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

Under section 30 of the Crime (Sentences) Act 1997, the Secretary of State decides whether exceptional compassionate circumstances justify releasing a life prisoner. The duty to consult the Parole Board arises only after the Secretary of State has decided in principle to release; it does not require a referral before that decision.

A continuing breach of article 3 requires the State to end the breach. The court must review the position with an intensity appropriate to the Convention right and may require release if that is the only effective remedy. The separate investigatory duty applicable to completed violations does not require a Parole Board investigation of an alleged continuing breach. Serious illness and restraint in hospital will infringe article 3 only where the circumstances attain the required severity, assessed in particular by reference to the prisoner’s condition, treatment needs and actual risk.

The claimant was serving a life sentence for murder and was not eligible for parole until 2008. In 2003 he was diagnosed with terminal colon cancer. He sought judicial review of the Secretary of State’s refusal to release him on compassionate grounds under section 30 of the Crime (Sentences) Act 1997.

He contended that his continued imprisonment, including difficulties in obtaining treatment and the use of restraints during hospital attendance, breached article 3 of the Convention. He submitted that an arguable breach required referral to the Parole Board, or alternatively required the court to order his release. Elias J rejected the challenge. The appeal concerned the construction of section 30, the State’s obligations under article 3, and whether the claimant’s treatment and detention then amounted to such a breach.

1. Appeal dismissed unanimously. The court upheld Elias J’s conclusion that the Secretary of State had lawfully refused compassionate release at that stage.
2. Section 30(1) of the Crime (Sentences) Act 1997 leaves the initial decision on exceptional compassionate circumstances to the Secretary of State. Section 30(2) requires consultation with the Parole Board only before implementing a decision to release. It does not require consultation while the Secretary of State is deciding whether release is justified. The Parole Board therefore has no statutory investigatory or decision-making role where the Secretary of State decides against release.
3. The duty to carry out an effective official investigation of an arguable violation of articles 2 or 3 concerns completed violations, commonly a death in custody. It does not answer an allegation that an article 3 breach is current and continuing. In that situation the State’s duty is to terminate the breach. The court, rather than the Parole Board, determines whether a present breach exists and may require the Secretary of State to release the prisoner if release is the only means of ending it. Lord Justice Buxton held that this entails intense review; Lord Justice May described article 3 as a necessary statutory overlay to the Secretary of State’s evaluative judgment.
4. The claimant’s circumstances did not attain the high threshold for an article 3 breach. Unlike the prisoner in Mouisel v France (2004) 38 EHRR 34, he was mobile and self-caring, medical evidence did not recommend full-time hospital or hospice treatment, and there was no evidence of significant psychological harm. The use of handcuffs had followed a risk assessment which identified a continuing significant risk of violence or absconding. Those differences materially distinguished Mouisel.
5. The Secretary of State was obliged to keep the position under review. If deterioration meant that article 3 could be protected only by release, release would become obligatory. Although the existing restraint arrangements did not breach article 3, the court endorsed Elias J’s concern that their application in hospital might be over-zealous and should be reconsidered in light of Mouisel.

• Court of Appeal (Civil Division) Dismissed the claimant’s appeal on 28 January 2005: [2005] EWCA Civ 275.
• Administrative Court (High Court) Elias J held that the claimant’s continued detention and restraint did not breach article 3 and rejected the challenge to the refusal of compassionate release.