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

For mandatory life prisoners, the interval before the next automatic review is not subject to a fixed period and need not be set by a court. Under Article 5(4) of the European Convention on Human Rights, the interval must be reasonable in the circumstances of the individual case. A court decides that question directly and gives appropriate weight to the Secretary of State’s and Parole Board’s views; it does not apply the Wednesbury threshold. Later events may justify shortening the interval through internal procedures. A policy may be used only through an individualised assessment. The Parole Board’s powers remain confined by its statutory referral and duties, and any wider proactive role requires legislation.

This was an appeal from Newman J’s refusal on 17 December 2002 of judicial review of a Secretary of State decision dated 17 January 2002. The appellant, a mandatory life prisoner, had been accepted for transfer to open conditions, but the next Parole Board review was fixed to begin after 18 months rather than the Board’s recommended nine months.

He challenged the decision as beyond executive power, incompatible with Article 5(4), and irrational. By the time of the appeal, Strasbourg and domestic developments had altered the administrative framework, and the policy had reduced the period to 12 months. The central issues were whether the executive could fix the review interval and what legal standard governed that decision.

1. Disposition. The appeal was dismissed. The Parole Board, treated as a court for Article 5(4) purposes, had decided that the appellant should remain detained until the next review. His detention therefore continued pursuant to a court-like decision, and the Board’s statutory involvement was for the time being at an end.
2. Article 5(4) standard. For mandatory life prisoners in open conditions, the interval initially prescribed between automatic reviews must be reasonable in the circumstances of the individual case. Strasbourg jurisprudence does not prescribe a fixed period: Oldham v UK (2000) 31 EHRR 813 was applied, and the court also referred to R (MacNeill) v Parole Board [2001] EWCA Civ 448, where a two-year interval had been justified on the facts. If the interval is unreasonable, the prisoner may challenge it under section 7(1) of the Human Rights Act 1998.
3. Decision-maker and review intensity. Article 5(4) does not require the interval to be fixed by a court. The Home Secretary may determine it. The court must decide directly whether the interval was reasonable, giving appropriate weight to the views of both the Home Secretary and the Parole Board. It must not apply the Wednesbury test. Internal procedures may also permit a prisoner to seek a shorter interval if later events justify reconsideration.
4. Application to the decision. The January letter was unhappily expressed because it suggested automatic application of the 1998 policy. The later explanation and evidence showed that an individualised assessment had in fact been made, addressing the appellant’s history, alcohol misuse, compliance with supervision and need for testing. The decision could not therefore be characterised as irrational.
5. Parole Board powers. The Board is a statutory body whose powers depend on the statutory context. Under the Crime (Sentences) Act 1997 and the Criminal Justice Act 1991, it was required to advise on matters referred by the Secretary of State. It had no power under the legislation as it stood to defer answering the referred questions for an extended period while making proactive interim recommendations. EMA v ACAS [1980] 1 WLR 302 concerned a different statutory context. Any wider proactive role for the Board was a matter for Parliament.

• Court of Appeal (Civil Division) — On 23 May 2003, dismissed the appeal. [2003] EWCA Civ 732.
• Queen’s Bench Division, Administrative Court — On 17 December 2002, Newman J refused judicial review of the Secretary of State’s decision. No separate citation is stated in the judgment.