Mason v Ministry of Justice

Article 5(4) generally requires judicial review of detention imposed by an administrative body. Where detention follows conviction and a determinate sentence imposed by a court, the review is ordinarily incorporated in the sentencing process. Early release on Home Detention Curfew during the compulsory custodial part of that sentence is an administrative means of implementing the sentence. It does not require determination or recommendation by the Parole Board under Article 5(4), whether on initial release or recall. The Secretary of State’s decisions remain reviewable on ordinary public law grounds, including unreasonable exercise of discretion and inconsistency with applicable policy. Delay in granting Home Detention Curfew therefore does not, without more, make detention unlawful under Article 5(4).

The claimant was serving a determinate sentence of 30 months’ imprisonment. He claimed damages under Article 5(4) on the basis that the Ministry of Justice had delayed assessing and releasing him on Home Detention Curfew, although the eventual grant of the curfew indicated that he would have been released earlier without the delay.

The preliminary issue was whether Article 5(4) required a judicial body, such as the Parole Board, to decide whether a prisoner qualified for Home Detention Curfew or should be recalled for breach of its conditions. The court considered the statutory scheme, the relevant policy and Strasbourg and domestic authorities.

1. Article 5(4) framework. The core right is judicial supervision of the lawfulness of detention. Where detention follows conviction and sentence by a competent court, the review required by Article 5(4) is incorporated in the original sentencing decision.

2. Scope of the exceptions. The Strasbourg authorities recognise an exception where continued detention after the punitive tariff depends on changing questions of dangerousness or risk, particularly in life-sentence cases. Domestic authorities concerning parole and recall likewise address detention beyond the compulsory custodial part of a sentence, where the Parole Board has a statutory role. They do not establish that Article 5(4) applies to every executive decision affecting liberty during a determinate sentence.

3. Home Detention Curfew. Home Detention Curfew operates before the halfway point of the sentence, while custody remains compulsory under the statutory scheme. Release, conditions and recall under the scheme are the administrative implementation of the original sentence. The authorities concerning prisoners eligible for parole after the halfway point, including R (Johnson) v Secretary of State for the Home Department [2007] EWCA Civ 427, R (Black) v Secretary of State for Justice [2008] EWCA Civ 359 and R (O’Connell) v Parole Board [2007] EWHC 2591 (Admin), concerned materially different statutory arrangements.

4. The Secretary of State’s discretion to release or recall remains reviewable on ordinary public law principles, including public law unreasonableness and inconsistency with policy. Article 5(4) does not require the Parole Board’s involvement.

5. The claimant was not unlawfully detained during the relevant compulsory custodial period, including the period in which Home Detention Curfew might have been granted. Any grievance about delay could be pursued through the policy’s complaints and appeal procedures or by urgent judicial review, but it did not give rise to damages for breach of Article 5(4). The preliminary issue was decided against the claimant.

First-instance determination of a preliminary issue. No earlier decision or appeal is stated in the judgment.