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

After a life prisoner’s tariff has expired and the Parole Board has recommended release, continued detention may become arbitrary and breach Article 5(1)(a) ECHR if no risk or dangerousness justifies it. The Secretary of State may take a reasonable period to respond to a fundamental change in Convention law and formulate lawful arrangements. A Parole Board decision to release is not ordinarily open to reconsideration unless the decision-making process was flawed or circumstances have materially changed. Fresh information about breaches of temporary release and drug testing may justify gathering evidence, reconsidering risk, and inviting the Board to review release. The claim was dismissed because the detention remained lawful.

The claimant was serving a mandatory life sentence for murder. His tariff had expired, and the Parole Board recommended release on 15 March 2002. Following the European Court of Human Rights’ judgment in Stafford v the United Kingdom on 28 May 2002, the Secretary of State considered the recommendation, consulted the relevant judicial authorities, and decided on 17 June 2002 that the claimant should be released.

Information then emerged concerning breaches of temporary release and a failed drug test. The Secretary of State invited representations, referred the matter to the Parole Board, and ultimately released the claimant on 28 August 2002. The claimant sought a declaration and damages for alleged unlawful detention between 28 May and 28 August 2002. The central issues were whether detention remained lawful under Article 5(1)(a) ECHR, and whether the Secretary of State was entitled to consider the new information before release.

1. The claim was dismissed. The claimant’s detention was not unlawful at any time between 28 May and 28 August 2002.
2. Following Stafford v the United Kingdom, the court held that once the punitive tariff of a mandatory life sentence has expired, continued detention must rest on considerations of risk and dangerousness. Where the Parole Board has recommended release and no such grounds exist, detention for a reason properly characterised as arbitrary may breach Article 5(1)(a) ECHR.
3. The claimant’s argument that detention became unlawful immediately upon delivery of Stafford was rejected. The Secretary of State was entitled to take a reasonable time to understand the judgment, obtain advice, and formulate a response affecting the wider mandatory-lifer population. The period from 28 May to 17 June 2002 was wholly reasonable, consistently with the legal-certainty considerations identified in Walden v Liechtenstein.
4. Once the Parole Board has decided that a life prisoner should be released, it ordinarily cannot revisit that decision unless the decision-making process was flawed or circumstances have changed. The Secretary of State was entitled to gather evidence about the claimant’s licence breaches and failed drug test, consider whether the information affected public risk, and invite the Board to reconsider release. The reasoning in R v Parole Board, ex parte Robinson was adopted.
5. The court treated R (on the application of IH) v Secretary of State for the Home Department and Secretary of State for Health as providing only a limited analogy. Although a tribunal may consider fresh material before a deferred conditional-discharge direction, the Parole Board had already communicated its decision here. The new information nevertheless required mature consideration, and the Secretary of State could ultimately release the claimant after concluding that it did not alter the risk assessment.

This was a first-instance judicial review claim. The judge refused leave to appeal and granted detailed legal aid assessment.