Practice and Procedure


PUBLISHED May 23, 2003

The judge had not erred in refusing an application by a mandatory life prisoner for judicial review of a decision by the Secretary of State for the Home Department to extend the time period recommended by the Parole Board before his release review.Appeal by a prisoner ('S') from the judgment of Newman J refusing an application for judicial review of a decision by the Secretary of State for the Home Department extending the amount of time to be passed by S in open prison conditions before his next release review. S had served the tariff period of his mandatory life sentence for murder. The Parole Board had recommended that he be transferred to open prison conditions and that his suitability for release on licence be reviewed after nine months. The secretary of state decided that his release should be reviewed 18 months after his transfer to open prison conditions. S challenged Newman J's decision on the grounds that: (i) the secretary of state's original decision was unlawful; (ii) delaying S's review violated his right, under Art.5(4)European Convention on Human Rights, to speedy consideration of the lawfulness of his detention; and (iii) the secretary of state's decision was irrational.HELD: (1) S was detained pursuant to an order of a court following the Parole Board's decision that he should remain in prison until his next review. Accordingly, there was no basis for challenging the lawfulness of S's continued detention. (2) The European Court of Human Rights had declined to prescribe the length of the detention period that would, without a review, amount to a violation of Art.5(4) of the Convention. Accordingly, it was not possible to determine prospectively whether the secretary of state's decision violated Art.5(4). (3) The letter from the Prison Service's Lifer Unit to S notifying him of his transfer to open prison conditions and the timing of the next review showed that S's individual circumstances had been taken into account. That approach had not been irrational. (4) (Obiter) The decision as to the time period need not, for the purposes of Art.5(4), be taken by a court. It could also be taken by the secretary of state. (5) (Obiter) It was not only the executive who could challenge the time period before a review. A prisoner had the power, via internal procedures, to request a review of the time period before a review. (6) (Obiter) Whether a particular time period complied with Art.5(4), the court had to consider whether it was reasonable, taking into account, inter alia, the views of the Parole Board and the secretary of state. (7) (Obiter) Under the current legislation the Parole Board did not have the power to adjourn the review of a prisoner's case pending further evaluation.Appeal dismissed.

[2003] EWCA Civ 732