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

Article 5(4) does not require the Parole Board itself to fix the date of a subsequent review. The Secretary of State may perform that administrative function under the statutory scheme, subject to judicial review.

The court must decide for itself whether the interval provides a speedy review, considering all the circumstances and giving due weight to the Secretary of State’s and the Parole Board’s views. There is no rigid presumption that an interval exceeding one year violates Article 5(4), although longer intervals require particularly careful justification. A leisurely programme of rehabilitation cannot itself justify postponing review where the evidence indicates that progress may occur within a shorter period.

The claimant, a mandatory life prisoner, challenged the Secretary of State’s decision that his next Parole Board review should conclude by August 2005. His previous review in November 2003 had refused release but supported transfer to open conditions so that further offending-behaviour work and testing could take place.

He argued that only the Parole Board could lawfully determine the timing of the next review, and alternatively that the proposed interval of approximately 21 or 22 months would deny him a speedy review under Article 5(4) of the Convention. The Secretary of State relied on the statutory scheme, the planned rehabilitation and assessment work, and the absence of any fixed 12-month rule.

1. Power to fix the review date. The existing statutory scheme did not confer on the Parole Board the power to determine the timing of a subsequent review. The Secretary of State’s role in referring the case remained administrative. The principle of judicialisation of release decisions did not logically require every aspect of the release process to be judicial. The Secretary of State’s decision was subject to judicial review, and the court could itself determine whether the interval complied with Article 5(4).
2. Applicable test. The court was not to apply the Wednesbury threshold. It had to decide whether the proposed interval provided for the lawfulness of detention to be decided speedily, having regard to all the circumstances and giving due weight to the Secretary of State’s assessment. The question was fact-sensitive. No presumption made every interval exceeding one year unlawful, although European jurisprudence made a breach easier to establish for longer intervals.
3. Prematurity and flexibility. The August 2005 date was a real decision, although it could be brought forward if circumstances changed. The availability of further representations did not cure an interval which was intrinsically too long.
4. Application. The claimant’s previous review had itself been two months late. The Parole Board had anticipated relatively short-term progress, the relevant course and assessment were expected to be completed by September 2004, and the Secretary of State had promptly accepted the transfer to open conditions. The remaining period before August 2005 was therefore excessive in the circumstances. The timing of rehabilitation measures could not be made artificially slow and then relied upon to justify a delayed review.
5. The court granted a declaration that postponing conclusion of the review until August 2005 would violate the claimant’s Article 5(4) right to a speedy review. It declined to make a more prescriptive order. There was no order as to costs, subject to assessment of publicly funded costs.