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

A policy under which the Secretary of State accepts a High Court judge’s recommendation on periodic review of a detention tariff is not necessarily an unlawful fetter of discretion. The same approach may lawfully be adopted where the judge is treated as making the effective decision. A victim personal statement obtained for a review based on exceptional progress should not be considered without disclosure to the detainee, save in wholly exceptional circumstances requiring an analogous special procedure. Procedural unfairness does not require a decision to be quashed where the outcome was inevitable on the properly relevant material.

The claimant was detained during Her Majesty’s Pleasure after conviction for murder committed when he was under 16. On periodic tariff review, Mitting J recommended that his minimum term should not be reduced. The Secretary of State accepted that recommendation under a policy of honouring judicial recommendations in every such case.

The claimant sought judicial review, challenging the policy, the absence of an opportunity to make further representations, and the withholding of a victim personal statement considered by Mitting J. The central issues were whether the policy unlawfully fettered the Secretary of State’s discretion and whether the procedure was unfair.

1. Disposition. The application for judicial review was refused. Although the procedure concerning the victim personal statement was unfair, the Secretary of State’s refusal to reduce the minimum term was not quashed because the result was inevitable on the relevant material.
2. The Secretary of State’s policy of accepting the recommendation of a senior judge on every periodic DHMP tariff review was lawful. The reasoning in R (Smith) v Secretary of State for the Home Department [2006] 1 AC 159 showed that the executive could adopt an informal procedure under which the judge made the effective decision. That policy did not unlawfully fetter discretion or amount to acting under dictation.
3. The separate challenge based on failure to invite further submissions added nothing. If the policy was lawful, submissions seeking to persuade the Secretary of State not to follow the judge’s recommendation could achieve nothing.
4. The relevant review was concerned with whether there was clear evidence of exceptional and unforeseen progress. A victim personal statement concerning the continuing impact of the offence on the victim’s family was irrelevant to that issue. A judge conducting such a review should not consider a victim or family statement without disclosing its substance to the detainee.
5. Disclosure might be withheld only in wholly exceptional circumstances, such as a serious risk to the victim’s family or national security. In such a case, redaction or a special procedure analogous to rule 8 of the Parole Board Rules would be required.
6. The procedural error did not cause material unfairness requiring relief. Mitting J’s conclusion that the claimant’s good progress was not exceptional was correct and inevitable on the tariff review dossier. A fresh review would therefore have been futile.

• Court of Appeal Criminal Division: Permission to appeal against conviction was refused in [2010] EWCA Crim 2483. The sentence was altered only to reflect the technically correct form of detention during Her Majesty’s Pleasure.
• High Court (Administrative Court): Mitting J recommended no reduction of the minimum term in [2015] EWHC 919 (Admin). The present court refused judicial review of the Secretary of State’s decision accepting that recommendation.