England and Wales High Court (Administrative Court) Decisions

IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT

		Royal Courts of Justice Strand, London, WC2A 2LL
		18 June 2009

Miss Belinda Bucknall QC :

1. On 4^th February 2002 three men were sentenced for serious drug trafficking offences. The Claimant was one of them. He received a 12 year prison sentence. One co-defendant, Mr. Williams, received a 10 year prison sentence and the other, Mr. Akbulut, received a 14 year prison sentence. It is clear from the sentencing judge's comments and the sentences themselves that (1) his sentences were intended to reflect his view of the relative culpability of the three men and (2) he had well in mind that under the early release provisions then in force each man might be released at the mid-point of his sentence and would be released at the two-thirds point, if not released at the mid-point.
2. As at the date upon which sentence was passed the early release provisions were those provided by Part 2 of the Criminal Justice Act 1991. All three men were long term prisoners within the definition of section 33(5) of that Act. The scheme for the early release of long term prisoners was that after such a prisoner had served one half of his sentence the Secretary of State had power to release him on licence if recommended to do so by the Parole Board (section 35(1)) and, in the case of a long term prisoner serving less than 15 years, was bound to do so, pursuant to the Parole Board (Transfer of Functions) Order 1998 (SI 1998/3218), and that as soon as such a prisoner had served two-thirds of his sentence the Secretary of State was under a duty to release him (section 33(2)). Whenever the prisoner was released he was required to serve the remaining period of his sentence up to the three-quarters point on licence (section 37(1)).
3. Two other provisions require mention as impacting upon the period which a prisoner may serve in custody. Section 42 provides that if additional days are awarded to a short or long term prisoner for a disciplinary offence pursuant to prison rules any period which he must serve before becoming entitled or eligible for release and any period for which a licence is granted to him under the 1991 Act shall be extended by the aggregate of those additional days. Section 36(1) provides that the Secretary of State has power to release a prisoner at any time on licence if he is satisfied that exceptional circumstances exist which justify the prisoner's release on compassionate grounds, provided the requirements of subsection (2) are met.
4. In deciding whether or not to recommend release in any case, the Second Defendant is assisted by directions as to the matters to be taken into account by it, given by the First Defendant pursuant to section 32(6) of the 1991 Act in the following terms.

"In deciding whether or not to recommend release on licence, the Parole Board shall consider primarily the risk to the public of a further offence being committed at a time when the prisoner would otherwise be in prison and whether any such risk is acceptable. This must be balanced against the benefit, both to the public and to the offender, of early release back into the community under a degree of supervision which might help rehabilitation and so lessen the risk of re-offending in the future. The Board shall take into account that safeguarding the public may often outweigh the benefits to the offender of early release."

On 23^rd August 2006 Mr. Williams reached the mid-point of his sentence and was released by the First Defendant pursuant to the recommendation of the Second Defendant who must, therefore, have assessed his risk as acceptable.

5. The mid-point of the Claimant's sentence occurred on 15^th December 2007. In advance of that date the Second Defendant considered whether the Claimant continued to pose an unacceptable risk. By a report dated 6^th December 2007 it decided that he did. In consequence, it did not recommend his release at the mid-point of his sentence. He remained in prison, as did Mr. Akbulut who had not yet reached the mid-point of his sentence and would not do so until 21^st August 2008. I should mention here that these and the other dates that are relevant to the early release provisions of the Claimant and his co-offenders have been helpfully provided by counsel and take into account the time spend on remand by each offender before trial and, in the case of the Claimant, days added for disciplinary offences.
6. Section 26 of the Criminal Justice and Immigration Act 2008 altered the early release provisions in Part 2 of the Criminal Justice Act 1991 by amending a number of sections and inserting a number of new provisions. In relation to the duty to release a long term prisoner at the two thirds point provided by section 33(2), the 2008 Act inserted an obligation to release those long term prisoners who were not serving sentences of imprisonment for specified violent or sexual offences at the mid-point of their sentence. By section 37ZA(1) the 2008 Act amended the period of licence after release by requiring the whole of the remainder of the sentence after release at the mid-point to be served on licence. While no doubt most offenders would prefer to be on licence than in prison, the extension of the licence period to the end of the custodial period is an onerous change which has to be set against the advantage of automatic release at the mid-point. Paragraph 8 of Schedule 27 of the 2008 Act provides that nothing in the amendments made by section 26 the Commencement Order affects the operation of Part 2 of the Criminal Justice Act 1991 in relation to a long term prisoner within the meaning of that Part,who (for the purposes of that Part) has served one-half of his sentence before the commencement of that section. The commencement date was 9^th June 2008.
7. The effects of these changes insofar as they are relevant to this case are that Mr. Akbulut, who had not served half his sentence before 9^th June 2008, was subject to the amended regime, whereas the Claimant, who had served half his sentence by that date, remained subject to the old regime. Accordingly, Mr. Akbulut was released on 21^st August 2008 (as it happens, into immigration detention) but was obliged to serve the remaining 7 years of his sentence on licence (unless deported). The Claimant remained in prison and will do so until he reaches the two thirds point of his sentence on 23^rd November 2009, unless released sooner pursuant to the recommendation of the Second Defendant (which has so far not been forthcoming), following which he will serve the remainder of his sentence up to the three quarters point, namely 15^th December 2010, on licence.
8. In due course the Claimant applied to the Second Defendant for reconsideration of its decision of 6^th December 2007. The Second Defendant did reconsider the Claimant's case and by a letter dated 12^th August 2008 declined to recommend his release because it concluded that the risk of his committing another serious offence had not reduced sufficiently to be manageable in the community.
9. Subsequently to receipt of that letter, the Claimant learned that Mr. Akbulut had been released from the custodial part of his sentence at its mid-point without the need for a recommendation by the Second Defendant. On 9^th September 2008 the Claimant's solicitors wrote to the Second Defendant contending that in light of Mr. Akbulut' release, the principles of natural justice and fairness required the Second Defendant to reconsider the Claimant's case, and that when it did so it should "take into account" the fact that a co-defendant whom the sentencing judge clearly considered to be more culpable than the Claimant, had been automatically released.
10. On 29^th September 2008 the Second Defendant sent a letter responding to the Claimant's solicitors' letter of 9^th September 2008. The paragraph of central relevance is as follows.

"Whilst we note your submission regarding Mr. Poku's co-defendant, every case that is put before [by] the Parole Board is considered completely on its own merit. Each case is individually unique regardless of whether the parties involved committed the index offence collectively. The Parole Board cannot take into account the actions of any other individual when reaching their decision and to do so would be unreasonable for all parties concerned. Whilst it may seem unfortunate to Mr. Poku that a co-defendant has been released on the basis of the early release provisions, Mr. Poku's case was considered fairly and the panel were of the opinion that parole could not be granted at this time. The fact that Mr., Poku's co-defendant has been released despite receiving a longer prison sentence does not make this case eligible to grant a special or early review and cannot be considered an exceptional circumstance in which to re-panel Mr. Poku's case."

11. On 6^th October 2008 the Claimant's solicitors sent a letter to the First Defendant, setting out the facts and again contending that the only way in which the principles of natural justice and fairness could be satisfied was by a reconsideration of the Claimant's case at which the automatic release of his co-defendant who played a greater role in the offence should be taken into account. In reliance upon paragraph 5.10.1 of PSO 6000, which provides that where the Parole Board declines to reconsider a case, a prisoner or his representative may ask the Early Release and Recall Section to re-refer the case back to the Board, the Claimant's solicitors asked for such a re-referral.
12. The First Defendant's reply, dated 21^st October 2008, contains a summary of the effect of the early release provisions under the 1991 Act and as altered by the Criminal Justice and Immigration Act 2008. The letter then continues with the following.

"The application of the provisions is clear, as set out above, and there can be no question of changing the release arrangements that apply to a prisoner as this is governed by the legislation. Of course long-term prisoners with the halfway point before 9^th June 2009, who remained subject to the 1991 Act, could still be released at the half-way point as long as they demonstrated to the Parole Board a sufficiently low level of risk".

The letter explained that the decision to refuse parole will be reviewed only if there is significant new information, which should have been available at the time the decision was made, and which might have impacted that decision or if there were procedural errors in the way the case was handled. It ended by concluding that the Claimant's case was handled properly and that the writer could see no grounds for reviewing the decision.

13. On 27^th October 2008 the Claimant filed an application for judicial review of the decision of the Second Defendant as set out in the letter dated 29^th September 2008 and of the First Defendant as set out in the letter dated 21^st October 2008. (In the claim form it is the Parole Board which is named as the First Defendant and the Secretary of State for Justice as the Second Defendant but the case proceeded thereafter and certainly before me on the basis that the Secretary of State for Justice is the First Defendant and vice versa. Accordingly I have retained that order notwithstanding the effort of the Judge who determined the application on paper to retain the original order.)
14. The grounds for the application at that time are in summary as follows,

i) The amendments to the early release provisions of the 1991 Act made by the 2008 Act are capable of producing unfairness as between offenders and in particular as between the Claimant and Mr. Akbulut because the latter was released automatically at mid-term despite the fact that he received a longer sentence and was thus regarded by the sentencing judge as more culpable, whereas the Claimant required a recommendation from the Second Defendant.

ii) The Second Defendant has power to redress the unfairness created by the amendments to the early release provisions by taking into account that unfairness as a relevant factor in deciding whether the risk presented by the Claimant is acceptable.

iii) Both Defendants misdirected themselves, alternatively acted unreasonably in refusing to refer the Claimant's case back to the Second Defendant for an exceptional review because they appeared to proceed on the basis that fairness and consistency of treatment in similar cases were not relevant considerations

15. The application was refused on paper on 19^th November 2008 as unarguable. On 21^st January 2009 the application was the subject of an oral hearing at which leave was granted.
16. Before me the Claimant's case was developed significantly beyond the points raised by the grounds attached to the application form and in particular raised arguments founded upon Article 6 of the European Convention on Human Rights. The Defendants objected to this on the ground that it was not open to the Claimant to introduce a Convention argument at the review because it was not within the scope of the grounds for which leave had been given. In response, the Claimant's counsel stated that the Convention argument had been raised at the oral application for leave and must therefore have been taken into account by the Judge when leave was granted; alternatively he applied for leave to rely upon the Convention ground. I do, of course, accept the statement that the argument was raised at the oral application but have doubt as to whether it featured beyond, or much beyond, a bare mention, for the following reasons. First the application for an oral hearing was made on the basis of the original grounds, leading to the conclusion that an argument based upon Article 6 was an afterthought. Secondly the Order granting leave does not give the Claimant leave to serve amended grounds as I would have expected it to do if the judge had understood that a wholly new, Convention-based ground was being relied upon. Thirdly, neither of the detailed grounds of defence served after that hearing make any reference to the Convention argument, again as I would have expected them to have done if it had been a significant part of the Claimant's case at the hearing. Notwithstanding these concerns, it was clear from the skeletons provided by both Defendants for the hearing before me that they were able to address the Convention argument and I was therefore satisfied that there was no unfairness in granting leave as sought. Accordingly, leave was given.
17. The Claimant's case in its final form in summary is that

i) Article 6 of the European Convention on Human Rights enshrines the right to a fair trial; that includes a trial conducted by an independent judge without interference from, inter alia, the legislature; the sentencing exercise is part of the trial process; it is the role of the judge when sentencing co-defendants to reflect any difference in culpability between them by the sentences passed; in the present case the sentencing judge considered Mr. Akbulut to be more culpable than the Claimant because he imposed a longer term of imprisonment on him; each sentence is a "whole package" in that it includes not only the custodial period but also the licence period applicable pursuant to the early release provisions; the amendment of the early release provisions in Part 2 of the 1991 Act by the 2008 Act has had the consequence of interfering with the judge's intention to mark Mr. Akbulut as more culpable than the Claimant; the relevant provisions of the 2008 Act therefore constitute an interference with the sentencing judge's role and Article 6 will be infringed unless steps are taken to restore the status quo by requiring the Second Defendant to take into account the fact of Mr. Akbulut's automatic release at mid-term in order "to determine whether the relationship between [the Claimant's and Mr. Akbulut's] sentences can be maintained" (Para 3.30 of the Claimant's skeleton).

ii) The change in the relationship between the Claimant's sentence and that of Mr. Akbulut is unfair and that unfairness can be redressed by the Second Defendant because it can, and should, take the unfairness into account when assessing, pursuant to the First Defendant's directions under section 32(6) of the 1991 Act, whether the risk presented by the Claimant is acceptable.

18. Without in any way wishing to do injustice to the able and ingenious way in which the Claimant's case was put forward on his behalf by Mr. Southey, both grounds can be dealt with fairly shortly.
19. As to the first ground, the Claimant's argument seems to me to fail at the point at which it is contended that the consequence of the 2008 Act amendments is to interfere with the judge's intention to mark Mr. Akbulut as more culpable than the Claimant. The sentencing judge cannot have known when passing sentence what period each offender would actually serve in prison. For instance, Mr. Williams might not be released until he reached the two-thirds point of his 10 year sentence and would thus serve 80 months whereas the Claimant might be released at the mid-point of his 12 year sentence and thus be released after 72 months. Alternatively the Claimant might not be released until the two-thirds point in which case he would serve 96 months and Mr. Akbulut might be released at the mid-point of his 14 year sentence and thus serve 84 months. Those uncertainties were compounded by the fact that days might be added for disciplinary offences (as they were in the case of the Claimant) or that one or more of the three might be released early on compassionate grounds. It follows from these considerations, that the sentencing judge could only reflect his view of the relative culpability of each by the length of the custodial sentence passed on each, leaving the actual period of time to be served, whatever it might be, to those whose duty it is to give effect to the early release provisions. Accordingly, although the early release provisions are part of the composite package (to adopt the phraseology of Lord Bingham in R(West) v. Parole Board [2005] 1 WLR 350 at page 359) which constitutes the punishment imposed on each offender they play no part in the judicial exercise of marking relative culpability.
20. It further follows that the legislature has not, by enacting provisions which amend the early release provisions in the 1991 Act, interfered with the independence of the judge in the sentencing process, nor can it be said that the alterations to the 1991 Act early release provisions by the 2008 Act have, in any way, re-determined the Claimant's sentence. Reinforcing that conclusion is the fact that the Claimant's sentence remains exactly what it always has been. Accordingly, there has been no breach of Article 6.
21. That is sufficient to dispose of the first ground. I will, however, deal with the Claimant's proposed remedial action in case the matter goes further.
22. Implicit in the contention that the Second Defendant should be compelled to take into account the fact of Mr. Akbulut's release in order to determine whether the relationship between the Claimant's and Mr. Akbulut's sentences can be maintained, is the assumption that the Second Defendant has any such power. Even if I had found in favour of the Claimant that the amending provisions of the 2008 Act gave rise to a breach or potential breach of Article 6 nothing in the submissions made on his behalf persuade me that the Second Defendant has power to act in the way proposed. The role of the Second Defendant is to determine in the case of each prisoner who is subject to the 1991 Act early release provisions, whether that prisoner constitutes an acceptable risk to the public. It is not concerned with the relationship between the sentence passed on the prisoner under review and the sentence of a co-defendant. The Claimant's further contention that the language of the direction to the Second Defendant (as cited in paragraph 4 above) enables the unfairness to the Claimant caused by the automatic release of a co-defendant at the mid-point of that co-defendant's term to be taken into account when assessing whether the Claimant's risk is acceptable, is also misconceived. "Acceptable" in those directions qualifies "risk", which in turn is concerned with the risk of re-offending and nothing else. If the Second Defendant were to take into account that a co-defendant had been released pursuant to amendments to the legislation which expressly did not apply to someone circumstanced as was the Claimant, it would take an extraneous matter into account and would thereby act unlawfully.
23. In sum, the Second Defendant's letter dated 29^th September 2008 represents an accurate account of the Second Defendant's duty and is not, therefore, open to objection.
24. Turning to the second ground, since no change has been made to any aspect of the Claimant's sentence, it does not seem to me that any unfairness has been visited upon him by reason of the 2008 Act amendments, of a type which gives rise to the right to a remedy. Parliament in the pursuit of its legitimate objectives of reducing the prison population and improving the prospects of rehabilitation for long term non-violent and non-sexual offenders has made changes in the law which apply consistently and thus fairly to all those who fall within the scope of those changes. Equally, those who do not fall within the scope of those changes are also treated consistently, and thus fairly, in accordance with the early release regime that applied at the time when each of them was sentenced.
25. It follows that the Claimant has failed to establish that either the First or the Second Defendant has acted unlawfully.