R (on the application of Faulkner) (FC) (Respondent) v Secretary of State for Justice (Respondent) and The Parole Board (Appellant)

Cite as:[2013] UKSC 23
Hand-down Date:May 01, 2013

Easter Term [2013] UKSC 23

On appeal from: [2011] EWCA Civ 349; [2012] EWCA Civ 452


R (on the application of Faulkner) (FC) (Appellant) v Secretary of State for Justice and another


R (on the application of Faulkner) (FC) (Respondent) v Secretary of State for Justice (Respondent) and The

Parole Board (Appellant)

R (on the application of Sturnham) (Appellant) v The Parole Board of England and Wales and another



Lord Neuberger, President Lord Mance

Lord Kerr

Lord Reed

Lord Carnwath


Heard on 19, 20 and 21 November 2013

Appellant Respondent Hugh Southey QC Sam Grodzinski QC Jude Bunting Tim Buley (Instructed by Chivers) (Instructed by Treasury


Appellant Respondent

Sam Grodzinski QC Hugh Southey QC Tim Buley Jude Bunting (Instructed by Treasury (Instructed by Chivers)


Appellant (Sturnham) Respondent

Hugh Southey QC Sam Grodzinski QC Philip Rule Tim Buley (Instructed by Chivers) (Instructed by Treasury



Lord Faulks QC

Simon Murray (Instructed by Treasury


LORD REED (with whom Lord Neuberger, Lord Mance and Lord Kerr agree)

The background to the appeals

  1. Until relatively recent times, English judges were obliged to impose sentences of imprisonment for life only in cases of murder. A judge might also impose a discretionary life sentence in other cases where a determinate sentence would not provide adequate protection to the public against the risk of serious harm presented by the particular individual. In practice, such sentences were highly unusual. Following a series of judgments in which the European Court of Human Rights considered the compatibility of life sentences with the European Convention on Human Rights and Fundamental Freedoms ("the Convention"), statutory reforms were introduced so that, where a life sentence was imposed, the judge determined a minimum period or "tariff" to be served for the purposes of retribution and deterrence, following which the continued detention of the prisoner depended upon an assessment of the level of risk which he continued to present, carried out by the Parole Board ("the Board"). I shall return to the statutory functions of the Board.

  2. In more recent times, sentencing legislation required judges to impose "automatic" life sentences upon a much wider range of offenders. In particular, section 2 of the Crime (Sentences) Act 1997 ("the 1997 Act") required the courts to impose a life sentence upon anyone convicted of a second serious offence, unless there were exceptional circumstances permitting the court not to take that course. A similar duty was imposed by section 109 of the Powers of Criminal Courts (Sentencing) Act 2000 ("the 2000 Act"). Section 225 of the Criminal Justice Act 2003 ("the 2003 Act") introduced, with effect from 4 April 2005, indeterminate sentences of imprisonment for public protection ("IPP"), which were to be automatically imposed whenever a person was convicted of any one of a large number of offences designated as "serious offences" and the court thought there to be a significant risk of serious harm to members of the public by the commission of a further "specified offence". Risk was to be assumed in cases where the person had previously been convicted of a "relevant offence".

  3. The Board is responsible for the release of prisoners sentenced to life imprisonment and those serving IPP sentences. Under section 28(5) of the 1997 Act as amended, the Secretary of State is required to release a life or IPP prisoner who has served his tariff period if the Board has directed his release. Section 28(6) provides that the Board shall not give such a direction unless the Secretary of State has referred the prisoner's case to it, and the Board is satisfied that it is no longer necessary for the protection of the public that the prisoner should be confined. Section 28(7) provides that a life prisoner may require the Secretary of State to refer his case to the Board at any time after the expiry of his minimum term. In practice, cases are normally referred to the Board by the Secretary of State some months before the expiry of the tariff period. The Board also receives from the Secretary of State the reports which it requires on the prisoner's progress, and then fixes an oral hearing prior to reaching its decision.

  4. One consequence of the changes introduced by the legislation described in paragraph 2, and in particular the introduction of IPP sentences, was greatly to increase the number of prisoners whose cases required to be considered by the Board. Another consequence was that a much higher proportion of prisoners subject to indeterminate sentences, particularly in IPP cases, had short tariff periods. The cumulative effect of these developments was greatly to increase the workload of the Board. Although these consequences of the introduction of IPP sentences were entirely predictable, they had not been anticipated by the Secretary of State, and the Board was not provided with a commensurate increase in its resources. It soon became clear that the existing resources were insufficient. The result was delay in the consideration of the cases of prisoners who had served their tariff period, and whose further detention could only be justified on the basis of an assessment of the risk which they continued to present.

  5. Steps have been taken to address the problem. The 2003 Act was amended by the Criminal Justice and Immigration Act 2008, with effect from 14 July 2008, so that IPP sentences are no longer mandatory. In addition, the Board has been provided with additional resources, and administrative changes have been introduced in order to increase the efficiency of the system. The courts however have to deal with the legal consequences of the problems which I have described.

    Convention rights

  6. In that regard, important issues arise under the Human Rights Act 1998 ("the 1998 Act"). In that Act, Parliament required the courts to give effect to Convention rights corresponding to those guaranteed by the Convention. Those rights include the rights conferred by article 5(1) and (4) of the Convention. Article 5(1) provides:

    "(1) Everyone has the right to liberty and security of person. No one shall be deprived of his liberty save in the following cases and in accordance with a procedure prescribed by law:

    (a) the lawful detention of a person after conviction by a competent court ..."

    Article 5(4) provides:

    "Everyone who is deprived of his liberty by arrest or detention shall be entitled to take proceedings by which the lawfulness of his detention shall be decided speedily by a court and his release ordered if the detention is not lawful."

  7. Compliance with article 5(1)(a) requires more than that the detention is in compliance with domestic law. As the European court stated in Weeks v United Kingdom (1987) 10 EHRR 293, para 42:

    "The 'lawfulness' required by the Convention presupposes not only conformity with domestic law but also ... conformity with the purposes of the deprivation of liberty permitted by sub-paragraph (a) of article 5(1). Furthermore, the word 'after' in sub-paragraph (a) does not simply mean that the detention must follow the 'conviction' in point of time: in addition, the 'detention' must result from, 'follow and depend upon' or occur 'by virtue of' the 'conviction'. In short, there must be a sufficient causal connection between the conviction and the deprivation of liberty at issue."

    In relation to a discretionary life sentence imposed for the purpose of public protection, the court added (para 49):

    "The causal link required by sub-paragraph (a) might eventually be broken if a position were reached in which a decision not to release or to re-detain was based on grounds that were inconsistent with the objectives of the sentencing court. 'In those circumstances, a detention that was lawful at the outset would be transformed into a deprivation of liberty that was arbitrary and, hence, incompatible with article 5.'"

  8. The court further held in that case that, where a defendant was recalled to prison following release on licence, it followed that it was necessary for him to be able to bring proceedings, as soon as he was recalled to prison and at reasonable intervals thereafter (since the need for continued public protection was liable to change over time), in order to determine whether his continued detention had become "unlawful" for the purposes of article 5(1)(a), on the basis that it was no longer consistent with the objectives of the sentencing court. The obligation to provide an opportunity for such a determination arose under article 5(4).

  9. In Thynne, Wilson and Gunnell v United Kingdom (1990) 13 EHRR 666 this reasoning was applied in relation to discretionary life prisoners whose tariff periods had expired. Since there was a question whether their continued detention was consistent with the objectives of the sentencing court, it followed that they too were entitled under article 5(4) to have the question determined. The subsequent judgment in Stafford v United Kingdom (2002) 35 EHRR 1121 confirmed that a mandatory life prisoner was also entitled to the protection of article 5(4), by means of regular reviews of the risk which he presented, once the punitive period of his sentence had expired.

  10. The implications of these judgments were then reflected in domestic case law. In relation to "automatic" life prisoners, in particular, it was held in R (Noorkoiv) v Secretary of State for the Home Department [2002] 1 WLR 3284 that article 5(4) requires a review by the Board of whether the prisoner should continue to be detained once the tariff period has expired, and therefore requires a hearing at such a time that, whenever possible, those no longer considered dangerous can be released on or very shortly after the expiry date. In practice, that meant...

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