal Courts (Sentencing) Act 2000 govern sentences imposed after 30 November 2000, but do not affect pre-existing sentences. The decision in R v Secretary of State for the Home Department, Ex p Venables [1998] AC 407 and the European Court of Human Rights' decision in V v United Kingdom (1999) 30 EHRR 121 were treated as establishing that the special nature of HMP detention for juveniles includes ongoing review so that minimum terms (tariffs) may be varied downwards in light of the detainee's progress. The Secretary of State cannot lawfully disclaim the duty of continuing review in relation to pre-30 November 2000 detainees whose tariffs have not expired; review is required where there is clear evidence of exceptional and unforeseen progress that reasonably calls for reconsideration.

Background and parties: The respondent, Maria Smith, pleaded guilty in 1993 to murder committed when she was 17 years and 8 months old. The trial judge directed detention during Her Majesty's Pleasure under section 53(1) of the Children and Young Persons Act 1933. The Lord Chief Justice recommended a tariff and the Secretary of State fixed the minimum term (tariff). Following the House's decision in R v Secretary of State for the Home Department, Ex p Venables [1998] AC 407 and decisions of the European Court of Human Rights, the Secretary of State altered policy and later, after statute (Criminal Justice and Court Services Act 2000) provided that judges should set tariffs for future cases, adopted an ad hoc procedure for reviewing pre-legislative tariffs.

Procedural posture: The Lord Chief Justice subsequently considered representations and adopted his recommendation; the Secretary of State declined further review. The respondent sought judicial review of the Secretary of State's refusal to undertake continuing review of her tariff. The Divisional Court and the Court of Appeal held that the sentence of HMP detention imports a duty of continuing review even where the tariff has been fixed on the advice of the Lord Chief Justice. The Secretary of State appealed to the House of Lords.

Nature of the claim / relief sought: The respondent sought a declaration or judicial review relief that the Secretary of State is under a duty to keep under periodic review the minimum term of detention during Her Majesty's Pleasure imposed before 30 November 2000, notwithstanding that the Lord Chief Justice had approved or recommended the tariff.

Issues framed by the court: (i) Whether the majority decision in Ex p Venables required continuing review only where the tariff was set by the executive, or whether it established that continuing review is an intrinsic feature of HMP detention for juveniles regardless of who fixed the tariff. (ii) Whether the legislative changes effected by section 60 of the Criminal Justice and Court Services Act 2000 and section 82A of the Powers of Criminal Courts (Sentencing) Act 2000 displaced any continuing-review obligation for pre-30 November 2000 sentences.

Court’s reasoning: The House analysed the reasoning in Ex p Venables and concluded that the essential nature of the sentence of detention during Her Majesty's Pleasure, as enacted and long understood (including reference to the Children Act 1908, the Children and Young Persons Act 1933 and subsequent legislation), included a feature of continuing review so that the provisional tariff might be varied downwards if the detainee's progress warranted it. Section 82A and the legislative scheme apply only to sentences imposed after 30 November 2000 and therefore do not govern pre-existing sentences. The Secretary of State cannot avoid the continuing-review obligation for pre-30 November 2000 detainees by declining to perform it; however, the Secretary of State may sensibly obtain advice from the Lord Chief Justice and may reasonably limit review to cases where there is clear evidence of exceptional and unforeseen progress that justifies reconsideration. The House dismissed the appeal and confirmed that review remains available for pre-30 November 2000 HMP detainees whose tariffs have not expired.

Appeal dismissed. The House held that sentences of detention during Her Majesty's Pleasure imposed before 30 November 2000 import a duty of continuing review of the minimum term, even where the tariff has been fixed on the advice of the Lord Chief Justice; section 82A (and section 60 of the Criminal Justice and Court Services Act 2000) applies only to sentences after that date and does not displace the continuing-review obligation in pre-existing cases. The Secretary of State cannot lawfully refuse to keep such tariffs under review, although review may properly be confined to cases where clear evidence of exceptional and unforeseen progress reasonably calls for reconsideration, and the Secretary of State may obtain the Lord Chief Justice's advice.

Divisional Court (Kennedy LJ and Mitchell J) [2003] EWHC 692 (Admin), [2003] 1 WLR 2176; Court of Appeal (Lord Phillips MR, Mantell and Carnwath LJJ) [2004] EWCA Civ 99, [2004] QB 1341 (affirming Divisional Court); House of Lords [2005] UKHL 51 (this judgment).