CEDH · CASELAW;REPORTS;ENG — 4 décembre 1998

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BRATZA           35   DISSENTING OPINION OF MR. L. LOUCAIDES         38   PARTLY DISSENTING OPINION OF MR S. TRECHSEL       40   PARTLY DISSENTING OPINION OF MR E. BUSUTTIL       41   PARTLY DISSENTING OPINION OF MR M.P. PELLONPÄÄ       42   PARTLY DISSENTING OPINION OF MR B. CONFORTI JOINED BY MR I. BÉKÉS                 43   APPENDIX:   DECISION OF THE COMMISSION AS TO THE ADMISSIBILITY OF THE APPLICATION           . . . . . .44   I.   INTRODUCTION   1   The following is an outline of the case as submitted to the European Commission of Human Rights, and of the procedure before the Commission.   A.   The application   2   The applicant, born in 1982, is a British citizen currently serving a sentence of detention during Her Majesty's pleasure in a secure unit run by a local authority. He is represented before the Commission by John Howell & Co, solicitors, practising in Sheffield.   3   The application is directed against the United Kingdom. The respondent Government are represented by Mr Martin Eaton, as Agent, from the Foreign and Commonwealth Office.   4   The case concerns the complaints made by the applicant in respect of his trial and sentence to detention during Her Majesty's pleasure for the murder of a two year old boy. They raise issues principally under Articles 3, 5 paras. 1 and 4 and 6 para. 1 of the Convention in relation to the procedure adopted at the trial which was held in public in an adult court, the nature of the sentence imposed, the role played by the Secretary of State in fixing the punitive or "tariff" part of their sentences and the availability of review procedures concerning the continuation of their detention.   B.   The proceedings   5   The application was introduced on 20 May 1994 and registered on   11 August 1994.   6   On 28 November 1994, the Commission decided to communicate the application to the Government inviting them to submit observations on the admissibility and merits.   7   On 29 March 1995, after one extensions in the time-limit, the Government submitted their observations and on 2 August 1995, the applicant submitted his observations in reply, also after two extensions in the time-limit.   8   On 19 January 1996, the Commission decided to invite the parties to make submissions at an oral hearing at Strasbourg, to be held jointly with Application No. 24724/94 T. v. the United Kingdom. The hearing was fixed for 5 September 1996. It was adjourned, with the agreement of the parties, to await the judgment of the House of Lords in the domestic proceedings. Following the judgment on 12 June 1997, the hearing was fixed for 6 March 1998.   9   On 16 February 1998, the Government submitted a written brief for the hearing. On 27 February 1998, the applicant submitted a written brief.     10   On 6 March 1998, at the hearing held in Strasbourg, the parties were represented as follows. The Government were represented by their Agent, Mr I. Christie, Mr D. Pannick QC, and Mr M. Shaw as counsel and Ms C. Price and Mr T. Morris, as advisers from the Home Office. The applicant was represented by Mr E. FitzGerald Q.C. and Mr B. Emmerson, as counsel, Mr J. Dickinson, solicitor and Mr T. Loflin, attorney at law.   11   On 6 March 1998, the Commission declared the application admissible.   12   The parties were then invited to submit any additional observations on the merits of the application.     13   On 23 April 1998, the Government submitted further observations.   14   After declaring the case admissible, the Commission, acting in accordance with former Article 28 para. 1 (b) of the Convention , placed itself at the disposal of the parties with a view to securing a friendly settlement of the case.   In the light of the parties' reactions, the Commission now finds that there is no basis on which a friendly settlement can be effected.   C.   The present Report   15   The present Report has been drawn up by the Commission in pursuance of former Article 31 of the Convention and after deliberations and votes, the following members being present:   MM   S. TRECHSEL, President E. BUSUTTIL G. JÖRUNDSSON A. WEITZEL Mrs   J. LIDDY MM   L. LOUCAIDES M.P. PELLONPÄÄ I. CABRAL BARRETO B. CONFORTI N. BRATZA I. BÉKÉS D. ŠVÁBY A. PERENIČ K. HERNDL E. BIELŪNAS E.A. ALKEMA M. VILA AMIGÓ Mrs   M. HION Mr   A. ARABADJIEV   16   The text of the Report was adopted by the Commission on 4 December 1998 and is now transmitted to the Committee of Ministers in accordance with former Article 31 para. 2 of the Convention.   17   The purpose of the Report, pursuant to former Article 31 para. 1 of the Convention, is   1)   to establish the facts, and     2)   to state an opinion as to whether the facts found disclose     a breach by the State concerned of its obligations under     the Convention.   18   The Commission's decision on the admissibility of the application is annexed hereto.   19   The full text of the parties' submissions, together with the documents lodged as exhibits, are held in the archives of the Commission.     II.   ESTABLISHMENT OF THE FACTS   A.   Particular circumstances of the case   20   The applicant's childhood was somewhat troubled as a result of his parents' separation and the mild retardation suffered by his two other siblings.   There was a history of some health problems and of "a moderate attention deficit disorder". Dr. Bentovim, who examined him at the time of trial and subsequently, noted that "he showed evidence of immaturity, behaving in many ways like a younger child emotionally".   21   On 24 November 1993, the applicant, aged 11, was convicted of murder and sentenced to detention during Her Majesty's pleasure.   22   The conviction related to an offence of murder committed by the applicant when he was ten years old in the company of another ten year old boy T.. The offence involved the killing of a two year old boy whom the two offenders had abducted from a shopping precinct and who was then battered to death and left on a railway line to be run over.   23   The trial of the applicant and T. took place in public in an adult Crown Court, preceded and accompanied by massive national publicity. Throughout the criminal proceedings, the arrival of applicant and T. at court was greeted by a hostile crowd. On occasion, attempts were made to attack the vehicles bringing them to court. In one incident, members of the public banged on the side of the van transporting the applicant. The names of the two boys were ordered not to be disclosed during the proceedings but the judge ordered that the names be made public at the end of the trial. Pictures of the boys were shown on television and in the press.   24   On 1 November 1993, at the beginning of the trial, the applicant's lawyer objected that the trial was unfair due to the nature and extent of the media coverage. After hearing argument, the trial judge found that it was not established that the defendants would suffer serious prejudice to the extent that no fair trial could be held. He referred to the warning that had been given to the jury to put out of their minds anything which they might have heard or seen about the case outside the courtroom.   25   During the trial, the prosecution presented evidence for the purpose of establishing that the two defendants were criminally responsible for their actions in that they knew what they were doing was wrong. The court heard evidence from Dr Susan Bailey, a consultant psychiatrist who had written a report on the applicant on behalf of the Crown. Dr Bailey gave evidence that the applicant presented as a child of average intelligence, and would have been able in February 1993 to distinguish between right and wrong. He would have known that it was wrong to take a child from his mother, injure him and leave him on a railway line. She had seen the applicant on a number of occasions. On each occasion, he had cried inconsolably and shown signs of distress.   He was not able to talk about the events in issue in any useful way. Evidence was also heard from Mrs S., the headmistress at the school attended by T. and the applicant. She stated that from the age of 4 and 5, children were aware that it was wrong to strike another child with a weapon. She stated that T. and the applicant would have been aware that what they were doing was wrong. Another teacher, Mr. D., gave evidence to the same effect.   26   Evidence was also given by persons who had witnessed T. and the applicant in the shopping centre from which the two year old boy was taken and who had seen the three boys at various points between the shopping centre and the vicinity of the railway line, where the body was later found. The tapes of the interviews of the police with T. and the applicant were replayed in court. Neither the applicant nor T. gave evidence in court.   27   In his summing-up to the jury, the trial judge noted that witnesses arrived in court in a blaze of publicity and many faced a bevy of photographers. They had to give evidence in a large court packed with people and not surprisingly several of them were overcome with emotion and some had difficulty in speaking audibly. This was one of the factors to be borne in mind in assessing their evidence. He instructed the jury, inter alia, that the prosecution had to have proved to a standard of sureness that the applicant and T. knew what they were doing was wrong as well as the ingredients of the offences charged.   28   On 24 November 1993, the jury convicted T. and the applicant of murder and abduction. In respect of the murder charge, the judge sentenced them, as required by law, to detention during Her Majesty's pleasure. He commented that the crime was an act of unparalleled evil and barbarity and that their conduct was cunning and very wicked. He stated that it was very hard to comprehend how two mentally normal boys of average intelligence aged ten could commit this terrible crime but he suspected that exposure to violent video films might in part be an explanation.   29   After conviction, the trial judge recommended that a period of eight years be served by the boys to satisfy the requirements of retribution and deterrence (the "tariff"). He commented that he could not determine the boys' relative culpability. He stated:   "Very great care will have to be taken before either Defendant is allowed out into the general community. Much psychotherapeutic, psychological and educational investigation and assistance will be required.   Not only must they be full rehabilitated and no longer a danger to others but there is a very real risk of revenge attacks upon them by others.   ...   If the Defendants had been adults I would have said that the actual length of deterrence necessary to meet the requirements of retribution and general deterrence should have been 18 years.   However these two boys came from homes and families with great social and emotional deprivation. They grew up in an atmosphere of matrimonial breakdown where they were exposed to, saw, heard, or suffered abuse, drunkenness and violence. I have no doubt that both boys saw video films frequently showing violent and aberrant activities.     In my judgment the appropriate length of detention necessary to meet the requirement of retribution and general deterrence for the murder, taking into account all its appalling circumstances and the age of the Defendants when it was committed is 8 years ... 8 years is "very very many years" for a ten or eleven year old. They are now children. In 8 years time they will be young men."   30   The Lord Chief Justice recommended a period of ten years. The applicant's representatives made written representations to the Secretary of State, who was to fix the tariff period.   31   The applicant made no appeal to the Court of Appeal against his conviction.   32   By letter dated 16 June 1994, the Secretary of State informed the applicant that the family of the deceased child had submitted a petition signed by 278,300 people urging him to take account of their belief that the boys should never be released, accompanied by 4,400 letters of support from the public; that a Member of Parliament had submitted a petition signed by 5,900 people calling for a minimum of 25 years to be served; that 21,281 coupons from the Sun newspaper supporting a whole life tariff and a further 1,357 letters and small petitions had been received of which 1,113 wanted a higher tariff than the judicial recommendations. His solicitors were given an opportunity to submit further representations to the Secretary of State.   33   By letter dated 22 July 1994, the Secretary of State informed the applicant that he should serve a period of fifteen years in respect of retribution and deterrence. The letter stated inter alia:   "In making his decision, the Secretary of State had regard to the circumstances of the offence, the   recommendations received from the judiciary, the representations made on your behalf and the extent to which this case could be compared with other cases. He also has regard to the public concern about this case, which was evidenced by the petitions and other correspondence the substance of which were disclosed to your solicitors by our letter of 16 June 1994, and to the need to maintain public confidence in the system of criminal justice.   The Secretary of State takes fully into account the fact that you were only 10 years old when the offence was committed. He further acknowledges that a much lesser tariff should apply than in the case of an adult.   The Secretary of State notes the representations which were made on your behalf regarding the relative culpability of yourself and your co-defendant.   The Secretary of State notes that the trial judge was unable to determine this. The Secretary of State has reached the same conclusion.     The recommendations made by the trial judge and the Lord Chief Justice were that the appropriate tariff should be 8 years, and 10 years respectively. The trial judge added that if the defendants had been adults then the appropriate tariff would have been 18 years. The Secretary of State has had regard to these views. He takes the view that this was an exceptionally cruel and sadistic offence against a very young and defenceless victim committed over a period of several hours. The Secretary of State believes that if the offence had been committed by an adult then the appropriate tariff would have been in the region of 25 years and not 18 years as suggested by the trial judge.   For these reasons, and bearing in mind your age when the offence was committed, the Secretary of State has decided to fix a tariff of 15 years in your case. The Secretary of State is satisfied that such a tariff is consistent with the tariffs fixed in other cases.   The Secretary of State is prepared to consider any fresh representations which you or your representatives might wish to make about the length of the tariff and, in the light of such fresh representations, to reduce the tariff if appropriate."   34   The applicant instituted judicial review proceedings challenging, inter alia, the tariff which has been set by the Secretary of State as being disproportionately long and fixed without due regard to the needs of rehabilitation. Leave was granted on 7 November 1994.   35   On 2 May 1996, the Divisional Court upheld part of the applicant's claims. On 30 July 1996, the Court of Appeal dismissed the appeal of the Secretary of State. On 12 June 1997, the House of Lords by a majority dismissed the Secretary of State's appeal and allowed the applicant's cross-appeal. A majority of the House of Lords found that it was unlawful for the Secretary of State to adopt a policy, in the context of applying the tariff system, which, even in exceptional circumstances, treated as irrelevant the progress and development of a child who was detained during Her Majesty's pleasure. A majority of the House of Lords also held that in fixing a tariff the Secretary of State was exercising a power equivalent to a judge's sentencing power and, like a sentencing judge, he was required to remain detached from the pressure of public opinion. Since the Secretary of State had misdirected himself in giving weight to the public protests about the level of the applicant's tariff and had acted in a procedurally unfair way, his reasons had been rendered unlawful. The tariff set by the Secretary of State was accordingly quashed.   36   On 10 November 1997, the Secretary of State informed Parliament that, in light of the House of Lords' judgment, he had adopted a new policy in relation to young offenders convicted of murder and sentenced to detention during Her Majesty's pleasure pursuant to which, inter alia, the tariff initially set would be kept under review by the Secretary of State in light of the progress and development of the offender.   The Secretary of State invited the applicant's representatives to make representations to him with regard to the fixing of a fresh tariff. At the time of the adoption of the report, no decision had been taken in this respect.   B.   Evidence before the Commission     37   The parties have submitted various documents to the Commission, including the orders made by the trial judge during and at the conclusion of the trial, transcipts of parts of the trial proceedings, including the judge's summing up, materials relating to the detention of child offenders and the relevant materials relating to the judicial review proceedings and the fixing of the tariff. There are also a number of medical and psychiatric reports, including reports by the consultant psychiatrist Dr Susan Bailey, who interviewed the applicant before the trial and has been involved in the team providing him with psychiatric treatment in detention (see summaries below).   Reports of Dr Bentovim dated 23 September and 11 October 1993   38   Dr Bentovim, of Great Ormond Street Hospital for Children,   interviewed the applicant and his parents prior to the trial. He referred in these reports, inter alia, to the applicant showing post-traumatic effects and extreme distress and guilt, with fears of punishment and terrible retribution. The applicant found it very hard and distressing to think or talk about events and it was not possible to ascertain many aspects. Whatever happened, he was likely to need specific residential care in a therapeutic context.   Report of Dr Bentovim dated 31 January 1995   39   This report was compiled at the request of the applicant's solicitors for submission in the judicial review proceedings. Dr Bentovim interviewed the applicant and his parents on 15 January 1995 and on a second occasion. He noted, inter alia, very high levels of fear in the applicant that he would be attacked or punished for his actions and that he was responding well to professional work being done. There was evidence of his struggle to make restitution and of his own sense of responsibility for his actions.   40   As regarded the tariff imposed, the applicant had been distraught and showed distress when he was told of the 8 and 10 year recommendations. When he was informed that 15 years had been fixed, he was devastated. He made comments that he would never be let out and had a preoccupation that he was like Myra Hindley. He felt that his life was no longer worth living and there was no point going on.   41   When the trial was mentioned, the applicant indicated his sense of shock when he saw the public let in and his considerable distress when his name and photograph were published. He was terrified of being looked at in court. Most of the time, he was not able to take part in the proceedings. For a great deal of the time, he was counting in his head or making shapes with his shoes, and he could not pay attention or process the whole proceedings. He did focus when he heard the interviews being played in court and he recalled crying. Dr Bentovim commented that in his view, because of his immaturity and age, the applicant did not have the capacity to fully take in the process of trial except for the major actions for which he was responsible. Although the applicant was chronologically over the age of 10 at the time of the action, Dr Bentovim was in no doubt that he was less mature as far as psychological or emotional age was concerned. His capacity to understand the court process was very limited. There was ongoing evidence of continuing post traumatic effects but there was evidence that he was making excellent response to therapeutic care.   Report of Dr Susan Bailey (Adolescent Forensic Service) of 11 December 1996     42   This report, compiled following an individual session, noted, inter alia, that the applicant experienced fortnightly flashbacks (this had reduced) causing him distress and that he held a sense of his own wasted life and placed blame for this on himself. He found it difficult to concentrate on any task when in his bedroom at night because thoughts in particular of the pre-trial and trial came back, in particular his weeks in the dock and his inability to recollect while at the same time wanting to recollect. He had a sense of numbness about his trial but felt physically sick. He described his inability to experience feelings   as fully as before arrest and trial. In part this related to being locked up, but he stated that even if he had not been locked up he would have lost his capacity to experience feelings in the same way. Dr Bailey suspected that the applicant viewed this as his real punishment.   Report of Dr Susan Bailey dated 17 July 1997   43   It was reported that the staff had completed the "offence work" but because of the singular nature of the events surrounding the case, the applicant was experiencing a recurrence of past themes, relating to aspects of the offence. This happened particularly when he was aware that he was being made the focus of public, legal and political issues. He had made positive progress beyond what might have been expected in the setting of the current legal process which applied to juvenile homicides. She, and the therapist, who worked with the applicant, had become increasingly aware, and were now entirely convinced, of the destructive nature of this process.   They were now entering a phase of treatment which was aimed at helping the applicant to come to terms with the events which would impact on him for the rest of his life.     Report of Dr Susan Bailey dated 4 November 1997   44   As regards the pre-trial and trial period, it was noted that until the trial the events during the offence were with the applicant 98% of the time and especially every night during the trial. It took him 12 months to get over the trial itself. He still thought of it every night. He had been most scared when in the magistrates' court on the first occasion. After the first three days at the Crown Court, he was alright because he played with his hands and stopped listening. He had to stop listening because they played the police interviews with him and T. in front of everyone as if they were shouting it out. The press were laughing at him and he could tell from the faces of the jury that they would find him guilty. He still did not understand why the trial had been so long.     45   It was found that the applicant had worked through the essential stages of coming to terms with murder. He had moved through the normal sequence of psychological reactions: denial-disbelief, avoidance, sense of loss, experience of grief, ownership for his part in the murder, guilt (emerging from the process of re-enactment, the latter spanning a period of two difficult years), shame and remorse which was ongoing and would remain for ever. It was commented that the very unusual nature of the "public" and legal process as it has been applied to this child and adolescent had presented therapists and carers with the most difficult and at times insurmountable challenge. In particular, the unprecedented, continual and continuing impingement of the legal process has had a potentially devastating effect on his ongoing emotional and psychological development. It was all the more remarkable that, despite the ongoing PTSD <post-traumatic stress disorder> caused by the "process of justice", the applicant had been able to make as much, if not more, clinical progress, than any other young child murderers with whom the team had worked successfully to a safe resolution, risk reduction and quality of life.   C.   Relevant domestic law and practice   1. Age of criminal responsibility   46   Pursuant to section 50 of the Children and Young Persons Act 1933 (as amended in 1963), the age of criminal responsibility in England and Wales is ten years, below which no child can be found guilty of an offence. A child between the age of ten and fourteen is subject to a presumption that he or she is doli incapax: this presumption may be rebutted by the prosecution proving beyond a reasonable doubt that the child knew that the act was wrong as distinct from merely naughty or childish mischief (In Re C. (a minor) (A.P.) 16 March 1995 House of Lords).   2.   Mode of trial   47   Pursuant to section 24 of the Magistrates' Courts Act 1980, children and young persons under 18 years must be tried summarily in the magistrates' court unless charged with homicide, manslaughter or other offence punishable if committed by an adult with fourteen or more years' imprisonment.   3.   Ability to comprehend the proceedings   48   The Government rely on the statement of law set out in Kunnath v. the State [1993] 1 WLR 1315:   "It is an essential principle of the criminal law that a trial for an indictable offence should be conducted in the presence of the defendant.. the basis of this principle is not simply that there should be corporeal presence but that the defendant, by reason of his presence, should be able to understand the proceedings and decide what witnesses he wishes to call, whether or not to give evidence and if so, upon what matters relevant to the case against him."   49   In that case, the Privy Council quashed the conviction of the defendant, an uneducated peasant from Kerala in Southern India who had been sentenced to death for murder after a trial in Mauritius conducted in a language he did not understand and where the evidence was not translated for him by an interpreter.     4. Detention during Her Majesty's pleasure   Background   50   The notion of detention during Her Majesty's pleasure had its origins in an Act of 1800 for "the safe custody of insane persons charged with offences".   Section 1 provided that defendants acquitted of a charge of murder, treason or felony on the grounds of insanity at the time of the offence were to be detained in "strict custody until His Majesty's pleasure shall be known" and described their custody as being "during His <Majesty's> pleasure".     51   In 1908, detention during His Majesty's pleasure was introduced in respect of offenders aged ten to sixteen and then extended to cover those under eighteen in 1933. The provision in force at present is Section 53 (1) of the Children and Young Persons Act 1933 (as amended) which provides:   "A person convicted of an offence who appears to the Court to have been under the age of eighteen years at the time the offence was committed shall not, if he is convicted of murder, be sentenced to imprisonment for life nor shall sentence of death be pronounced on or recorded against any such person but in lieu thereof the court shall ... sentence him to be detained during Her Majesty's pleasure and, if so sentenced he shall be liable to be detained in such a place and under such conditions as the Secretary of State may direct."   52   At the age of 18, the child sentenced to detention during Her Majesty's pleasure becomes liable to be transferred to a Young Offender's Institution and thereafter, at the age of 21, to detention on the same basis and in the same institution as an adult sentenced to life imprisonment for murder.   Categorisation of detention "during Her Majesty's pleasure"   53   Mandatory life sentences are imposed in respect of the offence of murder committed by adults (Murder (Abolition of Death Penalty) Act 1967). Persons convicted of certain violent or sexual offences, eg. manslaughter, rape, or robbery, may be sentenced to life imprisonment at the discretion of the trial judge. The principles underlying the passing of a discretionary life sentence are:   i. that the offence is grave and   ii. that there are exceptional circumstances which demonstrate that the offender is a danger to the public and that it is not possible to say when that danger will subside.   54   The sentence of "custody for life" is imposed where the offence of murder is committed by an individual between the ages of 18 and 21 (section 8 (1) of the Criminal Justice Act 1982).   55   In the case of ex parte Prem Singh on 20 April 1993, Evans LJ in the Divisional Court held as follows in respect of detention "during Her Majesty's pleasure":     "At the time of sentencing, the detention orders under section 53 were mandatory.   It is indeed the statutory equivalent for young persons of the mandatory life sentence for murder.   But the sentence itself is closer in substance to the discretionary sentence of which part is punitive (retribution and deterrence) and the balance justified only by the interests of public safety when the test of dangerousness is satisfied.   The fact that the mandatory life prisoner may be given similar rights as regards release on licence does not alter the fact that the mandatory life sentence is justifiable as punishment for the whole of its period: see R. v. Secretary of State, ex.p. Doody & others [1993] Q.B. 157 and Wynne v. UK (E.C.H.R. 1st December 1992).   The order for detention under section 53 is by its terms both discretionary and indeterminate: it provides for detention 'during Her Majesty's pleasure'. (Section 53(4) which expressly authorised the Secretary of State to discharge the detainee on licence 'at any time' was repealed by the Parole Board provisions of the Criminal Justice Act 1967, but this does not, in my judgment, alter the nature of the sentence in any material respect.)   I would decide the present case on the narrow ground that, notwithstanding Home Office and Parole Board practice, the applicant should be regarded as equivalent to a discretionary life prisoner for the purpose of deciding whether Wilson rather than Payne governs his case."   56   The Court accordingly held that the applicant in the case, detained during Her Majesty's pleasure, should be afforded the same opportunity, as would be given a discretionary life prisoner, to see the material before the Parole Board when it decided upon whether he should be released after his recall to prison on revocation of his licence.   Release on licence and revocation of licences   57   Persons sentenced to mandatory and discretionary life imprisonment, custody for life and those detained during Her Majesty's pleasure have a "tariff" set in relation to that period of imprisonment they should serve to satisfy the requirements of retribution and deterrence. After the expiry of the tariff, the prisoner becomes eligible for release on licence. Applicable provisions and practice in respect of the fixing of the tariff and release on licence have been subject to change in recent years, in particular, with the passing of the Criminal Justice Act 1991 (the 1991 Act).   58   On 1 October 1992, Part II of the 1991 Act came into force.   59   The 1991 Act instituted changes to the regime applying to the release of discretionary life prisoners following the decision of the Court in the Thynne, Wilson and Gunnell case (Eur. Court H.R., judgment of 25 October 1990, Series A no. 190).   60   Pursuant to section 34 of the 1991 Act, the tariff of a discretionary life prisoner is fixed in open court by the trial judge after conviction. After the tariff has expired, the prisoner may require the Secretary of State to refer his case to the Parole Board which has the power to order his release if it is satisfied that it is no longer necessary for the protection of the public that he be detained. Pursuant to the Parole Board Rules 1992 which came into force on 1 October 1992, a prisoner is entitled to an oral hearing, to disclosure of all evidence before the panel and to be legally represented. There is provision enabling a prisoner to apply to call witnesses on his behalf and to cross-examine those who have written reports about him.     61   For the purposes of the 1991 Act, persons detained during Her Majesty's pleasure or serving mandatory sentences of life imprisonment or custody for life are not regarded as discretionary life prisoners. In relation to these prisoners, the Secretary of State continues to decide the length of the tariff. The view of the trial judge is made known to the prisoner after his trial, as is the opinion of the Lord Chief Justice. The prisoner is afforded the opportunity to make representations to the Secretary of State who then proceeds to fix the tariff and is entitled to depart from the judicial view (R. v. Secretary of State for the Home Department, ex parte Doody [1993] 3 AER 92).   62   As regards release on licence, these categories of prisoners are subject to section 35 of the 1991 Act, which provides as relevant:   "(2) If recommended to do so by the Board, the Secretary of State may, after consultation with the Lord Chief Justice together with the trial judge if available, release on licence a life prisoner who is not a discretionary life prisoner."   63   Section 39 provides as relevant:   "(1) If recommended to do so by the Board in the case of a long term or life prisoner who has been released on licence under this Part, the Secretary of State may revoke his licence and recall him to prison...   (3) A person recalled to prison under subsection (1) or (2) above (a) may make representations in writing with respect to his recall; and   (b) on his return to prison, shall be informed of the reasons for his recall and of his right to make representations.   (4) The Secretary of State shall refer to the Board -   (a) the case of a person recalled under subsection (1) above who makes representations under sub-section (3) above...   (5) Where on a reference under subsection (4) above the Board -   (a) directs in the case of a discretionary life prisoner;   or   (b) recommends in the case of any other person,   his immediate release on licence under this section, the Secretary of State shall give effect to the direction or recommendation."   64   On 27 July 1993, the Secretary of State made a statement of policy in relation to mandatory life prisoners, stating, inter alia, that before any such prisoner is released on licence he   "will consider not only, (a) whether the period served by the prisoner is adequate to satisfy the requirements of retribution and deterrence and (b) whether it is safe to release the prisoner, but also (c) the public acceptability of early release. This means I will only exercise my discretion to release if I am satisfied that to do so will not threaten the maintenance of public confidence in the system of criminal justice".   Fixing of the tariff for sentences of detention during Her Majesty's pleasure   65   In the applicant's appeal (reported in [1997] 3 WLR 23), the House of Lords gave consideration, inter alia, to the nature of the tariff-fixing exercise in respect of sentences during Her Majesty's pleasure.   66   Lord Steyn held:   "The starting point must to be inquire into the nature of the power to fix a tariff which the Home Secretary exercises. Writing on behalf of the Home Secretary the Home Office explained that: 'The Home Secretary must ensure that, at all times, he acts with the same dispassionate fairness as a sentencing judge.' The comparison between the position of the Home Secretary, when he fixes a tariff representing the punitive element of the sentence, and the position of the sentencing judge is correct. In fixing a tariff the Home Secretary is carrying out, contrary to the constitutional principle of the separation of powers between the executive and the judiciary, a classic judicial function. Parliament entrusted the underlying statutory power, which entailed a discretion to adopt a policy and fix a tariff, to the Home Secretary. But the power to fix a tariff is nevertheless equivalent to a judge's sentencing power."   67   Lord Hope held:   "But the imposition of a tariff, which is intended to fix the minimum period in custody is, in itself, the imposition of a form of punishment. This has, as Lord Mustill observed in R.v. Secretary of State for the Home Department, ex parte Doody at p. 557A-B, the characteristics of an orthodox judicial exercise, which is directed to the circumstances of the offence and those of the offender and to what, having regard to the requirements of retribution and   deterrence, is the appropriate minimum period to be spent in custody. The judge, when advising the Secretary of State about the tariff, must and does confine his attention to these matters...   "If the Secretary of State wishes to fix a tariff for the case - in order to replace the views of the judiciary with a view of his own about the length of the minimum period - he must be careful to abide by the same rules;...   68   Lord Hope also commented on the imposition of a tariff on a child offender in the same way as on an adult prisoner:   "A policy which ignores at any stage the child's development and progress while in custody as a factor relevant to his eventual release date is an unlawful policy. The practice of fixing the penal element as applied to adult mandatory life prisoners, which has no regard to the development and progress of the prisoner during this period, cannot be reconciled with the requirement to keep the protection and welfare of the child under review throughout the period while he is in custody."     69   Lord Goff stated, inter alia:   "... if the Secretary of State implements a policy of fixing a penal element of the sentence of a mandatory prisoner pursuant to his discretionary power under section 35, he is to this extent exercising a function which is closely analogous to a sentencing function with the effect that, when doing so, he is under a duty to act under the same restraints as a judge will act when exercising the same function. In particular, should he take into account public clamour directed towards the decision in the particular case which he has under consideration, he will be having regard to an irrelevant consideration which will render the exercise of his discretion   unlawful.   In so holding I wish to draw a distinction in the present context between public concern of a general nature with regard to, for example, the prevalence of certain types of offence, and the need that those who commit such offences should be duly punished; and public clamour that a particular offender whose case is under consideration should be singled out for severe punishment...."     Recent developments   70   On 1 October 1997, section 28 of the Crime (Sentences) Act 1997 was brought into force in order to implement the judgment of the Court in the Hussain and Singh cases (Eur. Court HR, Hussain v. United Kingdom judgment of 21 February 1996, Reports 1996-I, p. 252 and Singh v. United Kingdom judgment of 21 February 1996, Reports 1996-I, p. 280). The section provides that, after the tariff period has expired, it shall be for the Parole Board (and not, as previously, for the Secretary of State) to decide whether it is safe to release on life licence an offender serving a sentence of detention during Her Majesty's pleasure for an offence of murder committed before that offender reaches the age of 18.   71   On 10 November 1997, the Secretary of State announced that, in light of the House of Lords decision of 12 June 1997 in the applicant's case, he would adopt the following policy in respect of persons convicted of murder and detained during Her Majesty's pleasure:   "I shall continue to seek the advice of the trial judge and that of the Lord Chief Justice in deciding what punishment is required in any 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.     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...."   D.   Relevant international texts   The United Nations Convention on the Rights of the Child   72   In the treaty adopted by the General Assembly on 20 November 1989, Article 40 provides as relevant:   "1. States Parties recognize the right of every child alleged as, accused of, or recognized as having infringed the penal law to be   treated in a manner consistent with the promotion of the child's sense of dignity and worth, which reinforces the child's respect for the human rights and fundamental freedoms of others and which takes into account the child's age and the desirability of promoting the reintegration and the child's assuming a constructive role in society.   2. To this end... the States Parties shall, in particular, ensure that:   ...     (b) Every child alleged as or accused of having infringed t