Huxtable, R (On the Application Of) v The Secretary of State for Justice (Rev 1)

The Secretary of State may use delegated rule-making powers to introduce a procedural reconsideration stage for Parole Board decisions. A provisional decision to release does not remove the Board’s substantive power to direct release, nor does it constitute the final decision that detention is no longer necessary.

A reconsideration period is not unlawful merely because it may delay release. The legality of the scheme depends materially on the power under Rule 9 of the Parole Board Rules 2019 to shorten the period where justice or effective case management requires it. The scheme therefore did not exceed the statutory rule-making power or breach Articles 5(1) or 5(4) of the Convention.

The claimant, an IPP prisoner, challenged the lawfulness of the Reconsideration Mechanism introduced by the Parole Board Rules 2019. The mechanism made eligible Parole Board release decisions provisional for 21 days, during which either party could seek reconsideration on grounds of irrationality or procedural unfairness.

He argued that the mechanism was ultra vires sections 239(5) and 330(3)–(4) of the Criminal Justice Act 2003, because it removed the Board’s power to order immediate release. He also argued that it breached Articles 5(1) and 5(4) of Schedule 1 to the Human Rights Act 1998 by permitting detention unrelated to risk and causing unjustified delay. The central issue was whether the mechanism was procedural and compatible with the statutory and Convention requirements.

1. Claim dismissed. The challenge to the general lawfulness of the Reconsideration Mechanism and its application to the claimant failed.
2. The claimant’s premise that the Parole Board previously possessed a power to order immediate release was wrong. Section 28(5) of the Crime (Sentences) Act 1997 requires release after the Board directs early release, but the authorities establish that reasonable time may be required to implement release conditions, including approved-premises conditions.
3. The 2019 Rules create a two-stage procedure. The Board first makes a provisional decision and then finalises it after the reconsideration period, unless an application succeeds. Both stages remain under the control of the Board. Rule 9 permits the Board to shorten the period on the application of either party, and that application must be considered on its individual merits. The mechanism was therefore procedural and fell within section 239(5) of the Criminal Justice Act 2003, assisted by section 330(3)–(4).
4. Articles 5(1) and 5(4) were not infringed. The final decision that detention is no longer necessary for public protection is made only at the end of the process. Until then, detention retains a sufficient causal connection with the conviction and remains directed to ensuring that the release decision is rational and procedurally fair. The availability of Rule 9 prevented the 21-day period from being an unlawful blanket delay.
5. The court emphasised that liberty could not be assessed by aggregate statistics. Rule 9 was a crucial safeguard, and the Parole Board must exercise it lawfully and individually. The claimant had not applied under Rule 9, and the application of the Rules to his case was not unlawful.