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 ORDER OF MR DAVID PANNICK QC
(Sitting as a Deputy High Court Judge)

		Royal Courts of Justice Strand London WC2 Tuesday, 12th March 2002

1. LORD JUSTICE KENNEDY: This is an appeal from the decision of Mr David Pannick QC, sitting as a Deputy Judge of the High Court, who, on 11th September 2001, dismissed the claimant's application for judicial review of the decision of the Secretary of State when referring the claimant's case to the Parole Board in March 2001.
2. The claimant was convicted of murder in 1988 and since then, whilst serving his sentence, he has had problems with both alcohol and drugs. In July 2000 when he was serving his sentence in an open prison his case was referred to the Parole Board. On 28th July 2000 he failed a mandatory drugs test - not for the first time - and, as a result, he was sent back to closed conditions. On 11th December 2000 the Parole Board did not recommend release. On 17th January 2001 the adjudication which had followed the failure of the mandatory drugs test was quashed on procedural grounds.
3. Following that decision, on 25th January 2001 the Parole Board was asked to review again its earlier decision not to recommend release. It agreed to do so. The case was therefore referred back to the Parole Board on 21st March 2001. On 27th April 2001 a differently constituted panel of the Parole Board recommended return to open conditions and a further review in six months' time. On 6th June 2001 the Secretary of State decided that the claimant must await completion of a further short period of testing in closed conditions before he was prepared to act on the recommendation of the Parole Board. By that stage proceedings for judicial review were afoot and those proceedings were amended to challenge the decision of the Secretary of State of 6th June 2001. Permission to seek judicial review was granted and the assertion was that the Secretary of State had, when referring the matter to the Parole Board, inhibited that Board's consideration of the matter pursuant to Section 32 (2) of the Criminal Justice Act 1991, in effect, by only asking the Board to consider whether the claimant should be moved to open conditions rather than to consider at large the question of release.
4. Before the case could be heard substantively on 10th August 2001, the claimant was transferred to open conditions. On 11th September 2001 the case was heard before Mr Pannick QC. At that stage the issue was as follows. Counsel on behalf of the claimant contended that Section 32 (2) was not concerned with advice on suitability or otherwise of open conditions. It was concerned with the issue of relief. She contented that the Parole Board should, in this claimant's case, have focused in relation to Section 32 (2) on whether to recommend to the Home Secretary the release of the claimant on life licence and the Parole Board should not have focused on whether to recommend to the Home Secretary the suitability of the claimant for open conditions and only that issue.
5. On behalf of the Secretary of State, Mr Wilken pointed out that Section 32 (2) is drafted in very broad terms. He submitted that it was the duty of the Parole Board to advise the Secretary of State with regard to any matter referred to by him which was connected with the early release or recall of prisoners. The submission advanced by Mr Wilken was the one accepted by the court. The deputy judge said:

"It seems to me plain that the breadth of Section 32 (2) confers ample power on the Parole Board to give advice to the Secretary of State in relation to the suitability or otherwise of a mandatory life prisoner for open conditions. Such a matter is undoubtedly, in my judgment, connected with early release in that it is a factor that will enable the possibility of his early release to be the better considered."

6. A little later he said:

"The Secretary of State has no duty to seek the advice of the Parole Board, but, without a positive recommendation as to release from the Parole Board, the Secretary of State has no power to release a mandatory life prisoner on life licence.

Section 32, for present purposes, is addressing matters from the perspective of the Parole Board. It would, in my judgment, be very surprising if Section 32 did not empower (at least) the Parole Board to give advice on the issue of transfer to open conditions which is plainly closely connected to the question of the possible release on life licence in the future of a mandatory life prisoner."

7. On 11th November 2001 permission to appeal was granted by Lord Justice Latham to clarify the extent to which the Parole Board had considered the ultimate question of release. Subsequently, on 16th November the claimant failed to provide an unadulterated urine sample. On 4th February 2002 he failed a mandatory drugs test again. On 14th February 2002 he absconded.
8. In those circumstances, looking at the judicial review claim form as re-drafted, pursuant to the direction of Lord Justice Latham, one sees that the grounds of review, as set out in paragraph 26, are -

"(i) the failure to ensure that questions of release were considered was unlawful and/or unreasonable and in breach of Mr Hayes' legitimate expectations; (ii) the wrong statutory power was used."

9. In my judgement it would be improper now to give further consideration to the question of what was done in this case by the Parole Board, having regard to subsequent events, because those subsequent events have made the earlier determinations of the Parole Board entirely academic. In fact, it seems to me to be clear from the formal reference to the Parole Board on 21st March 2001 that the case was fully referred to the Parole Board in accordance with the statutory provisions and so - at any rate without the benefit of submissions from anyone appearing on behalf of the claimant - I, for my part, would have regarded this appeal as hopeless at the end of the day anyway.
10. For the reasons which I have indicated, namely the fact that he has absconded and made any prior decision of the Parole Board simply a matter of history, I would dismiss this appeal.
11. LORD JUSTICE MANTELL: I agree.
12. SIR SWINTON THOMAS: I also agree.
Order: Appeal dismissed. If legal aid is in place there be detailed assessment of costs with liberty to apply; if already discharged the appellant to pay the Secretary of State's costs of today.