King v Secretary of State for the Home Department

Article 5(4) requires regular and speedy review of the lawfulness of post-tariff detention. The assessment must be case-specific; there is no fixed lawful maximum interval between reviews. Administrative arrangements, or the desirability of observing a prisoner in open conditions for a sustained period, cannot by themselves justify postponing a review. In assessing delay after a change in Convention understanding, the court must consider when the prisoner was last reviewed as well as the date of the change and any transitional arrangements. The right to review does not depend on the merits of the prisoner’s case or whether the prisoner is held in open or closed conditions.

The claimant was serving a mandatory life sentence. His tariff expired in January 1996, and his last review was completed in January 2000. A further review was initially expected in 2002, but disciplinary problems, transfers between prisons and the requirement for a period in open conditions resulted in the review being postponed until December 2003.

Following Stafford v United Kingdom [2002] 35 EHRR 32, transitional arrangements were introduced for mandatory life prisoners. The claimant sought judicial review, contending that the delay breached article 5(4) of the European Convention on Human Rights. The central issue was whether the events leading to the December 2003 review constituted unlawful delay.

1. The claim succeeded. The court declared that postponing the claimant’s review until December 2003 breached article 5(4) of the European Convention on Human Rights. The claim for compensation under article 5(5) was not pursued.

2. Once the tariff period has expired, detention is based on future risk and engages article 5(4). The prisoner is entitled to a regular and speedy adversarial review before the Parole Board. There is no fixed lawful maximum interval; the facts of each case are decisive. The guidance in Murray v The Parole Board [2003] EWCA Civ. 1561 was relevant to that assessment.

3. The court accepted that the Convention position concerning mandatory life prisoners was not established when the Human Rights Act 1998 came into force. The relevant period could therefore not automatically begin on 2 October 2000. Nevertheless, in assessing post-Stafford delay, the court had to take account of the claimant’s last review in January 2000. Doing so did not give Stafford retrospective effect.

4. Although transitional arrangements were introduced within eight months of Stafford, the delay was not caused by logistical difficulties of the kind rejected in Murray and R (Noorkoiv) v Secretary of State for the Home Department [2002] EWCA Civ. 770. The principal reason was the Home Office policy requiring 18 months in open conditions before review. That policy did not give sufficient weight to the prisoner’s right to have the lawfulness of continued detention reviewed.

5. The entitlement to review is independent of the merits of the case and of whether the prisoner is held in open or closed custody. A sustained period of assessment in open conditions cannot postpone the right indefinitely. Damages were unlikely to be justified in the circumstances, particularly given the claimant’s recent misconduct.