House of Lords Judgments (Hansard, 10 November 1997)

§ Mr. Straw

This judgment concerned the discretion of any holder of my office to increase a tariff once set for an adult convicted of murder. The majority of the House found that it is lawful for the Secretary of State to increase a tariff previously set, as set out in a reply given by my predecessor, the right hon. and learned Member for Folkestone and Hythe (Mr. Howard) on 27 July 1993,Official Report, columns 863–65. However, one of that majority found that that statement did not purport to apply to a decision to increase a tariff set before 27 July 1993, and so a different majority found that the increase of the tariff in the Pierson case was unlawful.

So far as the procedures for setting and reviewing tariffs of adult murderers are concerned, I am continuing the practice of my predecessor, as described in his answers of 27 July 1993, Official Report, columns 861–64 and 7 December 1994, Official Report, columns 234–35. In particular, before setting tariff, I am continuing to take the advice of the trial judge and the Lord Chief Justice, informing the prisoner of the substance of that advice and inviting representations about it, and giving reasons for any departure on my part from the judicial review.

With regard to the discretion to alter tariff, I reiterate that the view which I take (or a Minister acting under my authority takes) at the beginning of a mandatory life sentence, of the period necessary to satisfy the requirements of retribution and deterrence is an initial view of the minimum period necessary to satisfy those requirements. It therefore remains possible for me, or a future Secretary of State, exceptionally to revise that view of the minimum period, either by reducing it, or by increasing it where I, or a successor in my office, conclude that, putting aside questions of risk, the minimum requirements of retribution and deterrence will not have been satisfied at the expiry of the period which had previously been determined. The procedure for 420W considering any increase of a tariff once set will include the opportunity for the prisoner to make representations after being informed that the Secretary of State is minded to increase tariff, and to be given reasons for any subsequent decision to increase it.

So far as the potential for a reduction in tariff is concerned, I shall be open to the possibility that, in exceptional circumstances, including for example, exceptional progress by the prisoner whilst in custody, a review and reduction of the tariff may be appropriate. I shall have this possibility in mind when reviewing at the 25 year point the cases of prisoners given a whole life tariff and in that respect will consider issues beyond the sole criteria of retribution and deterrence described in the answer given on 7 December 1994. Prisoners will continue to be given the opportunity to make representations and to have access to the material before me.

I intend to apply these policies in respect of all tariffs for adult murderers, whether or not they were originally set before 27 July 1993 and whether or not they were originally fixed by me personally, or a Minister acting on my behalf, or by or on behalf of a previous holder of my office. In the Pierson case, where the tariff has now been quashed, I intend to invite representations from the prisoner before re-setting tariff at a level which I consider appropriate.

I take the opportunity to confirm that my approach on the release of adults convicted of murder once tariff has expired will reflect the policy set out in the answer given 27 July 1993. In particular, the release of such a person will continue to depend not only on the expiry of tariff and on my being satisfied that the level of risk of his committing further imprisonable offences presented by his release is acceptably low, but also on the need to maintain public confidence in the system of criminal justice. The position of a prisoner subject to a mandatory life sentence continues to be distinct from that of a prisoner serving a discretionary life sentence, a decision on whose final release is a matter for the Parole Board alone.

Everything in this answer about my practice in relation to mandatory life sentence prisoners applies equally to persons who are, or will be, sentenced, to custody for life under section 8 of the Criminal Justice Act 1982. For present purposes, a life sentence imposed under section 2 of the Crime (Sentences) Act 1997 is treated as a discretionary life sentence.

§ Mr. Straw

This judgment was concerned with the periods of imprisonment, known as the tariff, set by my predecessor, the right hon. and learned Member for Folkestone and Hythe (Mr. Howard) as being necessary to reflect the requirements of retribution and deterrence in the cases of the two boys convicted of the murder of James Bulger. The House of Lords concluded that the current arrangements for reviewing tariff in the cases of offenders under the age of eighteen, convicted of murder and sentenced to detention at Her Majesty's pleasure under section 53(1) of the Children and Young Persons 421W Act 1933, failed adequately to reflect the distinctive nature of that sentence. In particular, the judgment requires that the initial view of what is necessary by way of retribution and deterrence should be capable of reduction in the light of the offender's personal development while in custody, and that the offender's personal development should therefore be considered alongside the public interest in retribution and deterrence in keeping the tariff period under review.

The House of Lords did not conclude, however, that the sentence of detention at Her Majesty's pleasure was purely reformative in character, nor that the Secretary of State's declaration of an initial view of what was necessary by way of retribution and deterrence was unlawful. The public properly expects the unique crime of murder to attract an appropriate punishment, regardless of the age or circumstances of the offender. It is in the interests of victims' families, public confidence, and of the individual offender that a clear indication should be given, relatively quickly following conviction, of the Secretary of State's initial view of the minimum period of imprisonment necessary to reflect the seriousness of the particular offence. I intend to continue to provide that initial view as at present, taking into account the advice of the trial judge and the Lord Chief Justice, any representations made on the offender's behalf and the overarching requirements of public confidence in the sentence of detention at Her Majesty's pleasure. That initial view will continue also to reflect an awareness of the offender's age and personal circumstances at the time of conviction.

Public confidence in the sentence will not be maintained if that initial tariff is curtailed lightly or as a matter of course. Rather, it should be reduced only where the balance between the public interest in punishment on the one hand, and the public interest in the offender's welfare on the other, has clearly shifted so as to justify such a reduction. Moreover, the more serious the circumstances of the offence, as reflected in the length of the initial tariff, the higher will be the threshold at which the public interest in the offender's welfare may outweigh the public interest in the offender's punishment.

However, I have also to act on the House of Lords' conclusion that the law requires the sentence's effect upon the offender to be kept under review and that there may be circumstances in which the desirability of promoting the child's eventual re-integration into society may justify a revision of the initial view on tariff.

Taking these considerations into account, this is the new procedure which I shall adopt. I shall continue to seek the advice of the trial judge and of the Lord Chief Justice in deciding what punishment is required in any individual case of a person convicted under section 53(1) of the Children and Young Persons Act 1933. I shall then set an initial tariff with that advice, and the offender's personal circumstances, in mind. I shall continue to invite representations on the prisoner's behalf and give reasons for decisions.

Officials in my Department will receive annual reports on the progress and development of young people sentenced under section 53(1) whose initial tariff has yet to expire. Where there appears to be a case for considering a reduction in tariff, that will be brought to the attention of Ministers.

422W

When half of the initial tariff period has expired, I, or a Minister acting on my behalf, will consider a report on the prisoner's progress and development, and invite representations on the question of tariff, with a view to determining whether the tariff period originally set is still appropriate. In complex and difficult cases, I shall seek the assistance of my right hon. Friend the Secretary of State for Health in securing independent professional advice (that is to say, independent of those already charged with the care of the offender) on the young offender's condition and development.

Any request for a review of tariff before it expires will be considered on its merits, whether that request is made by or on behalf of the offender or by one of the agencies or individuals responsible for his or her care.

In considering requests, inviting representations, and in conducting reviews, I will look for evidence of: significant alteration in the offender's maturity and outlook since the commission of the offence; risks to the offender's continued development that cannot be sufficiently mitigated or removed in the custodial environment; any matter that calls into question the basis of the original decision to set tariff at a particular level (for example, about the circumstances of the offence itself or the offender's state of mind at the time); together with any other matter which appears relevant.

So far as the offender's age is concerned. I shall take into account the Government's international and domestic obligations to children under the age of 18 in deciding where the balance between the public interest in punishment and the public interest in the offender's welfare lies. That balance will also have been at the heart of the decision on the proper length of the initial tariff.

Where I consider that the offender's welfare may be seriously prejudiced by his or her continued imprisonment, and that the public interest in the offender's welfare outweighs the public interest in a further period of imprisonment lasting at least until the expiry of the provisionally set tariff, I will decide to reduce the tariff. In these circumstances, release on or after tariff expiry will be dependent on the question of risk, decided in the same way as at present.

There are currently 106 such offenders whose tariffs have been set but have not yet expired. My officials will write to each of them with the text of this statement asking if they wish to have their tariff reviewed in the way I have described, and, if so, on what grounds. I will, in any event, undertake reviews in each of the 74 cases where the halfway point of the tariff has been passed but where there are still two years or more to serve before tariff expires. The cases of those closest to tariff expiry will be considered first.

I believe the procedure I have described fully meets the requirement to keep the imprisonment of offenders sentenced to detention at Her Majesty's pleasure under review, and to treat such cases in a distinct way, having regard to the public interest in the welfare of children alongside the public interest in the proper and proportionate punishment of offenders. No one who has committed murder and is sentenced to detention at Her Majesty's pleasure will be released unless two conditions are satisfied: first, the tariff period necessary for 423W punishment must have been served; and, secondly, the Parole Board must be satisfied that the risk posed to the public by the offender's release would be acceptably low.

The tariffs set by my predecessor in the two particular cases considered by the House of Lords have been quashed. I intend to consider reports, invite representations on behalf of those offenders, and seek independent professional advice, before resetting an initial tariff within the terms of this statement, taking into account also the criticism contained in the judgement of the reasons given by my predecessor.