Right to Liberty and Judicial Review of Lawfulness of Detention

Black v Secretary of State for Justice [2009] UKHL 1 (21 January 2009) The House of Lords has held that the Justice Secretary's power to determine whether certain long-term prisoners should be released on parole does not constitute a breach of art 5 of the European Convention on Human Rights, which requires the lawfulness of detention to be determined by a court.


Black, the respondent, was a repeat offender. He was ultimately sentenced to a total of 24 years imprisonment for a number of offences.  He became eligible for parole after ten years, and the UK Parole Board recommended that parole be granted.  However after reviewing the case, the Justice Secretary exercised his power under s 35(1) of the Criminal Justice Act 1991 to ignore the Board's recommendation and refused to grant parole.  Section 35(1) gave the Justice Secretary this discretion only in limited circumstances - the prisoner had to be serving 15 years or more for an offence committed prior to 4 April 2005 and had to have a parole eligibility date falling before 9 June 2008, or the prisoner had to have been sentenced for certain sexual or violent offences.

Black challenged the Justice Secretary's decision in the High Court and lost.  On appeal, the Court of Appeal declared that s 35(1) of the Criminal Justice Act 1991 was inconsistent with the right of a detained person to have the lawfulness of that detention determined by 'a court' under art 5(4) of the ECHR.  However, as the Justice Secretary's decision had been made in accordance with UK law, the Court was not able to quash the decision and instead issued a declaration of incompatibility under the Human Rights Act 1998 in respect of the provision under which it had been made.  The Justice Secretary appealed to the House of Lords.


A 4:1 majority of the House of Lords granted the Justice Secretary's appeal, holding that his power to ignore the Parole Board's recommendation does not violate art 5 of the ECHR.

Lord Brown (with whom Baroness Hale and Lords Carswell and Rodger agreed) delivered the leading judgment.  His Lordship found that there is 'nothing intrinsically objectionable (certainly in Convention terms) in allowing the executive, subject to judicial review, to take the parole decision'.  Indeed, a state could lawfully not involve an independent Parole Board at all in decisions about release on parole, leaving all such decisions to the executive, and still comply with the ECHR.

His Lordship emphasised that, in considering the compatibility of procedures for the release of prisoners under art 5, the European Court of Human Rights had found that art 5 only requires an independent judicial determination (including by the Parole Board) in respect of decisions about the release of prisoners who have been detained for a sentence with no definite term (colloquially referred to as 'lifers').  This is because, under UK law, an indeterminate sentence consists of two parts: a 'tariff' (which is the part of the sentence that must be served to represent the seriousness of the prisoner's crime, and is set in open court at the time of sentencing) and the balance, the term of which will be set after trial and will largely depend on the prisoner's threat to society following the tariff.  At both stages, a judicial, non-executive determination of the lawfulness of detention is required to comply with the ECHR, as a determination of whether the continued incarceration is lawful is required at both stages.

Conversely, where an individual has been imprisoned for a determined period (as in this case), decisions about whether parole should be granted do not touch the lawfulness of their continued detention per se; since the legality of their detention has been finally determined by the original conviction which set a maximum period for its duration.

Because Black had a definite sentence, it was permissible for the Justice Secretary, as a member of the executive, to determine whether he should be granted parole, especially as this decision would be subject to judicial review.

Black submitted that there was no material distinction between the position of lifers at the end of their tariff period, and that of determinate sentence prisoners who have reached their parole eligibility date.  However, Lord Brown, rejected this argument as it would widen the application of art 5 beyond its intended scope, and art 5 cannot 'apply merely because it would be useful' or convenient for it to do so.

The dissenting opinion came from the Senior Law Lord, Lord Phillips, who was more sympathetic to the suggestion that the situation of lifers at the end of their tariff period and that of determinate sentence prisoners who have reached their parole eligibility dates were broadly similar, hence both warranted judicial involvement in the determination.

Relevance to the Victorian Charter

This case has only limited application to Victoria, as all decisions relating to granting parole are undertaken by an independent parole board, with no room for the executive to overrule their determination.  Accordingly, the point at issue in Black does not arise.

Further, pursuant to the Charter of Human Rights and Responsibilities (Public Authorities) Interim Regulations 2008, the Victorian Parole Board has been exempted from complying with the obligations to act in a way that is compatible with human rights and give proper consideration to human rights imposed on other public authorities under the Charter of Human Rights and Responsibilities Act 2006.  Hence in reaching its decisions, the Victorian Parole Board is presently not obliged to adhere to human rights principles.

The decision is available at http://www.bailii.org/uk/cases/UKHL/2009/1.html.

Ryan Hallett and Ben Kiely, Human Rights Law Group, Mallesons Stephen Jaques