High Court declares provisions of the Police Crime Sentencing and Courts Act 2022 removing minimum term reviews to be incompatible with Articles 5 and 14 ECHR 

Judgment was handed down today in R(Quaye) v Secretary of State for Justice. The Claimant sought a declaration of incompatibility in respect of part of the Police Crime Sentencing and Courts Act 2022 which made sweeping changes to the treatment of child offenders convicted of murder and subject to the mandatory sentence of detention during Her Majesty’s Pleasure. Previously, in accordance with the House of Lords Judgment in R (Smith) v SSHD, it had been recognised that the sentence of HMP detention contains a duty to keep the provisional minimum term fixed by the sentencing judge under review and that a detainee can subsequently apply for a review of that minimum term in light of exceptional and unforeseen progress as they mature. This was a feature that unique sentence - recognising the special considerations and reduced culpability that applies to those who offend as children. 

Section 128 of the Police Crime Sentencing and Courts Act purported to remove the right to seek a review of the provisional minimum term for all those child offenders who had happen to have reached their 18th birthday on or before their sentencing hearing. It also contained other provisions limiting the right to more than one review for all HMP detainees. 

The Claimant argued that the removal of his right to seek a minimum term review was discriminatory (for the purpose of Article 15, within the ambit of Article 5) because a difference in treatment between child offenders subject to HMP detention, based solely on age at the date of sentencing could not be objectively justified. Further removal of an inherent feature of the sentence, and a safeguard ensuring detention remained to longer than necessary having regard to the detainees progress, rendered the detention arbitrary for Article 5 purposes. 

Arguments were also made in the alternative in relation to Articles 6 and 7. 

In a very strong judgment, the experienced divisional Court (consisting of a current and former judicial lead for youth justice) robustly endorsed the Claimant’s arguments under both Articles 5 and 14. In particular the Court roundly rejected the Secretary of State’s contention (and the “principal adopted by Parliament”) that the difference could be justified because 18 represents the end of any relevant cognitive maturation and that exceptional or unforeseen progress was therefore unlikely to be made past 18. The Court restated and emphasised the overwhelming body of scientific evidence and judicial observation that maturation continues until at least 25. 

As too any purported benefit for victims, the Court observed that victims are unlikely to play any significant role in minimum term reviews and that any benefit was dwarfed by the adverse and arbitrary impact of discriminating based on sentencing dates. 

A declaration was therefore granted that the relevant provisions are incompatible with article 5 and 14 (within the ambit of Article 5). 

Parliament remains sovereign, and as such, the effect of the judgment is that (in accordance with the human rights act) the legislation remains in force unless and until it is repealed/altered by Parliament. However, the onus is now on the government to swiftly bring forward legislation to ensure compliance with the UK’s international law obligations under the Convention. 

The Claimant's solicitor Simon Crieghton said: “This judgment confirms the principle, from 1908, that there’s a difference in culpability for crimes committed by children & adults. Also that children shouldn’t be subject to arbitrary detention for periods longer than necessary to promote their rehabilitation”.

It is anticipated however that the current Lord Chancellor will seek to appeal. As such those child offenders affected will therefore remain in limbo for the foreseeable future, with rehabilitative progress (plainly in the interests of the public) stalled or undermined in the meantime. 

Edward Fitzgerald KC and Pippa Woodrow act for the claimant, instructed by Simon Creighton of Bhatt Murphy. Additional work in support of the Claimant’s application was also undertaken by Dr Laura Janes of GT Stewart Solicitors