QUEENS BENCH DIVISION
Strand, London, WC2A 2LL
B e f o r e :
| LAURENCE KING
|- and -
|SECRETARY OF STATE FOR THE HOME DEPARTMENT
Mr G Clarke (instructed by Treasury Solicitor's Department) for the Defendant
Hearing date : Friday 14th November 2003
Crown Copyright ©
Mr Justice Beatson :
Submissions and Conclusions
(a) Once prisoners serving a life sentence have served the relevant period (the tariff period), they are detained on the basis of future risk.
(b) After the expiry of the tariff when such prisoners are detained on the basis of future risk, they are entitled to the protection of Article 5(4). In practice this means that they receive regular and speedy reviews of the lawfulness of their detention. These reviews take place at an adversarial hearing before a panel of the Parole Board.
(c) In the case of tariff periods which expire after the Human Rights Act came into force on 2nd October 2000 the first review of detention should take place on or before the end of the tariff period: R (Noorkoiv) v Secretary of State for the Home Department  EWCA Civ 770 ;  1 WLR 3284. Ms Krause submitted this was also so for tariff periods which expired before 2nd October 2000, but this would be to give the Human Rights Act retrospective effect (on which see paragraph 8 below).
(d) There is a statutory maximum of two years between reviews of prisoners serving automatic and discretionary life sentences. In the case of those serving mandatory life sentences, prior to the decision in Stafford the policy of the Secretary of State was that, although he was under no statutory duty to do so, he would review their detention at regular intervals.
(e) The effect of Stafford v United Kingdom is to require the changes in the release arrangements for those serving mandatory life sentences which in practice will lead to symmetry of the release arrangements for all those serving life sentences.
(f) The European Court of Human Rights and domestic courts have consistently declined to set a lawful maximum between reviews but have stated that each case should be considered on its merits. On a variety of occasions the Court of Human Rights has found that a period of one year was too long, see for example Oldham v United Kingdom Application 36273/97, 26 September 2000. In Murray v The Parole Board  EWCA Civ 1561 , 6th November 2003 the Court of Appeal stated (at paragraph 14) that the effect of the practice of the Court of Human Rights is that "an interval of up to a year has ordinarily to be shown on some particular ground to be in breach of Article 5(4) in order to be justiciable, whereas an interval of more than a year has generally to be shown not to be in breach of it. In all cases the facts will thus be crucial, which is why no principle of law is enunciatedů.".