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

The Court of Appeal dismissed the appellant's challenge to the Home Secretary's decision to substitute an 18 month period in open conditions before the next Parole Board review, where the Parole Board had recommended a nine month interval. The court held that under section 29 of the Crime (Sentences) Act 1997 the Secretary of State may determine the timing of reviews for mandatory life prisoners and that the relevant Convention requirement under article 5(4) ECHR is that detention be reviewed at "reasonable intervals" rather than prescriptively fixed periods. The proper test for compliance with article 5(4) is whether the interval was reasonable on the facts of the particular case; that is for the court to assess, with appropriate weight given to the views of both the Parole Board and the Home Secretary. The judge's refusal of relief was justified because the Secretary of State had adopted an individualised approach in the case and there was no prospective breach of article 5(4). The court also held that the Parole Board, as a statutory body, lacked power under existing legislation to defer answering the Secretary of State's questions by way of a suspensive adjournment of many months.

Background and facts. John Patrick Spence was serving a mandatory life sentence for murder. He had been released on licence on several occasions and repeatedly recalled following breaches and offending, often connected with alcohol abuse and post-traumatic stress. A Parole Board panel in October 2001 recommended transfer to open conditions and that the next review should begin nine months after transfer. The Home Secretary accepted transfer to open conditions but by decision letter of 17 January 2002 substituted an 18 month period before the next review would begin.

Procedural history. Mr Spence applied for judicial review. Newman J (Administrative Court) refused relief on 17 December 2002. The present appeal was brought to the Court of Appeal.

Issues framed. (i) whether the executive has power to set review intervals that may delay the effective decision on release for post-tariff mandatory lifers; (ii) whether the 18 month delay offended article 5(4) ECHR by failing to provide for a "speedy" review of the lawfulness of detention; and (iii) whether the decision was irrational.

Court's reasoning. The court examined the statutory framework: the release mechanism for mandatory lifers under section 29 of the Crime (Sentences) Act 1997 and the Parole Board's statutory duty to advise under section 32 of the Criminal Justice Act 1991. It treated Strasbourg authority (notably Oldham and Stafford) as requiring that review intervals be judged by reasonableness in the context of each case. The court rejected the submission that the executive had no power to determine the timing of reviews: while the Parole Board is equated to a "court" for some purposes, the Board's role and powers are statutory and the Secretary of State retains the decision-making role under section 29. The court held that article 5(4) requires review at reasonable intervals, a matter for judicial assessment on the facts rather than a Wednesbury challenge; on the facts of this case a prospective violation could not be established. The court found that, although the January letter was poorly worded and suggested a blanket policy, a later letter demonstrated an individualised assessment and that the Secretary of State's approach was not irrational.

Other points. The court observed that subsequent administrative changes had rendered much of the dispute academic because the next review was to be brought earlier in practice. The court also noted that under existing legislation the Parole Board could not proactively suspend performance of its statutory duties by deferring an answer for many months; any change to give it a proactive suspensive role would be for Parliament.

Appeal dismissed. The court held that the Secretary of State lawfully set the interval for the next review under the statutory framework (notably section 29 of the Crime (Sentences) Act 1997) and that compliance with ECHR article 5(4) is assessed by whether the interval was reasonable in the circumstances; on the facts the January 2002 decision was not unlawful or irrational and subsequent material showed an individualised approach.

Appeal from the Queen's Bench Division, Administrative Court (Newman J), where the application for judicial review of the Home Secretary's 17 January 2002 decision was refused by judgment of 17 December 2002. The appeal was allowed to this Court of Appeal decision dated 23 May 2003 (neutral citation [2003] EWCA Civ 732).