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The Appeal judges ruled against David Blunkett last week when they held that ministers must keep under periodic review the minimum terms in custody set by the lord chief justice for under-18s convicted of murder and called for a reform of the "almost impenetrable" law.
The judgment in two appeals that were heard together (Secretary of State v Maria Smith and Anthony Dudson) concerned the position of children and young persons convicted of murder and 'detained during Her Majesty's pleasure'. David Blunkett had argued that once the tariff had been fixed by a judge, he was not obliged to review it periodically to take account of their progress in custody.
The Master of the Rolls, Lord Phillips of Worth Matravers, giving judgment, said the two appeals required consideration "of one of the most confused areas of our criminal process". "Since 1908 a child or young person convicted of murder has, by statutory requirement, been sentenced to be 'detained during His/Her Majesty's pleasure'," he said. "The nature and effect of that sentence may have been clear in 1908, but it has ceased to be so."
Lord Phillips criticised the "confused" history of how the legal system has dealt with child murderers. For almost 100 years the ministers have had statutory powers to release on licence young persons serving sentences of detention during Her Majesty's pleasure. In 1993 the then Secretary of State made plain that it was the policy to fix a "tariff" for that detainee and, only in exceptional circumstances, would a young murderer be released on licence prior to the tariff being fully served. However, a majority ruling by the House of Lords made clear in the cases of Robert Thompson and Jon Venables, the killers of Jamie Bulger (R v Secretary of State for the Home Department, Ex Parte Venables  AC 407), that the Secretary of State was under a continuing obligation to keep under review the position of young persons sentenced to be detained during Her Majesty's pleasure.
Last week's ruling will mean that David Blunkett will now have to periodically review the cases of up to 200 detainees, despite his insistence that there was any legal obligation to do so. The Master of the Rolls also urged Parliament to reform the law. "Further legislation may well prove necessary. It is certainly desirable," he said. "The legislative history that we have outlined has culminated in a maze of statutory provisions that are almost impenetrable."