Spence, Regina (on the Application of) v Secretary of State for the Home Department: CA 23 May 2003

The court rejected a challenge to the Home Secretary’s decision to substitute a period of 18 months for the 9 months recommended by the Parole Board to be passed in open conditions before the prisoner’s next review. ‘[The right not to be detained arbitrarily] can be breached as a matter of law if the Home Secretary does not take proper steps to offer available offending behaviour courses designed to reduce risk and assess the level to which risk has been reduced because, absent such a duty, post-tariff detention could be reduced to ‘warehousing’ and the right to a review could become hollow. . . The claimant submits that the existence of a duty grounded in Article 5 allows a prisoner in an appropriate case to secure a remedial order from a court to prevent a breach of Article 5(1).’ In determining whether the interval between the review dates complied with article 5(4) on the facts of a particular case:- ‘the court asks itself whether the interval was reasonable. The answer to this question is a matter for the court. The court does not, therefore, apply the Wednesbury test and ask whether the interval was not one which a reasonable decision-maker could determine. In considering the question of reasonableness, the court would give appropriate weight to the views both of the Home Secretary and of the Parole Board.’


Lord Justice Clarke Lord Justice Brooke Lady Justice Arden


[2003] EWCA Civ 732, [2003] Prison Law Reports 290




European Convention on Human Rights 5.1


England and Wales


Appeal fromSpence, Regina (on the Application Of) v Secretary of State for the Home Office Admn 19-Dec-2002
. .

Cited by:

CitedRegina (on the Application of Cawser) v Secretary of State for the Home Department CA 5-Nov-2003
The claimant was serving a prison sentence for serious sexual offences. He would not be released until he had completed a sex offenders programme, but one was not made available, delaying his release.
Held: ‘The Secretary of State is not under . .
Appealed toSpence, Regina (on the Application Of) v Secretary of State for the Home Office Admn 19-Dec-2002
. .
Lists of cited by and citing cases may be incomplete.

Prisons, Human Rights

Updated: 07 June 2022; Ref: scu.183066