COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM
Hughes LJ and Treacy J
Strand, London, WC2A 2LL
B e f o r e :
THE RIGHT HONOURABLE LORD JUSTICE DYSON
THE RIGHT HONOURABLE LORD JUSTICE TOULSON
| The Queen on the application of
(1) Michael Brooke and Gagik Ter-Ogannisyan
(2) David O'Connell
(3) Michael Murphy
|- and -
| The Parole Board
The Lord Chancellor and Secretary of State for Justice
Michael Fordham QC and Gemma White (instructed by the Treasury Solicitor) for the Parole Board
Sam Grodzinski (instructed by Irwin Mitchell, Bhatt Murphy and Stephensons LLP) for the Respondents
Hearing dates : 19th and 20th November 2007
Crown Copyright ©
Lord Phillips of Worth Matravers CJ:
This is the judgment of the Court
i) Michael Brooke was sentenced on 6 July 2001 under the Criminal Justice Act 1991 ('CJA 1991') to a determinate sentence of 8 years for five burglary related offences. He was thus a long term prisoner for the purposes of that Act. He was released on licence on 5 May 2006. On 31 May 2006 he was arrested on suspicion of attempted burglary and recalled to prison. It fell to the Board to consider whether he should be re-released or that his recall should remain effective for the maximum duration of the licence. Since that date he has been convicted of the new offence and sentenced to a fresh determinate term of imprisonment.
ii) Gagik Ter Ogannisyan is an Armenian national who is serving a mandatory life sentence for his involvement in two murders committed in 1993. The tariff fixed in his case was 15 years, which tariff is due to expire in August 2008. At that stage he will be eligible for a review by the Board, which will determine whether he can be released on licence.
iii) Michael Murphy received an extended sentence under the Powers of Criminal Courts (Sentencing) Act 2000 ('the 2000 Act') on 20 October 2005, for a sexual assault on a child under 13. The custodial element was 9 months' imprisonment and the extension period was 18 months. He was released on licence on 3 March 2006 but was recalled on 14 March 2006 for alleged breaches of his licence conditions. The Parole Board declined to release him on 27 September 2006, despite having adjourned an earlier hearing in order to receive reports from probation officers, who concluded that the risk to the public posed by Mr Murphy could be appropriately managed in the community. Subsequently, on 22 June 2007, the Board concluded that his recall should stand for the maximum period under the original sentence (the three quarter point).
The role of the Parole Board
"16. All the decisions are made by a panel of either one, or more often two or three members. In some cases there is an oral hearing; in others the decision is made upon written submissions. It is not necessary for the purposes of this judgment to trace the history of court decisions on when an oral hearing is and is not mandatory. The Board further has a statutory discretion under s239(3) CJA 2003 to conduct an interview with the applicant prisoner 'if in any particular case the Board thinks it necessary…before reaching a decision'.
17. Whichever may be the means of considering the case, the Secretary of State, via NOMS, is a party to each one. He fulfils the essential function of preparing a dossier of documents relating to the prisoner, designed to provide the necessary background evidence and risk assessments according to various models. His paperwork will often, but not invariably, include his 'view' as to the correct outcome; on other occasions he will simply present the facts. If there is an oral hearing he will have present a representative and may instruct counsel. The prisoner is present at an oral hearing and might be represented. Witnesses may be called and examined. No doubt the procedure is relatively flexible and may proceed in some, perhaps many, cases by way of agreement or by inquiry made by the panel of its own motion. The correct analogy is neither an appeal against an administrative decision nor a prosecution for an alleged offence but rather an application or referral for original decision. Nevertheless, there are clearly two parties to each case, the Secretary of State and the prisoner, and liberty is what is at stake."
i) By virtue of section 28 of the Crime (Sentences) Act 1997 ('CSA 1997') whether a prisoner who has been sentenced to life imprisonment (or, if under 21, to custody for life or during Her Majesty's Pleasure) should be released conditionally upon licence once the minimum term fixed by the trial judge as commensurate with the offence has been served;
ii) By virtue of sections 28 and 34 of the CSA 1997 whether a prisoner who has been sentenced to imprisonment or detention for public protection under s225/226 CJA 2003 should be released conditionally upon licence once the minimum term fixed by the trial judge as commensurate with the offence has been served;
iii) By virtue of section 39 of the Criminal Justice Act 1991 ('CJA 1991') and section 254 of the CJA 2003 whether any fixed term prisoner who had been released conditionally on licence but recalled by the Secretary of State should be re-released on licence.
iv) By virtue of sections 32 and 34 of the CSA 1997 whether any life or IPP prisoner who has been released conditionally on licence should be recalled, or, if recalled should be re-released on licence.
The Secretary of State accepts that Article 5(4) of the Convention applies to the Board's task of resolving these questions.
The need for independence and impartiality
"Everyone who is deprived of his liberty by arrest or detention shall be entitled to take proceedings by which the lawfulness of his detention shall be decided speedily by a court and his release ordered if the detention is not lawful."
It is common ground that it is the function of the Parole Board to act as the 'court', whose speedy determination of the lawfulness of a prisoner's detention is required by Article 5(4). The issue raised by this appeal is whether the Parole Board has the essential attributes of a court for this purpose. A court must be and be seen to be both independent and impartial and the question is whether the Parole Board demonstrates these qualities. It has been common ground that the Board is required to do so not merely be reason of Article 5(4) but under common law principles.
"The 'court' referred to in Article 5(4) does not necessarily have to be a court of law of the classic kind integrated within the standard judicial machinery of the country. The term 'court' serves to denote 'bodies which exhibit not only common fundamental features, of which the most important is independence of the executive and of the parties to the case…but also the guarantees'-'appropriate to the kind of deprivation of liberty in question'- 'of [a] judicial procedure', the forms of which may vary from one domain to another. In addition, as the text of the Article 5(4) makes clear, the body in question must not have merely advisory functions but must have the competence to 'decide' the 'lawfulness' of the detention and to order release if the detention is unlawful."
"62. The applicant maintained that the Parole Board is not independent of the Home Secretary, primarily because he appoints the members of the Board, provides its staff and makes the rules under which it conducts its procedures.
The Parole Board sits in small panels, each of which in the case of life prisoners includes a High Court Judge and a psychiatrist. The manner of appointment of the Board's members does not, in the Court's opinion establish a lack of independence on the part of the members. Furthermore, the Court is satisfied that the judge member and other members of the Board remain wholly independent of the executive and impartial in the performance of their duties.
There remains the question whether the Board presents an appearance of independence, notably to persons whose liberty it considers. On this point, as the Government stated, the functions of the Board do not bring it into contact with officials of the prisons or of the Home Office in such a way as to identify it with the administration of the prison or of the Home Office.
The Court therefore sees no reason to conclude that the Parole Board and its members are not independent and impartial."
"The Court is not persuaded that the presence on DLPs, which are presided over by a judge, of doctors or other qualified persons who have previous, relevant experience of work within prisons, for or in contact with the prison service, is sufficient to cast doubt on their independence or impartiality in their functions for the Parole Board. Nor does it perceive that their independence is undermined by the staffing or budgetary arrangements as described.
The Court observes that the applicant has not provided any information which would indicate that the DLP members in his reviews, who had previously been prison medical staff or members of a Board of Visitors, risked showing bias against him for personal or subjective reasons."
THE DECISION OF THE DIVISIONAL COURT
2 (1) The Board is to consist of a chairman and not less than four other members appointed by the Secretary of State.
(2) The Board must include among its members –
(a) a person who holds or has held judicial office;
(b) a registered medical practitioner who is a psychiatrist;
(c) a person appearing to the Secretary of State to have knowledge and experience of the supervision or after-care of discharged prisoners; and
(d) a person appearing to the Secretary of State to have made a study of the causes of delinquency or the treatment of offenders."
"In practice the method of appointment is not normally in his personal hands. The Board notifies the Department annually of the numbers of lay members needed. An external recruitment consultant is instructed to conduct the advertisement process by reference to specifications and job descriptions agreed between the Board and the Department. Shortlisted candidates attend a half day assessment course and are interviewed by a panel of three, one from the Department, one from the Board and one from the Office of the Commissioner for public Appointments (OCPA). Appointment is governed by OCPA principles, which include the requirements for appointment to be made on merit and for independent scrutiny – hence the OCPA member of the interviewing panel. Similar but modified arrangements exist for the appointment of criminologist, medical, psychologist or judge members. The High Court Judge members are nominated by the Lord Chief Justice. "
"We think that that occurred as a consequence of the sponsorship arrangement which induces the impression that the Board is in some respects an in-house body for which the Secretary of State has direct responsibility."
Chief Probation Officers
"Members are appointed by the Home Secretary for an initial term of three years, and subject to satisfactory performance the Home Secretary may also re-appoint members for a further three-year period. The Home Secretary may terminate the appointment of a member at any time if he/she is satisfied that the member in question has, since his/her initial appointment has:
a. Failed satisfactorily to perform his/her duties;
b. Become, for any reason, incapable of carrying out his/her duties;
c. Been convicted of any criminal offence;
d. Conducted himself/herself in such a way that it is not fitting that he/she should remain a member; or
e. Acted in contravention of the Board's Code of Conduct."
"the Parole Board, makes large numbers of decisions on, frequently, highly sensitive issues. It makes them, necessarily, on information much of which cannot be made public, nor are the detailed reasons for its decisions made public. It sits in prisons; the public cannot have free access to its hearings. In the rare, but foreseeable, case its decision may well attract a great deal of public attention, much of it necessarily less than fully informed. Under the present sponsorship arrangements, the Secretary of State may well come under public or political pressure in relation to such a decision. When members of the Board are making a decision (whether to release or to refuse to release) which may prove to be unpopular, either immediately or more often with hindsight later, their ability to make it strictly on the merits is considerably enhanced if they know that they have security in their position. It is thus essential in the public interest that they should have that confidence."
a) The need to protect the public from serious harm from offenders, and
b) The desirability of preventing the commission by them of further offences and of securing their rehabilitation.
THE ROLE OF THE PAROLE BOARD AND THE POSITION OF THE SECRETARY OF STATE.
"[whether]…it is no longer necessary for the protection of the public that the prisoner should be confined."
"the Board is not concerned with a classic adversarial dispute between two parties, but reaches a risk based assessment of the suitability of individual prisoners for release"
For this reason it is not correct to equate the position of the Secretary of State to that of a party in an adversarial process.
ENCROACHMENTS ON THE INDEPENDENCE OF THE BOARD
"4. The test to be applied by the Parole Board in satisfying itself that it is no longer necessary for the protection of the public that the prisoner should be confined, is whether the lifer's level of risk to the life and limb of others is considered to be more than minimal"
"…it is not appropriate for the Secretary of State to restate the statutory test. The board should indeed be left to decide what principles to apply by reference to the case law in the light of the appropriate submissions on behalf of the prisoner and the Secretary of State."
"The main feature of the Directions is that they require the Board to have regard to risk in deciding on issues of release and recall. This report does not suggest any change to this basic approach"
"4.3.4 There is a difference between deciding that on balance a risk, even if low, ought not to be taken, and withholding parole having overestimated risk on the basis of available evidence. 'Clinical' risk assessments of the type that the Board takes are notoriously less accurate than statistical ones. Were the Board to be under a duty to consider an actuarial risk score, this might counter members' apparent tendency to 'overestimate' risk. One consequence, of course, might be an increase in the parole rate.
4.3.5 In the light of this, consideration has been given as to whether there is scope to revise the Directions by examining their purpose, balance and their risk specific elements. The purpose of the Directions is to structure the Board's discretion and require it to have regard to risk. Each of these purposes remains relevant and appropriate. The balance of the Directions is between public protection and the rehabilitative benefits of early release. There is no reason to recommend any change to this balance."
"4.3.9 In taking decisions in DLPs and extended sentence cases, the Parole Board is guided by case law. As previously indicated, there has been uncertainty in the past over whether the Secretary of State has the legal authority to issue the Board with Directions in relation to discretionary lifers. Legal Advisers Branch have considered this issue and concluded that, in their view, Directions could be made in relation to the release and transfer to open conditions of discretionary lifers. Similarly, Directions could be made in respect of the conduct of oral hearings for extended sentence prisoners. In all these cases, statute makes clear that the primary test is whether 'it is no longer necessary for the protection of the public that the prisoner should be confined'. Legal Advisers Branch advise that while this limits the matters to be covered by Directions, it does not exclude completely the power to make Directions.
4.3.10 Although it appears that Directions could be issued, there is clearly no requirement on the Secretary of State to do so. The Board sits in a judicial capacity in oral hearings, and the need to preserve its independence is an important consideration. This suggests that the Secretary of State should issue Directions only where he sees a specific need to direct the Board, rather than in order to provide general guidance. The Home Secretary has, in fact, already indicated his intention to issue Directions to the Board in relation to the use of electronic monitoring, including in lifer cases. The recall rate for discretionary lifers since 1992 might also point to a need for more general Directions on the factors to take into account in deciding on release. However, the Board has taken steps in recent years to address concerns over the recall rate, and it would be appropriate to see the impact of these changes before moving to the formal issue of Directions as to general risk assessment."
"Our risk assessments are based on Directions from the Secretary of State."
The Directions given by the Secretary of State were intended to go beyond mere guidance as to relevant matters to which the Board should have regard and to direct the Board as to how it should carry out its judicial function of determining applications for release.
"In Spring 2006 the annual round of that process was well advanced, and the shortlisting had been finished, when it was overtaken by a ministerial initiative. This had been signalled in advance to the Board by the Department and was announced publicly when on 22 May 2006 the then Home Secretary delivered the Board's annual lecture. It came at a time when there was public anxiety about re-offending by released prisoners, particularly because of two very high-profile murders committed by such persons. The import of the lecture was that there could be no excuses for a system which did not prevent such events, that the safety of the public must outweigh the rights of the offender, and that anyone serving an indeterminate sentence could be released only if the panel members were 'absolutely satisfied' that it was safe to do so. The Secretary of State went on to announce that by June he intended to appoint new members of the Board with experience either of being a victim of crime or of involvement with a victim support organisation. The purpose of these appointments, he said, was to 're-balance the whole system in favour of victims'. In order to accommodate this new initiative, there had had to be put in train a separate and parallel selection process, involving the targeting of suitable persons, superimposed on the existing appointment round and after the shortlisting had already been done."
"The lack of victim impact statements in our dossiers now is a real concern for us. We view the victim as being at the heart of the parole process in 2003"
Why, asked Mr Sales, if victim awareness was a real concern, should not the Secretary of State give directions that this was a factor to consider when making appointments?
"…if in any particular case the Board thinks it necessary to interview the person to whom the case relates before reaching a decision, the Board may authorise one of its members to interview him and must consider the report of the interview made by that member."
"The members – 120 of them – are absolutely convinced that the interview is very, very important in the process they have to judge".
Ministers did not agree and, when the budget for 2004 was fixed, this allowed for interviews in only 10% of cases. The Secretary of State sought to persuade the Divisional Court that this did not reflect any intention on the part of Ministers to fetter the statutory discretion conferred on the Board to conduct interviews, but the court did not accept this. The court was not persuaded of this, but held:
"However, it does not in the event matter whether the Department's wish was to remove interviews altogether or considerably to limit them. The objective perception is as follows. The decision was by statute for the Board; the Board felt that interviews should routinely take place and were valuable; the Department disagreed; the Department used its control of the budget to ensure that its view prevailed; the Board felt that it had no option but severely to limit interviews notwithstanding its judgment of what was right. Applying the law as we have set it out, the question is: is this exercise of power of budgetary control consistent with the objective appearance of the independence of the Board from the Executive and from a party? The answer can only be that it is not."
We endorse this conclusion.
"A body which has a role in the processes of national government, but is not a government department, or part of one, and which accordingly operates to a greater or lesser extent at arms length from ministers" (emphasis ours).
"Their distance from government means that the day-to-day decisions they make are independent as they are removed from ministers and civil servants. Ministers are however ultimately responsible to Parliament for a ENDPB's independence, its effectiveness and efficiency."
i) They are set up by Ministers to carry out administrative, commercial, executive or regulatory functions on behalf of Government.
ii) They are legally incorporated and have their own legal identity.
iii) They employ their own staff.
iv) They are allocated their own budgets
Ministers remain accountable to Parliament for public money spent by a NDPB.
" providing Ministers with advice on the overall efficiency and effectiveness of the Parole Board and its usefulness as an instrument of Government Policy"
"monitoring the Board's performance and providing support and advice and, if necessary, imposing sanctions to ensure efficient and effective delivery of required services."
The 2001 Review called for:
"greater engagement of the Board in wider criminal justice policy development"
"The references to the Board being an instrument of Government policy, to the need for it to engage with wider criminal justice policy development, and to the imposition of sanctions no doubt came naturally enough to a departmental examination of what was seen as in-house body. They are, however, quite inappropriate to discussion of an independent court making decisions which bind the departmental Head. "
We endorse those comments. The 2001 Review recommended that the current sponsorship arrangement should continue because of, inter alia:
"-established close operational links
-links between Parole Board casework and Sentence Enforcement Unit policy issues and overall management of parole process
-effective and well understood processes for translating policy into operational changes "
"The question for us is whether the Parole Board has the necessary objective independence which a court must have in order to satisfy both the common law of England and Wales and the requirements of Article 5(4) ECHR. There is no question about the independence of mind and impartiality of the individual members of the Board. The issue is whether the relationship with the sponsoring Department of State, formerly the Home Office and now the Ministry of Justice, makes the Board too close to both the Executive and the principal party to all its decisions. We have found no sign of any attempt by the Department to influence individual cases, as distinct from the general approach to release decisions; that is so whether the individual cases are those of the claimants before us or any others. In some respects we have found that the structure of the Board is consistent with the necessary objective independence. But we are satisfied that the relationship of sponsorship is such as to create what objectively appears to be a lack of independence, and to cause the sponsoring Department sometimes to treat the Board as part of its establishment. That has led to inadequate protection for the security of tenure of members. It has also led to documented examples of the use of the powers of the Department which have not been consistent with the need to maintain the Board's objective independence; those have been powers of funding of appointment and to give directions.
What was a perfectly appropriate, if not essential, relationship with the Secretary of State when the Board existed to advise him upon decision-making which was his statutory responsibility is no longer appropriate once the Board has been entrusted by Parliament with the duty of making the decisions itself, as a court, and those decisions are binding upon him."
"From 1967 to 1983, C7 Division in the Home Office was the Parole Board's sponsor unit. It had responsibility for early release policy and procedures. C5 Division had the policy lead on lifer review, P3 Division in Prison Department led on lifer management. In 1982, this range of work was brought together in P2 Division of the Prison Service, which also took over the sponsor role. It has remained in this area of Prison Service HQ since then, although there have been several HQ reorganisations and name changes. Currently, SEU (the 'Sentence Enforcement Unit') acts as a sponsor unit."
"the need for the Board to have – and be seen to have an appropriate degree of independence from the Executive and in particular those responsible for custodial sentences. (It is, however, unclear how far public concerns about the Board's independence are a problem in practice, rather than in theory "
The review concluded that there was no justification for altering the sponsorship arrangements.