Factual and Procedural Background
This appeal concerns the sentencing arrangements for persons who commit murder as children under the age of 18, specifically the sentence of detention at His Majesty's pleasure ("DHMP"). The appellant, the Secretary of State for Justice, previously operated a policy allowing offenders sentenced to DHMP to apply for a review of their minimum term after serving half of that term, based on exceptional progress in detention. The respondent, referred to here as the Respondent, committed murder at age 17 years and 9 months and was sentenced to DHMP with a minimum term of 15 years. The Respondent was 18 years old at sentencing and thus, under new statutory provisions enacted by the Police, Crime, Sentencing and Courts Act 2022 ("the 2022 Act"), was ineligible to apply for a review of the minimum term. The Respondent challenged these provisions as incompatible with Articles 5, 6, 7, and 14 of the European Convention on Human Rights ("the Convention"). The Divisional Court found sections 27A(1) and (11) of the Crime (Sentences) Act 1997 ("the 1997 Act") incompatible with Articles 5 and 14, read with Article 5, and granted declarations to that effect. The Secretary of State appeals these findings, and the Respondent seeks to uphold the decision on additional grounds including incompatibility with Article 7. The appeal concerns whether the statutory provisions removing the right to apply for a review of the minimum term for offenders sentenced at age 18 or over are compatible with the Convention.
Legal Issues Presented
- Whether sections 27A and 27B of the 1997 Act, as amended, are incompatible with Article 5 of the Convention concerning arbitrary detention.
- Whether those sections are incompatible with Article 7 of the Convention regarding the imposition of a heavier penalty than applicable at the time of the offence.
- Whether the differential treatment under those sections, based on age at sentencing, constitutes discrimination contrary to Article 14 read with Article 5 of the Convention.
Arguments of the Parties
Appellant's Arguments
- The Divisional Court erred in concluding that section 27A was incompatible with Article 5 because detention during the judicially-set minimum term cannot be arbitrary.
- The court also erred in concluding that the essential nature of DHMP sentences includes a continuing review requirement.
- The arrangements for review concern the execution of the sentence, not the penalty itself, and changes do not violate Article 7.
- The differential treatment based on age at sentencing is objectively justified, with a legitimate aim to reduce distress to victims' families and a proportional legislative scheme.
Respondent's Arguments
- The absence of a right to apply for review of the minimum term violates Article 5 as it leads to arbitrary detention.
- DHMP sentences inherently include a duty of continuing review and the minimum term is provisional, subject to reduction.
- The statutory provisions impose a heavier penalty by retrospectively removing the opportunity for review, breaching Article 7.
- The differential treatment based on age at sentencing is unjustified discrimination under Article 14 read with Article 5, failing to account for the offender's maturity and culpability at the time of the offence.
Table of Precedents Cited
| Precedent |
Rule or Principle Cited For |
Application by the Court |
| R v Secretary of State for the Home Department, Ex p. Venables and Thompson [1998] AC 407 |
Established that DHMP sentences include a duty of continuing review to assess whether detention remains necessary. |
The court considered the continuing review as an inherent feature of DHMP sentences prior to legislative changes. |
| V v United Kingdom (1999) 30 EHRR 121 |
Fixing of minimum term involves sentencing and requires a fair hearing by an independent tribunal. |
Supported the principle that sentencing and minimum term setting must comply with Article 6. |
| R (Smith) v Secretary of State for the Home Department [2006] 1 AC 159 |
Confirmed continuing review duty applies even where minimum term fixed judicially; reduction of sentence is an exercise of executive clemency. |
Clarified the nature of the review process and the role of the Secretary of State. |
| Brown v Parole Board for Scotland [2018] AC 1 |
Detention during the tariff period is lawful; arbitrariness arises only after tariff expiry. |
Applied to reject claim that detention during judicially fixed minimum term can be arbitrary. |
| Del Rio Prada v Spain (2014) 58 EHRR 1037 |
Distinction between penalty and execution of penalty; changes to early release arrangements may or may not amount to heavier penalty. |
Used to determine that changes to review arrangements concern execution, not penalty, thus no Article 7 violation. |
| Kupinskyy v Ukraine (application no 5084/18, 2022) |
Conversion of reducible life sentence to irreducible one alters scope of penalty, engaging Article 7. |
Distinguished from present case where review arrangements do not alter the penalty itself. |
| R (SC and others) v Secretary of State for Work and Pensions [2022] AC 223 |
Sets out approach to assessing compatibility of legislation with Article 14, including margin of appreciation and proportionality. |
Applied to assess whether differential treatment based on age at sentencing is objectively justified. |
| R v Ahmed [2023] EWCA Crim 281 |
Sentencing court must assess culpability based on age at time of offence, not sentencing. |
Supported argument that age at offence, not sentence, is critical for culpability and sentencing. |
| Attorney General's Reference (R v Clarke) [2018] EWCA Crim 185 |
Recognises that maturity continues beyond 18; sentencing must account for youth and immaturity post-18. |
Supported argument that treating 18-year-olds as fully mature adults is incorrect. |
| R v BGI [2024] EWCA Crim 1591 |
Reinforces principle that maturity develops beyond 18 for sentencing purposes. |
Further supported submissions on maturity and sentencing considerations. |
| R (AB) v Chief Constable of Hampshire [2019] EWHC 34612 (Admin) |
Expert evidence rarely necessary in judicial review of Convention compatibility. |
Applied in refusing to admit neurological expert evidence on brain maturity. |
| Pepper v Hart [1993] AC 593 |
Parliamentary materials admissible only to resolve ambiguity or absurdity in legislation interpretation. |
Considered in relation to use of parliamentary debate in assessing legislative intention. |
| Bank Mellat v HM Treasury (No 2) [2014] AC 700 |
Framework for assessing objective justification of differential treatment under Article 14. |
Applied in assessing proportionality of differential treatment based on age. |
| R (A) v Compensation Injuries Compensation Authority [2021] 1 WLR 3746 |
Considerations relevant to objective justification and proportionality under Article 14. |
Referenced in proportionality analysis of legislation. |
| Morgan v Ministry of Justice [2023] 2 WLR 905 |
Distinction between penalty and execution of penalty; changes to release arrangements concern execution. |
Supported appellant's argument that review arrangements concern execution not penalty. |
Court's Reasoning and Analysis
The court began by examining the nature of the sentence of DHMP and the statutory framework governing minimum terms and their review. It recognized that historically, DHMP involved an indeterminate sentence with the Secretary of State having a duty of continuing review. However, legislative reforms since 2000 transferred the fixing of the minimum term to the sentencing court, with release thereafter governed by the Parole Board. The Secretary of State's prior practice of reviewing minimum terms was understood as an exercise of executive clemency rather than a statutory duty.
Regarding Article 5, the court held that detention during the judicially fixed minimum term is lawful and not arbitrary. The absence of a statutory right to apply for a review of the minimum term for those sentenced at age 18 or over does not render detention arbitrary because the minimum term is fixed by the court and the Parole Board controls release. The court distinguished the earlier role of the Secretary of State and found that the Divisional Court erred in concluding incompatibility with Article 5.
On Article 7, the court rejected the argument that removing the right to apply for review imposes a heavier penalty. It found that the review mechanism relates to the execution of the sentence rather than the penalty itself, consistent with established case law distinguishing penalty from its enforcement.
Concerning Article 14 read with Article 5, the court acknowledged that differential treatment based on age at sentencing exists: offenders under 18 at sentencing may apply for review, while those 18 or over may not. The court applied the framework from R (SC and others) v Secretary of State for Work and Pensions, affording substantial weight to Parliament's judgment in penal policy matters. It found the legislative aim legitimate: reducing distress to victims' families by limiting review opportunities. The court accepted that bright line distinctions by age are common in criminal justice and that Parliament had considered and rejected extending review eligibility to those under 26.
The court rejected the Divisional Court's reasoning that continuing review is an inherent feature of DHMP sentences post-2000 legislation. It emphasized that the statutory scheme expressly limits review rights to those under 18 at sentencing, and that the court fixes the minimum term with reference to culpability at the time of the offence. The court also noted the distress caused to victims' families by repeated reviews and accepted this as a legitimate policy consideration.
Overall, the court concluded that the difference in treatment is objectively justified, rationally connected to a legitimate aim, and proportionate, thus compatible with the Convention.
Holding and Implications
DISPOSED OF
The court allowed the appeal, setting aside the declarations that sections 27A(1) and (11) of the 1997 Act, as amended, are incompatible with Articles 5 and 14, read with Article 5, of the Convention. It held that the statutory provisions do not involve arbitrary or unlawful detention under Article 5, do not impose a heavier penalty contrary to Article 7, and that the differential treatment based on age at sentencing is objectively justified under Article 14. The direct effect is that offenders sentenced to DHMP at age 18 or over do not have a right to apply for review of their minimum term, consistent with the statutory scheme. No new precedent was established beyond reaffirming the compatibility of these provisions with the Convention rights.