R v Secretary of State for the Home (Hansard, 10 November 1997)

§ Lord Williams of Mostyn

This judgment was concerned with the periods of imprisonment, known as the tariff, set by my right honourable friend's predecessor, the right honourable Member for Folkestone and Hythe, as being necessary to reflect the requirements of retribution and deterrence in the cases10WA 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 18, convicted of murder and sentenced to detention at Her Majesty's pleasure under Section 53(1) of the Children and Young Persons Act 1933, failed adequately to reflect the distinctive nature of that sentence. In particular, the judgment requires that the initial review 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. My right honourable friend intends 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, my right honourable friend has 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 reintegration into society may justify a revision of the initial view on tariff.

Taking these considerations into account, this is the new procedure which my right honourable friend will adopt. He will 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 11WA and Young Persons Act 1933. He will then set an initial tariff with that advice, and the offender's personal circumstances, in mind. He will continue to invite representations on the prisoner's behalf and give reasons for decisions.

Officials in the 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.

When half of the initial tariff period has expired, my right honourable friend or a Minister acting on his 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, my right honourable friend will seek the assistance of his right honourable 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, my right honourable friend 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, my right honourable friend will 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 my right honourable friend considers 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, he 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.

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There are currently 105 such offenders where tariffs have been set but have not yet expired. Our 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 we have described, and, if so, on what grounds. My right honourable friend 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.

My right honourable friend believes the procedure he has 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 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 right honourable friend's predecessor in the two particular cases considered by the House of Lords have been quashed. My right honourable friend intends 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 judgment of the reasons given by his predecessor.