Justice secretary Jack Straw’s decision to fight a legal battle to keep his remaining powers over parole has been condemned as “bizarre”.
By a four to one majority, the House of Lords ruled that Straw’s ability to refuse to release on parole around 440 long-term prisoners did not infringe their right to liberty under Article 5 of the European Convention on Human Rights (ECHR).
In R (on the application of Black) v Secretary of State for Justice  UKHL 1, the senior law lord, Lord Phillips, found himself in a minority of one in arguing that the parole board alone should make the decision.
Simon Creighton, partner at Hackney firm Bhatt Murphy, acted for Black. He said it was “quite frankly bizarre” of the justice secretary to insist on keeping the power.
“He has no special skills or input that the parole board does not already possess,” Creighton said. He added that an appeal to Strasbourg was possible, but could take four years, by which time Black would have been released automatically.
Under Article 5(4) ECHR, anyone deprived of his liberty by arrest or detention is entitled “to take proceedings by which the lawfulness of his detention shall be decided speedily by a court”.
Delivering the leading judgment, Lord Brown said Black was sentenced to 20 years in 1995 for false imprisonment, kidnap, conspiracy to kidnap, robbery and possessing a firearm with intent.
To this a further four years were added for escaping from custody on the way from the Old Bailey to Belmarsh and assault with intent.
In 2006 the parole board recommended his release on licence, since he had reached the halfway point in his sentence when time in prison was taken into account. This was rejected by the secretary of state.
Lord Brown said the justice secretary could only overrule the parole board in a “dwindling number” of cases.
Prisoners must be serving terms of 15 years or more. Their offences must have predated 4 April 2005, under the Criminal Justice Act 2003. Their eligibility for parole must have fallen before 9 June 2008, under the Criminal Justice and Immigration Act 2008, or their sentence must be for certain violent or sexual offences (both of these applied to Black).
Lord Brown said the “core reasoning” of Lord Latham in the Court of Appeal was that if the decision remained in the hands of the secretary of state it would be capable of being applied arbitrarily under Article 5(4).
However, Lord Brown argued that these arguments involved “widening the reach of Article 5(4) beyond its proper limits, certainly beyond its hitherto recognised scope”.
He added: “There is suggested to be a risk of arbitrariness in the operation of the parole system if the secretary of state can overrule the parole board on the question of risk.
“But the secretary of state’s decision is, of course, judicially reviewable and, if found arbitrary or irrational, it will be struck down. There was, indeed, an irrationality challenge in this very case but it failed before the judge and permission to appeal was refused in respect of it.”
Lord Brown allowed the secretary of state’s appeal and set aside the Court of Appeal’s declaration of incompatibility. Baroness Hale and Lords Rodger and Carswell agreed.