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 SULLIVAN)

		Royal Courts of Justice Strand London WC2A 2LL Monday 22 January 2001

1. LORD PHILLIPS, MR: In 1986 the Appellant was convicted of murder, effectively on his own admission. He was released on life sentence on 21 November 1995. On 30 August 2000 his licence was revoked by the Secretary of State. He does not now challenge the legality of that revocation. He contends, however, that the revocation was subsequently demonstrated to be unjustified in circumstances which entitled him to be released again. He applied for a writ of habeas corpus and on 3 November Sullivan J rejected that application. He now appeals to us against that rejection as of right.
2. His appeal raises a point on the statutory scheme in relation to the release on licence of prisoners serving life sentences which is not directly covered by authority. I propose at the outset to identify the relevant statutory provisions. A new system of parole and remission of sentence and early release of prisoners, and their supervision and liabilities after release, was introduced by the Criminal Justice Act 1991. Section 32 of that Act, which is the only relevant part which has survived, makes general provisions in respect of the constitution and functioning of the Parole Board. These include by section 32(2):

"It shall be the duty of the Board to advise the Secretary of State with respect to any matter referred to it by him which is connected with the early release or recall of prisoners."

3. Subsequent sections of that Act, which have been reenacted in the Crime (Sentences) Act 1997, which were dealing with the release of long term and life prisoners, made provision for the Secretary of State to seek the advice of the Parole Board in circumstances where it is plain that the Secretary of State was not required to comply with the advice given.
4. The 1991 Act also made specific provision for the early release on licence and the recall of prisoners serving life sentences. These latter provisions have also been replaced by provisions of the 1997 Act. Those relevant to this appeal are identical to those which were found in the earlier Act. I see no need to set out the provisions under which the Appellant was originally released on licence. The important point is that, once a life prisoner has been released on licence, the legislation recognises he should not be recalled to prison without good reason, and makes the Parole Board the ultimate arbiter of whether he should once again be subject to detention in prison. Thus, section 32 of the 1997 Act provides, and I read the passages relevant to this appeal:

"(1) If recommended to do so by the Parole Board in the case of life prisoner who has been released on licence .... the Secretary of State may revoke his licence and recall him to prison.

(2) The Secretary of State may revoke the licence of any life prisoner and recall him to prison without a recommendation by the Parole Board, where it appears to him that it is expedient in the public interest to recall that person before such a recommendation is practicable.

(3) A life prisoner recalled to prison under subsection (1) or (2) above--

(a) may make representations in writing with respect to his recall; and

(b) on his return to prison, shall be informed of the reasons for his recall and of his right to make representations."

5. As my Lord, Lord Justice Simon Brown, has pointed out, it is somewhat strange to find that those two provisions appear in that order rather than the reverse order. The Act continues:

"(4) The Secretary of State shall refer to the Parole Board--

....

(b) the case of a life prisoner recalled under subsection (2) above.

(5) Where on a reference under subsection (4) above the Parole Board--

(a) directs in the case of a life prisoner to whom section 28 above applies; or

(b) recommends in the case of any other life prisoner, his immediate release on licence under this section, the Secretary of State shall give effect to the direction or recommendation."

6. The Parole Board Rules 1997, which were made by the Secretary of State pursuant to section 32(5) of the 1991 Act, make detailed provision for the procedure to be adopted where a prisoner's case is referred to the Parole Board under, among other provisions, section 32(4) of the 1997 Act. These rules are plainly designed to ensure that there is a hearing before the Board that has the attributes of a judicial hearing, so that the prisoner is entitled to be fully informed of the case that has led to his recall, that he has the right to make written representations and is entitled to be represented at the hearing.
7. Where the recall of a prisoner has taken place pursuant to a recommendation of the Parole Board, a prisoner can require that the matter receive a full review by the Board in the light of the prisoner's representations, but if the prisoner does not do so the decision of the Parole Board stands.
8. The power to recall a prisoner conferred by section 32(2) of the 1997 Act, is an emergency power designed to be used in cases where it is believed that there is an urgent need for action to protect the public (see R v Parole Board ex parte Watson [1996] 1 WLR 906 at 914C). In such a case a reference to the Parole Board is mandatory under that section. The procedure laid down by the Rules will, however, inevitably result in considerable delay. In these circumstances, the Home Secretary has adopted the practice of making an immediate reference of such a case for the advice of the Parole Board pursuant to section 32(2) of the 1991 Act.
9. The effect of such a reference was described by Sir Thomas Bingham MR in Watson at page 914E as follows:

"Since Mr Watson was recalled under section 39(2), there was no statutory obligation on the Secretary of State to consult the board at that stage or at any time before the reference under section 39(4). But the evidence is that in practice he does so, after recall of the prisoner under section 39(2), and if the board considers the recall to have been unreasonable the Secretary of State will consider releasing the prisoner. This extra-statutory procedure is recognised in the Parole Board Rules 1992."

10. In Watson the propriety of such informal references was challenged on the ground that they were liable to lead the Board to prejudge the question that the Board was required to consider on the formal reference under section 32 of the 1997 Act. As to this, the Master of the Rolls in Watson commented at page 915B as follows:

"This extra-statutory consultation of the board at the time of recall, pending review under section 39(4), could only work to the advantage of the prisoner, by giving him a chance of accelerated release; it could not work to his disadvantage. The board was not (in contrast to its role under section 39(1)) involved in making a decision to recall, but was merely acting as an extra-statutory watchdog. There was no call for the prisoner to be heard at that stage, since a full hearing, at which the prisoner would enjoy full rights to be heard, would inevitably follow when a prisoner had been recalled under section 39(2). The board's informal confirmation could not in practice pre-empt or unfairly influence the section 39(4) review, since the members conducting that review would always be different from those giving the earlier confirmation; and they would appreciate that the confirmation had been provisional and tentative, given on a partial hearing of only one side of the case, without the benefit of the full materials and representations available at the later review. There was no real danger of bias, since those conducting the later review would inevitably form their own judgment on all the materials presented to them.

I do not regard the confirmation procedure adopted here as objectionable. To condemn it could only work to the disadvantage of discretionary life prisoners recalled under section 39(2). It would not make sense to impose the requirements of a full hearing on a step which is clearly intended to be tentative and provisional."

11. That description by The Master of the Rolls has been confirmed in this case by the evidence given in a witness statement by Mr Watts, a Grade 7 Officer employed at Prison Service Headquarters. What he stated as to the practice was:

"It is the Secretary of State's practice, when exercising his power under S.32(2) of the 1997 Act to revoke a licence, to seek the advice of the Board under the power given by the 1991 Act. The purpose of that is to act as a quick check to ensure that the decision to revoke was not flawed by some obvious error. The result of that exercise is almost always that...."

12. and his witness statement continued:

"....the single member of the Board supports the revocation."

13. In my photocopy a line has been put through by someone "the single member". Mr Bodnar, for the Appellant, has told us that that reflected the appreciation at the hearing, from perusal of the documents, that at least two persons had acted on the "informal review" of the Board in this case.
14. Miss Giovannetti, for the Secretary of State, at our invitation, has given us, on instructions, some further details about this "informal practice". She has told us that, while the normal situation, as the evidence in the case shows, is that the Parole Board confirms the emergency action of the Secretary of State, it does, on occasions, disagree and advise the Secretary of State that the case for emergency action is not, in the Parole Board's view, made out. When that rare occasion occurs, sometimes the Secretary of State accepts the advice and releases the prisoner again on licence. On other occasions the Secretary of State does not accept the advice, in which case the matter goes on for the full formal hearing under the 1997 Act. This is, it seems, the first occasion where the latter has been about to occur that there has been a challenge before the court. Mr Bodnar suggests, in my view realistically, that this is because in the normal situation the formal hearing is likely to have taken place before the formalities necessary to obtain legal aid can be complied with, whereas on this occasion his client has been able to fund his own application for habeas corpus without any delay.
15. With that description of the statutory background and the informal procedure adopted by the Secretary of State under the 1991 Act, I turn to the facts of this particular case.
16. After his release on licence, the Appellant married a lady with four children, thereby inheriting four step-children. The couple had two more children. Tragically in June 2000 the Appellant's wife died as a result of complications arising from a further pregnancy. The Appellant was left with no less than six children in his care. Concern for the welfare of the children led the London Borough of Camden to obtain an Emergency Protection Order on 30 August, and the Appellant's licence was revoked on the same day, as a result of the concerns that that had led to the Emergency Protection Order. The Appellant surrendered to custody on 4 September 2000. By 7 September he had been given no reasons for his recall and he applied for a writ of habeas corpus. Only on 13/14 September did he receive following information dated 6 September:

"This is to inform you that the Secretary of State has exercised his power under section 32(2) of the Crime (Sentences) Act 1997 and revoked your life sentence.

The Secretary of State considered that it was necessary to take this action because of information from the Inner London Probation Service who were concerned that over a period of time you had demonstrated an unwillingness to co-operate with the requirements of supervision and Social Services, particularly in respect of the children in your care. You had taken the children and left your home without informing any Agency of your whereabouts. In the opinion of the Probation Service your mood was not good and the indications were that you did not intend to comply fully with Social Services, implying risk potential to the children.

These developments indicated to the Secretary of State that your performance on life licence gave substantial cause for concern and he considered there to be a serious risk to the safety of the children. The Secretary of State was not satisfied that your continued presence in the community constituted an acceptable risk.

It has been decided, therefore, that your life licence should be revoked and that you should be recalled to prison."

17. The Appellant's application for habeas corpus came before of Scott Baker J on 15 September 2000 and was adjourned on Secretary of State undertaking to refer the matter to the Parole Board forthwith pursuant to section 32(4)(b) of the 1997 Act, and undertaking to use his best endeavours to ensure that the Parole Board considered the matter as soon as reasonably practicable. Unknown to the Appellant, to the Appellant's lawyers and to the Judge, the Secretary of State had in fact made an informal reference to the Parole Board in accordance with his usual practice under the 1991 Act. A letter in relation to this had been sent to the Appellant on 6 September 2000, but it never arrived. That letter was in standard form, because of which it is worth reading and commenting upon. It said:

"I am writing to explain the procedures for referring your case to the Parole Board following the Secretary of State's decision to revoke your life licence under section 32(2) of the Crime (Sentences) Act 1997 and enclose a copy of the revocation of licence order and reasons for your recall to prison.

Your case will be referred without delay to the Parole Board under section 32(2) of the Criminal Justice Act 1991 for the panel to consider the emergency recall decision. Consideration will be given to your release if the Parole Board so recommends.

If, following its consideration of your case, the Parole Board confirms the Secretary of State's decision to revoke your life licence, you will be entitled to:

* have your case considered by a panel of the Parole Board under section 32(4)(b) of the Crime (Sentences) Act 1997

* make representations against recall

* have your representations against recall considered by the Parole Board

* disclosure of papers to be referred to the Parole Board so that you can make representations.

You will be informed as soon as the Board has reached a decision on its first consideration of your recall to prison."

18. Although that letter states that, if the Parole Board considering the matter under the 1991 Act recommends release, consideration will be given to that recommendation, the description of the prisoner's rights that then follows is set out on the tacit assumption that it will only apply where the Parole Board confirms the Secretary of State's decision to revoke the licence.
19. It is the case of the Secretary of State that where the Parole Board in these circumstances recommends release, he still has a discretion whether or not to comply with that recommendation. If he does not do so, then precisely the same consequences follow as if the Parole Board had confirmed his decision. The letter does not state that in plain terms. Indeed, it refers to the Board reaching a "decision" which carries, it seems to me, an inference of something more than mere advice. The Appellant did not, however, receive that letter. By coincidence, on the very date of the hearing before Scott Baker J the Board recommended that the Appellant should be returned to the licence conditions as the case of risk to the family had not been sufficiently made out. The reasons recorded on the Parole Board review form continued:

"However Mr Cummings must co-operate with supervision and a warning letter to this effect is appropriate."

20. The Appellant was informed of the Parole Board's recommendation, inferentially, when he received the following letter, dated 16 October, which did not reach him in prison until 30 October. This read as follows:

"The circumstances of your recall to prison under section 32(2) of the Crime (Sentences) Act 1997 have been referred to the Parole Board under section 32(2) of the Criminal Justice Act 1991.

The Secretary of State is not prepared to accept the Parole Board's recommendation for your release. His reasons are attached."

21. The letter then went on to set out the Appellant's various rights in relation to the review, and continued:

"If you wish to make representations (which should be sent to me direct), you should do so within 28 days of the date of this memorandum."

22. The attached reasons gave this explanation for the Secretary of State's decision:

"You failed to comply with the Social Services' Protection Orders and your whereabouts and those of the 6 children in your care were unknown to Social Services and the Inner London Probation Service for a period of time. Your lack of desire to co-operate with Social Services; the breaches of the Protection Orders; the angry attitudes you have expressed to Social Services staff; and your failure to inform your probation officer of your whereabouts, have all led the Secretary of State to have serious concerns in relation to the risks you may pose to those children and others in the community, including those in Social Services involved with your case. Despite the Parole Board's recommendation, the Secretary of State continues to have these concerns and it is for these reasons that he has decided not to agree to the Parole Board's recommendation."

23. The receipt of this letter led the Appellant to restore his application for a writ of habeas corpus.
24. Before the Judge below four grounds were advanced for attacking the Home Secretary's decision, but only two have been pursued before us. These two are closely related. First, Mr Bodnar has argued, and argued economically but extremely attractively, that the practice adopted by the Secretary of State, when considered in the context of the statutory scheme, produces the result under which, if the Parole Board recommends release after an emergency recall, the Home Secretary must comply with that recommendation. Alternatively, and this is the second ground advanced before us, that it was irrational of the Home Secretary not to comply with the recommendation.
25. As to the first ground, I would summarise Mr Bodnar's submissions as follows. When one looks at the express statutory scheme, once a prisoner has been released on licence, the decision of the Parole Board as to whether he should be recalled and remain detailed in custody is for the Parole Board rather than the Secretary of State. In the normal situation there will be no question of recall unless and until the Parole Board makes a recommendation. In this case, the Secretary of State exercised the emergency power of recall conferred on him by the Act. But, having done so, he chose to refer the matter immediately at that stage to the Parole Board. He put before the Parole Board his best case, as Mr Bodnar described it, for the action that he had taken. Mr Bodnar submitted that, once that situation has been reached, the Parole Board is, effectively, in the same position as if giving initial consideration to a request by the Parole Service, for instance, to consider recommending revocation of a licence. Mr Bodnar submitted that it is contrary to the basic statutory scheme that in the one instance it should be the decision of the Parole Board which governs, but in the other instance the Secretary of State can, if he so chooses, simply disregard that decision.
26. I found this a cogent argument but, ultimately, it seemed to me that there was a fallacy in it. Where there is no situation of emergency, the Parole Board will have the time to give the necessary consideration to all the relevant facts before proceeding to make a recommendation which may result in the recall of a prisoner which will not subsequently be reviewed. It will be making a recommendation for action with long term effect. Where, however, an emergency arises, there will not be the time for the Parole Board or the Secretary of State to give that detailed consideration. The Secretary of State acts urgently because there is a risk to the public. If at that point he refers the matter to the Parole Board, the Parole Board will not have the depth of material that they would normally have if they were considering the question of whether to recommend the recall of a prisoner at their leisure. As the Master of the Rolls said in Watson at page 915, what the Parole Board is doing at that stage is "....provisional and tentative, given on a partial hearing of only one side of the case, without the benefit of the full materials and representations available at the later review".
27. It is plain, when one considers the 1991 Act, that the overall statutory scheme places no requirement on the Secretary of State to comply with the advice of the Parole Board simply because he has exercised the statutory power to refer a question to the Parole Board for their advice. It seems to me that that is precisely the position that pertains where he exercises that power, sensibly, because of the delay that is going to occur before the full review, as a check to see whether, on the information then available, the Parole Board shares his view that an emergency recall is justified. If it does not, he then reconsiders the position, but he is not bound as a matter of law to follow the advice of the Parole Board.
28. This conclusion deals also with Mr Bodnar's second ground of appeal, that there is irrationality in what the Secretary of State did, because, as I understand it, he was making this as a general point that it is irrational in these circumstances to act as the Secretary of State did. In my judgment, for the reasons I have given, the course taken by the Secretary of State was not irrational but was rational.
29. Before concluding my judgment, I would say that it is evident that, if there is going to be a full judicial process in the review by the Parole Board where a prisoner is recalled, this is bound to involve a sensible delay. But in a case such as this, where it becomes apparent that there is a difference of view between the Secretary of State and the Parole Board as to whether there is an emergency which justifies the action the Secretary of State has taken, there is a very strong case for expediting the formal hearing, in so far as that can be done. I recommend that, in any case where such a situation occurs in the future, the utmost expedition be given to the ultimate resolution of the prisoner's case.
30. For the reasons I have given, I would dismiss this appeal.
31. LORD JUSTICE SIMON BROWN: I agree.
32. LORD JUSTICE LONGMORE: I agree also.
Order: Appeal dismissed with costs of the appeal.