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The UK Human Rights Blog is grateful to Dr Lewis Graham, the author, and to the Administrative Court Blog (where this post first appeared) for permission to reproduce the below.
The Supreme Court has, once again, rejected a challenge to the compatibility of primary legislation with the ECHR. It has ruled that section 128(1) of the Police, Crime, Courts and Sentencing Act 2022 (amending the Crime (Sentences) Act 1997) is compatible with Articles 5, 7 and 14 of the Convention. The case is R (Quaye) v Secretary of State for Justice[2026] UKSC 34.
The legislation under challenge
Children who commit murder are not given the same life sentences as adults. Instead, they are sentenced to detention at His Majesty’s pleasure (DHMP). As part of the sentencing procedure, the trial judge sets a minimum term which must be served before the offender can apply to the Parole Board for release. Prior to changes made in 2021, the Secretary of State operated a policy whereby at a certain point (halfway through the minimum term) the offender could apply to them for a review of that term, with the possibility of achieving early release. This policy was amended in 2021, and was put on a statutory footing in 2022, via the Police, Crime, Courts and Sentencing Act 2022, section 128(1). The effect of this provision was to remove any opportunity for child offenders sentenced to DHMP to seek a review of the minimum term if the offender was sentenced after they became an adult (i.e. after their 18th birthday).
The result of the legislation, therefore, was to separate child offenders into two categories: firstly, those who committed a crime as a child (under the age of 18), and who were sentenced as a child; secondly, those who committed a crime as a child (under the age of 18) but who were sentenced after their 18th birthday. The former category remain entitled to seek review of the minimum term by the Secretary of State; the latter category, thanks to section 128(1), do not.
The claimant in this case fell into the latter category. He committed murder before his 18th birthday, but was sentenced after he turned 18; section 128(1) therefore applied, and he was not entitled to have his sentence reviewed. He sought to challenge the legislation via judicial review, arguing that section 128(1) breached his rights under Articles 5, 7 and 14 of the ECHR.
The courts below
The High Court (William Davis LJ and May LJ) upheld, in part, the claimant’s challenge: see [2024] EWHC 211 (Admin). It ruled that depriving child offenders of the opportunity to have their sentences reviewed by the Secretary of State gave rise to the possibility of arbitrary detention, contrary to Article 5 of the Convention. The Court noted, in this respect, that prior to the legislative change, some child offenders successfully convinced the Secretary of State to reduce their minimum term. To deny them the opportunity to show that their rehabilitation was complete, and that the sentence is no longer necessary, was to breach their Article 5 rights: see [59] of that case. The High Court also upheld the challenge based on Article 14 of the Convention. It found that the provisions treated two groups differently based on their age, and that the justifications put forward by the defendant – the protection of those under 18 at the time of sentence and the need to promote the interests of victim families – did not justify the arbitrary differentiation between those who were 18 at the time of sentencing and those who were not: see [46]-[58] of the High Court’s judgment. The High Court did not consider it necessary to rule on the legislation’s compatibility with Article 7: see [62] of its judgment.
The Court of Appeal (Sharp P, Lewis LJ and Cobb J) overturned the High Court’s judgment: see [2025] EWCA Civ 226. It found that section 128(1) of the 2022 Act did not breach Articles 5, 7 or Article 14 of the Convention. The claimant’s lack of opportunities for review of his sentence did not render the sentence arbitrary for the purposes of Article 5: see [87] of that judgment. The changes made by the 2022 Act were “concerned with the manner of execution or enforcement of the sentence” rather than changing the sentence itself, so Article 7 was not violated: see [102] of that judgment. Finally, emphasising the significant margin of appreciation applicable in this context, the Court concluded that the decision to treat offenders differently depending on their age at the time of sentence was not disproportionate, and that a fair balance had been struck between the rights of the offender and the interests of the victims’ families: see [118]-[143], and especially [142]-[143], of that judgment.
The Supreme Court’s judgment
The Supreme Court, in a judgment jointly written by Lord Stephens and Lady Simler (with which Lords Sales, Briggs and Hamblen expressed agreement), dismissed the claimant’s appeal. It ruled, like the Court of Appeal below it, that section 128(1) of the 2022 Act did not breach any Convention rights.
Article 5 ECHR
The Supreme Court strongly disagreed with the High Court’s findings relating to Article 5. The High Court fell into error, said the Supreme Court, by taking as its “starting point” the position that the 2022 legislation “did not change the essential nature of a sentence of [DHMP] and that an inherent element of the sentence was the requirement of continuing review”: [59]. Legislation had already governed the field since at least the year 2000 and, in any case, the combined effect of legislative intervention, up to and including section 128(1) of the 2022 Act, had created a complete code governing DHMP, or as the Court put it at [61]: “Since 2022 the scheme for sentencing persons who commit murder as children to detention at His Majesty’s pleasure is an entirely statutory one”.
The core question, then, was “whether by excluding any opportunity to review the minimum term for those aged 18 and over when sentenced to detention at His Majesty’s pleasure, section 27A(11) gives rise to a risk of arbitrary detention under article 5 ECHR”: [62]. The Supreme Court agreed with the Court of Appeal that Article 5 does not require there to be an opportunity for review in this sense, either for sentences in general or for DHMP: [64], [68], [69]. Article 5 simply required there to be a sufficient connection between the conviction and the sentence actually imposed; this test was clearly met on the facts: [67]. Being sentenced to a minimum term, without the opportunity to petition the Secretary of State to reduce that sentence, was not arbitrary: [69].
Article 7 ECHR
The Supreme Court drew upon the familiar distinction, in the context of Article 7, between the retrospective modification of a sentence (or “penalty”) and changes made to the “execution” or “enforcement” of a sentence. The former is prohibited under Article 7; the latter is not: [129]. The Court agreed with the Court of Appeal in finding that the changes made by section 128(1) fell into the latter, rather than the former category: [144]. The changes related “exclusively to a change in the regime for early release on licence”: [143]. The sentence imposed on the claimant was DHMP, and it remained so after the changes made by the 2022 Act took effect: [142]. Article 7 was not breached by the relevant provisions of the 2022 Act: [144].
Article 14 ECHR
The Court also ruled that the provisions did not breach Article 14 of the Convention. Whilst the effect of section 128(1) was to create two categories of offender, which were treated differently based on a protected status (age) – see [114] – the Court found that the difference in treatment pursued a legitimate aim, the effect of which was to constitute a proportionate interference with the claimant’s rights.
The aim behind the legislation was the protection of the victim’s family members. In particular, the Court highlighted that victim families are contacted every time an application to vary the minimum term is made: [98]. Repeated engagement with this process caused “obvious and inevitable” distress for them: [100]. The desire to reduce this distress was “a consideration Parliament was entitled to regard as powerful”: [99]. The aim behind the legislation was therefore a legitimate one: [101]. There was a rational connection between the pursuit of that aim and the legislation in question: [115].
As to proportionality, the Court applied “low intensity of review” [79] for five reasons: first, the discrimination in this case was based on the ground of age, which is not a suspect category calling for heightened scrutiny: [80]; second, the provision under review is primary legislation: [88]; third, the legislation involves considerations of “social policy”: [89]; fourth, there is no European consensus on the issue at hand: [93]; fifth, the legislation in question involves consideration of “competing interests”: [94]. All of this meant that the legislature was in a stronger position than the court when it came to determining the proportionality of the measure, and the court should be slow to intervene in its judgment: [124]-[125]. The legislation did not breach Article 14: [126].
Comment
This judgment provides yet another instance of the Supreme Court rejecting a human rights challenge to legislation. In doing so, the Court applied a relatively orthodox understanding of what protection from arbitrariness requires in the context of Article 5, and was unwilling to recognise any wider principle that the needs of child prisoners to be protected from arbitrary detention mandates that their sentences be kept under review (at least in part because there existed no explicit Strasbourg authority to this effect: [64]).
The Court’s reasoning in relation to Article 14 is also noteworthy. By largely approving the reasoning of Sharp P in the Court of Appeal (see our blog on that judgment here) the Court once again applies a very deferential approach to discrimination issues in human rights law. Whilst the Court at least accepts that the intensity of review to be applied in Article 14 cases “varies according to the circumstances, the subject matter and the background” ([78]), the Court goes on to provide five reasons as to why a low intensity review is justified in the present case. These reasons are familiar and, as I have argued elsewhere, largely fail to convince. For example, almost all legislation – and certainly any legislation which involves differential treatment capable of engaging Article 14 issues – will involve “competing interests”. And the courts have interpreted “social policy” so widely that it has come to encompass almost any kind of legislative issue.
We also see in this judgment some now-expected language emanating from the case of SC: “the assessment of proportionality in this case ultimately depends on whether Parliament made the right judgement… this question cannot be answered by a process of legal reasoning because there are no legal standards by which a court can decide where the balance should be struck”: [124]. I have argued elsewhere that in some cases, this language has been used to justify an abdication of the duty of the courts to perform the required proportionality assessment (“there are no legal standards…”). This interpretation was rejected recently in the case of LMN, where the Court of Appeal confirmed that SC should not be treated as authority for the position that in some cases a proportionality assessment should not be carried out at all. Thankfully, the Supreme Court appears to confirm this in Quaye. After setting out the above passage, the Court confirms: “it follows that the court should be slow to substitute its own view for the political judgement of Parliament in this respect”. The message, therefore, is that courts should apply a low intensity review, rather than no review at all. This is a subtle but important difference, and a welcome clarification that SC is not to be treated as authorising the courts to abandon the proportionality test altogether in cases involving social and political controversy.
Dr Lewis Graham is a Lecturer in Human Rights Law at the University of Manchesterand an editor of the Administrative Court Blog.
On 1 October 2020, the Lord Chancellor, Robert Buckland QC, gave a speech at Temple Church to mark the opening of the legal year. He praised the “enduring success” of our legal system, our “healthy democracy”, and the “commitment to the Rule of Law” which steered the government’s response to the coronavirus pandemic.
The Lord Chancellor delivered his speech two days after the controversial Internal Market Bill cleared its final hurdle in the House of Commons with ease, by 340 votes to 256. Earlier in September, Brandon Lewis, the Northern Ireland secretary, told the House of Commons that the government’s plans would “break international law in a very specific and limited way.” On September 29, the Lord Chancellor voted against a proposed amendment to the Bill “requiring Ministers to respect the rule of law and uphold the independence of the Courts.” He was joined in doing so by the Attorney General, Suella Braverman, and the Solicitor General, Michael Ellis.
On 30 July 2020, the Crown Prosecution Service published its performance statistics on sexual violence cases for the year 2019-20, which vindicate long-held concerns about the “damning” number of cases being lost amid “under-resourced” investigations.
The Council of Europe’s Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (CPT) recently published a report on police and prison facilities in Scotland after its visit in 2018.
This was an ad hoc visit and it aimed to evaluate the developments made since the CPT’s last visit to Scotland in 2012. The CPT’s delegation visited five police custody facilities and five prisons across Scotland. The report covers several areas, including the treatment of detained persons in police facilities, the conditions of male prisons, inmates in segregation and those on remand. It also focused on female prisons in general, and healthcare.
Police custody facilities
Overall, the CPT’s delegation was satisfied by the conditions and treatment in the police facilities that it visited. Every detained person that they interviewed reported that they had been correctly treated whilst in custody. However, an area of concern was the number of detainees who made allegations that they had suffered ill-treatment at the time of their arrest. Around one third of the detained persons alleged that they experienced excessively tight handcuffing and physical abuse by police officers. Several also claimed that they experienced this treatment despite not resisting arrest. The delegation reported that many of those making the allegations had visible signs of injury, such as bruises, scratches, and swelling.
Hammerton v. the United Kingdom, Application no. 6287/10 – read judgment.
The European Court of Human Rights has held that the detention of an individual following his breach of a civil contact order, where he had no legal representation, did not violate his rights under Article 5, ECHR (Right to Liberty and Security of Person). However, the decision not to provide compensation to the individual following a failure to provide him with a lawyer during domestic proceedings resulted in a violation of Article 6 (Right to a Fair Trial).
Hands v Scottish Ministers [2016] CSOH 9, 15th January 2016 – read judgment
The Outer House of the Court of Session has refused a petition for judicial review brought by a convicted murderer against decisions made by the Scottish Prison Service (SPS) about his prison conditions and supervision level. Continue reading →
The petitioner, Yousef Ansari, is currently serving a sentence of life imprisonment. The punitive part of his sentence, set at nine years, expired in March 2005. In his petition for judicial review, Mr Ansari claimed that the local authority, Aberdeen City Council, and the Scottish Government, had failed to afford him a reasonable opportunity to rehabilitate himself. A duty to offer opportunities for rehabilitation had been previously recognised as implicit in the scheme of Article 5 by the Supreme Court in Haney (see previous UKHRB post here). The hearing before Lord Glennie was restricted to the question whether the council owed such a duty.
Mr Ansari’s case
The starting point for the petitioner was the duty recognised in the Supreme Court decision in Haney. He argued that the duty required both the provision of opportunities for rehabilitation, which was the responsibility of the Scottish Ministers, and the provision of opportunities for the prisoner to demonstrate that they no longer posed an unacceptable risk to the public. This latter aspect of the Haney duty required the active cooperation of the local authority. Mr Ansari argued that Aberdeen City Council had failed to satisfy this duty. Whilst in the “Open Estate”, he was provided with the opportunity to return to the community – an important step in proving he no longer posed a threat. However, during this reintegration he was placed under extensive supervision by the local authority which, in his submission, undermined his ability to demonstrate he posed a reduced risk to the public.
Additionally, his ability to be temporarily released into the community was contingent upon the ability to provide the local authority with an appropriate “home leave” address. Mr Ansari claimed that during the vetting process the local authority had incorrectly considered his brother’s residence as inappropriate. Further, if no other address had been suitable, the local authority had a duty to provide him with accommodation under Part II, Housing (Scotland) Act 1987. On his case, these shortcomings had prevented Mr Ansari from temporarily returning to the community and therefore denied him the opportunity to demonstrate that he posed a reduced risk to the public.
In the alternative, Mr Ansari submitted that the duty would, in any event, extend to the local authority. The duty was imposed upon the “state” and, by virtue of s.6, Human Rights Act 1998, this would extend to public bodies such as Aberdeen City Council. As a result, they were bound by the requirements of Article 5, which included the duty recognised in Haney.
Imposing the Haney duty on the local authority, from the petitioner’s perspective, was a natural conclusion. Whilst the functions of the Scottish Ministers and the local authority differed, they both played an important role in the rehabilitation of Mr Ansari. A number of functions of the local authority, especially in the process relating to preparation for release, could not be carried out by the Scottish Ministers acting through the Scottish Prison Service. Extending the duty to provide reasonable opportunities for rehabilitation to the local authority would ensure that the Haney duty was “practical and effective” due to the important “real and practical sense” in which the local authority was involved in Mr Ansari’s rehabilitation.
The City Council’s submissions
The first respondent submitted that they did not owe the petitioner any duty under Article 5 as interpreted in Haney. The duty to provide opportunities for rehabilitation is not a freestanding duty, but instead stems from the decision of the state to detain an individual following conviction by a competent court. In James, Wells, and Lee v. the United Kingdom, [2012] ECHR 1706, the European Court of Human Rights recognised that part of the purpose of an indeterminate sentence was to rehabilitate the prisoner. Consequently, the Supreme Court in Haney recognised the need to provide reasonable opportunities to rehabilitate in the event that the state attempts to justify continued detention under Article 5(1)(a). The first respondent submitted that as they had no power to detain the prisoner, or order his release, it would be inappropriate to impose such a duty upon them.
Decision
Lord Glennie held that the duty recognised in Haney could not be extended to Aberdeen City Council. In line with submissions made by counsel for the first respondent, Lord Glennie held that the Haney duty is only imposed on states in the event that they have detained a prisoner and rely upon Article 5(1)(a) as justification. However, the local authority is in an entirely different position and has no powers to detain or release the prisoner. The first respondent was not required to justify the detention of the prisoner and, therefore, there was no reason to impose the Haney duty upon them.
In the petitioner’s submissions, reference was made to Lord Glennie’s decision in Reid, Re Judicial Review, [2015] CSOH 84 (read previous UKHRB post here). In Reid, Lord Glennie held that as part of the duty recognised in Haney, the Scottish Ministers had a duty to take “reasonable steps to procure” the cooperation of the local authority during the rehabilitation process (see paragraph 30). Lord Glennie clarified that in providing various services to the Scottish Ministers that aid the rehabilitation process, the local authority could only be considered to owe a duty to the Scottish Ministers, not the individual prisoner. As a result, Reid provided no support for the submission that the Haney duty should be extended to the local authority.
Lord Glennie also noted that certain statutes may impose specific duties upon a local authority. For example, s.27, Social Work (Scotland) Act 1968 (detailing the functions relating to the supervision and care of those released from prison) and the Housing (Scotland) Act 1987 outlined relevant functions and duties of the local authority. However, these did not assist the argument that the general Haney duty arising from the operation of Article 5 could extend to the local authority. These duties existed independently from any duty to afford opportunities for rehabilitation. Any failures relating to these duties could be challenged by Mr Ansari in separate proceedings.
Laura Profumo serves us the latest human rights happenings.
In the News:
At the Howard League for Penal Reform AGM last week, Michael Gove held his own when challenged about criminal justice reform. Despite his Making Prisons Work speech in July, and his successful overturning of his predecessor’s prison book ban, Gove has remained relatively reticent on his plans for the criminal justice system. Speaking for some 30 minutes, Gove addressed the “need to move away from the sterile debate of ‘lock people up or let them out’”, and summon a “new era of talking about crime and punishment”. His audience, many still bristling from Grayling’s stringency in office, were won over by the Lord Chancellor’s more peaceable approach to penal reform. In addition to emphasising the need for a more sensitive sentencing framework, Gove urged for the causes of criminality to be tackled, including the “moral absence” experienced by many offenders growing up in care. In contrast to Grayling’s perceived complacency over prison conditions, Gove recognised the current “crisis”, pledging his commitment to his “new for old” prisons policy – replacing ineffective Victorian prisons with functional new ones – as well as to improving the autonomy of prison governors. The Lord Chancellor also proposed the use of more advanced technology in prisons, in order to improve the safety of staff and inmates, and to meet the particular educational needs of prisoners with learning difficulties. The conference ended on an especially poignant note, with Gove expressing his admiration for social workers – words which left Frances Crook, Chief Executive of the Howard League “blown away”.
It remains to be seen whether the Autumn Statement, unveiled later this month, will affirm Gove’s ambitious plans. Yet his moral framework for policy choices bodes well, informing the ongoing debate on the prison system with a quieter rhetoric of hope and realism. Continue reading →
And so, thirteen years after his capture, eight years after the US Government cleared him for release, and seven years after President Obama’s spectacularly broken promise to shut down Guantánamo, Shaker Aamer has left the prison, as innocent as the day he went in.
Laura Profumo serves us the latest human rights happenings.
In the News:
Michael Gove appeared before the Justice Select Committee last Wednesday, in the first true baring of his political mettle as justice secretary. Overall, it seems, the MP made a largely favourable impression, though legal commentators remain wary. UKHRB’s own Adam Wagner deftly compared Gove’s success to “when they gave Obama the Nobel Peace Prize…because he wasn’t George Bush”. The “post-Grayling Gove-hope” may, then, prove deceptively shallow, defined by the simple relief that Gove is not Grayling.
Yet Gove’s evidence before the committee was laudable – reasonable, measured, and skifully non-committal. Gove’s comments on the Human Rights Act obliquely signalled the “proposals” will be published “in the autumn”, failing to specify whether they would be accompanied by a draft Bill. His substantive points were similarly vague. The Lord Chancellor invoked the “abuse” of human rights as justification for the repeal of the HRA, before conceding he could not offer a “one-hundred per cent guarantee” that the UK would remain a party to the Convention. Such a position suggests a British Bill of Rights may “seek to limit certain rights”, argues academic Mark Elliot, which would, “quite possibly”, precipitate British withdrawal from Strasbourg altogether. Gove also stressed the role of the judiciary in applying the common law to uphold human rights, holding that “there is nothing in the Convention that is not in the common law”. Such a view is “highly contestable at best, plain wrong at worst”, holds Elliot, whilst Conor Gearty finds it stokes the fantasy of “the civil libertarian common law”. Gove seems to suggest that HRA-repeal and possible ECHR-withdrawal would be “far from earth-shattering events”, Elliot notes, as judges could still invoke a panoply of common-law rights. Whilst Gove is right to remind skeptics that HRA-repeal would not leave domestic judges powerless, such “overstatement” of the common-law rights model “might end up hoist on its own petard….ringing hollower than its cheerleaders”. Continue reading →
Reid, Re Judicial Review, [2015] CSOH 84 – read judgment.
The Outer House of the Court of Session has refused a prisoner’s claim for damages resulting from an alleged failure to afford him a reasonable opportunity to rehabilitate himself.
by Fraser Simpson
For a refresher on the Scottish Court system, see David Scott’s post here.
This case follows a Supreme Court judgment last year in which it was affirmed that under Article 5 ECHR there exists an implied duty to provide prisoners with a reasonable opportunity to rehabilitate themselves and to show that they are no longer a danger to the public (R (on the application Haney and Others) v. The Secretary of State for Justice, [2014] UKSC 66). According to the Supreme Court, a failure to satisfy this duty does not affect the lawfulness of the detention but it does entitle the prisoner to damages.
Main v Scottish Ministers [2015] CSIH 41, 22nd May 2015 – read judgment
The Court of Session’s appeal chamber – the Inner House – has had to decide whether the scheme of indefinite notification requirements for sexual offenders in Scotland is compatible with Article 8 of the European Convention on Human Rights.
Smith, R (on the application of v Secretary of State for Justice and G4S UK Ltd [2014] EWCA Civ 380 – read judgment
This case raises the question of whether it is a breach of a non-smoking prisoner’s Convention right to respect for his private life and to equality of access to such rights (ECHR Articles 8 and 14) to compel him to share a cell with a smoker.
The appellant, a convicted sex offender serving a long sentence, was required between 21st and 28th March 2012 to share a cell with a fellow prisoner who was a smoker. It was known to the prison authorities that the appellant was a non-smoker, and the requirement to share with a smoker was contrary to his wishes. The sharing complained of ended when the appellant was transferred to another prison on 28th March 2012.
Welcome back to the UK Human Rights Roundup, your regular springtime blossom of human rights news and views. The full list of links can be found here. You can find previous roundups here. Links compiled by Adam Wagner, post by Celia Rooney.
This week, a challenge to the legal aid reforms by the Howard League for Penal Reform is rejected, while campaigners seeking an inquiry into the action of British soldiers in Malaya in 1948 face similar disappointment. Meanwhile, some of the most senior judges in the UK give their views on the role of the judiciary today.
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Hands v Scottish Ministers [2016] CSOH 9, 15th January 2016 – 
Main v Scottish Ministers [2015] CSIH 41, 22nd May 2015 – 
Welcome back to the UK Human Rights Roundup, your regular springtime blossom of human rights news and views. The full list of links can be found 
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