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

Article 5(4) requires periodic and speedy review of continued detention after expiry of the punitive tariff. The interval between reviews is fact-sensitive; there is no automatic rule that a period exceeding one year is unlawful, or that any period up to two years is justified.

The longer the interval extends beyond 12 months towards 24 months, the more cogent the reasons required. The court reviews the reasonableness of the decision with due regard to the decision-maker’s expertise, but without the constraints of Wednesbury review. A review date may be unlawful where the period selected is unsupported by any particular reason in the circumstances of the case.

The claimant, a life prisoner whose minimum term had expired, challenged the Secretary of State’s decision notified on 9 June 2009 that his next Parole Board review would take place in July 2010. His previous review had occurred on 21 April 2009.

The Parole Board had recommended transfer to open conditions after noting significant progress and support for eventual release. The Secretary of State approved the transfer but gave reasons including testing the claimant in less secure conditions, completing further work and preparing a release plan. The issue was whether fixing the next review 14 to 15 months after the previous review complied with Article 5(4).

1. Application allowed. The decision to set the next Parole Board review for July 2010 was quashed as unlawful.
2. Article 5(4) requires periodic and speedy judicial review of whether continued detention remains necessary for public protection once the minimum term has expired. The reasonableness of the interval depends on the circumstances of the individual case. There is no presumption that an interval exceeding one year necessarily infringes Article 5(4), and no rule that any period up to two years requires no justification.
3. The court must assess the reasonableness of the period, giving due weight to the decision-maker’s expertise but applying a review unrestrained by Wednesbury principles. As the period extends beyond 12 months towards 24 months, increasingly cogent reasons are required. Relevant considerations include the prisoner’s progress and risk, the work required before release, the practical availability and likely duration of that work, the risk of institutionalisation, and the circumstances of the sentence and detention.
4. In this case, several factors favoured a shorter interval. The tariff was relatively short, the claimant had served nearly twice that period, there was clear evidence of progress, and the principal recommended counselling could more readily be provided after release. The Secretary of State’s stated reasons did not explain why the particular period of 14 to 15 months had been selected. No supporting evidence was filed, and no reason was apparent from the papers. The period was therefore unsupported and, in the circumstances, arbitrary.
5. The court declined to impose a review date itself. The Secretary of State was directed to set a date, using the most up-to-date information, which complied with Article 5(4)’s requirement of a speedy decision. Consequential costs orders were left for agreement or written submissions.

Not an appeal. The judgment describes the claimant’s judicial review of the Secretary of State’s decision.