R (on the application of Quaye) v Secretary of State for Justice [2026] UKSC 34

Mr Quaye, who murdered when aged 17 but was sentenced at 18, challenged section 27A of the Crime (Sentences) Act 1997, which restricts minimum term reviews for detention during His Majesty's pleasure to those under 18 when sentenced. The Supreme Court unanimously dismissed his appeal, holding the provisions compatible with articles 5, 7 and 14 ECHR.

Introduction and context

This appeal to the Supreme Court concerned the mandatory sentence of detention during His Majesty’s pleasure (“DHMP”), which must be imposed on a person convicted of murder committed when under 18. The central question was whether statutory provisions that confine the right to apply for a review (and possible reduction) of the judicially fixed minimum term to offenders who were under 18 at the date of sentence are compatible with the European Convention on Human Rights.

Lord Stephens and Lady Simler delivered a joint judgment, with which Lord Sales, Lord Briggs and Lord Hamblen agreed. There was no dissent.

Facts

On 10 May 2014 Jesse Quaye (then 17 years and nine months) and Ayomindy Bile (then 15) attended a 21st birthday party in Hemsby, Norfolk, both carrying knives. After assaulting another guest, a fight developed with the victim, Connor Barrett, aged 21, who was stabbed four times and died.

Mr Quaye was convicted of murder in November 2014, by which time he was 18. He was sentenced on 16 January 2015, aged 18 years and five months, to detention during His Majesty’s pleasure under section 90 of the Powers of Criminal Courts (Sentencing) Act 2000, with a minimum term of 15 years. The sentencing judge applied the 12-year starting point in Schedule 21 to the Criminal Justice Act 2003 applicable to offenders under 18 at the time of the offence (noting that, had Mr Quaye been three months older, the starting point would have been 25 years), weighed aggravating factors (taking and using knives, the domestic setting, the presence of the victim’s family) and mitigating factors (no relevant previous convictions, intent to cause grievous bodily harm rather than to kill). Mr Bile, still 15, received the same minimum term.

The legislative and policy background

The judgment traces the evolution of DHMP from the Children Act 1908 (which abolished the death penalty for children and substituted indefinite detention wholly within the Secretary of State’s discretion) through the Children and Young Persons Act 1933, the Criminal Justice Act 1967, the Criminal Justice Act 1991 and the authorities of R v Secretary of State for the Home Department, Ex p Venables and Thompson [1998] AC 407 and R (Smith) v Secretary of State for the Home Department [2005] UKHL 51; [2006] 1 AC 159, and the Strasbourg decision in V v United Kingdom (1999) 30 EHRR 121 (holding the Home Secretary’s tariff-setting role incompatible with article 6(1)).

The pivotal change was section 82A of the Powers of Criminal Courts (Sentencing) Act 2000, in force from 30 November 2000, under which the minimum term is fixed by the trial judge as part of the sentence, risk on release is assessed by the Parole Board, and the Secretary of State must release if so directed. Thereafter the Secretary of State nevertheless operated a non-statutory policy (the “Policy”, issued 12 April 2010), as an act of clemency under the prerogative, allowing DHMP detainees to apply at the halfway point for reduction of the minimum term for exceptional progress.

Two subsequent developments removed Mr Quaye’s opportunity. First, from 18 February 2021 the “Revised Policy” excluded from eligibility those aged 18 or over when sentenced (no separate challenge was brought to this change). Second, section 128(1) of the Police, Crime, Sentencing and Courts Act 2022 inserted sections 27A and 27B into the Crime (Sentences) Act 1997 with effect from 28 June 2022. Section 27A(1) and (2) confine the right to apply for a minimum term review to “relevant young offenders” who were under 18 when sentenced; section 27A(11) excludes any other right to request a review; section 27B gives the High Court the power to make a reduction order. Mr Bile, sentenced as a child, remained eligible; Mr Quaye did not. Mr Quaye had reached the halfway point of his minimum term on 15 March 2022 but had never received an invitation to apply nor made any application.

Procedural history

The Divisional Court ([2024] EWHC 211 (Admin); [2024] 1 WLR 3303) granted declarations under section 4 of the Human Rights Act 1998 that section 27A(1) and (11) were incompatible with articles 5 and 14, finding that removal of the possibility of reduction created a risk of arbitrary detention; it did not decide the article 7 issue and dismissed an article 6 claim (not pursued further). The Court of Appeal ([2025] EWCA Civ 226; [2025] 1 WLR 2682) allowed the Secretary of State’s appeal, quashed the declarations and dismissed the article 7 cross-appeal, holding that article 5 and article 7 were not engaged and that, although article 14 was engaged, the differential treatment was justified.

Issues

The Supreme Court identified three live issues:

1. Whether, by excluding any opportunity for those aged 18 or over when sentenced to review the minimum term, section 27A(11) gives rise to arbitrary detention contrary to article 5 ECHR.
2. Whether section 27A unlawfully discriminates on the ground of age (an accepted “other status”) contrary to article 14 read with article 5, or whether the difference in treatment is objectively justified.
3. Whether the removal of the opportunity to seek a minimum term review imposes a “heavier penalty” contrary to the second sentence of article 7(1).

Arguments

For Mr Quaye, Mr Fitzgerald KC argued that the inherent feature of continuing review identified in Venables and Thompson and Smith survived the statutory changes; that denying any possibility of review generated a risk of unnecessary, excessive and therefore arbitrary detention; that a heightened intensity of review was required because the case concerned deprivation of liberty and arbitrary detention rather than mere penal policy, relying on Clift v United Kingdom Application No 7205/07; that minimum term reviews are the mechanism by which the welfare of child offenders is respected, so that section 27A wrongly treats his cohort as fully developed adults; that the provision operated retrospectively against settled legitimate expectations; and that, relying on Del Río Prada v Spain (2014) 58 EHRR 37 and Kupinskyy v Ukraine (2022) 76 EHRR 38, the previously provisional and reducible tariff had become immutable, transforming his sentence into “an adult mandatory life sentence in all but name”.

For the Secretary of State, Mr Watson KC accepted that the court should conduct a fresh proportionality assessment, and defended the scheme as a legitimate legislative choice balancing the interests of victims’ families against those of offenders, rationally drawing a bright line at the age of adulthood.

Judgment

Article 5: no arbitrary detention

The Court rejected the Divisional Court’s starting point that section 27A had not changed the essential nature of DHMP and that continuing review remained inherent in it. That approach “ignores the evolution of the sentence of detention during His Majesty’s pleasure which we have set out above and also ignores the effect of section 82A”. Section 82A fundamentally altered the sentence: the minimum term became a court-imposed sentence, appealable (R v McBean [2001] EWCA Crim 1891; [2002] 1 Cr App R (S) 98), with release thereafter a matter for the Parole Board. Sections 27A and 27B removed the last vestige of executive decision-making as to duration, judicialising any reduction. Since “Parliament has occupied the field in the section 27A scheme (if not before in enacting section 82A), the scope for a continuing review of the minimum term through the exercise of the prerogative (or as an act of clemency) has been excluded”.

On Strasbourg principle, the Court relied on Saadi v United Kingdom (2008) 47 EHRR 17, noting that in article 5(1)(a) cases, absent bad faith, the decision to impose detention and its length are matters for the national authorities, and on James v United Kingdom (2012) 56 EHRR 12 as to the necessary causal connection with conviction. Neither authority supports a principle that a minimum term imposed to meet seriousness, retribution and deterrence is arbitrary if not reviewable. There was a sufficient causal connection between conviction and minimum term, the sentence was lawfully fixed following proper procedure including the welfare principle in section 44 of the Children and Young Persons Act 1933, and Mr Quaye could have appealed an excessive term. The Court expressly agreed with the Court of Appeal that the detention was “not arbitrary”, and dismissed this ground.

Article 14: engaged but justified

It was common ground that age is an “other status”, that section 27A falls within the ambit of article 5, and that an offender who murders as a child but is sentenced at 18 or over is in an analogous position to one sentenced while still under 18 (Mr Bile providing a direct comparator). The real question was objective justification, which the Court approached by conducting its own fresh proportionality assessment, consistent with Shvidler v Secretary of State for Foreign, Commonwealth and Development Affairs [2025] UKSC 30; [2026] AC 607.

On intensity of review, the Court identified five factors supporting a wide margin: (i) age is not a suspect ground (R (SC) v Secretary of State for Work and Pensions [2021] UKSC 26; [2022] AC 223); (ii) section 27A is recent primary legislation reflecting a conscious legislative choice; (iii) it concerns prison and penal policy involving moral and political judgement (In re JR123 [2025] UKSC 8; [2025] AC 1256; R (A) v Criminal Injuries Compensation Authority [2021] UKSC 27; [2021] 1 WLR 3746); (iv) there is no European consensus; and (v) it strikes a balance between the interests of victims’ families and offenders.

Clift was distinguished: it concerned executive veto over Parole Board release recommendations, directly linked to risk assessment and thus to arbitrary detention, whereas here “the question here is quite different and raises wider policy and fair balance considerations”. The Court also rejected the submission that minimum term reviews are the means by which child offenders’ welfare is respected; rather, that is achieved by the sentencing framework itself—the welfare principle, the Sentencing Council Guideline on Sentencing Children and Young People, culpability assessed by reference to age at the date of the offence, and the Schedule 21 starting point. Section 27A “made no change to the sentencing process undertaken by the court in these cases; the full panoply of protection for child offenders continues to apply, save only for the right to request a minimum term review at the halfway stage”.

The legitimate aim, identified from the legislation and the White Paper “A Smarter Approach to Sentencing” (16 September 2020), was to reduce the distress caused to victims’ families by the review process, under which families are contacted and may provide a new Victim Personal Statement. The Court regarded it as “obvious and inevitable that the existence of a review process is liable to be extremely distressing to victims’ families”, disagreeing with the Divisional Court’s view that the impact of a single review would be modest. It noted the White Paper’s erroneous statement at para 329 (that those sentenced over 18 were already ineligible) but held that by the time the Bill was introduced on 9 March 2021 the Revised Policy made that statement accurate, so Parliament was not misled.

As to means, bright lines are permissible (Clift, para 76); no review is available to adult offenders generally, nor to children sentenced to detention for life for other grave offences; and age at conviction or sentence already determines the type of custodial sentence across the Sentencing Act 2020. Differentiating by age at the date of sentence was rational because “the minimum term is set at the date of sentence”. The Court accepted that maturation continues into the twenties, but held it was permissible for Parliament to proceed on the basis that the rationale for review applies with less force to adults, and that this “is not a proposition that had to be supported by evidence”, citing R (SC) on the limits of judicial scrutiny of parliamentary reasoning. A high-level reference to Hansard showed Parliament had confronted the precise point, including rejecting an amendment setting the cut-off at 26.

On retrospectivity, the Court held Mr Quaye lost nothing by section 27A because the Revised Policy had already removed his eligibility from 18 February 2021; he had no substantive legal right, only “an opportunity to apply for executive review under a policy that was liable to and did change”; and limited transitional provision had been made by section 128(3)–(4) for those who had already applied. While accepting it may feel harsh to lose an expected benefit, the Court held this carried little weight. Ultimately, “there are no legal standards by which a court can decide where the balance should be struck between the interests of victims’ families and the interests of offenders”, and Parliament’s judgement fell well within the margin.

Article 7: execution, not penalty

Applying the settled distinction between a “penalty” and its “execution” or “enforcement” (Hogben v United Kingdom (1986) 46 DR 231; Uttley v United Kingdom; Kafkaris v Cyprus (2009) 49 EHRR 35; Del Río Prada; and this court’s decision in Morgan v Ministry of Justice [2023] UKSC 14; [2024] AC 130), the Court held the penalty imposed on Mr Quaye was indefinite detention with a court-fixed minimum term and the possibility of early release on licence thereafter. Del Río Prada turned on its unusual facts, where remission formed part of a legally acquired right redefining the sentence; Kupinskyy involved conversion of a reducible life sentence into an irreducible one. By contrast, Mr Quaye’s sentence remains “a reducible indefinite (or life) sentence with a minimum term fixed by the sentencing court”. The minimum term review had “nothing to do with determination of the appropriate minimum term but [was] concerned with the manner of execution or enforcement of the sentence” and merely accelerated consideration of early release by the Parole Board. As a measure concerning execution, it is not subject to article 7’s qualitative requirements including foreseeability.

Implications

The decision authoritatively resolves, at least for sentences imposed after 30 November 2000, the status of the “continuing review” feature of DHMP described in Venables and Thompson and Smith. The Court held that section 82A fundamentally changed the sentence and that, with the enactment of sections 27A and 27B, Parliament has occupied the field, excluding any residual prerogative or clemency-based review. Practitioners should note the Court expressly declined to decide whether the inherent duty of review survived section 82A standing alone, finding it unnecessary to do so given the later policies and legislation.

For article 5 purposes, the judgment confirms there is no Strasbourg principle requiring indeterminate sentences imposed on children to be subject to periodic review of the punitive minimum term; the length of a lawfully imposed sentence remains a matter for national authorities, with the appellate route being an appeal against sentence.

For article 14, the case illustrates the application of a wide margin where recent primary legislation makes a penal-policy choice balancing victims’ families’ interests against offenders’. It reinforces R (SC): Parliament need not supply evidence for its legislative premises, and Hansard should be used only at a high level to ascertain whether compatibility issues were raised. It also confirms that Clift is confined to situations where differential treatment bears directly on risk-based release decisions.

For article 7, the decision applies and extends Morgan: removal of an opportunity to seek reduction of a judicially fixed minimum term concerns execution of the sentence, not the penalty, provided the sentence remains reducible. The limiting principle, derived from Del Río Prada and Kupinskyy, is that article 7 may bite where a change redefines the scope of the penalty or renders a reducible sentence irreducible.

The decision matters most to offenders sentenced to DHMP aged 18 or over, their advisers, and the Ministry of Justice. It leaves unchallenged the February 2021 Revised Policy (no challenge was made) and does not disturb the wider sentencing protections for child offenders, which continue to apply in full. It is confined to the availability of minimum term reviews and does not address the Parole Board’s risk assessment function or the position of those with pre-commencement applications preserved by the transitional provisions.

Verdict: The appeal was dismissed. The Supreme Court held that sections 27A and 27B of the Crime (Sentences) Act 1997 are compatible with articles 5 and 7 ECHR, and with article 14 read with article 5; the detention is not arbitrary, no heavier penalty was imposed, and the difference in treatment based on age at the date of sentence is objectively justified. The Court of Appeal’s decision (which had quashed the Divisional Court’s declarations of incompatibility) therefore stands.

Source: R (on the application of Quaye) v Secretary of State for Justice [2026] UKSC 34