Held, claim allowed. (1) The introduction of section 27A of the Crime (Sentences) Act 1997 had not changed the essential nature and ambit of a sentence of DHMP which remained a sentence of detention to be imposed on an offender convicted of murder who was under the age of 18 at the time of the offence. In statutory terms it was to be distinguished from a sentence of imprisonment or detention for life. Had Parliament wished to legislate to change the basis of sentencing those who committed the offence of murder when under the age of 18 but who were not sentenced until after their 18th birthday, it would have done so explicitly, but it had not done so (para 47).

(2) A wide margin of appreciation was to be afforded when considering the judgment of the legislature and the objective justification for differential treatment in the context of a claim for unlawful discrimination contrary to article 14 of the Human Rights Convention. When considering whether legislative provisions violated article 14, the test of whether the measure was “manifestly without reasonable foundation” was merely a way of describing that wide margin of appreciation. While any issue relating to the liberty of the subject required close scrutiny, it was not the same level of scrutiny as was required where the difference in treatment arose from “suspect” grounds such as sex, gender or race, and age did not fit into that category. However, even applying a low level of scrutiny, there was no objective justification for the differential treatment of offenders sentenced to DHMP who were 18 by the date of sentence. The culpability of the offender had be assessed by reference to their age at the time of the offence, a principle made explicit by the statutory basis of the sentence of DHMP, which was to be imposed on an offender who had committed the offence of murder when aged under 18. Differential treatment resulting from random events could not objectively be justified and, as such, selecting the age at the date of sentence as the cut-off point for allowing a review of the minimum term was arbitrary. Accordingly, the first limb of the Secretary of State’s justification for the differential treatment of the defendant and all those in a similar position could not be sustained (paras 46, 52, 55)

(3) Similarly, even affording a wide margin of appreciation, the interests of victims did not provide an objective justification for those aged 18 at sentence being deprived of a review since, almost without exception, a review of the minimum term would relate to the progress made by the offender, the judge being concerned to determine whether the progress has been exceptional, and it was highly unlikely a victim’s family would have anything useful or relevant to say on the issue. Further, the existence of a single review of the minimum term on grounds wholly unconnected with the effect of the offending on the victim’s family objectively was of very limited significance to any family of any victim. Any offender subject to DHMP would be eligible for parole at some point and it was then that families of victims would properly have a significant role to play. Accordingly, there would be a declaration, pursuant to section 4(2) of the Human Rights Act 1998, that sections 27A(1) and 27A(11) of the Crime (Sentences) Act 1997 were incompatible with article 14 of the Convention (paras 55, 56, 57, 63).

(4) The removal of any possibility of a reduction of the minimum term via a review generated a risk of arbitrary detention sufficient to engage the protection of article 5 of the Convention. The requirement of a continuing review inherent in a sentence of DHMP was unique and could be distinguished from an ordinary sentence to which parole provisions applied. Whilst the previous system involved review only at or after the half way point of the minimum term, any offender serving a sentence of DHMP had their progress regularly examined and recorded by the prison authorities so that, on application for review, all relevant material could readily be assembled. As a child murderer grew into maturity a more reliable judgment might be made, perhaps of what punishment they deserves and certainly of what period of detention would best promote their rehabilitation. Removing any possibility of exercising “a more reliable judgment” so as to reduce the minimum term would inevitably result in a number of offenders serving longer than they lawfully should. In the context of an offender serving a sentence for a crime committed when the offender was under 18, that amounted to arbitrary detention. Accordingly, there would be a declaration pursuant to section 4(2) of the Human Rights Act 1998 that sections 27A(1) and 27A(11) were incompatible with article 5 of the Convention (paras 59, 60, 61, 63).