COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
The Hon Mr Justice Paul Walker
Strand, London, WC2A 2LL
B e f o r e :
SIR IGOR JUDGE PRESIDENT OF THE QUEEN'S BENCH DIVISION
LORD JUSTICE CARNWATH
| NORMAN GIRLING
|- and -
|SECRETARY OF STATE FOR THE HOME DEPARTMENT
THE PAROLE BOARD
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Michael Fordham QC and Gemma White (instructed by the Treasury Solicitor) for the
Jeremy Johnson (instructed by the Attorney General) as Advocate to the Court
The deceased claimant was not represented
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Sir Anthony Clarke MR:
This is the judgment of the court.
"I grant leave limited to the question whether the Parole Board should be directed to reconsider its decision of 8.10.04. The key question appears to me to be whether that decision is vitiated by the failure alleged to take account of the C's medical condition as it impacts on risk."
"Issue 1: whether the decision of the Board is vitiated by failure to take account of the claimant's medical condition as it impacts on risk.
Issue 2(i): whether the linking of risk with a release plan is lawful when applying the test of risk to life and limb.
Issue 2(ii): whether the existence of directions by the Home Secretary to the Board in the discharge of its functions under section 28 of the Crime (Sentences) Act 1997 and the inability of the claimant to have access to the Board without first passing through the Home Secretary raise any questions of the true independence of the Board."
"(6) The Secretary of State may also give to the Board directions as to the matters to be taken into account by it in discharging any functions under this Part or Chapter II and in giving any such directions the Secretary of State shall in particular have regard to –
(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."
Section 239 of the Criminal Justice Act 2003 ("the CJA 2003") replaced the relevant provisions of section 32 of the CJA 1991 with what for present purposes are identical provisions, which variously came into force on 7 March and 4 April 2005.
"5.1 Everyone has the right to liberty and security of person. No one shall be deprived of his liberty save in the following cases and in accordance with a procedure prescribed by law:
(a) the lawful detention of a person after conviction by a competent court;
5.4 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."
The statutory framework
"(5) As soon as –
(a) a life prisoner to whom this section applies has served the relevant part of his sentence; and(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.
(7) A life prisoner to whom this section applies may require the Secretary of State to refer his case to the Parole Board at any time –
(a) after he has served the relevant part of his sentence; and(b) where there has been a previous reference of his case to the Board, after the end of the period of two years beginning with the disposal of that reference; and(c) ….
and in this subsection "previous reference" means a reference under subsection (6) above or section 32(4) below."
When his case came before the Board in 2004 Mr Girling had already served "the relevant part" of his sentence and the Secretary of State had referred the matter to the Board. The question for the Board under section 28(6)(b) was therefore whether it was satisfied that it was no longer necessary for the protection of the public that the prisoner should be confined.
"It is the judgment of the board as an independent quasi-judicial review body, not the judgment of the Secretary of State as an arm of the executive, which matters. He is a party to the review, and of course his evidence and submissions must be received and weighed. But the board must make its own mind up, and give its own reasons. It would seriously undermine the integrity of the system if the board were to defer to the Secretary of State's view unless it were shown to be wrong. It is itself the primary decision-maker"
Although Sir Thomas Bingham there described the Board as a quasi-judicial body, it is now correctly accepted as a court. In R (Giles) v Parole Board  1 AC 1 at  Lord Bingham said that the Board, "whose duty it is to consider release at the halfway stage of the sentence, is accepted as a judicial body". Notwithstanding Ms Krause's submissions to the contrary, we see no reason to question the proposition that, at any rate when discharging its duty under section 28(6) of the 1997 Act to decide whether to direct the release of a prisoner in the position of Mr Girling, the Board is exercising judicial functions as a judicial body and as a court within the meaning of article 5.4 of the Convention.
"In these circumstances s 32(6) can be given ample effect without encroaching upon the common law principles underlying the rule of law by reading it as confined to those cases where the Board is not exercising functions of a judicial nature."
He added, by way of conclusion, at :
"The relevant principles are so deep-rooted that I have no doubt that s 32(6) of the 1991 Act should be read as inapplicable to the Parole Board's judicial functions, and in particular to its functions under s 28 of the 1997 Act."
1. The Secretary of State may refer to, and seek advice from, the Parole Board on any matters relating to the early release and recall to custody of those prisoners sentenced to imprisonment for life, custody for life, detention during Her Majesty's pleasure, and detention for life.
2. The Parole Board is empowered to direct the release, or re-release following recall to custody, of those life sentence prisoners (lifers) who have served the period of imprisonment necessary to satisfy the requirements of retribution and deterrence.
3. The Parole Board cannot direct the release of any lifer unless the following conditions are met: -
(a) the Secretary of State has referred the case to the Parole Board for consideration of the prisoner's suitability for release;
(b) the Parole Board is satisfied that it is no longer necessary for the protection of the public that the prisoner should be confined ."
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.
5. Before directing a lifer's release under supervision on life licence, the Parole Board must consider:-
(a) all information before it, including any written or oral evidence obtained by the Board;
(b) each case on its merits, without discrimination on any grounds;
(c) whether the release of the lifer is consistent with the general requirements and objectives of supervision in the community, namely:
- protecting the public by ensuring that their safety would not be placed unacceptably at risk;
- securing the lifer's successful re-integration into the community.
6. In assessing the level of risk to life and limb presented by a lifer, the Parole Board shall consider the following information, where relevant and where available, before directing the lifer's release, recognising that the weight and relevance attached to particular information may vary according to the circumstances of each case:
(a) the lifer's background, including the nature, circumstances and pattern of any previous offending;
(b) the nature and circumstances of the index offence, including any information provided in relation to its impact on the victim or victim's family;
(c) the trial judge's sentencing comments or report to the Secretary of State, and any probation, medical, or other relevant reports or material prepared for the court;
(d) whether the lifer has made positive and successful efforts to address the attitudes and behavioural problems which led to the commission of the index offence;
(e) the nature of any offences against prison discipline committed by the lifer;
(f) the lifer's attitude and behaviour to other prisoners and staff;
(g) the category of security in which the lifer is held and any reasons or reports provided by the Prison Service for such categorisation, particularly in relation to those lifers held in Category A conditions of security;
(h) the lifer's awareness of the impact of the index offence, particularly in relation to the victim or victim's family, and the extent of any demonstrable insight into his/her attitudes and behavioural problems and whether he/she has taken steps to reduce risk through the achievement of life sentence plan targets;
(i) any medical, psychiatric or psychological considerations (particularly if there is a history of mental instability);
(j) the lifer's response when placed in positions of trust, including any absconds, escapes or past breaches of temporary release or life licence conditions and licence revocations;
(k) any indication of predicted risk as determined by a validated actuarial risk predictor model, or any other structured assessments of the lifer's risk and treatment needs;
(l) whether the lifer is likely to comply with the conditions attached to his or her life licence and the requirements of supervision, including any additional non-standard conditions;
(m) any risk to other persons, including the victim, their family and friends."
7. Before directing release on life licence, the Parole Board shall also consider:
(a) the lifer's relations with probation staff (in particular the supervising probation officer), and other outside support such as family and friends;
(b) the content of the resettlement plan and the suitability of the release address;
(c) the attitude of the local community in cases where it may have a detrimental effect upon compliance;
(d) representations on behalf of the victim or victim's relatives in relation to licence conditions."
"The law has always made a clear distinction between the question of whether something is a material consideration and the weight which it should be given. The former is a question of law and the latter is a question of planning judgment, which is entirely a matter for the planning authority. Provided that the planning authority has regard to material considerations, it is at liberty (provided that it does not lapse into Wednesbury irrationality) to give them whatever weight the planning authority thinks fit or no weight at all. The fact that the law regards something as a material consideration therefore involves no view about the part if any which it should play in the decision-making process."
The second statement is at page 784 B-C:
"Little weight or no weight
"Finally I should notice a subsidiary argument of Mr. Vandermeer. He submitted that a material consideration must be given some weight, even if it was very little. It was therefore wrong for the Secretary of State, if he did accept that the offer was a material consideration, to say that he would give it no weight at all. I think that a distinction between very little weight and no weight at all is a piece of scholasticism which would do the law no credit. If the planning authority ignores a material consideration because it has forgotten about it, or because it wrongly thinks that the law or departmental policy (as in Safeway Properties Ltd. v. Secretary of State for the Environment  JPL 966) precludes it from taking it into account, then it has failed to have regard to a material consideration. But if the decision to give that consideration no weight based on rational planning grounds, then the planning authority is entitled to ignore it."
Mr Girling's appeal