England and Wales High Court (Administrative Court) Decisions

IN THE HIGH COURT OF JUSTICE
ADMINISTRATION COURT

		Royal Courts of Justice Strand, London, WC2A 2LL
		8th April 2005

WALKER J:

1. Since 1965 it has been mandatory for all persons convicted of murder to be sentenced to imprisonment for life. However it has long been the case that the Home Secretary, as a member of the executive, has released such prisoners before expiry of their sentence where this has been thought appropriate. In 1983 procedures (subsequently refined) were introduced to separate consideration of retribution and deterrence from consideration of risk to the public. On the former advice was sought from the judiciary and on the latter advice was sought from the Parole Board.
2. On 25 September 1984 the claimant was sentenced to life imprisonment for the murder of his female partner in a drunken rage. Thereafter a minimum period before he could be considered for parole was set at 12 years. His status in the penal system was that of a "mandatory lifer". The minimum period was commonly known as the "tariff," and from late 1996 onwards he was a "post-tariff mandatory lifer."
3. The Parole Board is now charged with determining (among other things) whether such a prisoner should be given parole by being released on licence. In the case of the claimant a decision of the Parole Board dated 8 October 2004 refused his release. In this application for judicial review the claimant says that when deciding not to order his release the Parole Board failed to take proper account of medical evidence, and improperly had regard to the lack of a release plan.
4. The claimant also relies on Article 5 of the European Convention on Human Rights. Article 5 states, so far as material:

"[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."

5. It has recently been established that in circumstances applicable to the claimant article 5.4 of the Convention applies: as the prisoner is post-tariff, detention is no longer necessary in order to punish. There may from time to time be changes in the facts relevant to those matters which are thought to warrant continued detention. Accordingly there must be an entitlement to take proceedings by which the lawfulness of detention will be decided speedily by a court and release ordered if the detention is not lawful. The claimant says that the Parole Board fails to meet the criteria of a "court" under article 5.4, being insufficiently independent of the Home Secretary.

The relief sought by the claimant

6. The Parole Board is the first defendant. Against this defendant the claimant seeks an order requiring that it reconsider its decision of 8 October 2004 forthwith.
7. The second defendant is the Home Secretary. Against this defendant four declarations are sought. First, the claimant seeks a declaration that directions given by the Home Secretary to the Parole Board contravene article 5.4. These directions identify matters which are to be taken into account by the Parole Board in discharging its functions concerning post-tariff lifers. They include an instruction that before directing release on life licence, the Parole Board shall consider the content of the resettlement plan and the suitability of the release address. The second, third and fourth declarations sought are declarations of incompatibility under s 4 of the Human Rights Act 1998. The second and (by amendment) the fourth assert that article 5.4 is contravened by s 28(6)(a) and s 28(7) of the Crime (Sentences) Act 1997 respectively. Under these provisions the Parole Board can only direct the release of relevant prisoners on licence if the Secretary of State has referred the prisoner's case to the Board, and such prisoners have only limited entitlements to require a reference. The third declaration sought (also by amendment) returns to the directions given by the Home Secretary to the Parole Board. If, contrary to the claimant's primary submission, s 32(6) of the Criminal Justice Act 1991 permits the Home Secretary to give directions applicable to the claimant's case, then the claimant seeks a declaration that this contravenes article 5.4.

The facts

8. In June 2000, while serving his sentence, the claimant was diagnosed with acute leukaemia. On 5 October 2004 the claimant had a Parole Board review. The Parole Board had power to direct that he be released, and to recommend licence conditions to apply on release, if satisfied that it was no longer necessary for the protection of the public that he be confined. A letter from the Parole Board dated 8 October 2004 recorded that it was not so satisfied and therefore had not directed his release. Reasons were given which included the following:

"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."

9. Paragraph 6 quoted above referred to the report of Dr Somekh. This is a lengthy document. For present purposes all I need say about it and the report of Dr Abdul-Calder is that neither of these doctors stated that the claimant was so ill that he was incapable of causing physical harm to others.
10. The Parole Board's decision led on 10 December 2004 to a letter before action sent by the claimant's solicitors asserting a failure to give proper consideration to the claimant's seriously deteriorating health, and seeking that the Parole Board should direct the claimant's release as a matter of extreme urgency taking into account his bad medical prognosis.
11. On 16 December 2004 the Parole Board replied to the claimant's solicitors refuting criticisms made in the letter of 10 December. One such criticism concerned risk of harm in the event that claimant were released, and was that the Parole Board had linked such risk to the lack of a release plan. In reply the letter of 16 December observed that "[i]n the vast majority of cases the arrangements for supervising a life sentence prisoner, including the nature of the release address, are an integral part of the decision to release or not." The letter of 16 December 2004 added that "the Home Secretary's Directions to the Board, issued in August 2004, require the Board to take such factors into account when making its decision." After dealing with other criticisms, the letter concluded:

"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

12. On 31 December 2004 the claimant began these proceedings. Following consideration of the matter on paper, on 7 January 2005 the court directed an expedited hearing, and granted permission "limited to the question whether the Parole Board should be directed to reconsider its decision of 8.10.04". At a hearing before me on 1 February 2005 I concluded that arguable points arose in addition to those for which permission had been given on 7 January, and accordingly I granted permission on all aspects of the claim. The hearing resumed on 4 February. The issues identified on behalf of the claimant can be summarised as follows:

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

13. Both sides agreed that the Parole Board's functions in relation to the claimant could be treated as if they had arisen under s 28 of Chapter II of Part II of the Crime (Sentences) Act 1997, as amended by the Criminal Justice Act 2003. As so amended Part II of the 1997 Act includes the following:

Chapter II

Life Sentences

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).

14. The tariff set for the claimant was not a "minimum term order" within subsections (1A) and (8A) of s 28. However it was common ground that under the transitional provisions of the 2003 Act he could be treated as if his tariff of 12 years were such an order.

Issue 1

15. Miss Krause for the claimant submitted that the Parole Board failed to attach any weight to the claimant's serious medical condition when assessing risk, alternatively it failed to attach sufficient weight to the Claimant's debilitating medical condition when assessing his risk to life and limb, therefore failing to perform the requisite balancing exercise. In written submissions she said that had the Parole Board taken the claimant's medical condition into account, it could not have come to the conclusion that he still presented a risk to life and limb. It attached great weight to the risk evidenced by the index offence (static risk) and the claimant's behaviour early in his prison sentence, but had failed to see how such pre-existing risk had become an academic issue in light of the claimant's physical degenerative condition: "the claimant is physically incapable of causing any physical harm."
16. On the latter point, however, Miss Krause accepted orally that there was no medical evidence before the Parole Board which could help them either way on whether the claimant posed a risk to the public: neither Doctor Somekh nor the psychiatrist member of the Board could give a medical opinion. In these circumstances it was submitted that the Parole Board should have adjourned in order to obtain a proper medical opinion. Miss Krause was unable to say whether the claimant's representative suggested adjourning in order to obtain such an opinion.
17. I find against the claimant on issue 1. The Parole Board's letter of 8 October 2004 identified the outstanding risk factors as including "alcohol abuse, violence, relationships with women, anger … and sexual attitudes and behaviour." If it was to be suggested that the claimant's medical condition eliminated any one or more of these risk factors it was for the claimant to put forward evidence to that effect. The evidence before the Board did not establish that these risk factors had been removed or reduced to the point where the claimant posed no risk to life or limb. The claimant and his advisers had known long before October 2004 of the Board's concern about these risk factors. The Board was entitled to expect that if there were any evidence showing that these risk factors no longer applied it would have been obtained in good time for the hearing. Nothing in the circumstances gave rise to any duty on the part of the Board to adjourn in order to see if any such evidence could be found.

Submissions on issues 2(i) and 2(ii)

18. Opening the argument on issues 2(i) and 2(ii) Miss Krause said that these issues concerned the separation of powers, and it was indicative of the defendants' position that they were both represented by the same solicitors and counsel at the present hearing.
19. The first aspect of issue 2(i) was the suggested linking by the Parole Board of risk and the lack of a release plan. The case of R v Home Secretary ex parte Benson (Divisional Court, 9.11.88, unreported) identified as the sole test for release the question whether there was a risk to life and limb. That this was indeed the test was accepted by Mr Kovats for the defendants. Miss Krause said that this meant that the Parole Board must look at the level of risk posed irrespective of whether the lifer had a release plan. If the Parole Board is satisfied that the lifer's risk is sufficiently low to be released, it must make the release direction. If there is no satisfactory release plan, the correct course for the Parole Board to follow is to make the release direction conditional upon a satisfactory release plan being presented.
20. In R v Parole Board ex parte Robinson (Divisional Court, 29.7.99, unreported) a man found guilty of manslaughter had been sentenced to life imprisonment. As this is not a mandatory sentence he was a "discretionary lifer". A panel of the Parole Board chaired by Alliott J heard an application for release and concluded that there was "no evidence of significant risk to lie or limb" and that such risk as did exist ("a risk of committing minor sexual offences under the influence of alcohol indulged as a result of stress") "should be susceptible to management in a structured release plan not necessarily involving hostel accommodation and preferably within range of your work placement." Alliott J retired from the Parole Board shortly after this decision. A second panel, chaired by His Honour Judge Cotton, was convened for the formulation of an appropriate structured release plan. That panel revisited the question of risk and on essentially the same evidence as that before the first panel reached an opposite conclusion, namely that if the applicant "were to be released without the support and supervision of the Probation Service, you would present a more than minimal risk of committing sexual offences involving a danger to life and limb." The question for the court (Simon Brown LJ and Newman J) was whether the second panel were entitled to address this question afresh. The court held that they were not. Following the decision of the European Court of Human Rights in Thynne, Wilson and Gunnel [1991] 13 EHRR 666, the Parole Board's decision in cases of discretionary lifers (having previously only been advisory) had been made determinative. The first Panel's decision was not preliminary or provisional: rather it was final and conclusive. In particular, that panel's conclusion as to risk was not dependent upon a successful structured release plan being devised. The first panel had concluded that the "risk of committing minor sexual offences" was a risk not itself sufficient to have justified continued detention. The court's view was that the first panel had been wrong in thinking that it could not actually direct release until a release plan was in place. An argument that risk assessment was so fundamental to the exercise of power under Section 28 that a different perception of risk by a second panel entitled the later panel to over-ride the earlier panel was rejected. There was room for two views and each panel's conclusion was rational and tenable, but the question was whether the second panel was entitled to re-visit the issue. If not, then necessarily its conclusions upon that issue were immaterial. A further argument that s 12(1) of the Interpretation Act 1978 entitled the panel to revisit the matter was also rejected. The first panel decided a question which vitally affected the applicant's fundamental rights. It was doing so, moreover, as an independent statutory body whose functions were designed to satisfy the requirements of article 5 of the Convention. Justice to discretionary life prisoners in the post tariff period required that once a prisoner succeeded in the face of opposition in satisfying a panel he could safely be released, that decision must be regarded as final and conclusive, subject only to the Secretary of State demonstrating that it was fundamentally flawed or pointing to a supervening material change of circumstances. Once a panel had decided that a prisoner could safely be released irrespective of whether a particular form of release plan is feasible, then the Prison Service and the Probation Service must faithfully accept that determination and do their best to achieve its successful implementation.
21. Plainly Robinson is authority that the Parole Board can reach a conclusion that there is no significant risk even without there being a release plan. Whilst Miss Krause sought to derive more than this from the Robinson decision, she acknowledged that the decision was based on the Parole Board having made a conclusive determination on the first occasion. She accepted that there might be some cases in which the Parole Board could say under Section 28(6)(b), "without seeing a release plan we cannot be satisfied." Taking that approach however would lead to delays prolonging unnecessarily the detention of the prisoner - there would always be residual concerns which would need to be dealt with by a release plan.
22. Miss Krause then turned to issue 2(ii), the relationship between the Home Secretary and the Parole Board. She began with the question whether the Home Secretary could lawfully give directions to the Parole Board when it was acting judicially, and submitted that the legal principles had been correctly identified in a letter of 1 April 1993 sent by the Prison Service to "Governors of all Lifer Establishments." This letter had been sent after the Criminal Justice Act 1991 had altered relevant statutory provisions so as to comply with the European Court of Human Rights decision in Thynne. Prior to 1 April 1993, directions given by the Home Secretary to the Parole Board on the release, transfer to open conditions, and recall of life sentence prisoners had applied to all lifers. In Thynne the European Court had been considering the case of discretionary lifers whose tariff had expired. In the light of that decision the Criminal Justice Act 1991 made the Parole Board's view determinative. The letter of 1 April 1993 was written in order to set out directions for mandatory lifers and for those discretionary lifers whose tariff had not expired. This was made clear in the penultimate paragraph, which went on to explain: "You will, of course, know that in the case of discretionary lifers whose tariff has expired, the Home Secretary plays no part in their release. In these circumstances, it is not appropriate for him to give the Parole Board directions in relation to tariff-expired discretionaries."
23. Following the decision in Thynne subsequent cases in the European Court of Human Rights widened the circumstances where decisions of the Parole Board were to be determinative. In Singh v United Kingdom (1996) 22 EHRR 1, [1996] EHRLR 331 the court was concerned with those detained at Her Majesty's pleasure. At that time, such prisoners were categorised as "mandatory lifers". The European Court concluded that once the tariff for such persons had expired, they were in the same position as discretionary lifers. This led to the Crime (Sentences) Act of 1997 giving effect to the Singh decision by treating such persons as discretionary lifers falling within s 28 of the Act, while mandatory lifers were dealt with under the provisions of s 29. In Stafford v United Kingdom (2002) 35 EHRR 32 the European Court of Human Rights had held that mandatory lifers were to be dealt with in the same way as discretionary lifers. Applying this decision, the House of Lords concluded in R (Anderson) v Secretary of State for the Home Department [2003] 1 AC 837 that s 29 of the Crime (Sentences) Act 1997 was incompatible with the Convention. Accordingly the Criminal Justice Act 2003 had repealed s 29 of the 1997 Act.
24. What ought to have happened, said Miss Krause, was that applying the principle set out in the letter of 1 April 1993, the Home Secretary ought to have recognised that he played no part in the release of any life prisoner whose tariff had expired, and that in these circumstances it was not appropriate for him to give the Parole Board directions in relation to any such prisoner. Far from recognising this, the Home Secretary's directions of August 2004 applied to all such prisoners.
25. At this point it is convenient to set out relevant passages in the directions:

"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."

26. The crucial element, said Miss Krause, was independence. In Benjamin v United Kingdom (2003) 36 EHRR 1 the European Court of Human Rights was concerned with patients detained under the Mental Health Act 1983. It held that there was a violation of Article 5.4 where the power to release lay with the Home Secretary, even though his practice was to follow the recommendation of the Mental Health Review Tribunal which independently undertook the review of the applicant's continued detention. The United Kingdom argued that this practice meant that the Tribunal's lack of power to order release "was a matter of form not substance." Paragraph 36 of the judgment rejected this argument:

" … 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."

27. In paragraph 33 of the judgment it was said that the "court" referred to in article 5.4 did not necessarily have to be a court of law of the classic kind integrated within the judicial machinery of the country. The use of this word denoted bodies which exhibited the necessary judicial procedures and safeguards appropriate to the kind of deprivation of liberty in question, including most importantly independence of the executive and of the parties. At paragraph 34 the court, although dealing with a mental health case, cited the Singh decision.
28. In oral argument Miss Krause clarified the basis on which issue 2 would warrant an order requiring the Parole Board to reconsider its decision of 8 October 2004 forthwith. First, such an order would flow from success by the claimant on issue 2(i). Second, such an order would flow from a finding that the directions were invalid because they contravened article 5.4. Third, such an order would flow from a finding that the statutory provisions limiting referrals to the Parole Board contravened article 5.4. I pointed out that on this third argument a declaration of incompatibility would not lead to an order requiring the Parole Board to reconsider the matter, for until amendment the statute would remain in force despite any declaration of incompatibility.
29. At this point Mr Kovats for the defendants intervened to observe that the same problem arose on the second argument, for there was statutory authority for the Home Secretary's directions in s 32(6) of the Criminal Justice Act 1991. For convenience I set out here the provisions of s 32 of that Act:

PART II

EARLY RELEASE OF PRISONERS

Preliminary

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.

30. Miss Krause responded that on its true construction s 32(6) did not apply to the present case. However, if that were wrong, she would seek to amend and ask for a declaration of incompatibility in relation to s 32(6).
31. The argument then turned to the alleged incompatibility of s 28(6)(a) and s 28(7) of the 1997 Act with the Convention, and two recent admissibility decisions of the European Court of Human Rights: Blackstock v United Kingdom (Application No. 59512/00) and Spence v United Kingdom (Application No. 1190/04), decided by the Court on 27 May 2004 and 30 November 2004 respectively. The Court observed in the former case that article 5.4 required that the lawfulness of detention had to be decided by an independent tribunal. In the latter it observed that review of detention must be conducted by a "court-like" body. There was an implied requirement under Article 5.4 not only that competent courts must reach their decisions "speedily" but also that, where an automatic review of the lawfulness of detention has been instituted, their decisions must follow "at reasonable intervals." In both cases, however, the Court held that article 5.4 did not contain any requirement for "the court" to have the power to set the timing of subsequent reviews of detention. In Spence the Court noted that reasonableness is to be determined in the light of circumstances of each case, and that the Court has therefore refrained from attempting to rule as to the maximum period of time between reviews. In a case where the Parole Board had recommended a review within a year the Commission found that a period of almost two years was not justified. By contrast a 24-month period for a prisoner who had been recently transferred to category C conditions and with whom ongoing work towards release was in progress was found in one case not to show a failure to apply standards of reasonable expedition. Mr Spence had demonstrated a pattern of behaviour linked with alcohol which continued to give rise to serious concern; after his transfer to open prison aspects of his conduct requiring further work and close monitoring were identified. The domestic courts had found that the authorities had not applied a blanket policy of 2 years but had addressed the individual circumstances of the case. The European Court of Human Rights was satisfied that the question of review and progress towards release had been approached with flexibility and due regard to the applicant's particular problems and potential for progress, and accordingly there was no breach of article 5.4.
32. Prior to the decisions of the European Court of Human Rights in Blackstock and Spence, the Court of Appeal in R (Murray) v Parole Board [2003] EWCA Civ 1561 at paragraph 20 said this:

"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."

33. Miss Krause commented that it was difficult to know the origin of the suggestion that there were internal procedures by which the prisoner could request the Home Secretary to review the interval. In Oldham v United Kingdom (2000) 31 EHRR 813 at paragraph 36 the European Court had recorded that while the discretionary lifers panel could recommend earlier review and the Home Secretary could direct an earlier date, there was no possibility for an applicant himself to apply for a review within the 2 year period.
34. Miss Krause said that on this aspect her arguments were not about timing as such. They focused on the prohibition on access to the Parole Board other than through the Home Secretary. It was submitted that this prohibition was of itself a breach of article 5.4 and further showed a lack of independence on the part of the Board. She accepted that the points made in the present case in that regard and on independence generally could have been taken in the cases about timing. Nevertheless they were not taken, and she was not aware of any European Court or domestic case on the question whether the Parole Board has the independence stressed in Benjamin.
35. Miss Krause referred to the most recent English case on timing, R (Day) v Secretary of State for the Home Department [2004] EWHC 1742 (Admin). In that case a mandatory lifer sought judicial review on alternative grounds:

(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.

36. Gibbs J rejected ground 1, but on ground 2 concluded that in the case before him the decision had not provided for speedy determination of the lawfulness of the claimant's detention. For this purpose he set out the relevant test at paragraphs 42 and 43 of his judgment:

"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 [1948] 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.

37. Miss Krause submitted that Gibbs J had been wrong, when rejecting ground 1, to hold that the availability of judicial review meant that any restriction on access to the review process resulting from the statutory scheme did not restrict or reduce access to such an extent that the very essence of the right of review was impaired. She commented that seeking judicial review can take too long – one has to go through the executive then to the administrative court and then back to the Home Secretary in order to get in front of the article 5.4 Court, the Parole Board, and six months may be required from the Home Secretary to the Parole Board.
38. After the short adjournment Miss Krause put forward proposed amendments to the claim form, including additional grounds for relief. In order to differentiate them from the original grounds, I shall prefix each with a capital A. These were as follows:

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.

39. Mr Kovats did not object to this amendment and I granted permission for it. Miss Krause confirmed that the matters set out at A2 (a) and (b) were the only grounds on which the claimant asserted lack of independence in these proceedings.
40. Miss Krause said that on lack of access to a court she relied on R (D) v Secretary of State for the Home Department [2003] 1 WLR 1315. That case concerned a discretionary lifer who was the subject of a restriction direction under Section 49 of the Mental Health Act 1983. Under that Act a mental health review tribunal could notify the Home Secretary whether in its opinion the patient was entitled to be discharged and if the patient was entitled to be conditionally discharged, could recommend under s 74(1)(b) of the Act that in the event of the patient not being discharged the patient should continue to be detained in hospital. However in these circumstances the tribunal did not have power to order the patient's discharge. It had been held in R v Secretary of State for the Home Department ex p H [1995] QB 43 that prisoners detained under the Mental Health Act 1983 do not have the benefit of s 34(5) of the Criminal Justice Act 1991, which would otherwise have entitled a tariff-expired discretionary lifer to require the Home Secretary to refer his case to the Parole Board. However, it was the Home Secretary's policy to refer to the Board cases of all restricted patients who remained in hospital following a tribunal recommendation under Section 74(1)(b) of the 1983 Act. Stanley Burnton J made a declaration that, in the class of case in question, the absence of any power in s 74 of the Mental Health Act 1983 or any other provision enabling a "court", for the purposes of article 5 of the Convention, to order the release of a prisoner was incompatible with the right to have the lawfulness of detention decided speedily by a court under Article 5.4.
41. Having noted the European Court of Human Rights' decision in Benjamin that article 5.4 requires the "court" to have the legal power to direct the release of a prisoner, Stanley Burnton J said at paragraph 24 of his judgment:

"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."

42. Stanley Burnton J held that it was not possible to interpret the relevant legislation so as to avoid incompatibility with Article 5.4, and accordingly he made a declaration of incompatibility. Miss Krause relied on this case as showing that both timing and substance of the referral are linked. She submitted that the Parole Board could easily screen applications, and that there was no need for the Secretary of State to have a role in this.
43. On issue 2(i) Mr Kovats for the defendants relied on the decisions in the Court of Appeal and House of Lords in R (H) v Secretary of State for the Home Department [2003] QB 320, [2004] 2 AC 253. That case concerned patients detained under mental health legislation, where the Tribunal considered that the appropriate course was to direct discharge subject to specified conditions, but that release should be deferred in order to enable their implementation. If the conditions were not met the patient would remain in hospital. This was held to involve no breach of Article 5.1(e) of the Convention. (In that particular case however, the delay in complying with conditions was a violation of Article 5.4.) The Court of Appeal at paragraph 86 of its judgment had identified the same test as for the release of prisoners: "life or limb". The last sentence of paragraph 86 recognised that danger to life or limb may depend upon whether a controlled regime, including supervision and psychiatric treatment, would be available to the patient in the community (paragraph 86). In the House of Lords Lord Bingham of Cornhill cited with approval (see paragraph 28) paragraphs 32 to 36 of the judgment of Lord Phillips of Worth Matravers MR in R (K) v Camden and Islington Health Authority [2002] QB 198, including the conclusion at paragraph 34:

"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."

44. Mr Kovats submitted that there was a valid analogy between the régime for those detained in mental health hospitals and that for those detained in prison. There was no reason of logic or policy why release should be viewed in isolation of what would happen, and what would happen is set out in the release plan. The case of Robinson could be distinguished, because in that case the first panel had found no risk to life or limb regardless of any release plan.
45. As to issue 2(ii) Mr Kovats observed that far from suggesting that the Parole Board was not independent, the cases had assumed that it was a court within Article 5.4. He cited paragraph 20 of Murray and paragraph 20 of Day. He was not aware of any case where the power to give a direction was challenged (as opposed to complaints about the application of a direction). It could be seen on examination that the directions were general and were not directed to any specific case. He accepted that direction 4 indicated what the outcome should be on a general basis but no other directions went that far. They simply assisted the Parole Board to give a structured approach to consideration of the case before it. The ratio of both Benjamin and D was that the power to direct release did not lie with a court.
46. Mr Kovats said that the claimant had not identified any particular direction allegedly compromising the judicial independence of the Parole Board apart from direction 7(b). As to that direction, "resettlement plan" and "release plan" were the same thing. It was sensible to require the Parole Board to consider whether a release plan might meet their concerns if any. Direction 7(b) would not prevent the first Tribunal in Robinson from doing what it did, which was to adjourn the case so that an appropriate structured release plan could be formulated with appropriate conditions in addition to the standard ones. Indeed the first panel, said Mr Kovats, could have complied with direction 7(b) by saying that they had regard to a release plan, albeit one with no content.
47. Parliament had left the power to give directions in place. In any event the letter of 1993 had been superseded. Mr Kovats likened the directions to the Civil Procedure Rules. It would be for the Home Secretary to change direction 4 if the courts changed the test. There was no express obligation on the Parole Board to comply with a direction. Any implicit obligation might be overridden by human rights considerations. The directions actually given imposed no exclusion limiting the matters to be taken into account by the Parole Board. When assessing whether a power of the kind found in Section 32(6) compromises independence, the court looks at what actually happens, not what might theoretically happen. He submitted that s 32(6) had a legitimate purpose. There was no reason why the Home Secretary should not be involved with identifying matters for consideration just as much as with the timing of referrals. Further the Home Secretary was politically accountable – if things went wrong, it was the Home Secretary who would be criticised.
48. Mr Kovats concluded by saying that following the Criminal Justice Act 2003 article 5.4 did not apply to lifers prior to the expiry of tariff, nor to determinate prisoners in certain circumstances, nor to compassionate release. Section 32(5) of the 1991 Act permitted the Secretary of State to 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. As that could be monitored by judicial review, similarly s 32(6) could be so monitored. The claimant's argument proved too much. If a mere power in the Home Secretary to give directions disabled the Parole Board from being a court then all prisoners whose cases had been dealt with by the Parole Board on the assumption that it was a court had had their rights infringed - even those who were released.
49. Miss Krause in reply on issue 2(i) said that under domestic law a patient can receive an absolute discharge from a Mental Health Review Tribunal. This differed from the position as regards release of post tariff lifers. As to issue 2(ii) the directions themselves assumed there was an obligation to comply: Direction 5 used the word "must", directions 6 and 7 the word "shall". The Parole Board themselves had interpreted the directions as mandatory in their letter of 16 December 2004. If there were a dispute as to what the law required – for example on the release plan – the directions fettered the Parole Board's discretion. There was the potential for a direction to be issued saying, for example, that the Board should pay particular attention to a prisoner's use of cannabis. Miss Krause contrasted s 32(5) with s 32(6) – the former did not go to the substance of the decision making power. The court should not limit itself to simply what happened in practice. She referred to paragraph 36 of the Benjamin decision. This observed that where issues arose as to whether certain measures were "in accordance with the law" under Article 8 of the Convention, the existence of administrative practices may have a bearing on the conditions of lawfulness of measures. Under Article 5.4 however, the plain wording of the provision referred to the decision making power of the reviewing body, and it presupposed the existence of a procedure in conformity with its provisions without the necessity to institute separate legal proceeding in order to bring it about.
50. When this judgment was in course of preparation counsel drew my attention to three additional cases. These were R (MH) v Secretary of State for the Department of Health [2004] EWCA Civ 1609, R v Parole Board ex parte Watson [1996] 1 WLR 906 and R (Al-Hasan) v Secretary of State for the Home Department [2005] UKHL 13. I have considered these cases, but I do not find them of assistance on the specific questions which I must decide.

Analysis: issue 2(i)

51. I take as the first part of issue 2(i) the question whether, leaving out of account entirely the Home Secretary's directions, the Parole Board was legally entitled to adopt the approach to a release plan set out in paragraph 8 of its letter of 8 October 2004. The first sentence of this paragraph included the observation that a suitable release plan, among other things, was essential before release was possible.
52. The context for that observation was that previous panels held by the Parole Board had been concerned that the index offence was linked to alcohol abuse, sexual jealousy, use of violence, and problems with women. Those panels had noted that the claimant had failed to deal with these risk areas. That failure had continued since the last panel. In particular, the claimant had refused assessment for two relevant programmes and had not had any involvement with the appropriate team.
53. I agree with Miss Krause that Robinson shows that there may be cases where a release plan is not a pre-condition to a decision in the claimant's favour. However I do not agree with her submission that in this case the Parole Board adopted an approach inconsistent with Robinson. In context the first sentence of paragraph 8 simply observes that in relation to this particular claimant both a suitable release plan and realistic relapse prevention strategies were essential before his release was possible. In the light of the risk factors identified by the Parole Board, and the claimant's failure to deal with them, in my view this observation was not merely reasonable: it was plainly right. I do not read the Parole Board's letter of 8 October 2004 as saying that in every case a suitable release plan is essential.
54. Even if the Parole Board had mistakenly believed that in every case a suitable release plan is a pre-requisite to release I would not have held its decision in this case to be invalid. What was said in paragraph 8 was not put forward by the Parole Board as the sole, or even the principal, reason for its decision. Paragraphs 5, 6 and 7 of the letter of 8 October 2004 contain findings to the effect that the claimant continued to refuse to deal with risk areas, that there had been no change to previous risk levels other than the claimant's poor state of health, and that notwithstanding his current state of health he would still present a substantial risk to the community if he were to be released or transferred to open conditions. These findings, as is seems to me, go hand in hand with an inevitable conclusion on the facts of this case that a suitable release plan would be essential before this claimant could be considered no longer to pose a substantial risk to life or limb. Apart from issue 1, which I have resolved against the claimant, there was no challenge to these findings, nor could there have been. How, in these circumstances, could the Parole Board's decision have been affected by any mistaken belief that in every case a suitable release plan is a pre-requisite to release? It seems to me that any such mistaken belief would not have been causative in any sense of the decision not to release, for there would simply have been no room for it to come into play.
55. Thus I find against the claimant on the first part of issue 2(i). This brings me to the remainder of issue 2(i). Miss Krause argued that the Parole Board linked the lack of a release plan with risk to life and limb because in direction 7(b) the Home Secretary told it that in every case it must do so. As direction 7(b) was invalid – either because of what it said or because the whole of the directions were invalid for reasons unconnected with the terms of direction 7(b) - it followed that the Parole Board had acted unlawfully.
56. I shall consider the alleged general invalidity of the directions under issue 2(ii). So far as direction 7(b) is concerned, it requires the Parole Board to consider the content of the resettlement plan and the suitability of the release address (my emphasis). I do not regard this as inconsistent with Robinson. Direction 7(b) does not say that there must in every case be a resettlement plan and a release address. I read this direction as saying that where there is either a resettlement plan, or a resettlement address, or both, then the Parole Board must consider them before directing release on licence. When read in this way direction 7(b) involves no error of law.
57. No part of the directions other than direction 7(b) is said by the claimant to have involved any misinterpretation of the law concerning lack of a release plan. In the claimant's case there is strong evidence that the Parole Board did not regard direction 7(b) as laying down that in every case a suitable release plan is a pre-requisite to release. The Board's letter of 16 December 2004 said: "In the vast majority of cases, the arrangements for supervising a life sentence prisoner including the nature of the release address are an integral part of the decision to release or not. Indeed the [directions] require the Board to take such factors into account when making its decision." The words I have italicised make it clear that the Parole Board did not regard itself as bound by a universal rule. Accordingly I conclude on issue 2(i) as a whole that the approach taken by the Parole Board to the linking of risk with a release plan was lawful.
58. Moreover it seems to me that in this case any invalidity of direction 7(b), or the directions as a whole, would not have played a part in the Parole Board's inevitable conclusion on the facts of this case that a suitable release plan would be essential before this claimant could be considered no longer to pose a substantial risk to life or limb. On the first part of issue 2(i) I concluded that any error of law would not have been causative, and should therefore not lead to invalidity of the Parole Board's decision. On the remainder of issue 2(i) it equally seems to me that the Parole Board's decision not to release the claimant was not influenced by anything in the directions. Accordingly even if direction 7(b) – or the whole of the directions – were invalid, this would not lead me to hold that the Parole Board's decision was unlawful because it linked risk with the absence of a release plan.

Analysis: issue 2(ii)

59. Following the decisions of the European Court of Human Rights in Stafford and the House of Lords in Anderson it is common ground that the Convention requires that the lawfulness of the claimant's continued detention be the subject of examination by a court satisfying the requirements of article 5.4. It is also common ground that one such requirement is independence of the executive and of the parties.
60. The body which in England and Wales is said to constitute such a court is the Parole Board. The claimant gives two reasons for asserting that the Parole Board does not have the independence required by article 5.4, and that accordingly questions arise under the Human Rights Act 1998 as to whether his detention has been the subject of the examination required by the Convention. The first reason is that the Parole Board acts, or is required to act, in accordance with directions of the Home Secretary as to the matters to be taken into account by it in discharging its functions. The second reason is the inability of the claimant to have access to the Parole Board without first passing through the Home Secretary.
61. It may seem surprising that two parties required to be independent of each other have appeared by the same solicitors and counsel. They are, however, entitled to do this if both are satisfied that they are in agreement on the issues which arise. I proceed on the footing that the Home Secretary and the Parole Board share a common stance on the legal principles advanced by Mr Kovats.
62. I begin with the claimant's second reason for challenging the independence of the Parole Board. It is well established that article 5.4 does not require a court of law of the classic kind. It is equally well established that article 5.4 requires that the "court" must be independent and must reach its decision speedily, and where there is an automatic review of the lawfulness of detention it implies that decisions must follow at "reasonable intervals". Under our domestic law, s 28(6) of the 1997 Act makes the Home Secretary a necessary "gateway" to reach the Parole Board, and s 28(7) imposes an obligation to open the gate in certain circumstances. Do these provisions lead to the conclusion the Board lacks the independence required under article 5.4?
63. The key to answering this question is found in the European Court of Human Rights decisions in Blackstock and Spence. In each of those cases the Court stressed that the right set out in article 5.4 is a procedural one and it is for the State to ensure that it will be made effective. That article does not, however, require the "court" itself to have the power to set the timing of subsequent reviews of detention. It is true that the ruling in both those cases focused on a proposition that the body controlling timing of references had to be independent, rather than Miss Krause's proposition that the Home Secretary's gateway role deprived the Parole Board of independence. In each of these two cases, however, the Court has rejected the argument that an executive body should not determine what the interval should be. Implicit in this must be rejection of any argument that article 5.4 is incompatible with any executive fetter on access to the "court". At paragraph 45 of his judgment in Day Gibbs J concluded that there are aspects of the release procedures which remain and properly remain administrative procedures under the control of the executive. I agree. That conclusion does not mean that the executive has a free hand. It is under a duty to ensure that the right set out in article 5.4 is made effective. To my mind the undertaking of that duty by the executive does not have the consequence that the Parole Board is any the less judicial and independent.
64. As to Benjamin and D, I consider that Mr Kovats rightly distinguishes the former case as being concerned with whether the suggested "court" has the power to order release. Such a power is an essential feature of a "court" for the purposes of article 5.4, and an administrative practice is no substitute. Turning to D, despite the formal terms of the declaration granted in that case it seems to me that Stanley Burnton J, especially in paragraph 24 of his judgment, was concerned with the question of access to the "court". The analogy between D and the present case is strong, for the terms of s 34(4)(a) and s 34(5) mirror those of s 28(6)(a) and s 28(7). It seems clear, however, that Stanley Burnton J would have regarded the statutory entitlement found in s 34(5) as adequate to comply with article 5.4: see paragraph 26 of his judgment which envisages that compliance with the Convention could be achieved if H were declared to be no longer good law – that is, if a prisoner such as D were entitled to invoke s 34(5). The same must be true for a prisoner entitled to invoke s 28(7). In these circumstances the decision in D does not assist Miss Krause.
65. I add that of course D was decided before the European Court of Human Rights decisions in Blackstock and Spence. The reasoning in paragraph 24 may need to be revisited following those decisions. There is a further distinction to be made from the present case. It proved impossible in D to identify a legal duty on the executive to put D's case before a "court" with power to order his release. In the present case the claimant says that no express obligation to put his case before the Parole Board will arise under s 28(7) until 8 October 2006. However I consider that the combination of the Human Rights Act 1998 and s 28(7) imposes a legal duty on the Home Secretary to refer cases to the Parole Board at reasonable intervals, and in any event within 2 years of the last determination by the Parole Board. The test of what is a "reasonable period" for this purpose is that described by Gibbs J in his judgment in Day at paragraphs 42 and 43. Accordingly I conclude that in any event in this case the claimant's entitlement to access to the Parole Board is legally secure and meets the test put forward in paragraph 24 of the judgment in D. By way of aside, I note that paragraph 9 of the judgment in Day and paragraph 34 of the Court of Appeal judgment in Spence (quoted in paragraph 16 of the Court of Appeal judgment in Murray) suggest that there is now in place a procedure for re-consideration of the proposed referral date by the Home Secretary at the request of the prisoner.
66. As to enforcement of the legal duty to grant access, if the claimant considers that the Home Secretary has kept the gate shut in circumstances where it ought to have been opened, his remedy is to seek judicial review. On an application for judicial review this court will – if appropriate - ensure that the Home Secretary complies with the obligation to refer at reasonable intervals, just as it will ensure compliance with the express words of s 28(7). This court can act speedily should the need arise.
67. I turn to the claimant's first reason for alleging lack of independence. The Home Secretary has given to the Parole Board directions as to matters which it is to take into account in deciding whether to direct release. In deciding whether to direct release the Parole Board, if it is to constitute the "court" required by article 5.4, must be independent of the executive and of the parties. The Home Secretary is both a member of the executive and a party to the case before the Parole Board. At first sight any directions by the Home Secretary to the Parole Board "as to the matters to be taken into account by it" in this context would involve a double breach of the requirement as to independence inherent in article 5.4.
68. The defendants' first answer was that other cases had assumed that the Parole Board was sufficiently independent to constitute a "court" for the purposes of article 5.4. That is undoubtedly true, but the defendants were unable to identify any case where a court has previously been asked to consider whether directions by the Home Secretary might compromise that independence.
69. I shall examine the remaining answers by the defendants in a different order from that in which they were presented.
70. A second suggested answer concerns the role of the Home Secretary, who is politically accountable for the penal system. It is said that directions by the Home Secretary as to matters to be taken into account no more compromise the Board's independence than the Home Secretary's role as gateway to the Board. Here it seems to me that there is a fundamental difference of character. The gateway role is simply concerned with access to the Board, and in this case it is concerned with ensuring that a prisoner is given access to the Board at reasonable intervals. The directions purport to govern how the Board actually decides cases once access has been given. This involves what would ordinarily be regarded as a trespass into the judicial sphere. Political accountability for the penal system is of great importance. It does not, however, entail that the Home Secretary should give directions as to judicial functions: on the contrary, when the Parole Board is exercising judicial functions the common law and recognised principles of political accountability both require that the Home Secretary and other members of the executive respect the judicial nature of those functions.
71. A third suggested answer concerned the nature of the directions. The primary point here is that the directions are general, they are not directed to any specific case, and they impose no exclusion limiting the matters to be taken into account by the Parole Board. A subsidiary point is the suggestion that any implicit obligation on the Parole Board to comply with a direction might be overridden by human rights considerations. It is said that the directions simply assist the Parole Board to give a structured approach to the case before it. As to that, it may well be that mandatory directions would be appropriate for cases where the Home Secretary is seeking advice from the Board. I have great difficulties in understanding how directions by the Home Secretary as to matters to be taken into account can be appropriate where the Board is performing a judicial function, especially when that function requires the Board to resolve a dispute between the Home Secretary on the one hand and the prisoner on the other. The difficulties do not start with the Convention – I shall turn to that later. They start with the fundamental common law principles which underlie the rule of law, and what those principles say about the role of a court. A party may of course make submissions offering assistance to a "court" as to how to give a structured approach to the decision it has to make in that particular case. The directions, as their name implies, are in a different category altogether. Absent clear Parliamentary authority it is simply inconsistent with the Home Secretary's status as a party to judicial proceedings that the Home Secretary should purport to direct the "court" as to the approach it should take. Turning to the Home Secretary's status as a member of the executive, elementary principles as to the separation of powers come into play. In the domestic context, they mean that unless Parliament plainly enacts otherwise the executive has no business giving directions as to matters to be taken into account in performing a judicial task. Accordingly, as it seems to me, before one comes to examine independence for the purposes of article 5.4 there is a question of domestic law as to whether the directions have Parliamentary authority. I shall return to this question shortly, and in that context will also deal with the suggestion that an implicit obligation to comply with the directions could be overridden by human rights considerations.
72. A fourth suggested answer was that the directions could be likened to the Civil Procedure Rules or to the rules which the Home Secretary has made under s 32(5). The analogy with the Civil Procedure Rules breaks down, however, for those rules are not an act of the executive, and less still are they an act of a party to litigation. They are delegated legislation. They are subject to the supervisory safeguards which apply to delegated legislation. Given their subject matter, it is not surprising to find that they are made by a body which is predominantly judicial.
73. As to the rules made under s 32(5), they are not the subject of challenge in these proceedings. The distinction drawn by Miss Krause in reply was that the rules did not go to the substance of the decision making power. I do not need to consider the rules for the purposes of the present case, and I express no view on whether the suggested distinction is sound.
74. A fifth suggested answer observed that nothing in any particular direction was suggested to be a compromise of judicial independence of the Board, save for direction 7(b). That is true, in the sense that there is no suggestion by Miss Krause that any other direction led the Board in this case to do anything of which her client could complain. Moreover I have held that the terms of direction 7(b), properly understood, do not involve any unlawfulness. This point, however, does not answer my concerns about the common law principles underlying the rule of law. These principles are, it seems to me, infringed if without clear Parliamentary authority the Home Secretary directs the Parole Board as to the matters it should take into account.
75. Finally there was the suggested answer that the challenge proves too much. As to that I need only say that if I were persuaded that the challenge is sound in law then the claimant would be entitled to whatever remedy legally followed from that conclusion, and I did not understand Mr Kovats to contend otherwise.
76. I turn to the question of Parliamentary authority for the directions. The defendants say that this is to be found in s 32(6) of the 1991 Act. This subsection contains no express authority to give directions as to matters to be taken into account where the Parole Board is exercising functions of a judicial nature. It is true that it refers in general terms to "any functions". These functions, however, include cases where the Parole Board's role is advisory rather than judicial: see, for example, s 35 of the 1991 Act and s 30 of the 1997 Act. 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.
77. Might there be some other legitimate interpretation of s 32(6) which would avoid encroaching on those principles? In oral argument Mr Kovats noted that s 32(6) contained no express obligation on the Parole Board to comply with the directions, and suggested – without giving any greater detail - that an implicit obligation to that effect could be overridden by human rights considerations. The difficulties which might arise in this regard were not explored in argument. An obvious difficulty in the present case is that the directions of August 2004 use the language of obligation. In context it is plain that in s 32(6) the word "directions" means instructions that must be complied with. Such a meaning is sensible where the directions concern advisory functions. If human rights considerations were to have the effect suggested by Mr Kovats, this would deprive the word "directions" of that sensible meaning. Rather than produce such an unfortunate result it seems to me preferable to interpret s 32(6) as confined to those cases where the Board is not exercising functions of a judicial nature.
78. In the present case I am concerned with the Parole Board's functions under s 28 of the 1997 Act. The test applicable to this case, as laid down in that section, is that the Board must be satisfied under s 28(6)(b) that it is no longer necessary for the protection of the public that the prisoner should be confined. The matters that are to be taken into account for that purpose will ordinarily depend upon the true construction of s 28(6)(b). Questions of statutory construction are pre-eminently judicial. The true construction of s 28(6)(b) is something which the Parole Board in its judicial role must consider. Even more fundamentally, the true construction of s 28(6)(b) is something which must ultimately be determined by the courts. 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.
79. What are the consequences of this analysis? I have concluded that the letter of April 1993 was right, and that the stance now taken on applicability of s 32(6) by the defendants is wrong, for under our domestic law that subsection does not empower the Home Secretary to give directions to the Parole Board as to matters to be taken into account in the exercise of judicial functions. However, this is not a case where either of the defendants has acted in bad faith or in any other way merited censure. The Parole Board has made an error in thinking that the Home Secretary's directions were legally applicable to this case and to other cases where the Parole Board's role is judicial. In this particular case that error has made no difference whatever to the course taken by the Parole Board: as noted above, I have dismissed the complaint about direction 7(b), and the claimant has accepted that he could not complain about the content of the remaining directions. On the facts of the present case the content of the directions has been innocuous. Indeed it is difficult to envisage a case where the content of the directions would be anything other than innocuous: they have plainly been drafted with great care, and so far as I can see they accurately reflect appropriate legal principles. That being so, and putting on one side the Convention, I do not regard the error made by the Parole Board as vitiating the decision of 8 October 2004.
80. Is the result any different under the Convention? The Home Secretary has, as a result of misunderstanding domestic law, erroneously issued directions applicable to the Parole Board's judicial functions under article 5.4. I must consider whether this has so fundamentally deprived the Parole Board of independence as to vitiate the decision of 8 October 2004. Here too I regard it as important that the content of the directions in this case has been innocuous, and that it is difficult to envisage a case where their content will have been other than innocuous. On this basis I do not consider that there has been a breach of article 5.4. It is true that there has been an inadvertent trespass on the Parole Board's independence, but this has led to no harmful consequence. I consider that the trespass has not been so substantial as to deprive the Parole Board when acting under s 28 of the 1997 Act of its true character as a judicial body. Miss Krause reminded me that in Benjamin the European Court of Human Rights held that there was a violation of Article 5.4 where the power to release lay with the Home Secretary, even though his practice was to follow the recommendation of the Mental Health Review Tribunal. That was a case where domestic law failed to comply with the convention in a fundamental respect. The conclusion in Benjamin that administrative practice could not rescue such a defect in domestic law is not in point in the present case. Here my conclusion is that when properly understood domestic law complies with the convention. I do not read Benjamin as requiring me to hold that an erroneous administrative practice which has had no harmful effect has nevertheless resulted in breach of article 5.4.

Conclusion

81. The claimant fails in his application for an order that the Parole Board reconsider its decision of 8 October 2004. There was no legal error in its approach to medical evidence, nor in its approach to the lack of a release plan. It was legally erroneous for the Parole Board to think that the Home Secretary's directions of August 2004 applied to functions of a judicial nature, but this caused no detriment to the claimant and does not vitiate the decision of 8 October 2004.
82. It follows from my conclusions on issue 2(ii) that the claimant is incorrect in asserting that s 28 of the 1997 Act (the gateway and timing provisions) contravene the Convention. The claim to declarations in that regard fails. Nor, having regard to all the circumstances, do the Home Secretary's directions of August 2004 give rise to a breach of article 5.4 of the Convention. My conclusion as to the true construction of s 32(6) of the 1991 Act means that the alternative application for a declaration of incompatibility in that regard does not arise.
83. I invited written submissions from counsel as to whether any other declaration was appropriate and as to consequential matters. The claimant suggests that it would be appropriate to make a declaration as to the unlawfulness of the directions of August 2004. As I have concluded that the unlawfulness of the directions has not led to any invalid decision in this case, I think it preferable to make the declaration suggested by the defendants, which is that s 32(6) of the Criminal Justice Act 1991 should be construed so as not to apply to the judicial functions of the Parole Board. As to costs, all parties agree that there should be a detailed assessment of the claimant's publicly funded costs. The claimant sought an order for all or part of his costs to be paid by the defendants. However, I agree with the defendants that as the claimant has failed on all points argued save one the appropriate course is to make no order for payment by any party of any other party's costs. Finally, all parties have sought permission to appeal. In that regard, while aspects of this case have involved important questions, I do not consider that the test under CPR 52.3(6) is met. Accordingly I decline to grant any party permission to appeal.

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.