Age at Sentencing and Review Rights in DHMP: Balancing Rehabilitation, Victim Interests, and Arbitrary Detention

Introduction

The case of Quaye, R (On the Application Of) v Secretary of State for Justice ([2025] EWCA Civ 226) addresses a complex and evolving area of sentencing law in England and Wales regarding the detention at Her Majesty’s pleasure (DHMP) for offenders who commit murder as children. At the heart of the proceedings is a challenge to the statutory framework governing the possibility of reviewing the minimum term imposed on such sentences. The Judgment focuses on whether the legislative change that disallows review applications for individuals sentenced as adults (even if the offense was committed when under 18) conflicts with the European Convention on Human Rights – notably Articles 5 (protection against arbitrary detention), 7 (prohibition on retrospective application of harsher penalties), and 14 (prohibition of discrimination, as read with Article 5).

The appellant, the Secretary of State for Justice, seeks to overturn the Divisional Court’s declarations that sections 27A(1) and (11) of the Crime (Sentences) Act 1997 (as amended by the Police, Crime, Sentencing and Courts Act 2022) are incompatible with the Convention. In contrast, the claimant, Mr. Quaye, argues that preventing an opportunity for a review of the minimum term amounts to arbitrary detention and discriminatory treatment.

Summary of the Judgment

The Court of Appeal upheld much of the statutory scheme governing DHMP sentences but ultimately allowed the appeal on two key grounds. First, it held that the mechanism for review of the minimum term—which permits only those sentenced while under 18 to request a review—does not breach Article 7 of the Convention or alter the intrinsic nature of the sentence. Secondly, on the issue of Article 5 regarding arbitrary detention, the Court disagreed with the Divisional Court’s conclusion that the removal of continued review opportunities rendered detention arbitrary.

The Court concluded that, although the process of fixing a minimum term must balance rehabilitative opportunities with public protection and the interests of victims’ families, the differential treatment (based on whether the offender was sentenced as an adult or while still a minor) is objectively justified. In particular, the Court emphasized that the purpose of the review threshold is twofold: to reflect the ongoing possibility for rehabilitation in those sentenced as children and to minimize the distress that repeated review processes cause to victims’ families.

Analysis

Precedents Cited

The Judgment draws upon a robust body of case law and statutory interpretation, including seminal decisions such as:

R v Venables and Thompson [1998] AC 407: Establishing that a sentence of DHMP inherently includes a continuing review element, which allows for adjustments to the minimum term in light of an offender’s rehabilitation.
R (Smith) v Secretary of State for the Home Department [2005] UKHL 51: Addressing the correct interpretation of executive clemency and continuity in reviewing the minimum term.
European Court of Human Rights decisions (e.g. V v United Kingdom, Saadi v United Kingdom, James v United Kingdom): Affirming that detention, even if prescribed by law, must not be arbitrary and requires a clear causal link between conviction and subsequent deprivation of liberty.
Morgan v Ministry of Justice [2023] UKSC 14: Drawing the distinction between a penalty and the manner in which that penalty is executed, a key point when distinguishing between the penalty itself and review arrangements regarding its execution.

These precedents informed the Court’s understanding of the “inherent” features of a DHMP sentence. Critically, they reinforced the principle that while the review process is an element of a sentence imposed on children, the review mechanism primarily serves the purpose of rehabilitation rather than constituting a separate penal measure.

Legal Reasoning

The Court’s reasoning hinges on a careful analysis of statutory provisions, the evolution in the mode of execution of DHMP sentences, and their relationship with Convention rights. Key points include:

The Nature of the Sentence: The Court emphasized that the DHMP sentence remains fundamentally a sentence of detention for murder committed while the offender was a child. Consequently, the fact that the review process has changed over time – with the statutory scheme limiting review applications for those sentenced as adults – does not alter the core nature of the sentence.
Risk of Arbitrary Detention (Article 5): While the Divisional Court found that removing additional review opportunities could lead to arbitrary detention, the Court of Appeal held that as long as the initial determinations of the minimum term are made following established legal processes and fix a tariff based on aggravating and mitigating factors, detention remains lawful. The opportunity to apply for review is not essential to the validity of the detention.
Retrospective Application (Article 7): The Court noted that adjustments into the process (or the lack thereof) of reviewing a sentence relate to how the penalty is executed rather than the penalty imposed at conviction. Therefore, restricting review for those sentenced as adults does not constitute imposition of a “heavier” penalty than was available at the time of the offence.
Legislative Intent and Proportionality (Article 14): A significant portion of the Judgment is devoted to the proportionality analysis under Article 14. The Court observed that Parliament’s choice – that only offenders sentenced while under 18 are given a review opportunity – is both rational and proportionate. This decision is backed by detailed legislative history and a recognition of the need to minimize the distress to victims’ families while promoting offender rehabilitation.

Impact

This Judgment reinforces the separation between the judicial imposition of a sentence and the executive’s (or subsequently the High Court’s) role in the review process. The Court’s conclusions clarify that:

The statutory framework for DHMP will continue to differentiate between offenders based on their age at the time of sentencing, with only those sentenced as minors eligible for an early review of their minimum term.
Future cases will need to assess the continuing relevance of the inherent review mechanism in DHMP sentences, especially as it interacts with evolving social attitudes toward maturity, rehabilitation, and the rights of victims’ families.
Legislatures may now be more confident that establishing a “bright-line” rule (based on age at sentence) is legally justifiable when balancing competing interests – a trend that could influence broader penal reforms.

Complex Concepts Simplified

Several legal concepts crucial to this case are explained as follows:

Detention at Her Majesty's Pleasure (DHMP): A unique form of indeterminate sentence for children convicted of murder. Unlike fixed-term imprisonment, it requires that an offender’s detention be subject to periodic review before potential release.
Minimum Term and Tariff: The minimum period that an offender must serve before becoming eligible for release. This term is determined by the sentencing judge based on aggravating and mitigating factors.
Review Process: A mechanism allowing the recalibration of the minimum term in light of new evidence of rehabilitation or other changes, originally available even after half the minimum term had been served.
Convention Rights: The European Convention on Human Rights protects against arbitrary detention (Article 5), ensures that no heavier penalty is applied retrospectively (Article 7), and prohibits discriminatory treatment (Article 14). The Court examined whether the statutory changes interfered with these rights.
Legislative Proportionality: The requirement that any differentiation in treatment (in this case, by age) must be connected reasonably and fairly to the policy objectives – balancing offender rehabilitation with the emotional and social needs of victims’ families.

Conclusion

In summary, the Court of Appeal’s Judgment in the Quaye case affirms that while the initial imposition of a DHMP sentence remains anchored in the circumstances of the offense committed as a child, the later statutory adjustments governing the opportunity to apply for a review of the minimum term are both within the permissible scope of executive and legislative power. The differential treatment—providing review rights only to those sentenced as minors—is held to be objectively justified, proportionate, and compatible with Articles 5, 7, and 14 of the European Convention on Human Rights.

This decision underscores the delicate balance required between ensuring that offenders have an opportunity to demonstrate rehabilitation and protecting the interests of victims’ families by reducing burdensome and potentially re-traumatizing review procedures. It also clarifies that changes in the manner of executing a sentence (held to be an administrative and enforcement matter) do not equate to a retrospectively harsher punishment.

Ultimately, this Judgment sets an important precedent in the area of youth sentencing and judicial review of indeterminate sentences, paving the way for future cases to consider how age, maturity, and the evolving nature of rehabilitation can be fairly incorporated into the sentencing and review regime.