England and Wales Court of Appeal (Civil Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE QUEEN'S BENCH DIVISION
(ADMINISTRATIVE COURT)
(MR JUSTICE JACKSON)

		Royal Courts of Justice Strand London WC2A 2LL Friday 24 August 2001

1. LORD JUSTICE ALDOUS: I will invite Sedley LJ to give the first judgment.

2. LORD JUSTICE SEDLEY: Miss Whitaker comes before us today to renew an application for permission to apply for judicial review. The application was refused by Jackson J on 27 June 2001. The first nine paragraphs of his judgment set out so fully and clearly the background facts that they should he treated is as incorporated in what I now say. It would be idle merely to read them out.
3. Miss Whitaker makes two submissions which, on analysis, boil down to one. She submits that the decision of the House of Lords in R (Daly) v Home Secretary [2001] 2 WLR 1622 now substitutes proportionality for rationality as the test of administrative public decisions such as that of the Parole Board. That, with respect, is not what Daly decides. Daly decides that a policy must not disproportionately violate fundamental rights.
4. The Home Secretary's policy in the present class of case is that the Parole Board is to consider whether the prisoner's continued liberty or immediate release would pose an unacceptable risk to the public of further offences being committed, and that the Parole Board must decide this, in particular, in the light of whether the prisoner is likely to commit further offences and whether he has failed, or might in future fail, to comply with one or more of his licence conditions. Miss Whitaker rightly accepts that there is nothing offensive to individual rights or disproportionate about that policy. Her submission is that it is in deciding that in this particular case the applicant's recall to prison should be sustained that the Parole Board erred.
5. Miss Whitaker's argument to this effect pivots upon the use by the Parole Board in the final sentence of its short decision of the phrase "a potential risk of offending". It is perfectly right that a potential risk is a solecism; all risks are potential and the word "potential" adds nothing to it. If it is eliminated, Miss Whitaker submits, then there is a visible void in the reasoning because it is only if the risk is judged unacceptable that the Home Secretary's policy calls upon the Parole Board to endorse a recall.
6. When, however, one looks at the facts that were before the Parole Board and the reasons given by them, it is, in my judgment, absolutely clear that they had been confronted with evidence of an unacceptable risk and had so found. They wrote:

"It is clear that Mr Rigby is in breach of his licence condition (5xi) to live as directed and the representations accept that to be so. Unless he does so the supervising officer cannot ensure that Mr Rigby does not live in a house with young people under the age of 18 years which would pose a risk. Consequently there is not only a breach of licence but that breach does involve a potential risk of offending".

7. In my judgment, on the facts of this case, there is no possible doubt that the Parole Board were finding an unacceptable risk. It seems to me that this offender's breach, in the teeth of the conditions of his parole and in the face of the probation officer's objection, was so serious a breach that no reasonable Parole Board could have failed to find it unacceptable.
8. This means that the potentially interesting and important question which may arise in a more debatable or marginal case does simply does not arise here. The question is, and Miss Whitaker has helpfully outlined it, whether, irrespective of Daly, section 6 of the Human Rights Act requires any decision of the Parole Board as a public authority to be Convention-compliant and whether, if so, it is for the court to look at the components of such a decision in order to decide whether or not it has sanctioned a disproportionate invasion of the individual's fundamental rights. That is by no means an obvious or easy debate because what rights a prisoner who is still serving his sentence has to personal liberty when he is paroled is a highly sensitive question. That he has some is undoubted. What they are and how far they extend is for future discussion. It is not, in my judgment, for discussion in this case. This was a plain case in which there could not have been anything but a recall, and the debate about the language used by the Parole Board is beside the point.
9. I would, therefore, refuse permission.
10. LORD JUSTICE ALDOUS:I also refuse permission. I just add that we are grateful for the clear and full submissions of Miss Whitaker on behalf of Mr Rigby. Everything that could have been said was said on his behalf.
11. The application is refused.
Order: Application refused. Detailed Assessment.