B, R (on the application of) v Secretary of State for the Home Department

A prerogative decision granting remission for assistance after sentence is reviewable on ordinary public law principles, assuming that the Divisional Court’s approach is correct. Judicial review is concerned with legality, not the merits or the appropriate amount of remission. The Secretary of State may decide whether decisions of the criminal courts concerning discounts for pre-sentence assistance assist him in assessing post-sentence remission. He is not legally required to align the two approaches. A substantial remission will not be unlawful merely because it does not track criminal sentencing decisions.

The applicant, who was serving concurrent 15-year sentences, sought judicial review of the Secretary of State’s decision to recommend three years’ remission under the prerogative of mercy. He relied on assistance given to the police and prison authorities and argued that the decision-maker should have considered criminal appellate decisions concerning discounts for assistance given before sentence.

The Divisional Court dismissed the application on 27 February 2002. The renewed application for permission to appeal concerned whether the Secretary of State’s general approach, and its application to the applicant, was unlawful or perverse.

1. Application refused. Laws LJ dismissed the renewed application for permission to appeal. The Administrative Court had reviewed the legality of the Secretary of State’s decision and was not sitting as an appellate court to reassess the amount of remission.
2. The court assumed, without deciding, that a decision under the prerogative of mercy was reviewable on ordinary public law principles. On that basis, the Secretary of State’s general approach was not perverse or unlawful. He was entitled to distinguish post-sentence remission from judicial sentencing decisions concerning assistance given before sentence.
3. The Secretary of State was also entitled to decide for himself whether criminal sentencing decisions provided useful guidance. He was not required to track, or align remission with, decisions of the Court of Appeal, Criminal Division. The relevance of Ogden did not make the policy unlawful.
4. The court rejected the invitation to impose a framework of judicial guidelines or sentencing decisions on the Secretary of State, backed by judicial review for failure to follow or reflect them. Laws LJ considered that developing such an apparatus for remission policy would be contrary to the public interest.

The order was: application for permission to appeal refused.

• Court of Appeal (Civil Division): renewed application for permission to appeal refused.
• Divisional Court, Queen’s Bench Division: judicial review application dismissed on 27 February 2002.