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

A post-2000 sentence of detention during His Majesty’s pleasure includes a minimum term fixed by the sentencing court. The absence of an executive-clemency review during that term does not make detention arbitrary under Article 5. Arrangements for reducing the term because of post-sentence progress concern execution of the sentence, rather than the penalty, for Article 7 purposes. Under Article 14 read with Article 5, limiting review applications to offenders under 18 when sentenced is objectively justifiable. The distinction pursues the legitimate aim of reducing distress to victims’ families and gives appropriate weight to Parliament’s recent penal-policy choice.

The respondent committed murder aged 17 years and 9 months and was sentenced after his 18th birthday to detention during His Majesty’s pleasure, with a minimum term of 15 years. Under the policy then in operation, offenders sentenced to that form of detention could seek a reduction of the minimum term for exceptional progress.

Section 27A of the Crime (Sentences) Act 1997, inserted by the Police, Crime, Sentencing and Courts Act 2022, limited that statutory review opportunity to offenders who were under 18 when sentenced. The Divisional Court declared the relevant provisions incompatible with Articles 5 and 14 read with Article 5 of the Convention: [2024] EWHC 211 (Admin). The Secretary of State appealed. The central issues were whether the restriction caused arbitrary detention, imposed a heavier penalty retrospectively, or constituted unjustified age discrimination.

1. Article 5. Detention imposed under the post-2000 statutory framework was lawful and causally connected to conviction. The sentencing court fixed the minimum term by applying the statutory starting points and assessing seriousness, harm and culpability. The Parole Board then determined whether release was safe. The principles in Brown v Parole Board for Scotland [2017] UKSC 69, Saadi v United Kingdom (2008) 47 EHRR 17 and James v United Kingdom (2013) 56 EHRR 12 did not make a review opportunity during the minimum term necessary. Venables [1998] AC 407 and Smith [2005] UKHL 51 concerned the earlier system, under which the executive fixed or controlled the tariff. Their continuing-review reasoning did not govern sentences operated under section 82A of the Powers of the Criminal Court Act 2000. The absence of a clemency-based reduction application therefore did not make detention arbitrary. The appeal succeeded on Article 5.
2. Article 7. The distinction between a penalty and measures concerning its execution or enforcement, applied in Morgan v Ministry of Justice [2023] UKSC 14, governed the case. The minimum term was part of the penalty fixed by the sentencing court. Later arrangements for seeking a reduction because of exceptional rehabilitation concerned execution of that penalty. Del Rio Prada v Spain (2014) 58 EHRR 1037 and Kupinskyy v Ukraine (application no 5084/18, judgment on 10 November 2022) involved exceptional changes which redefined the scope of the penalties. The present legislation did not do so. Articles 7 was not infringed.
3. Article 14 read with Article 5. The test in R (SC and others) v Secretary of State for Work and Pensions and others [2021] UKSC 26 applied. The legislative distinction pursued a legitimate aim, namely reducing distress to victims’ families. Age was not a suspect ground. Parliament was entitled to draw a bright-line distinction between offenders who began their sentences as adults and those who began them as children. Parliament had considered, and rejected, an amendment extending review eligibility to those under 26. The measure had a reasonable relationship of proportionality to its aim and struck a fair balance. The appeal succeeded on Article 14.
4. The respondent abandoned the application to adduce most further evidence. The court upheld the refusal of the remaining evidence, noting the observations in R (AB) v Chief Constable of Hampshire [2019] EWHC 34612 (Admin) about the limited need for expert evidence in judicial review challenges to legislation.

The appeal was allowed. The declarations that sections 27A(1) and 27A(11) of the Crime (Sentences) Act 1997 were incompatible with Articles 5 and 14 read with Article 5 were set aside.

1. Court of Appeal (Civil Division) — Appeal allowed and declarations of incompatibility set aside: [2025] EWCA Civ 226.
2. Divisional Court of the King’s Bench Division — Declared sections 27A(1) and 27A(11) of the Crime (Sentences) Act 1997 incompatible with Articles 5 and 14 read with Article 5: [2024] EWHC 211 (Admin).