Johnson, R (on the application of) v Secretary of State for the Home Department & Anor

A determinate sentence is not outside Article 5(4) merely because its nominal term is fixed. Where domestic law or established practice provides early-release consideration, unjustified delay after eligibility may make continued detention arbitrary and unlawful. The application must be considered speedily. The distinction between determinate and indeterminate sentences does not resolve the issue; the court must examine how the sentence and release scheme operate. Compensation under Article 5(5) depends on showing that earlier consideration would have resulted in release.

The appellant was sentenced to seven years’ imprisonment and became eligible for parole after serving half his sentence. Administrative delay meant that the Parole Board did not consider his case until more than eight months after the eligibility date. He was then released. The Administrative Court, on 11 July 2006, dismissed his claim that the delay breached Article 5(4). The appeal concerned whether Article 5(4) could apply to delayed parole consideration during a determinate sentence and, if so, whether compensation under Article 5(5) was available.

Disposition. Waller LJ, with Buxton and Lloyd LJJ agreeing, allowed the appeal and remitted the question of compensation under Article 5(5), unless the parties could agree it.

1. Nature of the sentence. The appellant’s detention pursuant to the sentence imposed by a competent court remained within Article 5(1). However, the label determinate did not by itself exclude Article 5(4). The relevant question was whether delay in operating the early-release regime made continued detention arbitrary.
2. Early-release arrangements. Under Criminal Justice Act 1991 s 35(1), the Parole Board could act only after referral. There was no material distinction for Article 5(4) purposes between an express statutory referral requirement and the established practice of referring determinate-sentence prisoners for parole consideration. The modern sentence operated as a composite package containing both the custodial term and domestic early-release arrangements.
3. Authorities. R (Giles) v Parole Board [2003] UKHL 42 was concerned with whether review could be sought before the applicable minimum period and did not decide the consequences of delay after eligibility. R (West) v Parole Board and R (Smith) v Parole Board [2005] UKHL 1 showed that Article 5(4) could apply after a determinate sentence, but recall after release was materially different from delayed first consideration while a prisoner remained detained. R (Clift) v Secretary of State for the Home Department [2006] UKHL 54 supported treating domestic early-release rules as relevant to Article 5.
4. Arbitrariness and remedy. An unjustified delay after parole eligibility, or unequal delays between prisoners, could render detention arbitrary and therefore unlawful under Article 5(4). The appellant had to show that earlier consideration would have resulted in release. If that was established, detention for the relevant period could attract compensation under Article 5(5).

• Court of Appeal (Civil Division): On 9 May 2007, the appeal was allowed and the compensation issue was remitted. [2007] EWCA Civ 427
• Administrative Court: Mr A Nicol QC, sitting as a Deputy High Court Judge, dismissed the judicial review claim on 11 July 2006.