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.