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

A minimum term judicially fixed for a person detained during His Majesty’s pleasure is not rendered arbitrary under article 5 of the European Convention on Human Rights merely because it cannot later be reviewed. The statutory scheme has displaced any inherent executive duty of continuing review.

Limiting minimum-term reviews to offenders who were under 18 when sentenced creates age-based differential treatment. It is nevertheless objectively justified by the legitimate aim of reducing distress to victims’ families. Parliament could rationally draw a bright line at adulthood within a field involving penal and social policy.

Removing an opportunity to seek early release through a minimum-term review concerns the execution of the sentence. It does not redefine the penalty or impose a heavier penalty contrary to article 7.

R (on the application of Quaye) v Secretary of State for Justice concerned an offender who committed murder aged 17 but was aged 18 when sentenced to detention during His Majesty’s pleasure. The sentencing judge fixed a minimum term of 15 years. A former executive policy would have permitted an application for reduction of that term, but the policy was changed before the halfway point of the sentence.

Sections 27A and 27B of the Crime (Sentences) Act 1997, inserted in 2022, subsequently confined minimum-term reviews to persons who were under 18 when sentenced. The appellant sought declarations of incompatibility under the Human Rights Act 1998, relying on articles 5, 7 and 14 of the European Convention on Human Rights.

The Divisional Court, [2024] EWHC 211 (Admin); [2024] 1 WLR 3303, made declarations under articles 5 and 14. The Court of Appeal, [2025] EWCA Civ 226; [2025] 1 WLR 2682, quashed those declarations and dismissed the appellant’s cross-appeal under article 7. The central issues were whether the absence of review created arbitrary detention, unjustified age discrimination or a retrospectively heavier penalty.

1. The appeal was dismissed unanimously. Lord Stephens and Lady Simler delivered the joint judgment, with which Lord Sales, Lord Briggs and Lord Hamblen agreed. Sections 27A and 27B of the Crime (Sentences) Act 1997 were compatible with articles 5, 7 and 14 read with article 5 of the European Convention on Human Rights.

2. Section 82A of the Powers of Criminal Courts (Sentencing) Act 2000 fundamentally changed detention during His Majesty’s pleasure. It made the minimum term a judicially imposed component of the sentence and placed release decisions after its expiry with the Parole Board. Sections 27A and 27B later removed the final element of executive decision-making and established a complete statutory code. There was therefore no continuing inherent duty to review minimum terms outside section 27A.

3. The absence of review did not make detention arbitrary under article 5(1)(a). The minimum term was lawfully fixed by a competent court to reflect the seriousness of the offence, retribution and general deterrence, with due regard to the offender’s age, maturity and welfare. It remained sufficiently causally connected to the conviction. Under Saadi v United Kingdom and James v United Kingdom, its length was primarily a matter for the national authorities, and an excessive term could have been challenged by appeal.

4. Section 27A treated otherwise analogous offenders differently according to their age at sentence, but the distinction was objectively justified. A wide margin of appreciation and correspondingly low intensity of review applied because age was not a suspect ground; the rule appeared in recent primary legislation; it concerned penal and social policy; there was no relevant European consensus; and Parliament had to balance offenders’ interests against the distress caused to victims’ families by review proceedings. Reducing that distress was legitimate. The age-18 cut-off was rational, no more intrusive than required, and achieved a fair balance.

5. The appellant had previously possessed only an opportunity to apply under a mutable executive policy, not a substantive or fundamental legal right to review. Its removal could carry some perceived harshness, but this had little weight in the proportionality balance. Parliament had also made limited transitional provision for existing applications.

6. For article 7 purposes, the penalty was indefinite detention, a minimum term fixed by the sentencing court, and the possibility of release on licence thereafter. A minimum-term review merely accelerated possible consideration for release. Its removal concerned execution or enforcement of the sentence and did not redefine the penalty. The sentence therefore had not become heavier within article 7(1), even if its practical operation had become harsher.

1. United Kingdom Supreme Court: In R (on the application of Quaye) v Secretary of State for Justice [2026] UKSC 34 , the court unanimously dismissed the appeal and held that sections 27A and 27B of the Crime (Sentences) Act 1997 were compatible with articles 5, 7 and 14 read with article 5 of the European Convention on Human Rights.
2. Court of Appeal: In [2025] EWCA Civ 226 ; [2025] 1 WLR 2682 , the court allowed the Secretary of State’s appeal, quashed the declarations of incompatibility and dismissed the claimant’s cross-appeal under article 7.
3. Divisional Court: In [2024] EWHC 211 (Admin) ; [2024] 1 WLR 3303 , the court declared section 27A(1) and (11) of the Crime (Sentences) Act 1997 incompatible with articles 5 and 14. It did not determine the article 7 claim and dismissed the article 6 claim.