QUEENS BENCH DIVISION
London, WC2A 2LL
B e f o r e :
| The Queen on the Application of MARTIN CLOUGH
|- and -
| SECRETARY OF STATE FOR THE HOME DEPARTMENT
Smith Bernal Wordwave Limited, 190 Fleet Street
London EC4A 2AG
Tel No: 020 7421 4040, Fax No: 020 7831 8838
Official Shorthand Writers to the Court)
Steven Kovats (instructed by Treasury Solicitor) for the Defendant
AS APPROVED BY THE COURT
Crown Copyright ©
Mr Justice Grigson:
i) his admission that he had stolen a coat from another resident of the hostel where he lived and
ii) the discovery of traces of burning in the drawers in his room.
"A review in two years would allow sufficient time to enable you to prepare for your release particularly, in the light of your institutionalisation, and to demonstrate that you can now be trusted not to abscond in the light of your previous history."
a) that he be transferred to open conditions shortly and
b) that his next review take place 9 months after his transfer.
In making their recommendations the Discretionary Lifer Panel said:
"In setting this time for review the Panel wishes to stress that in its view it is highly desirable for you [Mr. Clough] to be transferred to open conditions within a very short period of time."
i) that the Secretary of State had accepted the Panel's recommendation that he be transferred to open conditions and
ii) that the Secretary of State considered that there should be a period of 15 months in open conditions before the Panel next review his case.
i) when properly construed, the provisions of Section 28(7) Crime (Sentencing) Act 1997 do not allow the Home Secretary to choose when a discretionary life sentence prisoner should be able to apply to the Parole Board but merely provide a mechanism for referral.
ii) The Home Secretary is not entitled to delay referral beyond the date suggested by the Board; to give the executive this power is a breach of the common law rule as to the right of access to the Courts, and nothing in the statutory language gives this power to the Executive.
iii) This is reinforced by Art. 5(4) and either directly or by analogy, Art. 6 European Convention.
iv) If this is all wrong, the date chosen in this case is unreasonable.
The Statutory Framework:
(5) As soon as, in the case of a life prisoner to whom this section applies:
a) he has served the part of his sentence specified in the order or direction ("the relevant part") 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
and in this subsection "previous reference" means a reference under subsection (6) above or Section 32(4) below.
(1) There shall continue to be a body to be known as the Parole Board ("the Board") which shall discharge the functions conferred on it by this Part.
(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) The Board shall deal with cases as respects which it makes recommendations under this Part on consideration of-
(a) any documents given to it by the Secretary of State; and
(b) any other oral or written information obtained by it,
and if in any particular case the Board thinks it necessary to interview the person to whom the case relates before reaching a decision, the Board may authorise one of its members to interview him and shall consider the report of the interview made by that member.
(4) The Board shall deal with cases as respects which it gives directions under this Part on consideration of all such evidence as may be adduced before it.
(5) Without prejudice to subsection (3) and (4) above, the Secretary of State may make rules with respect to the proceedings of the Board, including provision authorising cases to be dealt with by a prescribed number of its members or requiring cases to be dealt with at prescribed times.
(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; 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.
(7) Schedule 5 to this Act shall have effect with respect to the Board.
"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 Claimant is a life prisoner who has served the relevant part of his sentence. The Parole Board [Discretionary Lifer Panel] has considered his case and has not ordered his release on licence. It follows:
a) he is lawfully detained. See R (Noorkoiv) v. Secretary of State for for the Home Department . 1. WLR p.3284 at p.3301 para 61
b) the Board is not satisfied that it is no longer necessary for the protection of the public.
Parliament has stated quite clearly that the role of the Parole Board is advisory. However the case of Thynne, Wilson and Gunnel v. U.K. (1991) 13 EHRR 666 decided that the question of release is for a judicial body not for the Secretary of State. The Secretary of State has accepted that proposition. Section 28(5) gives formal effect to that acceptance.
The Court considered Oldham's complaint that the two year delay before a Review hearing in November 1996 and December 1998 was unreasonable and in breach of his right under Art. 5(4). Oldham had completed all that had been required of him by the Parole Board Review in November 1996 by March 1997. His complaint was upheld.
"It is true that the question of whether periods comply with the requirement must – as with the reasonable time stipulation in Art 5(3) and 6(1) – be determined in the light of the circumstances of each case. It is therefore not for this Court to attempt to rule as to the maximum period which should automatically apply to this category of life prisoner as a whole. It notes that the system as applied in this case has a flexibility which must reflect the realities of the situation, namely that there are significant differences in the personal circumstance of the prisoners under review."
i) must be taken by a judicial body, the Parole Board.
ii) must be taken speedily.
iii) Where an automatic review of the lawfulness of detention has been instituted, the reviews must follow at 'regular intervals'.
By implication, the Court accepted that it was reasonable to have an 'automatic' review system.
"If it (Discretionary Lifer Panel) decides not to direct release, it frequently gives a recommendation as to the timing of the next review. That is only a recommendation and the decision whether to accept that recommendation is taken by the Secretary of State. If the prisoner seeks an early review, he can make representations to the Secretary of State whose decision can be challenged by judicial review. The Secretary of State, of his own motion, can direct an earlier review "
"It seems to me, from all the authorities to which I have referred, that the Common Law has clearly given special weight to the citizen's right of access to the Courts. It has been described as a constitutional right, though the cases do not explain what that means. In this whole argument, nothing to my mind has been shown to displace the proposition that the executive cannot in law abrogate the right of access to justice unless it is specifically so permitted by Parliament; and this is the meaning of the constitutional right."
"But I must explain, as I have indicated I would, what in my view the law requires by such a permission. A statute may give the permission expressly; in that case it would provide in terms that in defined circumstances the citizen may not enter the Court door."
1) Aerts was refused legal aid to pursue his case on appeal and
2) he was refused on the ground that he had no arguable grounds and
3) the body who decided 2) above was an administrative body not a judicial one, and
4) That as he could not appear in person before the Court of Cassation he was therefore denied a hearing in breach of Art 6(1).
"This 'right to a Court' of which the right to access is an aspect, may be relied on by anyone who considers on arguable grounds that an interference with by executive of his (civil) rights is unlawful.
"56. The applicant did have access to the High Court and then to the Court of Appeal only to be told his actions were barred by operation of law. To this extent, he thus had access to the remedies that existed within his domestic system.
"57. This of itself does not necessarily exhaust the requirements of Art 6(1). It must still be established that the degree of access afforded under the national legislation was sufficient to secure the individual's 'right to a court' having regard to the rule of law in a democratic society.
"58. Certainly the right of access to the Courts is not absolute but may be subject to limitation; these are permitted by implication since the right of access, 'by its very nature calls for regulation by the State, regulation which may vary in time and place according to the needs and resources of the community and of individuals.' In laying down such regulation, the contracting states enjoy a certain margin of appreciation. Whilst the final decision as to observance of the convention's requirements rest with the Court, it is no part of the Court's function to substitute for the assessment of the national authorities any other assessment of what might be the best policy in this field.
"59. Nonetheless, the limitations applied must not restrict or reduce the access left to the individual in such a way or to such an extent that the very essence of the right is impaired. Furthermore, a limitation will not be compatible with Art 6(1) if it does not pursue a legitimate aim and if there is not a reasonable relationship of proportionality between the means employed and the aim sought to be achieved.
a) Access to a court is an aspect of the 'right to court'.
b) An interference with access may be a breach of Art 6(1).
c) The degree of access must be sufficient to secure the individuals 'right to court'.
d). The right of access is not absolute but may be subject to limitations.
e). The extent of limitation may vary according to particular needs or requirements of the State but must not restrict or reduce the access itself to such an extent that the very essence of the right is impaired.
Newman J identified the issue at para 10.
"Thus, in light of the most recent developments in the law, the issue raised by this case is whether the Secretary of State has the power or capacity to delay such release as the Board may, at a future date, recommend by setting the period of time between reviews"
At para 11 he said:
"The Secretary of State's response to this question was in two parts. It was submitted that his decision in the claimant's case to extend the period of nine months to eighteen months was a matter of judgement which was within his discretion. Secondly that the exercise of judgement as to the timing of reviews was a matter which was, neither according to the Convention nor United Kingdom legislation, a function which had to be taken by the Board or any other Court like body. The decision, being based on the assessment made by the Board was administrative in character taken with a view to the proper working out and termination of the lawful detention of the claimant. Importantly, it was not disputed that the decision and the period for reviews was subject to the requirement of being taken "speedily" in accordance with Article 5(4) of the Convention. In my judgement where the Board has not recommended release it is difficult to see a rational basis for outlawing the judgement of the Secretary of State in determining when he should next be considered for release. Since he controls the prison service and prisoners lawfully detained within it, it seems to me he is a person who must participate in the process. That said, no factual basis for so concluding was at first available in this case apart from the legislation imposing duties and functions on the Home Secretary, which would have provided a basis for a general range of inferences to be drawn. In fairness the original grounds of challenge have altered.
"In an important respect his statement presents a factual basis for the contention that the Secretary of State is in a better position to determine the timing of reviews than the Board. The question of timing depends upon the decision maker having a detailed knowledge as to the current functioning of the prison estate. Together with knowledge and timing of coursework and other offence risk related work available and likely to be needed within the prison estate at any particular time. According to the evidence and submissions to the court these matters are almost exclusively so far as the detail is concerned, within the knowledge of the Lifer Unit in the Home Office and outside the knowledge of the Board."
"In my judgement the claimant's fundamental rights are sufficiently protected by the requirement to be derived from Article 5(4), that the lawfulness of his detention must be reviewed at reasonable intervals (see Lord Phillips MR MacNeil v HM Prison Discretionary Lifer CA Transcript 21st March 2001). There is no basis in domestic law for the conclusion that the Board must set the timing of reviews. There is no basis for concluding that the decision to require the claimant to be exposed to open conditions, for eighteen months is, in all the circumstances of his case, an infringement of the requirement that his reviews be at reasonable intervals."
With that paragraph I respectfully agree. The restrictions on access do not restrict or reduce access to such an extent that the very essence of the right is impaired.
"There was scope for him (the Secretary of State) to exercise a judgement which differed from the Board on the material considered by the Board and no other material, namely a judgement as to how the risk identified by the Board could be reduced by and within a further period of detention. Two decision makers having experience of prison conditions and prisoners could reasonably differ as to how long it was necessary to properly test and assess a prisoner."
"It is vital, however, to ensure that the prisoner has sufficient time to demonstrate his fitness for release on life licence before the issue is considered by the Parole Board."
"5. The Panel did not believe at this stage, that the risk is such that you can safely be released. The reports make it clear that there is still work to be done before you can be released into the community. In particular it is necessary for there to be a period when you can be tested and monitored in open conditions so as to ensure that you can cope with re-settlement into the community. There also needs to be sufficient time for a release plan to be put in place."
"6. In the circumstances, in order to give sufficient time for this to take place the Panel recommended a further review, 9 months from the date of transfer. In setting this time for review the Panel wishes to stress that in its view it is highly desirable for you to be transferred to open conditions within a very short period of time."
MR JUSTICE GRIGSON: The judgment of the court is that which I have handed down. Mr Gledhill, you are applying for permission to appeal. Mr Kovats, you cannot really object to that given that you are about to rush off to argue the point in front of Brookes LJ.
MR KOVATS: My Lord, that is, in fact, precisely why I do object. In my submission, the proper analysis of the position is this: the Court of Appeal is just about to hear argument on this point.
MR JUSTICE GRIGSON: Not the same argument as I understand it.
MR KOVATS: It is the same point, and the Court of Appeal will, in due course, give judgment on the point. In the Secretary of State's submission, either the Court of Appeal, because they will have your Lordship's judgment, will deal with the point and the argument together, in which case there is no need for Mr Clough to go to the Court of Appeal, or they will not. If they do not, that is the proper time for Mr Clough to make an application for permission to appeal. In other words, it would be premature for the Court of Appeal to be saddled with an appeal by Mr Clough when for all we know they will resolve both the point and the argument in the Spence appeal.
MR JUSTICE GRIGSON: If I give permission and the Court of Appeal decide the point, Mr Gledhill will not proceed with it -- that is the position. If they do not decide the point, he ought to have permission to appeal. I notice you persuaded Newman J not to grant permission.
MR KOVATS: I understand that. The disadvantage with granting permission now is that inevitably costs will be incurred because the timetable requires costs being heard at a fairly early stage in the process and those costs will be wasted if it turns out that the Court of Appeal have disposed of the point. If we do it my way round, there will be no unnecessary incurring of costs.
MR JUSTICE GRIGSON: How long have you got, Mr Gledhill, as it were, to apply for permission?
MR GLEDHILL: My Lord, it is 14 days, but this court has the power to amend that timetable. So your Lordship could quite properly grant permission to appeal on the basis that no steps are to be taken until after the judgment in Spence is handed down, at which point I would then --
MR JUSTICE GRIGSON: You decide one way or the other.
MR GLEDHILL: Yes, and before I could take any positive steps, I have to persuade the Legal Services Commission to fund it. So the mere grant of permission to appeal is a reflection from this court that there is a point worth arguing, but it does not mean that the matter will go any further.
MR JUSTICE GRIGSON: I think that is the appropriate course.
MR KOVATS: My Lord, on that basis, if you grant permission with an immediate stay then we would have no objection.
MR JUSTICE GRIGSON: Will you agree the order between you. It seems to be straightforward. I will grant permission to appeal and stay the procedure until such time as the Court of Appeal in the case of Spence v the Home Office have reached their decision.
MR GLEDHILL: Thank you, my Lord. The only other matter would be my application for legal aid detailed assessment.
MR JUSTICE GRIGSON: Yes. Just so you know, maybe you do know, there is a note from the Treasury Solicitor saying that Mr Clough has absconded.
MR GLEDHILL: That is my information as well unfortunately.
MR JUSTICE GRIGSON: Right, nothing else?
MR GLEDHILL: My Lord, no.
MR KOVATS: My Lord, no.
MR JUSTICE GRIGSON: Thank you very much indeed.