NW & YW, R (on the application of) v Secretary of State for Justice

Article 5(4) of the European Convention on Human Rights requires reviews of post-tariff life prisoners’ detention at reasonable intervals. The assessment is fact-sensitive and is for the court itself, rather than applying the Wednesbury test. There is no automatic 12-month limit or benchmark. The decision maker must identify the monitoring and progress required, specify the necessary period, and prepare a sensible timetable, while considering the prisoner’s circumstances and progress. The risk to the public is relevant because it informs the work required and the period in which there may be a realistic prospect of release. The interests of a child affected by possible separation are relevant, but do not necessarily outweigh cogent risk-based reasons for the review period.

The claimants were a post-tariff automatic life sentence prisoner and her infant daughter, who were accommodated together in a prison mother and baby unit. The unit could not house the child beyond nine months, although other establishments could accommodate children up to 18 months.

The Secretary of State maintained a decision that the mother’s next Parole Board review should take place in January 2011, 15 months after the previous review. The claim challenged that period under Article 5(4), and under Article 5(4) read with Article 8, on the basis that it might lead to separation before a review could determine whether the mother should be released. The central questions were whether the period was reasonable and whether the child’s interests required an earlier review.

1. Claim dismissed. The 15-month interval before the next Parole Board review was reasonable and compatible with Article 5(4) of the European Convention on Human Rights.
2. Article 5(4) requires reviews of detention at reasonable intervals. The question is fact-sensitive. The court must decide reasonableness for itself and does not apply the Wednesbury test. There is no automatic 12-month default period, although progressively more cogent reasons are required as an interval extends beyond 12 months towards 24 months.
3. The decision maker had identified the need for monitoring and progress, specified the period required, and prepared a sensible timetable for outstanding offending-behaviour work, consolidation and assessment. The Generic Parole Process ran concurrently with that period and was not itself the justification for delay.
4. The Secretary of State was entitled to consider the risk to the public. That did not involve deciding whether the claimant was ready for release, which was a matter for the Parole Board. It involved assessing the period in which she might realistically address the identified risks and have a reasonable prospect of release.
5. The interests of the child and the possibility of separation were relevant factors and had been considered. They were not decisive in the circumstances. The separation board had made no final decision, and the parole review decision was distinct from any later separation decision. The Article 8 challenge was therefore premature. The claimants remained entitled to make representations concerning separation and, if necessary, challenge a later adverse decision.
6. Permission to appeal was refused because the grounds disclosed no realistic prospect of success.

The claim was determined at first instance. Nicol J had previously granted limited permission to challenge the maintenance of the January 2011 review date and refused permission on the other grounds. Mrs Justice Dobbs dismissed the claim and refused permission to appeal.