Strand, London, WC2A 2LL
B e f o r e :
| Norman Girling
|- and -
| (1) Parole Board
(2) 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)
Mr S Kovats (instructed by Treasury Solicitor) for the Defendants
Crown Copyright ©
"[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 relief sought by the claimant
"3. You were convicted by a jury in 1984 of murder of your common-law wife and sentenced to life imprisonment, with the tariff set at 12 years. You have spent 20 years in prison and, therefore, are 8 years beyond tariff.
4. This conviction was preceded by a lengthy history of offending during which on several occasions you failed to comply with the terms of suspended sentences. This offending commenced at an early age and included two of a sexual nature and a further one of assault.
5. Previous panels held by the Parole Board have been concerned that your index offence was linked to alcohol abuse, pathological sexual jealousy, use of violence, problems with women and that you had not dealt with these risk areas. Since the last panel you have refused assessment for the R & R programme, the Sex Offender Treatment Programme and have not had any involvement with the CARAT team.
6. The Panel notes that your health has deteriorated over the past few years and read two recent reports commissioned by your legal representative giving some details of your illness. The first report was compiled by Dr. D Somekh, consultant forensic psychiatrist, and the second by Dr. A. Abdul-Cader, consultant haematologist. Although Dr Somekh asked the panel to consider release on compassionate grounds, your solicitor acknowledged that this was beyond the Board's remit. The panel considered that notwithstanding your current state of health, you still present a substantial risk to the community if you are released or transferred to open conditions.
7. Your outstanding risk factors have been identified as alcohol abuse, violence, relationships with women, anger, previous life style, and sexual attitudes and behaviour. In July 2001 a panel found little in reports to convince it that your risk level had been reduced to recommend release or a transfer to open conditions. From the latest reports this panel found no change to these risk levels and, therefore, the only new factor that remains to be considered is whether your poor state of health has reduced these risks to a level at which it would be manageable in the community or open conditions.
8. The panel was concerned as to the lack of any suitable release plan or realistic relapse prevention strategies, both of which are essential before release is possible. Additionally, the panel considered the lack of such a release plan to be indicative of the insufficient realism and insight into your offending behaviour.
9. The panel is concerned about the lack of progress since the last review, even accounting for the deterioration in your health. The panel would like to see some constructive work undertaken to address the outstanding risk areas and to develop a realistic and structured release plan."
"I find nothing irrational in the Board's decision. Furthermore, as your firm well knows, your request for the Board to now release your client is one that the Board has no power to deliver. Without a reference to the Board by the Secretary of State under section 28 of the Crime (Sentences) Act 1997, the Board is powerless to direct Mr Girling's release."
The legal proceedings and the issues which arise
Issue 1 Whether the decision of the Parole 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 Parole 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 Parole Board without first passing through the Home Secretary raise any questions as to the true independence of the Parole Board.
Functions of the Parole Board under s 28 of the Crime (Sentences) Act 1997
Release on licence
28. Duty to release certain life prisoners
(1A) This section applies to a life prisoner in respect of whom a minimum term order has been made; and any reference in this section to the relevant part of such a prisoner's sentence is a reference to the part of the sentence specified in the order.
(1B) But if a life prisoner is serving two or more life sentences
(a) this section does not apply to him unless a minimum term order has been made in respect of each of those sentences; and
(b) the provisions of subsections (5) to (8) below do not apply in relation to him until he has served the relevant part of each of them.
(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) where he is also serving a sentence of imprisonment or detention for a term, after he has served one-half of that sentence;
and in this subsection "previous reference" means a reference under subsection (6) above or section 32(4) below.
(8) In determining for the purpose of subsection (5) or (7) above whether a life prisoner to whom this section applies has served the relevant part of his sentence no account shall be taken of any time during which he was unlawfully at large within the meaning of section 49 of the Prison Act 1952.
(8A) In this section "minimum term order" means an order under
(a) subsection (2) of section 82A of the Powers of Criminal Courts (Sentencing) Act 2000 (determination of minimum term in respect of life sentence that is not fixed by law), or
(b) subsection (2) of section 269 of the Criminal Justice Act 2003 (determination of minimum term in respect of mandatory life sentence).
Submissions on issues 2(i) and 2(ii)
"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."
" In this case the power to order release lay with the Secretary of State, even though he may have been under some constraints of administrative law The ability of an applicant to challenge a refusal by the Secretary of State to follow his previous policy in the courts would not remedy the lack of power of decision in the Tribunal. Similarly, although both parties appear to agree that the Secretary of State, following entry into force of the Human Rights Act 1998, would not be able lawfully to depart from the Tribunal's recommendation, this does not alter the fact that the decision to release would be taken by a member of the executive and not by the Tribunal. This is not a matter of form but impinges on a fundamental principle of separation of powers and detracts from any necessary guarantee against the possibility of abuse."
EARLY RELEASE OF PRISONERS
32 The Parole Board
(1) The Parole Board shall be, by that name, a body corporate and as such shall(a) be constituted in accordance with this Part; and
(b) have the functions conferred by the Part in respect of long-term and short-term prisoners and by Chapter II of Part II of the Crime (Sentences) Act 1997 ("Chapter II") in respect of life prisoners within the meaning of that Chapter.
(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 or Chapter II 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 or Chapter II on consideration of all such evidence as may be adduced before it.
(5) Without prejudice to subsections (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 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.
(7) Schedule 5 to this Act shall have effect with respect to the Board.
"20. It is clear from the Strasbourg jurisprudence that a review date must itself be subject to review if the prisoner's progress warrants it. It is not immediately obvious why reconsideration of the review date is not as much a judicial function as the review itself. If so, we would respectfully question whether internal procedures by which the prisoner can request the Home Secretary to review the interval which has been set meet the standard set by the European Court of Human Rights. While we appreciate that the prisoner has the initiating role in the procedure, it seems to us that from that point on the review of the interval is entirely in the hands of the executive. The fact that on judicial review the court would retake the decision about the continuing reasonableness of the set interval may not be an answer to the want of a court (which the Parole Board is for these purposes) to take it in the first place."
(1) that it was unlawful for the Home Secretary to exercise the power to fix the date of the next review, because that infringed the claimant's right under article 5.4 to have the lawfulness of his detention decided speedily by a court, the appropriate body to fix the review date being the Parole Board; or
(2) alternatively, if it was lawful for the Home Secretary to exercise the power to fix the review date, then in the particular circumstances the way in which that power was exercised deprived the claimant of a speedy decision in breach of article 5.4.
"42 Finally, on the question of the test which the court should apply to the lawfulness of the review interval provided by the Secretary of State counsel are helpfully in agreement, both counsel agree that it is not appropriate for me to apply the Wednesbury test (Associated Provincial Picture Houses Limited v Wednesbury Coroporation  1KB 223), i.e. it is not right to say that the claim can only succeed by establishing that the Secretary of State's decision is outside the range of reasonable decision making.
43 The proper test by common consent is whether the court decides that the Secretary of State's decision succeeds or fails in providing a speedy review as required by Article 5(4) having regard to all the circumstances of the case giving due weight to the views of the Secretary of State, the Secretary of State being the person who through his servants or agents is in a good position to assess all the relevant circumstances.
A2 The claimant's challenge is to the lack of independence of the Parole Board. The claimant has expressed this through two matters: (a) the issuing of directions by the Secretary of State to the Parole Board in respect of the discharge of the latter's statutory judicial functions; and (b) the discretionary power of the Secretary of State to refer a lifer's case to the Parole Board upon tariff expiry and thereafter.
A3 The Secretary of State relies upon s 32(6) of the Criminal Justice Act 1991 for the purpose of the directions referred to at paragraph [A]2(a) above.
A4 If the Secretary of State is right in placing reliance on s 32(6) CJA 1991, the claimant seeks a declaration of incompatibility in respect of that statutory provision, for the reasons set out in his grounds and his supplementary skeleton argument.
A5 The claimant however contends, notwithstanding the wide wording of s 32(6) CJA 1991, that it applies only to cases referred under s 32(2) CJA 1991 (namely advice cases) and cases involving the early release of determinate sentence prisoners (caught by s 32(4) CJA 1991) where the Secretary of State had made directions for the exercise of the Parole Board's advisory functions and/or functions exercised under delegated powers.
A6 If the claimant is correct on this interpretation, there is no need for a declaration of incompatibility since there is no power in law for the Secretary of State to issue directions to the Parole Board in the discharge of judicial functions.
A7 In respect of paragraph [A]2(b) above, the claimant further seeks a declaration of incompatibility in respect of Section 28(7) of the Crime (Sentences) Act 1997 as a logical consequent step to his claim that Section 28(6)(a) is incompatible.
"The word "entitled" in article 5.4 connotes an enforceable right. If an act of the executive is required for a person to have access to a court, that person is not "entitled" to take proceedings to test the lawfulness of his detention unless the executive is under a legal duty to grant that access. The [Home Secretary] is under no such duty in respect of discretionary life prisoners in the circumstances I am considering: he has a discretionary power. In exercising that power, he follows a policy that he has formulated and adopted and that in theory he could modify or abrogate. That he has no intention of doing so, and would never do so, is beside the point. The word "entitled" in article 5(4) is not satisfied unless there is a legal right of access to a court that can determine the lawfulness of detention and direct the prisoner's release if his detention is not justified."
"If a health authority is unable, despite the exercise of all reasonable endeavours, to procure for a patient the level of care and treatment in the community that a tribunal considers to be a prerequisite to the discharge of the patient from hospital, I do not consider that the continued detention of the patient in hospital will violate the right to liberty conferred by article 5."
Analysis: issue 2(i)
Analysis: issue 2(ii)
Friday, 8th April 2005
MR JUSTICE WALKER: For the reasons given in my printed judgment I make orders as follows. First, I make a declaration that section 32(6) of the Criminal Justice Act 1991 should be construed so as not to apply to the judicial functions of the Parole Board. Second, in all other respects I dismiss this claim for judicial review. Third, I make no order as to costs. Fourth, the applications by the claimant and by the defendants for permission to appeal are refused. I am not satisfied that either party has a real prospect of success on any such appeal. While aspects of this case have involved important questions, I do not consider them so important as to constitute a compelling reason why the appeal should be heard.