Salami, R (on the application of) v Parole Board

Changes to early-release and licence arrangements for determinate prisoners concern the administration or execution of the sentence, rather than the judicial determination of the sentence itself. Their adverse effect on the period actually spent in custody does not therefore breach Article 6 of the European Convention on Human Rights. A determinate sentence remains a sentence of imprisonment for the period imposed, although it operates within a composite statutory regime governing release and recall. The sentencing judge’s duty to explain the applicable release provisions does not convert those provisions into immutable terms of the judicial sentence. Parliament may subsequently alter the regime, subject to any separate Convention or domestic challenge.

These conjoined judicial review claims concerned prisoners affected by amendments brought into force under the Criminal Justice and Immigration Act 2008. Salami had been released on licence and claimed that, after recall, the new regime unlawfully prolonged the period during which he remained liable to recall. Robinson claimed that the amendments prevented his unconditional release at the three-quarter point of his sentence.

Both claimants argued that the changes interfered with the sentencing court’s determination and breached Article 6 of the European Convention on Human Rights. The court also considered the statutory transitional provisions and the authorities concerning determinate sentences, early release and recall.

1. The claims were dismissed. The only grounds for which permission had been granted relied on Article 6 of the European Convention on Human Rights.
2. The court held that a determinate custodial sentence is, for Convention purposes, a sentence of imprisonment for the term imposed. Provisions for early release, release on licence and recall regulate the administration or execution of that sentence. A later change which makes the regime less favourable does not redetermine the sentence imposed by the court.
3. The reference in R (West) v Parole Board to a sentence as a composite package did not produce a different result. It recognised the legal consequences of the statutory regime, but did not make that regime immune from later legislative alteration. The sentencing judge should determine the appropriate custodial sentence by reference to the seriousness of the offence and culpability, without adjusting it for early-release provisions.
4. The approach was consistent with the European Court of Human Rights’ treatment of early release as part of the administration of a sentence, and with the House of Lords’ reasoning in R (Black) v Secretary of State for Justice. The contrary observations of the Court of Appeal in R v Uttley carried weight but did not govern the Article 6 issue.
5. The court adopted the reasoning of the Deputy Judge in R (Poku) v Secretary of State for Justice: early-release provisions may form part of the composite package constituting punishment, but they do not determine the relative culpability reflected in the custodial terms imposed by the sentencing judge.
6. The claimant in Salami’s case did not pursue the other suggested grounds. No final costs order was made at the hearing; consequential matters were to be dealt with in writing.