R. v. J.V. (1997), 216 N.R. 241 (HL)
MLB headnote and full text
Regina v. Secretary of State for the Home Department (Original appellant/cross-respondent) Ex parte J.V. (original respondent and cross-appellant)
Regina v. Secretary of State for the Home Department (original appellant/cross-respondent) Ex parte R.T. (original respondent and cross-appellant
(conjoined appeals)
Indexed As: R. v. J.V. and R.T.
House of Lords
London, England
Lord Goff of Chieveley,
Lord Browne-Wilkinson,
Lord Lloyd of Berwick,
Lord Steyn and
Lord Hope of Craighead
June 12, 1997.
Summary:
Two boys (aged 10½ years) were convicted of murdering James Bolger (aged two years).
The trial judge sentenced the accused to be detained during Her Majesty’s pleasure. That sentence was mandatory under s. 53(1) of the Children and Young Persons Act 1933 (U.K.). The trial judge, in his report to the Home Secretary, recommended that the accused serve a term of eight years (the penal element or tariff) before being considered for release. The Lord Chief Justice recommended that the minimum period be 10 years. The Home Secretary, exercising his discretion under s. 35 of the Criminal Justice Act 1991 (U.K.) and a Policy Statement of 1993, fixed the penal element of the sentence at 15 years. Under that scheme, 12 years would pass before there would be any form of review of the sentence by the Parol Board. The accused applied for judicial review on the ground that it was unlawful for the Home Secretary to specify a fixed period that had to be served by young offenders before being considered for release, the same policy as applied to adult murders. That policy conflicted with the Home Secretary’s continuing duty to keep the detention of the detainee under continuous review. One of the accused also submitted that the Home Secretary had acted unfairly and breached the rules of natural justice by, inter alia, taking into consideration petitions and other submissions by the public demanding an increase in the tariff recommended by the judiciary.
The Divisional Court allowed the application and quashed the Home Secretary’s decision on the ground that the Home Secretary breached his duty to keep the question of continued detention under review throughout the period of detention. The court expressed no opinion on the issue of unfairness or breach of natural justice. The Home Secretary appealed. The accused raised by way of respondents’ notices the issues of unfairness and breach of natural justice.
The Court of Appeal, in a decision reported [1997] 2 W.L.R. 67, dismissed the appeal. The court held that there had been procedural unfairness or a breach of natural justice. However, the court also held that the Home Secretary could impose a penal term or tariff that had to be served before the accused could be considered for release. The Home Secretary appealed the decision regarding the finding of procedural unfairness and breach of natural justice. The accused cross-appealed the finding on the issue of the penal element or tariff.
The House of Lords, Lord Goff of Chieveley, dissenting in part, dismissed the Home Secretary’s appeal and allowed the accused’s cross-appeal.
Criminal Law – Topic 5849.6
Sentencing – Considerations on imposing sentence – Prohibited or improper considerations – Public opinion – [See
Criminal Law – Topic 8806
].
Criminal Law – Topic 8703
Young offenders – General principles – Best interests of young person – Two boys aged 10½ years murdered a boy aged two years – The trial judge sentenced the accused to be detained during Her Majesty’s pleasure and recommended that they serve eight years before being considered for release (the penal element) – The Home Secretary fixed the penal element of the sentence at 15 years – That term would be reviewed by the Parol Board after 12 years – The accused applied for judicial review on the ground that, inter alia, the Home Secretary exceeded his discretionary powers by adopting a policy which precluded himself and the Parol Board from having any regard to the circumstances and welfare of the accused for 12 years – The House of Lords affirmed the decision to quash the Home Secretary’s decision – See paragraphs 92, 158 and 168.
Criminal Law – Topic 8804.1
Young offenders – Decisions (incl. punishments) – Sentencing – Where minimum punishment prescribed by statute – Two boys (aged 10½ years) murdered a boy aged two years – The trial judge sentenced the accused to be detained during Her Majesty’s pleasure and recommended that they serve eight years before being considered for release (the penal element) – The Home Secretary fixed the penal element of the sentence at 15 years – That term would be reviewed by the Parol Board after 12 years – The accused applied for judicial review on the ground that, inter alia, it was unlawful for the Home Secretary to specify a fixed period that had to be served by young offenders before being considered for release, the same policy as applied to adult murders – The House of Lords affirmed the decision to quash the Home Secretary’s decision – See paragraphs 92, 158 and 168.
Criminal Law – Topic 8806
Young offenders – Decisions (incl. punishments) – Sentencing considerations – Two boys (aged 10½ years) murdered a boy aged two years – The trial judge sentenced the accused to be detained during Her Majesty’s pleasure and recommended that they serve eight years before being considered for release (the penal element) – The Home Secretary fixed the penal element of the sentence at 15 years – That term would be reviewed by the Parol Board after 12 years – The accused applied for judicial review on the ground that, inter alia, the Home Secretary had acted unfairly and breached the rules of natural justice by considering petitions and other submissions from the public demanding a term longer than eight years – The House of Lords affirmed the decision to quash the Home Secretary’s decision – See paragraphs 50, 163 and 168.
Cases Noticed:
R. v. Fuat; R. v. Duignan, [1973] 1 W.L.R. 1045 (C.A.), consd. [para. 24].
R. v. Chambers; R. v. Sorsby (1967), 51 Cr. App. R. 254 (C.A.), consd. [para. 24].
R. v. Secretary of State for the Home Department; Ex parte Doody, [1994] 1 A.C. 531 (H.L.), consd. [para. 25].
R. v. Secretary of State for the Home Department; Ex parte Handscomb (1988), 86 Cr. App. R. 59 (Dist. Ct.), refd to. [para. 28].
Thynne, Wilson and Gunnell v. United Kingdom (1990), 13 E.H.R.R. 666, consd. [para. 30].
Findlay, In re, [1985] A.C. 318 (H.L.), refd to. [para. 65].
R. v. Port of London Authority; Ex parte Kynoch Ltd., [1919] 1 K.B. 176, refd to. [para. 71].
British Oxygen Co. v. Minister of Technology, [1971] A.C. 610 (H.L.), refd to. [para. 71].
Wynne v. United Kingdom (1994), 19 E.H.R.R. 333, consd. [para. 87].
R. v. Abbott, [1964] 1 Q.B. 489 (C.A.), refd to. [para. 97].
Attorney General ex rel. Tilley v. Wandsworth London Borough Council, [1981] 1 W.L.R. 854 (C.A.), consd. [para. 99].
R. v. Fairhurst, [1986] 1 W.L.R. 1374 (C.A.), consd. [para. 113].
C. (A Minor) v. Director of Public Prosecutions, [1996] 1 A.C. 1 (H.L.), consd. [para. 157].
Hinds v. R.; Director of Public Prosecutions v. Jackson, [1977] A.C. 195 (P.C.), refd to. [para. 163].
Duport Steels Ltd. v. Sirs, [1980] 1 W.L.R. 142 (H.L.), refd to. [para. 163].
R. (A Child) v. Whitty (1993), 66 A. Crim. R. 462 (Vict. S.C.), consd. [para. 172].
Statutes Noticed:
Child and Young Persons Act 1933 (U.K.), sect. 53(1), sect. 53(2), sect. 53(3), sect. 53(4) [para. 18].
Children Act 1908 (U.K.), sect. 103, sect. 104, sect. 105 [para. 17].
Criminal Justice Act 1991 (U.K.), sect. 35(2), sect. 35(3) [paras. 32, 182]; sect. 43(1), sect. 43(2), sect. 43(3) [paras. 33, 118]; sect. 43(4), sect. 43(5) [para. 118].
United Nations Convention on the Rights of the Child (1989), 28 International Legal Materials 1448, art. 3(i), art. 40(i) [para. 79]; art. 40.1 [para. 176].
Authors and Works Noticed:
deSmith, Woolf and Jowell: Judicial Review of Administrative Action (5th Ed. 1995), p. 506 et seq.; para. 11.004 et seq. [para. 71].
England, White Paper on Crime, Justice and Protecting the Public (February 1990), Cmnd. 965, generally [para. 157].
Hale’s Pleas of the Crown (6th Ed. 1788), vol. 1, pp. 25 et seq. [para. 173].
Howard, Criminal Law (4th Ed. 1982), p. 343 [para. 157].
European Convention on Human Rights, art. 5(4) [para. 101].
Simpson, A.W.B., Paper submitted to European Court of Human Rights in Prem Singh v. United Kingdom, generally [para. 22].
United Kingdom, Ingleby Report of the Committee on Children and Young Persons (1960), Cmnd. 1191, paras. 53(d), 58 [para. 154].
United Kingdom, Report of the Departmental Committee on the Treatment of Young Offenders (1927), Cmnd. 2831, p. 8 [para. 153].
Counsel:
David Pannick, Q.C., and Mark Shaw, for the original appellant;
Edward Fitzgerald, Q.C., and Ben Emmerson, for the original respondent, J.V.;
Brian Higgs, Q.C., and Julian Nutter, for the original respondent, R.T.
Agents:
Treasury Solicitor, for the original appellant;
Graysons, for the original respondent, J.V.;
Paul Rooney & Co., for the original respondent, R.T.
This appeal was heard in London, England, on January 27, 28, 29 and 30, 1997, before Lord Goff of Chieveley, Lord Browne-Wilkinson, Lord Lloyd of Berwick, Lord Steyn and Lord Hope of Craighead, of the House of Lords. The decision of the House was given on June 12, 1997, when the following speeches were delivered:
Lord Goff of Chieveley, dissenting in part – see paragraphs 1 to 52;
Lord Browne-Wilkinson – see paragraphs 53 to 95;
Lord Lloyd of Berwick – see paragraphs 96 to 142;
Lord Steyn – see paragrpahs 143 to 167;
Lord Hope of Craighead – see paragraphs 168 to 196.
