QUEEN'S BENCH DIVISION
Strand, London, WC2A 2LL
B e f o r e :
| R (LAWRENCE POKU)
|- and -
|SECRETARY OF STATE FOR JUSTICE
(2) THE PAROLE BOARD
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Lisa Busch and (instructed by Treasury Solicitor) for the First Defendant
Jonathan Moffett (instructed by Treasury Solicitor) for the Second Defendant
Hearing dates: 2 April 2009
Crown Copyright ©
Miss Belinda Bucknall QC :
"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 23rd 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.
"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."
"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 9th 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.
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
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.