Practice and Procedure


PUBLISHED February 19, 2003

The continued detention of a mandatory life sentence prisoner by the Secretary of State for the Home Department, following a recommendation for his release by the parole board, was lawful and not in breach of the prisoner's rights under Art.5(1)(a) European Convention for the Protection of Human Rights and Fundamental Freedoms 1950.Application for judicial review of the continuing decision of the Secretary of State for the Home Department ('D') to detain the claimant ('M') between 28 May 2002 and 28 August 2002 notwithstanding a parole board recommendation for his release. M had been sentenced to mandatory life imprisonment for murder. On 15 March 2002, the parole board recommended M's release. The recommendation was submitted for D's consideration. During the course of that consideration, on 28 May 2002, Stafford v United Kingdom (2002) 35 EHRR 1121 decided that the discretion of D, conferred by s.29 Crime (Sentences) Act 1997, as to whether to release a mandatory life prisoner or not following a recommendation for release by the parole board was incompatible with Art.5(4) European Convention on Human Rights. D considered that decision and, prior to legislative change, any appropriate interim response to it that might be necessary. On 17 June 2002, D decided to release M but the following day was informed of a breach by M of the terms of his temporary release licence and the failure by him of a mandatory drugs test ('the adjudications'). D reviewed his own decision, gave the parole board time to consider the matter and eventually released M on 28 August 2002. On the present application, M argued: (i) that he should have been immediately released following the decision in Stafford (supra); and (ii) that the decision to continue to detain him was in breach of his rights under Art.5(1)(a) of the Convention.HELD: (1) Stafford (supra) could not be construed so narrowly as to be inapplicable to the present facts on the basis that M had always been detained as a consequence of the imprisonment imposed as his original sentence. (2) M's continued detention following the decision in Stafford was not unlawful as D was entitled to take reasonable time to consider the implementation of any appropriate interim measures prior to any legislative change in accord with the principle of legal certainty. Walden v Liechtenstein, application 33916/96 (2000) considered. (3) That principle applied equally in the present case concerning personal liberty as it had in Walden. (4) D had acted properly in giving the parole board time to consider the adjudications and to subsequently take the decision to release M on the basis that the change of circumstances could not affect the parole board's earlier view.