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

This appeal concerned the compatibility of section 27A and 27B of the Crime (Sentences) Act 1997 (as inserted by section 128 of the Police, Crime, Sentencing and Courts Act 2022) with Articles 5, 7 and 14 of the European Convention on Human Rights in the context of detention at His Majesty's pleasure (DHMP) imposed for murder committed when the offender was a child. The Divisional Court had declared subsections 27A(1) and 27A(11) incompatible with Articles 5 and 14 (read with Article 5). The Court of Appeal allowed the Secretary of State's appeal and set aside those declarations.

Key legal principles and holdings:

• Article 5: detention in accordance with a judicially fixed minimum term is not rendered arbitrary by Parliament removing or restricting statutory or executive review rights that previously enabled certain post‑sentence reductions; the Court concluded section 27A did not render continued detention arbitrary while the judicial minimum term subsists.
• Article 7: changes to the availability of post‑sentence reviews concern the execution or enforcement of the sentence rather than the penalty itself; section 27A/27B do not impose a heavier penalty than in force at the time of the offence.
• Article 14 (age discrimination): the distinction in s.27A(1) based on age at sentence (under/over 18) pursues legitimate aims (including reducing distress to victims' families) and is within Parliament's margin of appreciation; the Court held the differential treatment was objectively justified and proportionate, having regard to Parliament’s considered choice (including the rejected amendment for age 26) and relevant authorities on deference in social/penal policy.

Background and facts. On 10 May 2014 two teenagers stabbed and killed a 21‑year‑old. Jesse Quaye was 17 years and 9 months at the date of the offence but 18 at conviction and sentence; he and a co‑accused were sentenced on 16 January 2015 to detention at His Majesty's pleasure with a minimum term of 15 years. Historically the Secretary of State operated a policy of referring applications for reduction of DHMP minimum terms (usually after half the tariff had been served) to a judge; this policy was changed in February 2021 and Parliament enacted s.27A/27B (effective June 2022) limiting statutory review rights to offenders who were under 18 when sentenced.

Nature of the application and procedural posture. Mr Quaye sought declarations under section 4 of the Human Rights Act 1998 that s.27A and s.27B were incompatible with Articles 3, 5, 6, 7 and 14 (read with Article 5). The Divisional Court ([2024] EWHC 211 (Admin)) held s.27A(1) and (11) incompatible with Articles 5 and 14 (read with 5) but dismissed the Article 6 claim and did not reach Article 7. The Secretary of State appealed to the Court of Appeal; Mr Quaye filed a respondent’s notice seeking to uphold the Divisional Court on an Article 7 ground and sought to adduce further evidence.

Issues framed by the Court of Appeal.

1. Whether s.27A(1) and (11) rendered detention arbitrary and incompatible with Article 5.
2. Whether s.27A/27B effected a retrospective imposition of a heavier penalty contrary to Article 7.
3. Whether the differential treatment (eligibility for review depending on age at sentence) amounted to unjustified discrimination contrary to Article 14 read with Article 5.

Court’s reasoning and conclusions. The Court of Appeal (Dame Victoria Sharp P., Lewis LJ, Cobb J) allowed the appeal. On Article 5 the court held that detention pursuant to a judicially fixed minimum term imposed under the statutory sentencing regime is lawful and not made arbitrary merely because a statutory or executive review route (previously available in practice or by prerogative) has been removed or limited; the Divisional Court had erred in treating continuing review as an immutable feature of post‑2000 DHMP sentences. On Article 7 the court held changes to review arrangements concern the execution/enforcement of the sentence (not the core penalty) and thus do not engage the prohibition on heavier penalties. On Article 14 the court applied the approach in R (SC and others) v SS for Work and Pensions: the measure pursues legitimate aims (in particular reducing repeated distress to victims’ families and achieving a proportional legislative scheme), Parliament had expressly considered the alternative (an amendment to allow reviews up to age 26 and rejected it), and the bright‑line distinction at sentence‑age 18 was within Parliament’s margin of appreciation and proportionate. The court refused to admit the additional evidence that had been rejected below and confirmed compatibility with Articles 5, 7 and 14 (read with 5).

Authorities and legal context cited: Venables; Smith; Brown v Parole Board for Scotland; Morgan v Ministry of Justice; Del Rio Prada; Kupinskyy; R (SC and others) v SS for Work and Pensions; the Sentencing Act 2020, the PCCA/section 82A framework and the statutory insertion of s.27A/27B by the Police, Crime, Sentencing and Courts Act 2022 all formed part of the legal matrix the Court applied.

Appeal allowed. The Court of Appeal set aside the Divisional Court’s declarations 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 (read with Article 5). The court held that (i) detention under a judicially fixed minimum term is not made arbitrary by removal or restriction of post‑sentence review rights; (ii) the statutory scheme limiting review rights concerns the execution of the sentence rather than the imposition of a heavier penalty and so does not violate Article 7; and (iii) the distinction based on age at sentence is objectively justified and proportionate, having regard to Parliament’s legitimate aim and margin of appreciation.

Appeal from the Divisional Court of the King's Bench Division (Lord Justice William Davis and Mrs Justice May) [2024] EWHC 211 (Admin); permission to appeal granted and judgment delivered by the Court of Appeal ([2025] EWCA Civ 226). The underlying claim was judicial review in the Divisional Court seeking declarations of incompatibility under section 4 of the Human Rights Act 1998.