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

Factual and Procedural Background

The Respondent and a Co-Defendant—both aged 17—pleaded guilty on 8 March 1993 to the murder of an elderly woman committed on 16 July 1992. In accordance with section 53(1) of the Children and Young Persons Act 1933, the trial judge ordered that each offender be detained during Her Majesty’s Pleasure (HMP).

Under the then-operative regime the Secretary of State, after consulting the trial judge and Judge Chief Justice, fixed a minimum (tariff) term of 15 years (the trial judge had advised 16 years; Judge Chief Justice 14 years).

Following Ex p Venables the Secretary of State adopted a policy of periodically reviewing tariffs and, pursuant to that policy, reduced the Respondent’s tariff to 13 years.

The European Court’s ruling in V v United Kingdom (1999) condemned executive fixing of tariffs. In March 2000 the Secretary announced a dual response: (i) legislation for future cases and (ii) an informal, judge-advised procedure for existing (“old”) sentences. Section 60 of the Criminal Justice and Court Services Act 2000 (effective 30 November 2000) shifted tariff-setting for new cases to judges; sentences imposed before that date remained under the ad hoc scheme.

The Respondent made written representations under that scheme. On 21 November 2001 Judge Chief Justice declined to reduce the tariff further (while reducing her Co-Defendant’s tariff by one year) but expressed the hope that the Secretary would keep the case under review.

On 10 June 2002 the Secretary declared he would not revisit the Respondent’s tariff, arguing that any review duty ended once a judge, not the executive, fixed the minimum term. The Respondent sought judicial review. A Divisional Court and later the Court of Appeal ruled that the duty of continuing review subsisted. The Secretary appealed to the House of Lords, resulting in the present judgment.

Legal Issues Presented

1. Whether a pre-30 November 2000 sentence of detention during Her Majesty’s Pleasure inherently requires periodic review of the minimum term even when that term is fixed by a judge rather than by the Secretary of State.
2. Whether any such duty of review persists after the detainee has reached adulthood.

Arguments of the Parties

Secretary of State’s Arguments

• Scope of Ex p Venables – The decision was said to mandate review only when the executive set the tariff.
• Age Limitation – The review duty should expire once the detainee ceases to be a child or young person.
• Separation-of-Powers Concerns – Re-involving the Secretary post-V v United Kingdom would be “retrograde.”
• Form vs. Substance – Under the ad hoc procedure Judge Chief Justice effectively makes the decision, so further executive review is unnecessary.
• Anomaly – Imposing a review duty on pre-2000 detainees would create inconsistency with post-2000 statutory regimes and other sentencing categories.

Respondent’s Arguments

• Nature of the Sentence – Ex p Venables held that periodic review is intrinsic to an HMP sentence, regardless of who sets the tariff.
• Non-Retroactivity of Section 82A – The 2000 legislation applies prospectively; old sentences retain the historic review requirement.
• Continuing Welfare Rationale – The welfare-based justification for review continues after the detainee attains adulthood because the offence was committed while a juvenile.
• Executive Clemency – The Secretary can lawfully reduce tariffs on judicial advice without violating Article 6.

Table of Precedents Cited

Court's Reasoning and Analysis

Judge Bingham distilled Ex p Venables into two propositions: (i) an HMP sentence inherently carries a duty of continuing review, and (ii) subsequent legislation has not removed that duty for pre-30 November 2000 sentences.

• Executive vs. Judicial Tariff-Setting: The duty follows from the nature of the sentence, not the identity of the body that fixed the tariff.
• Age of the Detainee: Because the sentence is triggered by age at the time of the offence, the welfare-based rationale extends into adulthood.
• Separation-of-Powers Concerns: The Court acknowledged Article 6 issues but noted that executive reductions, unlike increases, are acts of clemency and can be based on judicial advice.
• Form vs. Substance: Even if Judge Chief Justice is the effective decision-maker under the ad hoc scheme, the Secretary still has the legal duty to monitor progress and trigger reconsideration.
• Anomaly Argument: Legislative evolution has been piecemeal; anomalies alone cannot justify abandoning a duty entrenched by precedent.

The Court concluded that the Secretary must monitor all pre-30 November 2000 HMP detainees and, where “exceptional and unforeseen progress” is evident, initiate reconsideration of the tariff—potentially by again consulting Judge Chief Justice—without infringing Article 6.

Holding and Implications

APPEAL DISMISSED.

The House of Lords affirmed that sentences of detention during Her Majesty’s Pleasure imposed before 30 November 2000 remain subject to periodic review of their minimum terms. The Secretary of State must therefore maintain a review mechanism and, where warranted, seek reconsideration. The judgment directly affects approximately 114 detainees in the same category but does not alter the statutory regime governing post-2000 sentences.