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

The central legal issue was the interaction between article 5(1)(a) and article 5(4) of the European Convention on Human Rights in the context of release on licence for prisoners serving determinate sentences. The House considered whether a determinate-sentence prisoner who reaches his parole eligibility date has a Convention right under article 5(4) to have the lawfulness of continued detention decided by a court or court-like tribunal. The majority held that established Strasbourg authority draws a distinction between indeterminate (life) sentences and determinate sentences: where a determinate sentence has been fixed by a court the supervision required by article 5(4) is ordinarily incorporated in the original sentencing and appeal procedures and does not, as of right, require a further court determination at parole eligibility. The majority therefore concluded that section 35(1) of the Criminal Justice Act 1991, which permits the Secretary of State to refuse release on licence after a recommendation from the Parole Board in a narrow class of long determinate sentences, is not incompatible with article 5(4). The decision left open that executive decisions remain subject to judicial review and that further development on this point should come from the European Court of Human Rights.

The respondent, Mr Black, was serving concurrent determinate sentences totalling 24 years. Under the Criminal Justice Act 1991 section 35(1) a small class of long-term determinate prisoners (at the time those serving 15 years or more for older offences) could be released on licence "if recommended to do so by the Parole Board" but the Secretary of State retained power to refuse that recommendation. The Parole Board recommended Mr Black's release after he became eligible at the halfway point. The Secretary of State refused and Mr Black sought judicial review, including a claim that section 35(1) was incompatible with article 5(4) of the European Convention on Human Rights. Kenneth Parker QC (deputy High Court judge) dismissed the judicial review; the Court of Appeal allowed the appeal in part and gave a declaration of incompatibility; the Secretary of State appealed to the House of Lords.

Nature of the claim: A challenge under the Human Rights Act and judicial review of the Secretary of State's refusal to release on licence; the claim sought a declaration that section 35(1) CJA 1991 was incompatible with article 5(4) ECHR and relief in relation to the refusal to release.

Issues framed:

• Whether article 5(4) of the Convention requires a court or court-like tribunal to determine the lawfulness of continued detention when a determinate-sentence prisoner reaches parole eligibility;
• whether section 35(1) CJA 1991 is incompatible with article 5(4) to the extent that it permits the Secretary of State to override a Parole Board recommendation for release for a small class of long-term determinate prisoners;
• whether the criteria applied by the Parole Board or Secretary of State in such decisions are justiciable and whether judicial review suffices to satisfy Convention obligations.

Reasoning and conclusion: The majority analysed Strasbourg case law and earlier domestic authorities and concluded that the Strasbourg jurisprudence treats determinate sentences differently from indeterminate (life) sentences: for determinate sentences the lawfulness of detention is generally incorporated in the sentencing and appeal process, whereas for indeterminate sentences post-tariff detention engages fresh justiciable issues of dangerousness. The majority accepted that the Parole Board applies justiciable criteria and that domestic judicial review provides a safeguard against arbitrariness, but concluded that article 5(4) does not automatically require that parole decisions for determinate sentences be taken finally by a "court". The majority therefore allowed the Secretary of State's appeal, set aside the Court of Appeal's declaration of incompatibility and restored the dismissal of the judicial review claim. The minority view (Lord Phillips) would have held the regime incompatible with article 5(4). The House emphasised the proper role of the European Court of Human Rights in any further extension of article 5(4)'s reach.

Appeal allowed. The majority held that article 5(4) does not, as a general rule, entitle determinate-sentence prisoners at their parole eligibility date to a final determination of the lawfulness of continued detention by a court or court-like tribunal; the supervision required by article 5(4) is ordinarily incorporated in the original sentencing and appeal process for determinate sentences and the Secretary of State's limited residual power under section 35(1) CJA 1991 is not incompatible with article 5(4). The executive decision remains subject to judicial review; any further development extending article 5(4) to this context should be left to the European Court of Human Rights.

Judicial review claim dismissed by Kenneth Parker QC (deputy High Court judge). Court of Appeal allowed the respondent's appeal in part and granted a declaration of incompatibility ([2008] EWCA Civ 359; reported [2008] 3 WLR 845). The Secretary of State appealed to the House of Lords ([2009] UKHL 1).