Murray v Parole Board & Anor

Under article 5(4), continued detention after the punitive tariff of a mandatory life sentence raises fresh questions of lawfulness where dangerousness or risk may change. Those questions require review by a body with the necessary judicial guarantees, including power to order release. The review must occur speedily and at reasonable intervals. Compliance is fact-sensitive: there is no universal maximum interval, but a period exceeding one year has legal significance and requires careful justification. A two-year interval is not automatically lawful. A review date must itself be capable of reconsideration if the prisoner’s progress warrants it. Administrative or resource difficulties do not answer excessive delay, although the appropriate remedy may not be mandatory relief.

William Murray, a mandatory life prisoner, challenged the arrangements for reviewing his continued detention after the European Court of Human Rights had found the mandatory-lifer regime incompatible with article 5(4). The Home Secretary accelerated his review, which was completed in September 2003 rather than May 2004. The Parole Board recommended release, the Home Secretary accepted that recommendation, and Mr Murray was released shortly before the appeal hearing.

Pitchford J dismissed the judicial review claim, holding that the interim arrangements provided access to proceedings sufficiently speedily despite practical and resource constraints. The appeal concerned whether the issue was moot, the legal significance of the review interval, and whether the judge had adopted the correct approach.

1. Disposition. The appeal was dismissed. It was not academic because the issues affected other mandatory lifers and the statutory regime then being introduced. However, permission to appeal did not permit the appellant to reopen the timing of an earlier review, challenge the absence of an oral hearing, or argue the validity of leaving the final release decision with the Home Secretary.
2. Article 5(4). The reasoning in Stafford v The United Kingdom [2002] 35 EHRR 1121 established that, after expiry of the tariff, continued detention of a mandatory lifer depends on dangerousness and risk, which may change over time. New questions of lawfulness therefore require determination by a body satisfying article 5(4).
3. Review intervals. The Strasbourg authorities, particularly Oldham v United Kingdom and Hirst v United Kingdom, required the question whether a review was speedy to be assessed in the circumstances of each case. They did not establish a fixed maximum interval. Strasbourg practice nevertheless gave periods exceeding one year legal significance, and a two-year interval was not necessarily Convention-compliant. That understanding did not undermine this court’s conclusions in R (on the application of MacNeil) v HM Prison Discretionary Lifer Panel [2001] EWCA Civ 448 or R (on the application of Spence) v Secretary of State for the Home Department [2003] EWCA Civ 732.
4. Review of the review date. The court stated that a review date must itself be capable of review if the prisoner’s progress warrants a shorter interval. The observations in Spence concerning an executive review of the interval were obiter, and the court questioned whether an executive-only process supplied the necessary judicial guarantee.
5. Remedy and result. Logistical difficulties would not answer excessive delay. Generally, however, mandatory relief need not follow a breach, and damages might provide a remedy if claimed. Pitchford J had focused on practicalities without adequately addressing the prisoner’s interests and the legal requirements. Since the 15-month interval had not been properly determined, Mr Murray had been released, and no useful relief was sought, the court dismissed the appeal.

1. Court of Appeal (Civil Division) considered the appeal from the Administrative Court and dismissed it: [2003] EWCA Civ 1561.
2. High Court of Justice, Queen’s Bench Division, Administrative Court (Pitchford J) dismissed the judicial review claim and declined to order an immediate Parole Board hearing.