MacNeil, R (on the application of) v HM Prison Discretionary Lifer Panel

Article 5(4) of the European Convention on Human Rights requires review of continued detention at reasonable intervals. It does not prescribe an automatic maximum interval between reviews of a discretionary life prisoner. Reasonableness depends on the particular circumstances, including the purpose of further detention and the prisoner's progress and risks.

A two-year recommendation for a further review may be reasonable where an open-conditions period is needed to assess risk and to enable the prisoner to develop coping strategies before release.

The appellant was a discretionary life prisoner whose licence had previously been revoked. On 5 January 2000, the Parole Board declined to direct his release and recommended two years in open conditions before a further review. It considered that he required extended testing and support in managing stress without drugs or alcohol.

Turner J, in the Administrative Court, dismissed the appellant's judicial-review challenge for irrationality on 19 October 2000. The appellant appealed, relying on Article 5(4) and Oldham v The United Kingdom. The central issue was whether the recommended two-year interval was unreasonable in his particular circumstances.

1. Appeal dismissed unanimously. Peter Gibson LJ gave the leading judgment. Latham LJ agreed, and Lord Phillips MR agreed for the reasons given by Peter Gibson LJ.
2. Article 5(4) required review at reasonable intervals, but it imposed no fixed maximum interval for all discretionary life prisoners. The assessment was necessarily fact-sensitive. The court applied the approach stated in Oldham v The United Kingdom, The Times 24 October 2000, while distinguishing its outcome.
3. The appellant's history of substance misuse, adverse responses to stress and open conditions, and the risks associated with his proposed family life justified a substantial period of open-conditions testing. That period was not solely observational. It could enable him to develop strategies for managing stress and formulate a viable release plan. The panel therefore had an obvious and proper rationale for recommending two years before a further review. The recommendation did not breach Article 5(4) and was not unreasonable.
4. The court noted that the challenged decision pre-dated the Human Rights Act. It nevertheless assumed, without deciding, that Article 5(4) might be engaged and determined the merits. It also assumed, without deciding, that the Parole Board's non-binding recommendation was amenable to judicial review. In any event, the requested relief had little utility because a review was due in January 2002.

• Court of Appeal (Civil Division) — dismissed the appeal: [2001] EWCA Civ 448.
• Queen's Bench Division (Administrative Court), Turner J — on 19 October 2000, dismissed the judicial-review application, holding that the Parole Board's decision was not irrational.