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Secretary of State for the Home Department ex parte Venables and Thompson, R v.
Factual and Procedural Background
Two boys aged ten, referred to here as “V.” and “T.”, were convicted in November 1993 of the abduction and murder of a two-year-old child. Because they were over the age of criminal responsibility (ten) but under eighteen, the trial court had to impose the mandatory sentence required by section 53(1) of the Children and Young Persons Act 1933: detention during Her Majesty’s pleasure.
The trial judge, after describing the crime as one of “unparalleled evil and barbarity,” recommended a tariff (minimum punitive term) of eight years. The Lord Chief Justice later suggested ten years. Acting under section 35 of the Criminal Justice Act 1991 and relying in part on public petitions and media correspondence (some 300,000 expressions of opinion), the Secretary of State fixed a tariff of fifteen years and postponed the first Parole Board review until twelve years had been served.
V. and T. sought judicial review. The Divisional Court quashed the Secretary of State’s decision, holding that he had no power to impose a fixed tariff in a section 53(1) case. The Court of Appeal dismissed the Secretary of State’s appeal on procedural-fairness grounds but, by majority, held that he did have power to set a tariff; it nevertheless upheld the quashing because of procedural defects. In the House of Lords the Secretary of State appealed on the procedural issues and the detainees cross-appealed on the substantive (“power to set a tariff”) issue. The appeals were heard together.
Legal Issues Presented
- Does the statutory scheme permit the Secretary of State to fix a punitive tariff for a child sentenced to detention “during Her Majesty’s pleasure” under section 53(1) of the 1933 Act?
- Even if such power exists, did the Secretary of State act unlawfully by:
- taking into account public petitions and media campaigns when fixing the tariff; and/or
- failing to afford the detainees proper procedural fairness in the tariff-setting process?
Arguments of the Parties
Applicants’ Arguments
- Detention under section 53(1) is intended to be primarily preventative and rehabilitative; it contains no, or only limited, punitive element, so a fixed tariff is impermissible.
- Even if a tariff may in principle be set, the Home Secretary acted unfairly by relying on mass petitions and media pressure, by withholding full material, and by failing to consider their developmental progress.
Secretary of State’s Arguments
- Section 53(1) sentences do contain a punitive element; the Criminal Justice Act 1991 assimilates their release procedures to those for adult mandatory life sentences, so a tariff may lawfully be fixed.
- Public confidence in the criminal-justice system is a relevant factor; the petitions were evidence of that concern. Any procedural omissions were either immaterial or later cured.
Table of Precedents Cited
| Precedent | Rule or Principle Cited For | Application by the Court |
|---|---|---|
| Regina v. Secretary of State for the Home Department, ex parte Doody [1994] 1 AC 531 | Home Secretary may fix a tariff for mandatory life prisoners but must act fairly and disclose the judicial recommendation. | Used to show that tariff-setting is akin to sentencing and must observe procedural fairness. |
| Thynne, Wilson & Gunnell v. United Kingdom (1990) 13 E.H.R.R. 666 | Discretionary life prisoners are entitled to judicial review of continued detention. | Explained why Parliament “judicialised” discretionary—but not mandatory—life sentences in the 1991 Act. |
| In re Findlay [1985] AC 318 | Executive policies are lawful if they allow departure in exceptional cases. | Cited in discussion of whether the Home Secretary’s policy impermissibly fettered discretion. |
| Regina v. Fuat [1973] 1 WLR 1045 | Section 53 sentences create a flexible regime allowing early release when safe. | Used to illustrate the historic expectation of continuous review for young offenders. |
| Regina v. Chambers; Regina v. Sorsby (1967) 51 Cr App R 254 | Home Secretary may release section 53 detainees at any time; sentence is effectively indeterminate. | Supported view that progress during detention must remain relevant throughout the sentence. |
| Regina v. Secretary of State for the Home Department, ex parte Handscomb (1988) 86 Cr App R 59 | Importance of transparency and fairness in life-sentence review procedures. | Referenced in tracing the evolution of tariff policy. |
Court's Reasoning and Analysis
1 – Power to set a tariff. The majority held that detention during Her Majesty’s pleasure does contain a punitive element; nothing in section 53(1) or in Part II of the Criminal Justice Act 1991 forbids the Home Secretary from identifying that element at the outset. Therefore the Secretary of State can set an initial, reviewable tariff.
2 – Distinct nature of the sentence. Nevertheless, the sentence is not identical to adult mandatory life imprisonment. Its history and wording imply an ongoing duty to keep the child’s welfare and maturation under continuous review. Any policy that treats the tariff as irrevocable or ignores post-sentence development is inconsistent with that duty.
3 – Public-clamour material. Fixing the tariff is a quasi-judicial exercise. Mass petitions, press coupons and similar “public clamour” are not relevant to the judicial question of what period reflects retribution and deterrence. By giving those materials weight, the Home Secretary took into account an irrelevant consideration and acted unfairly.
4 – Other procedural complaints. Allegations about non-disclosure of reports and failure to obtain fresh psychiatric evidence were rejected: the detainees eventually received the judge’s report, and the Secretary of State was entitled to rely on the trial materials unless new evidence of culpability emerged.
Holding and Implications
HOLDING: The House of Lords DISMISSED the Secretary of State’s appeal (procedural unfairness was established) and DISMISSED the detainees’ cross-appeals (the Secretary of State has power to set a tariff). The Home Secretary’s 15-year tariff decision was quashed.
Implications:
- The Home Secretary retains authority to set an initial tariff for children detained during Her Majesty’s pleasure.
- In exercising that authority, he must exclude public-pressure material and recognise the continuing duty to review the child’s progress; failure to do so renders the decision unlawful.
- The judgment preserves ministerial discretion but reinforces procedural safeguards and the special status of child offenders, without creating new precedent on the substantive length of tariffs.
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