Practice and Procedure


PUBLISHED March 31, 2003

Dismissal of a challenge to the Home Secretary's decision that the next review of the case of a discretionary life sentence prisoner should take place 15 months after his transfer to open conditions. The decision was within the Home Secretary's power, it was reasonable and it did not infringe the prisoner's right of access to a court.Claim challenging the decision of the defendant ('the secretary of state') that the next review by the Discretionary Lifer Panel of the Parole Board ('the parole board') of whether the claimant ('C') should be released on licence should take place 15 months after his transfer to open conditions. C was detained for life in 1986 after he pleaded guilty to an offence of aggravated arson. He served the relevant part of his sentence, namely three years, before being released on licence. However his licence was subsequently revoked. In July 2002 the parole board recommended that C's next review take place nine months after his transfer to open conditions. In August 2002 the secretary of state decided that C should be transferred to open conditions after completing a reasoning and rehabilitation course and that a review should take place 15 months after his transfer. C argued that: (i) s.28(7) Crime (Sentences) Act 1997 did not permit the secretary of state to choose when a discretionary life sentence prisoner should be able to apply to the Parole Board but merely provided a mechanism for referral; (ii) the secretary of state was not entitled to delay referral beyond the date recommended by the parole board and to give the executive such power was a breach of the common law rule on access to courts and contrary to Art.5(4) and Art.6 of the European Convention on Human Rights; and (iii) alternatively, the timing of the review chosen by the secretary of state was unreasonable.HELD: (1) The terms of s.28(7) of the 1997 Act, read in conjunction with s.32 Criminal Justice Act 1991, made it clear that only the secretary of state could refer a prisoner's case to the parole board and choose the period at the expiry of which the parole board would consider that case. The exact date for review was a matter for the parole board. (2) Access to a court was an aspect of the "right to court" and an interference with such access could constitute a breach of Art.6(1) of the Convention. The right of access was not absolute and could be subject to limitations that varied depending on the particular needs or requirements of the State, provided those limitations did not impair the essence of the right to access. (Ashingdane v United Kingdom 7 EHRR 528) (3) There was an obvious need to control the right of access to the Discretionary Lifer Panel since otherwise one unsuccessful application for review could be followed by another ad infinitum. Access was governed by the exercise of the secretary of state's judgment, advised by the parole board when asked, and subject to the supervision of the High Court. There were advantages in the decision as to the timing of the next review being retained by the executive. The restrictions on the right to access to court were not such as to impair the essence of that right. (4) The timing of the review chosen by the secretary of state was not unreasonable.Claim dismissed.

[2003] EWHC 597 (Admin)