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

Under section 28(7) of the Crime (Sentencing) Act 1997, only the Secretary of State can refer a discretionary life prisoner’s case to the Parole Board and therefore choose the period before the next review. The Board determines the precise review date after referral.

The Secretary of State’s decision is subject to judicial review and must secure speedy reviews at regular and reasonable intervals. A two-year period operates as a maximum or safeguard, rather than an automatic minimum. The executive may retain responsibility for timing because prison conditions, courses, available places and the prisoner’s circumstances are fluid. The challenged 15-month period was reasonable.

The claimant was a discretionary life prisoner under section 28 of the Crime (Sentencing) Act 1997. The Discretionary Lifer Panel recommended transfer to open conditions and a further review nine months after transfer. The Secretary of State accepted the transfer recommendation but required 15 months in open conditions before the next review.

The claimant sought judicial review, arguing that section 28(7) did not permit the Secretary of State to choose the review period, that executive control unlawfully restricted access to the Parole Board and breached Articles 5(4) and 6 of the Convention, and that the period selected was unreasonable.

1. Statutory scheme. Section 28(7) of the Crime (Sentencing) Act 1997, read with section 32 of the Criminal Justice Act 1991, made clear that only the Secretary of State could refer the prisoner’s case to the Parole Board. As a necessary consequence, he could choose the period at the expiry of which the Board would consider the case, although the exact date of review was a matter for the Board.
2. Access and Convention rights. The statutory scheme governed access to the judicial body. After two years from disposal of the previous referral, the prisoner could require a further referral; before then he could make representations to the Secretary of State and to the Panel, and challenge the Secretary of State’s decision by judicial review. The two-year provision was a maximum or fail-safe mechanism, not a fixed period. It did not impair the essence of the right of access or prevent reviews at reasonable intervals.
3. Article 6. The right of access to a court could be limited where the limitation pursued a legitimate aim and maintained a reasonable relationship of proportionality. Preventing repeated applications for review immediately after an unsuccessful application was a legitimate objective, and the available statutory and judicial safeguards were sufficient.
4. Timing and reasonableness. The Secretary of State could reasonably differ from the Panel on the time needed to test and assess risk. Timing depended on fluid matters within the executive’s knowledge, including the prison estate, courses, open-prison places and the prisoner’s condition. Retaining the decision with the executive allowed reconsideration and variation.
5. Application. The Panel had not directed release and had found that further testing in open conditions was required. The evidence supported allowing sufficient time to demonstrate fitness and avoid a premature review. The decision to require 15 months was not unreasonable. The claim was dismissed. Permission to appeal was granted, with the procedure stayed pending the Court of Appeal’s decision in Spence v the Home Office.

First-instance judicial review in the High Court (Administrative Court). The judgment records that permission to appeal was granted and the procedure stayed pending the Court of Appeal’s decision in Spence v the Home Office.