R (On The Application of Black) (Respondent) v Secretary of State for Justice (Appellant)

For a prisoner serving a determinate sentence imposed as punishment, the judicial supervision required by article 5(4) of the Convention is ordinarily incorporated in the original conviction and sentence. Eligibility for discretionary release on licence at the halfway point does not make continued detention unlawful or create a new issue requiring determination by a court.

The administrative implementation of a determinate sentence differs from post-tariff detention under an indeterminate sentence. A statutory power permitting the executive to reject a Parole Board recommendation is therefore compatible with article 5(4), provided that the decision is lawfully exercised and remains subject to judicial review. The position changes when domestic law confers an immediate right to release or a lawful recall depends upon a new fact such as breach of licence.

The respondent was serving determinate sentences totalling 24 years. Under section 35(1) of the Criminal Justice Act 1991, he became eligible for release on licence after serving half of that term. The Parole Board recommended release, but the Secretary of State rejected the recommendation.

A deputy High Court judge dismissed the respondent’s application for judicial review. The Court of Appeal, in [2008] EWCA Civ 359, allowed his appeal in part and declared section 35(1) incompatible with article 5(4) of the Convention because it left the final release decision to the executive.

The central issue before the House was whether article 5(4) entitled a determinate-sentence prisoner, upon reaching the parole eligibility date, to a judicial determination of the lawfulness of continued detention.

1. Appeal allowed by a majority. Lord Brown delivered the principal speech. Lord Rodger, Baroness Hale and Lord Carswell agreed that section 35(1) of the Criminal Justice Act 1991 was compatible with article 5(4). Lord Phillips dissented.

2. Per Lord Brown, a determinate sentence imposed by a competent court authorises detention for its fixed term. The judicial control required by article 5(4) is incorporated in the conviction and sentence. Discretionary early release is part of the administrative implementation of that sentence. Reaching the parole eligibility date does not itself create a new issue affecting the lawfulness of detention.

3. Lord Rodger reasoned that section 35(1) conferred a power to release, rather than a right to release once the Parole Board recommended it. Even if the Secretary of State exercised that power unlawfully, the remedy would be reconsideration. The prisoner would not thereby acquire an immediate right to liberty. A right to release arose at the two-thirds point under section 33(2).

4. Per Lord Brown, the executive could consistently with the Convention administer discretionary release from a determinate sentence. Its decision remained subject to judicial review for arbitrariness or irrationality. The Secretary of State’s continuing power was an indefensible anomaly and lacked political justification, but that did not make it contrary to article 5(4).

5. The majority distinguished indeterminate sentences. Once the punitive tariff expires, continued detention depends upon changing considerations of risk and dangerousness. Those new issues must be determined by a court. Recall from licence was also distinct because lawful recall could depend upon proof of a new matter, such as breach of licence conditions.

6. Lord Carswell agreed, although with hesitation, that domestic courts should not extend article 5(4) beyond the Strasbourg jurisprudence. Lord Brown similarly applied the restraint stated in R (Ullah) v Special Adjudicator [2004] 2 AC 323.

7. Lord Phillips dissented. He considered that domestic early-release provisions conferred a right to release when the published, justiciable criteria were satisfied. Article 5(4) therefore required a court to decide that issue, and section 35(1) improperly allowed the Secretary of State to reverse the Parole Board’s decision.

8. The declaration of incompatibility was set aside. The order dismissing the application for judicial review was restored.

1. House of Lords: By a majority of four to one, allowed the Secretary of State’s appeal, set aside the declaration of incompatibility and restored the Administrative Court’s order dismissing the application.

2. Court of Appeal: In [2008] EWCA Civ 359, reported at [2008] 3 WLR 845, allowed the respondent’s appeal in part and declared section 35(1) of the Criminal Justice Act 1991 incompatible with article 5(4).

3. Administrative Court: Kenneth Parker QC, sitting as a deputy High Court judge, dismissed the application for judicial review.