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

A sentence of detention during His Majesty’s Pleasure retains its distinctive nature where the offender committed murder under 18, even if sentenced after turning 18. Its inherent safeguards include continuing review of the minimum term. Removing the review right for offenders sentenced at 18 or older therefore creates unlawful differential treatment by age and a risk of arbitrary detention.

The distinction cannot be justified by treating 18 as a conclusive maturity threshold, because culpability is assessed by reference to the offender’s age when the offence was committed and maturation continues beyond 18. Nor is the protection of victims’ families sufficient justification for removing a single review concerned principally with exceptional progress in custody. The provisions were incompatible with Articles 5 and 14 of the Convention, but not Article 6. Article 7 was academic.

The claimant committed murder aged 17 and was sentenced in 2015 to detention during Her Majesty’s Pleasure, with a minimum term of 15 years. Under the pre-existing review policy, offenders serving such sentences could seek review of the minimum term, including after turning 18.

Section 128 of the Police, Crime, Sentencing and Courts Act 2022 inserted section 27A into the Crime (Sentences) Act 1997. It limited the statutory review right to offenders sentenced while under 18 and removed any other right to request review. The claimant, sentenced after turning 18, challenged sections 27A(1) and 27A(11) under Articles 5, 6, 7 and 14 of the Convention.

The central issues were whether the amendments changed the nature of a DHMP sentence, whether the age-based distinction was objectively justified, and whether removal of review safeguards risked arbitrary detention.

1. Article 14. The circumstances fell within Article 5. The claimant and an offender sentenced before turning 18 were in analogous situations, and the difference in treatment was based on age. The applicable test was whether the differentiation pursued a legitimate aim and whether the means adopted were appropriate and proportionate. Although a wide margin of appreciation applied, the distinction lacked objective justification.
2. Section 27A did not alter the essential nature of DHMP detention. The sentence remains directed to an offender who committed murder under 18 and is distinct from adult imprisonment. The relevant assessment of culpability concerns age at the time of the offence, not merely age at sentence.
3. The proposed bright-line distinction at 18 was unsustainable. Youth sentencing principles recognise that maturity is not suddenly attained at 18. The review ordinarily occurs years later and assesses sustained exceptional progress throughout custody, often including progress after 25. The date of sentence may also depend on random procedural delay. These matters made the distinction arbitrary and without reasonable foundation.
4. The interests of victims’ families did not justify removing the review right for offenders sentenced at 18 or older. A review generally concerns exceptional progress rather than the original offending or risk on release. A victim personal statement was therefore of limited relevance. The legitimate aim of reducing repeated reviews did not justify abolishing the single review at issue.
5. Article 5. Continuing review is an inherent element of a DHMP sentence. Removing every possibility of reducing the minimum term created a sufficient risk that detention would continue beyond the period lawfully required to promote rehabilitation, and was therefore incompatible with the prohibition of arbitrary detention.
6. Article 6. The review was an administrative stage after sentence, concerned with whether the minimum term remained appropriate. It was not a further hearing determining the criminal charge or setting the sentence. Article 6 was not engaged.
7. Article 7. Section 27A did not change the nature of the sentence. The Article 7 argument was therefore academic and no conclusion on it was necessary.
8. A declaration was made under section 4 of the Human Rights Act 1998 that sections 27A(1) and 27A(11) of the Crime (Sentences) Act 1997, as inserted by section 128 of the Police, Crime, Sentencing and Courts Act 2022, were incompatible with Articles 5 and 14.