Henley-Smith, R (On the Application Of) v Secretary of State for Justice

A statutory power conferred on a minister to vary the release test for existing IPP prisoners does not impose a duty to exercise it or to relax the test. Parliamentary statements cannot be used to define the scope of a clear discretionary power or to create enforceable expectations concerning political choices reserved to Parliament. The court cannot require, prohibit or condition the introduction of primary or secondary legislation. A common-law duty to consult is exceptional and is not ordinarily implied where Parliament has conferred a discretionary power without mentioning consultation. The public sector equality duty requires due regard, not a particular result. Continued detention under an indeterminate sentence does not breach Article 3 where release remains legally available and detention remains necessary for public protection.

The claimant was serving an IPP sentence imposed for false imprisonment and related offences. His tariff expired in 2008, but the Parole Board repeatedly concluded that continued detention was necessary because he remained a risk to women with whom he formed relationships.

He challenged the Secretary of State’s failure to consult on, and exercise, the power in section 128 of the Legal Aid, Sentencing and Punishment of Offenders Act 2012 to alter the Parole Board’s release test. He alleged frustration of legislative purpose, breach of consultation obligations, irrationality or disproportionality, breach of the public sector equality duty and incompatibility with Article 3 ECHR.

1. Claim dismissed. The court held that section 128 of the Legal Aid, Sentencing and Punishment of Offenders Act 2012 conferred a broad discretion. Parliament abolished IPP sentences prospectively but preserved existing sentences and did not require the Secretary of State to lay an order, relax the release test or consult. The decision to address IPP difficulties through other measures was lawful.
2. The claim based on ministerial statements concerning consultation could not be pursued insofar as it would require the court to control the introduction of secondary legislation. The principles in Wheeler v Office of the Prime Minister and Unison v Secretary of State for Health applied equally to secondary legislation. A declaration would have the same practical effect as a mandatory order and would impermissibly interfere with parliamentary proceedings.
3. The statements were, in any event, ambiguous and did not establish a clear, unqualified promise to consult serving prisoners or the public generally. No exceptional conspicuous unfairness justified implying a common-law duty to consult. The defendant was already well informed about the problems with IPP sentences and possible reforms.
4. Under Pepper v Hart and Spath Holme, Hansard could not be used here to define the scope of a clear discretionary power or to impose a legal duty based on asserted legislative purpose. Parliamentary materials could be used only as historical evidence or for a permissible statutory-interpretation exercise.
5. The decision not to invoke section 128 was rational and proportionate. The evidence showed that ministers had considered the option, that a suitable alternative release test was difficult to devise and that measures improving progression and parole administration were being pursued.
6. The public sector equality duty had been discharged. It required due regard, not achievement of a particular outcome, and the evidence showed specific measures addressing prisoners whose progression was affected by personality disorder or mental-health issues.
7. Article 3 was not infringed. The sentence remained reducible because the claimant had periodic consideration for release, and the Parole Board had found continued detention necessary for public protection. The claimant also failed to establish a real risk of Article 3 ill-treatment arising from his detention conditions.

First-instance judicial review. Permission was initially refused on the papers but granted at an oral hearing before a Deputy High Court Judge. The claim was dismissed by the Administrative Court.