R (Noorkoiv) v Secretary of State for the Home Department

For discretionary and automatic life prisoners, the expiry of the tariff does not itself make detention unlawful under article 5(1). It does, however, trigger the State’s duty under article 5(4) to secure a speedy determination of whether continued confinement remains necessary for public protection.

A system which routinely lists Parole Board hearings after tariff expiry, irrespective of the individual case, is incompatible with article 5(4) unless compelling justification exists. Administrative batching and insufficient judicial or psychiatric resources do not justify the delay. Cases should be considered before tariff expiry, or as soon as practicable thereafter, so that a prisoner who is no longer dangerous can be released promptly.

The appellant was serving an automatic life sentence. His 30-month tariff expired on 21 April 2001. The Parole Board heard his case two months later and refused release because it considered continued detention necessary for public protection.

He sought judicial review of the policy under which life-prisoner cases were listed only after tariff expiry. Henriques J in the Administrative Court dismissed the claim on 27 April 2001. On appeal, the challenge developed into whether the policy breached article 5(1) or article 5(4) of the European Convention of Human Rights, and whether limited Parole Board resources could justify the delay.

1. Appeal allowed to a limited extent, unanimously. The court declared that the consideration of the appellant’s parole application did not comply with article 5(4). It granted no further formal relief because the hearing had already occurred.

2. Article 5(1). Lord Woolf CJ and Simon Brown LJ held that the tariff’s expiry did not make the detention unlawful. The life sentence remained the authority for detention after conviction. The tariff gave the prisoner a right to have release considered, not an automatic right to release. Buxton LJ, although expressing reservations, considered that Rutten v The Netherlands prevented a domestic court from holding that every interim period before the Parole Board’s decision breached article 5(1).

3. Article 5(4). All members of the court held that the existing system was not speedy. Its routine post-tariff hearings could delay a decision by up to three months. The delay was unrelated to the particular prisoner’s case, although the authorities had long had the prisoner and the relevant material under review. Article 5(4) required the State to arrange consideration before tariff expiry, or as soon as practicable afterwards, so that a prisoner no longer dangerous could be released promptly.

4. Buxton LJ’s reasons, accepted in substance by Simon Brown LJ, established that under-resourcing of the Parole Board could not excuse a breach. The State was responsible for the detention and could not attribute delay to the acts or omissions of other departments. The court also rejected the respondents’ assumption that section 28 required consideration only after tariff expiry or required a wholly fresh hearing at tariff expiry without a relevant change of circumstances.

5. Lord Woolf CJ added that the policy was based on legal misconceptions and was defective in the Wednesbury sense. If the practice prejudiced a prisoner, a mandatory order could be available. Here, the Parole Board’s eventual refusal to release caused no demonstrated prejudice, but did not prevent declaratory relief for the article 5(4) breach.

• Court of Appeal (Civil Division): allowed the appeal to the limited extent of granting a declaration of breach of article 5(4): [2002] EWCA Civ 770.
• High Court, Administrative Court: Henriques J dismissed the judicial-review application on 27 April 2001.