CO/5829/2003 
Neutral Citation Number: [2004] EWHC 784 (Admin)
IN THE HIGH COURT OF JUSTICE 
QUEEN'S BENCH DIVISION  
THE ADMINISTRATIVE COURT 
Royal Courts of Justice 
Strand
London WC2 

Thursday, 25th March 2004
 
B E F O R E:

MR JUSTICE SULLIVAN 

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THE QUEEN ON THE APPLICATION OF SEAN HENRY
(CLAIMANT)

-v- 

1. THE PAROLE BOARD
 
2. SECRETARY OF STATE FOR THE HOME DEPARTMENT 
(DEFENDANTS) 

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MR K GLEDHILL (instructed by A. Stokoe) appeared on behalf of the CLAIMANT
MR P NICHOLLS (instructed by the Treasury Solicitor) appeared on behalf of the FIRST DEFENDANT
MR A CHOUDHURY (instructed by the Treasury Solicitor) appeared on behalf of the SECOND DEFENDANT 

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J U D G M E N T 
Thursday, 25th March 2004. 
MR JUSTICE SULLIVAN:  
Background. 
1.	This is an application for judicial review of a decision by the Discretionary Lifer Panel of the Parole Board ("the Board") not to direct the release of the claimant.  The Panel considered the claimant's case on 29th July 2003, and the reasons for its decision are set out in a decision letter dated 4th August 2003.
2.	The claimant was born in September 1971.  On 2nd May 1990, he and two co-defendants were found guilty of the murder of Andrew West, who was kicked and beaten to death on 5th June 1989.  All three defendants were convicted of murder, but the claimant "stood out as the most vicious and callous of the attackers".  Since the claimant was 17-years-old at the time of the offence, he was sentenced to be detained at Her Majesty's Pleasure.  The claimant's tariff was set at nine years, and that tariff having expired, he was released on licence in May 1999.  He was recalled to prison in December 1999 because he had failed to keep a number of appointments with his supervising Probation Officer, and his jacket had been found in a car that had been involved in a robbery.  No charges were brought against him in respect of that matter, but his recall to prison was nevertheless upheld by the Board.
3.	In March 2002 he was moved to open conditions, and the Board considered his suitability for release at a hearing on 24th July 2002.  In a decision letter dated 26th July 2002, the Board decided not to direct the claimant's release.  
4.	In paragraph 6 and 7 of the decision letter, the Board said:
"6. ... notwithstanding that a number of the risk factors present have now been reduced by the work you have done, in particular, your initial attitude to the use of weapons and violence, your attitude to authority and the use of unlawful drugs, report writers are of the view that a number of aspects remain yet to be finally addressed before the risk of reoffending you would present if released again now, can be said to have reached a sufficiently low level.  
"7.  There is a need to demonstrate a sufficient degree of trust that previous problems have been overcome, in particular a consciousness of the need to retain closer ties with the probation service after release, and to become more circumspect in the choice of acquaintances and to establish a satisfactory resettlement plan when release is imminent."
5.	An early review was recommended.  In October 2002, the claimant was transferred to Ford Open Prison.  On 12th February 2003, he was dismissed from his paid employment at a bakery because his employer was concerned about his attendance record.  The following day, when the Community Service Worker visited the bakery, he was told that the claimant had been bragging that he was supplying drugs inside the prison.  On 14th February the claimant's cell was searched, and he was found to be in possession of a wrap containing heroin; silver foil which had been used for illicit drug taking, concealed in a magazine; and a quantity of urine secured inside a latex glove finger.  
6.	The claimant was returned to closed conditions and was still in closed conditions when the panel considered his case on 29th July 2003.  At the hearing, the claimant was represented by his solicitor, Mr Stokoe.  Among the papers considered by the panel were reports from the claimant's Lifer Manager, Personal Officer, Seconded Probation Officer, External Probation Officer, Activity Supervisor, Chaplain, Education Manager and Security Manager.  None of the report writers recommended that the claimant should be released, or even that he should be returned to open conditions.  By way of example, the Chaplain, who had recommended that the claimant should be released in a progress report dated 3rd February 2003, said this, in an addendum to her report dated 18th March 2003: 
"Since I wrote this report Sean has been transferred to HMP Lewes.  He was found in possession of heroin, and of urine, which was intended to adulterate any sample which he may have been required to produce for the purposes of a mandatory drug test.  This raises serious concerns that in the future he might possibly resort to violent behaviour in order to obtain heroin, and it would not be right to release him from prison while this is a realistic risk.  I therefore change my recommendation and suggest that, although his successful progress before the current relapse should be held to his credit, Sean should demonstrate that he has successfully addressed his drug use before he is again considered for release."
The Decision Letter. 
7.	In paragraph 1 of its decision letter dated August 2003, the Panel said:
"The Crime (Sentences) Act 1997 requires the Parole Board to direct your release only if it is satisfied that it is no longer necessary for the protection of the public that you be confined.  The panel of the Board who considered your case on 29 July 2003 was not so satisfied and has therefore not directed your release at this stage.  This decision is binding upon the Secretary of State."
8.	Having summarised the background history set out above, the Panel said this:
"7.  None of the reports recommend open or release on licence.  The panel was invited by Mr Stokoe to consider that your involvement with Class A drugs did not pose a threat to life or limb.  The panel did not agree because:
"(i) the index offence was linked to your involvement with violent criminal associates; 
"(ii) the Board had, only recently, expressed concern about your choice of acquaintances and observed that you needed to demonstrate that you had overcome other problems such as your use of drugs and your attitude to authority; 
"(iii) despite this, you were prepared to involve yourself with someone involved in drug supply.  You had also shown yourself willing to commit a serious crime - the possession of Class A drugs.  
"8.  The panel could not therefore be satisfied that on release you would avoid criminal associates, the risk of offending, and given your history, the risk of violence.  The risk to life and limb remains too high for release.  
"9.  The panel also concluded that the risk you pose to the public is currently too high for open conditions.  
"10.  Mr Stokoe argued that the burden fell on the Secretary of State to demonstrate that your risk was such as to warrant continued detention.  The panel took the view that in this case the onus is on you to show that you are prepared to respect authority, obey the law and demonstrate that you are safe to release."
The Statutory Test. 
9.	There is no dispute that, in paragraph 1 of the decision letter, the Panel accurately summarised the statutory test which is contained in section 28 of the 1997 Act.  Subsection (5) of section 28 provides that as soon as a life prisoner such as the claimant has served the tariff part of his sentence, he shall be released on licence by the Secretary of State if the Board directs release.  The test to be applied by the Board in deciding whether to direct release is contained in subsection (6), which provides (so far as material):
"6.  The Parole Board shall not give a direction ... unless - 
" ... (b) the Board is satisfied that it is no longer necessary for the protection of the public that the prisoner should be confined."
The Challenge to the Decision Letter.
10.	The sole ground of challenge to the Board's decision is that it erred in placing the onus or "burden of proof" on the claimant, so that he had to satisfy the Board that the risk was low enough to allow him to be released; rather than placing the burden on the Secretary of State and requiring him to satisfy the Board that the risk was sufficiently high to justify continued detention.  The parties are agreed that the concept of a "burden of proof" is inappropriate where one is dealing with risk evaluation: see per Keene LJ at paragraph 42 of R (Sim) v The Parole Board and Home Secretary [2004] Prison Law Reports 44, [2003] EWCA Civ 1845.  Keene LJ's dicta were applied by Kennedy LJ in R (Brooks) v The Parole Board 10th February 2004 [2004] EWCA Civ 80.
11.	In paragraph 28, Kennedy LJ said that the Board: 
" ... is concerned with the assessment of risk, a more than minimal risk of further grave offences being committed in the future ... ultimately, the burden of proof has no real part to play."
12.	In assessing risk, the Board is reaching a judgment about an issue that is inherently incapable of proof.  The difference between the position contended for by the claimant and that contended for by the defendants is rather more akin to a difference of emphasis as to how an inherently uncertain issue should be resolved.  That said, there is, at least in principle, a clear distinction between a presumption that a prisoner shall continue to be detained unless he satisfies the Board that he no longer presents a danger to the public, and a presumption that he shall be released unless the Secretary of State satisfies the Board that the prisoner continues to present a danger to the public: see paragraphs 44 to 51 of Sim.  
13.	It is common ground that in practice, this distinction will be of no consequence in the great majority of cases.  The Board will simply be asking itself, what is the extent of the risk?  However, the distinction is capable of affecting the outcome in a minority of borderline cases where matters are so finely balanced that the Board is unable to decide whether the risk on release would be too high or sufficiently low.  
14.	On behalf of the claimant, Mr Gledhill accepted that the natural meaning of subsection 28(6)(b) is that the prisoner must satisfy the Board that the risk is low enough to allow him to be released.  The Secretary of State does not have to satisfy the Board that the risk is sufficiently high to justify continued detention.  See R v Parole Board ex parte Lodomez (1994) 26 BMLR 162 per Leggatt LJ at page 174.  He submitted, however, that although this was the position in domestic law, Article 5 of the European Convention of Human Rights required that the "burden of proof" should be reversed so that the Secretary of State would have to satisfy the Board of the need for continued detention.  Section 3 of the Human Rights Act 1998 enabled section 28(6)(b) of the 1997 Act to be read and given effect so that it was compatible with this interpretation of Article 5: see Sim at paragraph 51.  
The Defendants' Response. 
15.	The defendants submitted that: (1) this was not a borderline case, so the issue of principle raised on behalf of the claimant was of no practical consequence on the facts of his case; and (2) in any event, in requiring the claimant to satisfy the Board that the risk was low enough to warrant his release, section 28(6)(b) was not incompatible with Article 5.
Conclusions.
16.	I agree with the defendants' first submission.  By no stretch of the imagination could this be described as a borderline case.  Mr Gledhill's submissions were based on the second sentence of paragraph 10 of the decision letter in which the Panel, in response to Mr Stokoe's argument that "the burden fell on the Secretary of State to demonstrate that your risk was such as to warrant continued detention", said that it: 
" ... took the view that in this case the onus is on you to show that you are prepared to respect authority, obey the law and demonstrate that you are safe to release."  (My emphasis.) 
17.	This sentence should not be construed in isolation as a freestanding proposition of law.  The decision letter has to be read as a whole and in a common-sense rather than a legalistic manner.  The Board's reasons are not to be construed as though they were contained in an enactment of general application.  The reasoning has to be considered in the context of all the material, written and oral, that was placed before the Panel.  In the present case, as the Panel noted in paragraph 7 of the decision letter, none of the report writers had recommended transfer to open conditions or release on licence.  
18.	While the Panel would have been entitled to disagree with all of the reports and to conclude that this was a borderline case, it is plain from paragraphs 7 to 9 of the decision letter that it did not do so.  In paragraph 7, the Panel explained why it did not agree with Mr Stokoe's submission that the claimant's involvement with Class A drugs did not pose a threat to life or limb.  Having set out those reasons, the Panel concluded in paragraphs 8 and 9 that "the risk to life and limb remains too high for release"; and "the risk you pose to the public is too high for open conditions". 
19.	Against this background, the Panel was not embarking, in paragraph 10, upon an abstract discussion of the burden of proof under section 28.  It was merely saying that in this case, where the claimant, having been trusted with open conditions, had broken that trust by becoming involved with Class A drugs, it was now up to him to demonstrate that he was safe to release.  This was not a finely balanced case where the Board was saying: "Your behaviour in prison has been satisfactory, the report writers disagree in their recommendations as to whether you should be released, we are unable to decide whether the risk to life and limb remains too high or is now sufficiently low to justify release, but since the onus is upon you to demonstrate that you are safe to release, we do not direct release."
20.	Regardless of whether there was any burden of proof or onus on the claimant as a matter of law, the Board was entitled to conclude that, since the claimant's conduct whilst in open conditions had demonstrated that he was not safe to release, he would have to demonstrate that his attitudes towards respect for authority and obeying the law had changed before it would be safe to release him.  The Board was simply responding to the particular facts of the claimant's case.  It was not expressing any principle of general application.  In effect the claimant, by reason of his conduct, had placed the onus upon himself to demonstrate that he was safe to release.
21.	Mr Gledhill submitted that the Board's erroneous approach to the issue of principle had "infected" all of the report writers.  All of the reports were based on the premise that it was for the claimant to show that it was appropriate for him to be released, not that the Secretary of State should have to demonstrate why the claimant should continue to be detained.
22.	I accept that the report writers were all considering whether, from the point of view of their particular experience and expertise, the test set out in paragraph (b) of subsection 28(6) was met in this case.  But none of the reports suggest that this is a borderline case where, on the assumption that Mr Gledhill is right in his submission as to who should bear the onus, "putting the boot on the wrong foot" might have made a difference to the recommendation.  There was, perhaps unsurprisingly given the events in February 2003, a unanimous expression of view that the claimant was not even suitable for open conditions.  
23.	Mr Gledhill criticised the language used by the Board in paragraph 8 of the decision letter: 
"The panel could not therefore be satisfied that on release you would avoid criminal associates, the risk of offending, and given your history, the risk of violence.  The Panel had failed to reach a positive conclusion that on release, the claimant would not avoid criminal associates, et cetera."  
24.	In the context of this decision letter, which was dealing with a prisoner who had only a few months previously shown himself "willing to commit a serious crime - the possession of Class A drugs", that criticism of the decision letter is mere semantics.  The Panel's conclusion would inevitably have been the same whether it had been expressed in positive terms or as a double negative.  
25.	As the Seconded Probation Officer noted in her report:
"Mr Henry acknowledges his own failure and is sufficiently realistic to be aware that his release is unlikely although he says he will ask his solicitor to 'go for it'.  However, he must also be aware that in terms of risk to the community, he cannot be considered positively." 
26.	In accordance with his instructions, Mr Stokoe did indeed "go for it".  But the case was hopeless, and shifting the onus on to the Secretary of State, even if that had been the correct approach as a matter of law, could not have made any difference to the outcome.
27.	It follows that the issue of compatibility with Article 5 does not arise on the facts of this case.  Notwithstanding the detailed submissions that were directed to this issue by the parties, I do not think it appropriate to decide an issue of compatibility with the Convention upon a hypothetical basis.  Out of deference to the parties' submissions, I indicate my provisional view that section 28(6)(b) is not incompatible with Article 5.  In summary, my reasons for reaching that provisional conclusion are as follows:
28.	(1) There is no domestic authority which supports the proposition that the test in section 28(6)(b) is incompatible with Article 5.  
29.	(2) The only convention authority which is directly the point is to the contrary effect.  In Comerford v United Kingdom (application number 29193/95), the European Commission on Human Rights on 9th April 1997 considered a complaint made by a prisoner who, like the claimant, was serving a sentence of detention at Her Majesty's Pleasure.  He made the same complaint as the claimant makes in the present case: 
"The applicant complains that the test applied by the Parole Board and the Secretary of State in considering whether the applicant should be released is too onerous and such as to constitute a violation of paragraph 1(a) of Article 5 (Art. 5-1-a) of the Convention which provides 
"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."
30.	The Commission's response to that complaint was in the following terms:
"The Commission recalls that an indeterminate term of detention for a convicted young person, which may be as long as that person's life, can only be justified by considerations based on the need to protect the public ... 
"The Commission further recalls that before any term of re-detention complies with paragraph 1(a) of Article 5 (Art. 5-1-a) there must be a sufficient causal link between the subsequent detention and the original conviction, that is that the decision to re-detain, or a subsequent decision not to release, must be based on grounds consistent with the objectives of the sentencing court ... 
"The Commission notes that the criterion for determining whether any period of re-detention is justified is that of dangerousness, meaning an unacceptable risk of physical danger to the life or limb of the public ... the Commission considers this criterion to be manifestly consistent with the objectives of a sentence of detention at Her Majesty's pleasure, namely considerations of the need to protect the public.  
"Whilst a test which in terms requires the Parole Board to satisfy itself that the applicant no longer represents a danger to the life or limb of the public gives rise to a different presumption from a test which in terms requires the Parole Board to release the applicant unless it is established that he continues to represent a danger, namely in the former case that the applicant is to be considered to represent a risk unless the contrary is proved, the Commission does not consider that such a test may be said to be based on grounds inconsistent with the objectives of the sentencing court so as to constitute a violation of Article 5-paragraph 1(a) ... of the Convention.  
"It follows that this part of the application is manifestly ill-founded ... "
31.	 (3) The claimant relies upon the later decision of the European Court of Human Rights in Reid v United Kingdom (2003) 37 EHRR 9.  The applicant in that case had been convicted of culpable homicide.  It was found he was suffering from mental deficiency, and he was therefore detained in a mental hospital.  Since 1980, the sole basis for his continued detention had been a diagnosis of anti-social personality or psychopathic disorder.  The court concluded that in so far as the burden of proof was placed on the claimant to establish that his continued detention did not satisfy the conditions of lawfulness, that was not compatible with Article 5(4) of the Convention.  
32.	It was submitted on behalf of the claimant that just as the basis for detaining Mr Reid as an untreatable psychopath was his dangerousness if released, so the basis for continuing to detain life sentence prisoners after their tariffs have expired is their continued dangerousness.  
33.	(4) Reid is the high watermark of the claimant's case, but it is clearly distinguishable.  The court was considering the lawfulness of the continued detention of a mental patient under paragraph (e) of Article 5(1): 
"(e) the lawful detention of persons for the prevention of the spreading of infectious diseases, of persons of unsound mind, alcoholics or drug addicts or vagrants ... "
34.	Life sentence prisoners are detained under paragraph (a) of Article 5(1): 
"(a) the lawful detention of a person after conviction by a competent court."
35.	Persons of unsound mind are detained precisely because they are of unsound mind.  It is therefore not surprising that the State should have to demonstrate that they continue to be of unsound mind.  
36.	(5) By contrast, prisoners serving life sentences are detained because they have been convicted.  It is therefore necessary to consider the objectives of the sentencing court when it sentences a defendant to detention during Her Majesty's Pleasure, or to life imprisonment on conviction of murder.
37.	(6) In R v Lichniak [2003] 1 AC 903 (2002 UKHL 47), the House of Lords had to consider whether two life sentences for murder were arbitrary, excessive and disproportionate contrary to Articles 3 and 5 of the Convention.  Three complaints were made.  The second was the claimant's complaint in the present case, that at the end of the tariff term, it was for the prisoner to show that it was safe to release him, the onus being upon him: see paragraph 12 of the speech of Lord Bingham.  Having pointed out in paragraph 15 that:  
" ... the mandatory life sentence is imposed only on those who have been proved to have taken a life or lives, as adults, with the intention of doing so or of causing serious physical injury and whose responsibility for their conduct was not found to be diminished ... the discussion inevitably takes place with reference to a person who is shown to have resorted to violence once, with fatal consequences to another."
38.	Lord Bingham said this in paragraph 16:
"I doubt whether there is in truth a burden on the prisoner to persuade the Parole Board that it is safe to recommend release, since this is an administrative process requiring the board to consider all the available material and form a judgment.  There is, inevitably, a balance to be struck between the interest of the individual and the interest of society, and I do not think it objectionable, in the case of someone who has once taken life with the intent necessary for murder, to prefer the latter in case of doubt.  In any event, this is a defensible process: material going to show that a prisoner is not dangerous will be before the board, and if the board is thought to show an exaggerated degree of caution it can be challenged."
39.	 (7) Comerford and Lichniak were both considered by the Court of Appeal in Sim.  The Court of Appeal distinguished the position of a prisoner who had been sentenced to a fixed term of imprisonment followed by an extended licence period from that of a prisoner who had been sentenced to life imprisonment for murder.  In paragraphs 46 and 47 of his judgment, Keene LJ said this:
"46.  I observe that the European Commission on Human Rights in Comerford asked itself whether the test applied by the Parole Board was inconsistent with the objectives of the sentencing court.  In that case it was dealing with an offender who had been convicted of murder and given what was in effect a sentence of life imprisonment.  The House of Lords in Lichniak was dealing with a similar situation.  One can see that in those circumstances, where the sentencing court has imposed an indeterminate sentence of imprisonment, its objectives may well be seen as wishing to ensure that a person who has committed such a serious crime is not to be released unless and until it can be shown that he no longer presents a danger to the public.  But as Elias J pointed out, the objective of an extended sentence under s85 is very different:  
'In such cases the object of the sentence is not to subject the prisoner to detention for the extended licence period, and indeed frequently when such sentences are imposed there would be no power at that stage to detain the prisoner in custody for that period.  The aim of the sentence is to manage the risk in the community rather than in prison, albeit that it is recognised that it may be necessary to resort to further detention if that aim fails.  The offender is not on licence as an alternative to prison; rather he is on licence as an alternative to liberty ... '
"47.  Once the prison sentence imposed by the court has been served, one cannot say that the sentencing court had it in mind that the offender should be detained unless it was shown that he was no longer a danger.  The presumption implicit in the sentence passed is that during the extension period the offender need not be in custody.  Consequently, I cannot accept that the approach in Comerford and Lichniak has the result contended for by the appellants."
40.	(8) In the light of these authorities, I can see no inconsistency with Article 5 in the sentencing court saying to a defendant who has been convicted of murder: "You have taken a life with the intention of doing so or of causing serious physical injury.  You will therefore go to prison for X years, and thereafter be kept in prison until such time as the Parole Board is satisfied that it is safe to release you".  
41.	In summarising my provisional response to the claimant's submissions, I fear that I have not done justice to the numerous authorities that were cited by the parties during the course of their arguments.  However, a more detailed analysis of the law would not be appropriate given the very clear conclusion that I have reached on the facts of this case.  
42.	For these reasons, this application must be dismissed.
43.	MR NICHOLLS:  My Lord, I appear on behalf of the Parole Board.
44.	MR JUSTICE SULLIVAN:  Mr Nicholls.
45.	MR NICHOLLS:  My Lord, yes.
46.	MR JUSTICE SULLIVAN:  Any applications, observations?
47.	MR NICHOLLS:  No.
48.	MR JUSTICE SULLIVAN:  Mr Choudhury?
49.	MR CHOUDHURY:  No, my Lord.
50.	MR JUSTICE SULLIVAN:  What about you, Mr Gledhill?
51.	MR GLEDHILL:  My Lord, my only application, in the light of the fact your Lordship has made it plain that the interesting bit of the decision was obiter, is an application for a legal aid detailed assessment.
52.	MR JUSTICE SULLIVAN:  Sorry about that, Mr Gledhill, to deprive you of a very interesting point that you may have been able to run further.  I am sure there will be another case with suitable facts coming along.  Anyway, legal services funding assessment.  Certainly.
53.	MR GLEDHILL:  I am very much obliged.
54.	MR JUSTICE SULLIVAN:  Mr Gledhill, thank you very much for your submissions.  Mr Nicholls and Mr Choudhury, if you could convey my thanks to the council involved, and the clients.  It was very interesting.  I am sorry I did not think it appropriate to do them full justice.
55.	Thank you.