Page, R (on the application of) v Secretary of State for Justice

The exercise of the royal prerogative of mercy is reviewable. Published criteria governing its exercise are lawful guidance, but the decision-maker must consider all the circumstances of the individual case.

Where an administrative error gives a prisoner a long-standing and mistaken expectation of earlier release, the decision-maker must consider the effect of the error on the prisoner’s position, including any lost opportunity to place relevant matters before an appellate court. A failure to consider the effect of a quashed conviction on the release date may render the decision unlawful. The appropriate remedy may be a declaration requiring reconsideration rather than an order compelling exercise of the prerogative.

The claimant, a prisoner, challenged the Secretary of State’s refusal to exercise the royal prerogative of mercy by releasing him before the release date calculated after the quashing of an earlier robbery conviction.

Because of a mistaken sentence calculation, the claimant had been told for several years that he would be released in February 2007. The correct calculation was later held in earlier judicial review proceedings to produce a release date in September 2007. The claimant argued that the Secretary of State had failed properly to consider the quashing of the conviction, the resulting alteration to his release date, and the unfairness caused by his inability to raise that matter in his appeal against sentence.

The central issue was whether the refusal to exercise the prerogative was lawful.

1. The claim succeeded. The court granted permission, treated the rolled-up hearing as the substantive hearing, declared that the decision could not lawfully stand, and ordered reconsideration. Costs were awarded to the claimant.
2. The court accepted that the exercise of the royal prerogative of mercy is reviewable. The principle stated by the Divisional Court in R v Secretary of State for the Home Department, ex parte Bentley [1994] QB 349 supported that conclusion. The claimant was entitled to challenge the application of the criteria, but not the criteria themselves as a matter of policy.
3. Prison Service Order 6650 provided lawful guidance. It required consideration of the prisoner’s expectations or distress, the obligation to implement the sentence, and the individual circumstances. Its listed factors were guidance rather than rigid rules.
4. The decision-maker had failed to give proper weight to the crucial circumstance that the earlier conviction had been quashed and that this had altered the release date. The relevant unfairness was not merely the time already served, but the additional time to be served because the claimant had been misled and had consequently lost the opportunity to put the true position before the Court of Appeal.
5. Prison conduct, the seriousness of the offending, and incomplete offending-behaviour work could in general be relevant. In this case they could carry little weight because the claimant would in any event be released shortly afterwards. Difficulties in arranging release could affect its timing, but were not a reason to refuse the prerogative altogether.
6. The court did not direct that the prerogative be exercised in the claimant’s favour. It regarded the case as rare and stated that it was difficult to identify any good reason for refusing release as soon as the necessary arrangements could be made.

The judgment records earlier judicial review proceedings before Deputy Judge Nicholas Blake, who held that the sentence calculation used by the prison service was incorrect and that the sentence commenced when the earlier conviction was quashed. The present court did not disturb that decision and determined only the lawfulness of the subsequent refusal to exercise the prerogative of mercy.