Home Office policy on life prisoners unlawful

LAW REPORT 4 October 1995

Regina v Secretary of State for the Home Department, ex parte Norney and others; Queen's Bench Division (Mr Justice Dyson); 28 September 1995

The Home Secretary's policy of not referring discretionary life prisoners' cases to the parole board, save for some compelling reasons, until after the expiration of the tariff or penal periods of their sentences was unreasonable and unlawful.

Mr Justice Dyson declared that the Home Secretary should have referred the applicants' cases to the parole board at such times as would have ensured so far as practicable that their cases were heard by the board immediately on the expiration of the tariff or penal part of their sentences.

In 1976 the five applicants, members of the provisional IRA, were convicted of offences of attempted murder and conspiracy to cause explosions and were sentenced to terms of life imprisonment. Each was notified in 1992 that his tariff period, set for the purposes of retribution and deterrence, was 20 years. On expiry of the tariff period, the parole board would decide whether a further period should be served if there was a risk to the public.

The Home Secretary refused the applicants' solicitors request to refer the cases to the parole board so that they would be heard immediately on the expiration of the tariff periods in July 1995. When the cases were referred to the board the chairman refused applications for expedition of the hearings and hearings were fixed for December 1995. The applicants applied for judicial review of those decisions.

Edward Fitzgerald QC (B.M. Birnberg & Co) for the applicants; Kenneth Parker QC (Treasury Solicitor) for the Home Secretary.

Mr Justice Dyson said that section 34 of the Criminal Justice Act 1991 governed the release of discretionary life prisoners. The European Court of Human Rights had held that it was the right of prisoners to be released if there was no longer a risk to the public, and prisoners were entitled under article 5(4) of the European Convention on Human Rights to a judicial determination of the question of risk.

The Home Secretary accepted that he had a discretion to refer cases to the board before the expiration of the tariff period but the policy under section 34 was not to refer cases until after the expiration of the tariff period unless there was a compelling reason, such as the case of a terminally ill prisoner, and contended that a hearing 23 weeks later satisfied the requirements of domestic and European Convention law.

That policy was unreasonable and therefore unlawful. In the cases of prisoners who were no longer dangerous and who ought to be released on the expiry of their tariff periods, the policy produced results which were manifestly unjust. The implementation of the policy meant that prisoners who were judged no longer dangerous were required to serve sentences approximately six months longer than they should.

The policy flouted the principles of common law and the European Convention. The common law required that a discretionary life prisoner be released after completion of the tariff period unless he continued to be dangerous. Article 5(4) required a speedy review of the lawfulness of the detention.

Where it was clear that the statutory provision which created the exercise of executive discretion was passed in order to bring domestic law in line with the convention, it would be perverse to hold that, when considering the lawfulness of the exercise of the discretion, the court must ignore the convention.

Nor could the policy be saved by invoking considerations of convenience and pragmatism where what was at stake was the liberty of the subject. It could not be stated too strongly that, once the prisoner had served the tariff period, he had paid the penalty imposed by the court to meet the needs of retribution and deterrence; detention thereafter could not be justified unless the prisoner continued to be dangerous. The ECHR had held that a period of eight weeks delay before a hearing was difficult to reconcile with the notion of "speedily".

However, the decision to refuse expedition of the hearings could not be impugned as irrational or unlawful.

Start your day with The Independent, sign up for daily news emails
  • Get to the point
Latest stories from i100
Have you tried new the Independent Digital Edition apps?
Independent Dating
and  

By clicking 'Search' you
are agreeing to our
Terms of Use.

iJobs Job Widget
iJobs People

Ashdown Group: HR Manager Shared Services - Uxbridge, - 1 Year contract

£50000 per annum: Ashdown Group: HR Manager Shared Services - Uxbridge, Stock...

Recruitment Genius: Graduate Human Resource Officer and Executive Assistant

Negotiable: Recruitment Genius: This is an exciting opportunity to join one of...

Ashdown Group: HR Assistant (Events business) - Central Manchester - £20K

£18000 - £20000 per annum + Benefits: Ashdown Group: HR Assistant (Events busi...

Recruitment Genius: Project Engineer

Negotiable: Recruitment Genius: This privately-owned company designs and manuf...

Day In a Page

Not even the 'putrid throat' could stop the Ross Poldark swoon-fest'

Not even the 'putrid throat' could stop the Ross Poldark swoon-fest'

How a costume drama became a Sunday night staple
Miliband promises no stamp duty for first-time buyers as he pushes Tories on housing

Miliband promises no stamp duty for first-time buyers

Labour leader pushes Tories on housing
Aviation history is littered with grand failures - from the the Bristol Brabazon to Concorde - but what went wrong with the SuperJumbo?

Aviation history is littered with grand failures

But what went wrong with the SuperJumbo?
Fear of Putin, Islamists and immigration is giving rise to a new generation of Soviet-style 'iron curtains' right across Europe

Fortress Europe?

Fear of Putin, Islamists and immigration is giving rise to a new generation of 'iron curtains'
Never mind what you're wearing, it's what you're reclining on

Never mind what you're wearing

It's what you're reclining on that matters
General Election 2015: Chuka Umunna on the benefits of immigration, humility – and his leader Ed Miliband

Chuka Umunna: A virus of racism runs through Ukip

The shadow business secretary on the benefits of immigration, humility – and his leader Ed Miliband
Yemen crisis: This exotic war will soon become Europe's problem

Yemen's exotic war will soon affect Europe

Terrorism and boatloads of desperate migrants will be the outcome of the Saudi air campaign, says Patrick Cockburn
Marginal Streets project aims to document voters in the run-up to the General Election

Marginal Streets project documents voters

Independent photographers Joseph Fox and Orlando Gili are uploading two portraits of constituents to their website for each day of the campaign
Game of Thrones: Visit the real-life kingdom of Westeros to see where violent history ends and telly tourism begins

The real-life kingdom of Westeros

Is there something a little uncomfortable about Game of Thrones shooting in Northern Ireland?
How to survive a social-media mauling, by the tough women of Twitter

How to survive a Twitter mauling

Mary Beard, Caroline Criado-Perez, Louise Mensch, Bunny La Roche and Courtney Barrasford reveal how to trounce the trolls
Gallipoli centenary: At dawn, the young remember the young who perished in one of the First World War's bloodiest battles

At dawn, the young remember the young

A century ago, soldiers of the Empire – many no more than boys – spilt on to Gallipoli’s beaches. On this 100th Anzac Day, there are personal, poetic tributes to their sacrifice
Dissent is slowly building against the billions spent on presidential campaigns – even among politicians themselves

Follow the money as never before

Dissent is slowly building against the billions spent on presidential campaigns – even among politicians themselves, reports Rupert Cornwell
Samuel West interview: The actor and director on austerity, unionisation, and not mentioning his famous parents

Samuel West interview

The actor and director on austerity, unionisation, and not mentioning his famous parents
General Election 2015: Imagine if the leading political parties were fashion labels

Imagine if the leading political parties were fashion labels

Fashion editor, Alexander Fury, on what the leaders' appearances tell us about them
Phumzile Mlambo-Ngcuka: Home can be the unsafest place for women

Phumzile Mlambo-Ngcuka: Home can be the unsafest place for women

The architect of the HeForShe movement and head of UN Women on the world's failure to combat domestic violence