The decision on whether to release a determinate sentence prisoner at his parole eligibility date (the half-way point of a long-term Criminal Justice Act 1991 prisoner) did not engage Article 5 as the decision was merely the administrative implementation of the sentence of the court.
The ICLR have kindly agreed for their WLR (D) case report to be reproduced below.
PRISONS — Prisoners' rights — Release on licence — Prisoner serving long-term determinate sentence over 15 years — Secretary of State having power to reject Parole Board recommendation that prisoner be released on licence — Whether incompatible with Convention right to liberty — Criminal Justice Act 1991, s 35(1) — Human Rights Act 1998, Sch I, Pt 1, art 5(4)
S 35(1) of the Criminal Justice Act 1991, in allowing the Secretary of State for Justice rather than the Parole Board to determine whether certain long-term prisoners should be released on licence at the half-way stage of their sentence, did not infringe art 5(4) of the European Convention for the Protection of Human Rights and Fundamental Freedoms.
The House of Lords so held (Lord Phillips of Worth Matravers dissenting) in allowing an appeal by the Secretary of State for Justice from the order of the Court of Appeal (May, Latham and Moore-Bick LJJ)  3 WLR 845 whereby it had allowed an appeal by the claimant, Wayne Thomas Black, against the order of Kenneth Parker QC who, sitting as a deputy judge of the Queen's Bench Division, had dismissed his claim for judicial review of the Secretary of State's decision under s 35(1) to reject the Parole Board's recommendation to release him on licence. The Court of Appeal had held that s 35(1) did not comply with art 5(4) but that since the Secretary of State's decision had complied with domestic law it could not be quashed and so had made a declaration of incompatibility under s 4 of the Human Rights Act 1998.
S 35(1) applied only to prisoners serving 15 years or more for an offence committed prior to 4 April 2005 either who had a parole eligibility date falling before 9 June 2008 or whose sentence was for certain sexual or violent offences. By s 33(2) of the Act it was the duty of the Secretary of State to release such prisoners on licence when they had served two thirds of their sentence.
LORD PHILLIPS OF WORTH MATRAVERS delivered a dissenting opinion.
LORD RODGER OF EARLSFERRY delivered an opinion concurring with Lord Brown of Eaton-under-Heywood.
BARONESS HALE OF RICHMOND agreed with both Lord Rodger and Lord Brown.
LORD CARSWELL delivered an opinion allowing the appeal.
LORD BROWN OF EATON-UNDER-HEYWOOD said that the European Court of Human Rights had drawn a distinction between the administrative implementation of the sentence of the court, for example decisions regarding early release from a determinate term of imprisonment, which did not engage art 5(4) unless some new issue had arisen which affected the lawfulness of the detention, and the fixing of a tariff and later determining of the length of post-tariff detention in life sentence cases, which did engage art 5(4). The requirement for the Parole Board to give consideration at the halfway stage of sentence to the release on licence of those prisoners to whom s 35(1) applied and make a recommendation did not amount to a new issue affecting the lawfulness of the detention.
R (Black) v Secretary of State for Justice;  WLR (D) 19
HL(E): Lord Phillips of Worth Matravers, Lord Rodger of Earlsferry, Baroness Hale of Richmond, Lord Carswell and Lord Brown of Eaton-under-Heywood: 21 January 2009
Appearances: David Pannick QC and Parishil Patel (Treasury Solicitor) for the Secretary of State; Tim Owen QC and Hugh Southey (Bhatt Murphy, Islington) for the claimant.
Reported by: C T Beresford, barrister.
Lord Phillips of Worth Matravers, Lord Rodger of Earlsferry, Baroness Hale of Richmond, Lord Carswell, Lord Brown of Eaton-under-Heywood
Appellant: David Pannick QC, Parishil Patel (Instructed by Treasury Solicitors)
Respondent: Tim Owen QC, Hugh Southey (Instructed by Bhatt Murphy)
Hearing dates: 21 and 22 October 2008
Decision: 21 January 2009
ICLR report -  WLR (D) 19