England and Wales Court of Appeal (Civil Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
IN THE COURT OF APPEAL (CIVIL DIVISION)
APPLICATION FOR PERMISSION TO APPEAL
AND AN EXTENSION OF TIME

		Royal Courts of Justice Strand London WC2 Wednesday, 25th September 2002

1. LORD JUSTICE LAWS: This is an application for permission to appeal against a decision of Mr Justice Moses given in the Administrative Court on 31st May 2002 when he dismissed the applicant's application for judicial review. He refused permission to appeal to this court.
2. On 9th August 2002 Lord Justice Pill adjourned the applicant's further application for permission into court to be heard orally on notice; those are the proceedings listed before us today.
3. The case concerns certain of the statutory functions of the Parole Board viewed in the light of Article 5 of the European Convention on Human Rights. In February 1980 the applicant was convicted of manslaughter on the basis of diminished responsibility. He was sentenced to imprisonment for life. That was of course a discretionary indeterminate sentence. His tariff - that is the time he should serve for the purposes of retribution and deterrence - was set at 15 years and expired in April 1994. He must have served some time on remand before conviction. In May 2001 he was transferred to open conditions. In order to understand the nature of the case it is convenient to set out Section 28 (5) and Section 28 (6) of Crime (Sentences) Act 1997:

"(5) As soon as -

(a) a life prisoner to whom this section applies has served the relevant part of his sentence,

(b) the Parole Board has directed his release under this section, it shall be the duty of the Secretary of State to release him on licence.

(6) The Parole Board shall not give a direction under subsection (5) above with respect to a life prisoner to whom this section applies unless -

(a) the Secretary of State has referred the prisoner's case to the Board; and

(b) the Board is satisfied that it is no longer necessary for the protection of the public that the prisoner should be confined."

4. The functions of the Parole Board under these two subsections are delegated to or performed by its Discretionary Lifer Panel, to which I will refer as the DLP.
5. In the judicial review proceedings the applicant was concerned to obtain a ruling as to the approach to be taken by the DLP to his case when it next considered the matter. The argument was that the DLP was obliged to approach the case on the footing that, givenArticle 5 of the Convention, it was for the Secretary of State to prove that the applicant was or remained sufficiently dangerous that his release should not be directed: as opposed to the burden being on the applicant to show that any risk to the public was so low that release might properly be directed. This issue was raised by the applicant's solicitors in correspondence with the Parole Board, whose Secretariat replied on 12th July 2001 as follows:

"The Board's view of the `burden' at Discretionary Lifer Panels is that taken by the courts in respect of post-tariff discretionary lifers; in other words that it has to be shown that the risk is low enough to release a prisoner, not that it is high enough to justify continued imprisonment."

6. This statement was taken by the applicant as the vehicle for his judicial review challenge. In reality the challenge went to the question, how would the DLP exercise its functions under Section 28 (6) on a future occasion, that is to say upon the occasion when next they came to consider the applicant's case. Mr Justice Moses held that as at the time he was giving judgment the applicant was not a victim within the meaning of Section 7 of the Human Rights Act 1998; and so he dismissed the application, declining to adjudicate upon the substantive issues.
7. When he adjourned the application for permission Lord Justice Pill was concerned, as Mr Justice Moses had been, with the fact that the court was being asked to give a pre-emptive or advisory opinion as to how the DLP would act in the future when, for all one knew, the applicant might obtain a favourable result from the DLP and so secure his release whatever approach the Panel took to what might be called the "burden of proof" question. Lord Justice Pill directed that the applicant should specifically deal with this issue as it had been discussed between the judge and counsel after judgment had been delivered at first instance. So it came about that as well as providing a skeleton argument prepared by counsel the applicant put in a witness statement dated 22nd September 2002. There he says that in July 2002 having been caught with some bottles of alcoholic drink which he had smuggled into the prison, and so fearing that he would be returned to closed conditions, he absconded until he was arrested on 18th July 2002. For that he was disciplined and was returned to closed conditions at HMP Lindholme. He adds that it is his understanding that his home probation officer will not be supporting his release to the DLP. The statement also makes clear, and counsel have confirmed, that the DLP hearing will taken place on 3rd October 2002, that is to say next week.
8. In the light of the decision at which I would arrive it is not necessary to set out the relevant terms of the Human Rights Act or Article 5, all of which are well known.
9. It seems to me that it must be arguable at the very least - and I do not understand counsel to suggest the contrary - first, that Section 28 (6) (b) imposes a burden of proof on the prisoner and, secondly, that that amounts, or may amount in a concrete case, to a violation of ARticle 5 (1) (a) read with Article 5 (4). In the background there is the decision of this court in H [2001] 3 WLR 512 concerned with a like question arising in relation to Section 72 and Section 73 of the Mental Health Act 1983. Those matters are arguable; but the DLP has yet to meet. It is said that as of today there is no act within Sections 6 and 7 of the Human Rights Act, the applicant is not a victim within Section 7 and that, in any event, the court should only grant an advisory declaration in advance of some future event in the most exceptional cases.
10. For my part I would accept that the letter of 12th July 2001 is not an act; it is just an expression of opinion. When the DLP decide whether or not to direct the applicant's release that would be an act. But, equally plainly, if that decision goes in his favour the applicant could not possibly be said to be a victim of it. However I consider that were the DLP distinctly to construe Section 28 (6) (b) as imposing a burden of proof on the applicant that too would be an act. Such a view is consistent with what was said by Lord Hope of Craighead in R v Lambert [2001] 3 WLR 206 (paragraph 114). I think it reasonable to take the view that the applicant might be said to be a victim of that act because it would increase the chance that the DLP would not direct his release. So I would reject the view that the applicant would only become a victim if the DLP having first fixed him with the burden of proof then also found against him on the merits. But that is not the end of the matter.
11. The Secretary of State submits that Section 28 (6) (b) does not impose a burden of proof on either the prisoner or the Minister. This is because its content or subject matter is not the finding of past facts but the evaluation of future risk. That is essentially a matter of judgment to which the concept of burden of proof is inapt. It is said there is really no logical difference between the notion of an acceptable risk and the notion of a not unacceptable risk. That may be right; although I can see difficulties. Facts may have to be found on the way towards the evaluation of risk. However the Secretary of State's point is that at least the DLP may accept the view that there is no burden of proof; and of course it may not. But it will be its duty to consider and decide the matter unless it is satisfied as to the outcome of the case in circumstances where it concludes that it is not necessary to address the burden of proof at all, because the outcome would be the same wherever it lay. Even if, following authority before the Human Rights Act 1998, the DLP were to conclude that the ordinary meaning of Section 28 (6) (b) was to impose a burden of proof on the prisoner, then unless the DLP were manifestly satisfied as to the right factual result in any event, it would have to construe the section in conformity with Section 3 of the Human Rights Act.
12. There are three possible positions: first, no burden of proof; second, the burden of proof on the Minister; third, the burden of proof on the prisoner. The applicant would contend for the second, as the Secretary of State contends for the first.
13. In my view it is highly desirable that the DLP should consider these matters for itself. It will have a concrete case with which to deal. It will be able to appreciate, for example, any practical problems with the Secretary of State's approach or, for that matter, either of the other two approaches. The DLP is chaired by a professional judge. The opportunity exists to make submissions to it, no doubt orally or in writing. I would expect that the DLP would grapple with the issue of the construction of Section 28 (6) (b) and the question of burden of proof in the light of the Human Rights Act unless it was quite satisfied as to the merits of the case wherever any burden lay.
14. I would think it helpful if next week the DLP were aware of this approach (if my Lord agrees with it) and it may be possible to arrange for a transcript to be provided or some other prior notification given to the DLP during the course of next week.
15. For all of these reasons, in the particular circumstances that have arisen here, I would refuse the application for permission.
16. LORD JUSTICE KEENE: I agree. I would only add a few comments on the last matter to which my Lord has adverted in his judgment. Miss Krause's concern, it seemed in the course of argument, became one of whether a clear decision could be obtained from the Panel as to the approach it adopts to Section 28 (6) (b) in the light of the Human Rights Act and the European Convention on Human Rights. It seems to me that, if submissions are made to the Panel as to where the burden of proof lies, then the Panel would be expected either to determine that issue one way or the other or to state expressly that it does not need to determine it because of the facts which it has found. It would not, in my view, be right for the Panel to say nothing at all on the issue assuming that it is raised before it. Beyond that, I have nothing to add.
17. I agree that this application must be dismissed.
Order: Application dismissed