QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
London WC2A 2LL
B e f o r e :
|THE QUEEN ON THE APPLICATION OF DANIEL PARRATT||Claimant|
|SECRETARY OF STATE FOR JUSTICE||Defendant|
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Ms SJ Davies and Ms S Hannett (instructed by Treasury Solicitors) appeared on behalf of the Defendant
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The statutory provisions
"A sentence of imprisonment for public protection ... is a sentence of imprisonment ... for an indeterminate period, subject to the provisions of Chapter 2 of Part 2 of the Crime (Sentences) Act 1997 as to the release of prisoners ..."
"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.
(5) As soon as -
(a) a life prisoner to whom this section applies has served the relevant part of his sentence,(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 sub-section (5) 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."
"82A Determination of tariffs
(1) This section applies if a court passes a life sentence in circumstances where the sentence is not fixed by law.
(2) The court shall ... order that the provisions of section 28(5) to (8) of the Crime (Sentences) Act 1997 ... shall apply to the offender as soon as he has served the part of his sentence which is specified in the order.
(3) The part of his sentence shall be such as the court considers appropriate taking into account-
(a) the seriousness of the offence, or of the combination of the offence and one or more offences associated with it;(b) the effect of any direction which it would have given under section 240 of the Criminal Justice Act 2003 below (crediting periods of remand in custody) if it had sentenced him to a term of imprisonment; and(c) the early release provisions as compared with section 244(1) of the Criminal Justice Act 2003;
(7) In this section -
"life sentence" has the same meaning as in Chapter II of Part II of the Crime (Sentences) Act 1997."
"(3) Subject to subsection (4), the court must direct that the number of days for which the offender was remanded in custody in connection with the offence or a related offence is to count as time served by him as part of the sentence.
(5) Where the court gives a direction under subsection (3), it shall state in open court—
(a) the number of days for which the offender was remanded in custody, and(b) the number of days in relation to which the direction is given."
The policy statements
"3. PUNITIVE PERIODS OF A LIFE SENTENCE
The formal setting of punitive periods for lifers, within life sentences, was introduced in 1983 by the then Home Secretary, Leon Brittan. Under those arrangements Home Office Ministers set a minimum period of imprisonment - known colloquially as the "tariff" - to satisfy the requirements of retribution and deterrence and that period had to be served in full before a lifer's release could be considered by the Parole Board. However, this period did not provide an automatic release date as lifers could be detained beyond the tariff expiry date on grounds of risk for as long as was necessary. Therefore, life sentences normally contain a 'punitive' period, represented by the tariff length and a 'preventative' period during which release and liberty on licence is dependent on the assessment of risk.
3.1.1 Over the years, the Ministerial power to set punitive periods has gradually passed to the courts. As a result the judges now set a "specified" or "relevant" part for all life sentence prisoners which reflects the appropriate punitive period to be served from the date of sentence. Under the Criminal Justice Act 2003, the trial judges became responsible for setting the "specified part" for adult mandatory lifers (also known as the "minimum term") and, from 4 April 2005, those sentenced to imprisonment, or detention, for public protection (IPP) ...
3.1.2 The terminology and calculation of punitive periods has altered over the years but this Manual uses the generic term "tariff" to represent the punitive period, given its widespread usage by prisoners, prison staff and probation officers. However, as highlighted later in this Chapter, it is important that staff recognise the distinction between the term "tariff" and the "specified parts" of sentences now set by the judiciary which run from the date of sentence and exclude time spent in custody on remand."
"5 FIRST PAROLE BOARD REVIEWS
5.1 First Parole Board Review
5.1.1 Timing of first review
The purpose of the first Parole Board review is to consider the prisoner's suitability for transfer to open conditions. The first review is considered on the papers only. It will normally begin around three years before the tariff expires in cases where the tariff is set for six years or over ...
5.1.2 Short tariff review cases
5.1.3 The date of the first review is set by LRRS caseworkers on the basis of tariff length and progress in custody. As a general rule, a pre-tariff expiry Parole Board review on the papers will not be feasible if the tariff is less than 3 years. In such cases the prisoner is entitled to have a first review shortly before tariff expiry to consider suitability for release on the expiry date. In cases where the tariff is between 3 and 6 years the first review will begin on the papers at the halfway point. The first review date will be notified to the prisoner by LRRS (copied to the Home Probation officer) as soon as possible after sentencing. The first review date is the date on which the complete dossier is disclosed to the prisoner ..."
"2.1 Pre-Tariff indeterminate reviews and further reviews
2.1.1 The purpose of the pre-tariff Parole Board review is to consider the prisoner's suitability for transfer to open conditions. It normally begins about 3 years before tariff expiry, but can be shortened dependent on the tariff expiry date. Pre-tariff reviews are not usually provided to prisoners with a tariff of less than 3 years. The short tariff cases (i.e. those less than 6 years) require PPCS Case Managers to:
• Set the date of the pre-tariff review based on the tariff set in open court and the progress in custody. In cases where a pre-tariff review is not feasible the review date is set at tariff expiry to enable the Parole Board to consider the possibility of release. The Parole Board may also consider the option of open conditions at that time. In cases where the tariff is between 3 and 6 years the pre-tariff review date will as close to the half way point as possible. The review date will be notified by PPCS to the establishment and prisoner (copied to the Offender Manager) ..."
How the policy has been applied
"The policy for the setting of Parole Board reviews is set out in Prison Service Order 6010, which replaced chapters 5 and 6 of PSO 4700. In chapter 3 of PSO 4700 ... it is explained that throughout that document the generic term "tariff" is used to represent the punitive period. However, there are variations in its precise meaning among the different types of indeterminate sentences which staff must be aware of. Paragraph 3.1.2 was not interpreted as meaning that the pre-tariff review referred to in chapter 5 must be based on the full period in custody including time spent on remand. The Secretary of State has consistently based the pre-tariff review upon the specified part or relevant part only and this has always been understood. That has continued under PSO 6010.
Section 2 of PSO 6010 explains that prisoners with a "tariff" of less than three years will not normally receive a pre-tariff review; those with tariffs of between 3 and 6 years will have a review at the halfway point; and those with tariffs of over 6 years will have their review 3 years before tariff expiry. As I have mentioned, the timing of the pre-tariff review as set by PPCS in the case of IPP prisoners is based on the specified part to serve from date of sentence."
"... the claimant's specified part was 2 years 130 days. As this period is less than 3 years he does not qualify for a pre-tariff review in accordance with PSO 6010 (nor under the old PSO 4700). In a letter dated 22 October 2007 Mr Parratt [the claimant] was told by PPCS ... that he would have a pre-tariff review that would begin on 1 November 2008. As was explained in our response to the letter before claim dated 30 June 2009, this was an administrative error which was corrected as soon as it was noticed. I apologise that this error occurred but I do not accept that PPCS was obliged to hold the review.
The claimant's case highlights some practical difficulties that would occur if time spent on remand in custody were included in the calculation for scheduling pre-tariff reviews. The claimant was remanded into custody on 26 April 2006. He was sentenced in September 2007, with the Judge indicating that he should serve a minimum 3½ years in custody less the 417 days spent on remand. Were he entitled to a pre-tariff review at the halfway point of the 3½ year period it would have begun only shortly after he was sentenced. Having a Parole Board review so early in a prisoner's sentence would serve no useful purpose because of the limited opportunities to complete any meaningful risk reduction work beforehand.
The claimant has asked to be granted a pre-tariff review but he can gain no practical benefit from these proceedings. The claimant is legally entitled to have his suitability for release considered by the Parole Board when he has served the specified part of his sentence. Mr Parratt's specified part expires on 21 January 2010 and the review to consider his suitability for release is underway. If the Parole Board do not consider him suitable for release then they may recommend a transfer to open conditions. The present position is that the holding prison has disclosed the complete dossier to Mr Parratt, the Parole Board and PPCS (this was completed a little late). The next stage is for the Board to consider the case on the papers to determine whether any further information needs to be obtained."
This witness statement was at 4 October 2009. I am told that the Parole Board hearing is presently scheduled for February 2010.
Ground 1: the contentions of the parties
Ground 1: discussion and conclusions
"In reading the Objectives, Instructions and Guidance the court is not construing a statute, nor even subordinate legislation. The document must be read in a practical down-to-earth way as a communication by a Secretary of State to a responsible public official. The language used is not to be invested with more precision than it would naturally bear. Paragraph 18 [the relevant paragraph in that case] must be read in the context of the whole document, and of the Act itself."
The second and third grounds