QUEEN'S BENCH DIVISION
Royal Courts of Justice
Strand, London, WC2A 2LL
B e f o r e :
| (1) HALL and (2) KOSELKA
|- and -
|PAROLE BOARD OF ENGLAND & WALES
And( EBR Attridge) for Claimant 2
Mr Colin Thomann (instructed by Treasury Solicitors) for the Defendant
Hearing dates: 22 & 23 January 2015
Crown Copyright ©
MRS JUSTICE SIMLER:
(i) no consideration was had to the fact that with effect from 3 December 2012 the sentencing regime for prisoners changed as a consequence of the introduction of the Legal Aid Sentencing and Punishment of Offenders Act 2012 ('LASPO') which abolished for the future sentences of IPP; and/or
(ii) no consideration was had to the impact of continuing detention upon their private and family life and the proportionality of continued confinement in relation to such interference.
Case of Mr Hall
Case of Mr Koselka
The legal framework
"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 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 (emphasis added)"
"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…"
By Article 5(4) anyone deprived of his liberty by 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."
(i) Sentences of IPP are sentences for an indefinite period with no entitlement to release until release has been directed by the Parole Board and a prisoner sentenced to IPP remains lawfully detained for domestic law purposes throughout the whole sentence.
(ii) Detention pursuant to such sentences is lawful under the Convention unless and until it becomes arbitrary. It will be arbitrary if there is no longer a causal link between the detention and the objectives of the sentence.
(iii) The essence of an indeterminate sentence passed on the ground that there is a significant risk to members of the public of serious harm occasioned by the commission by an offender of further specified offences, is a need for the public to be protected against that risk. Continued detention post tariff expiry cannot be said to be arbitrary until the Parole Board has determined that detention is no longer necessary. Once it makes that assessment the causal connection with the objectives of the sentencing court is broken, and the detention becomes unlawful.
(iv) Determination of when it is safe for an IPP prisoner to be released is likely to be a gradual process as the issue is so obviously fact sensitive. Delays are likely to be a feature even in the best resourced system. Absent extreme circumstances in which a breakdown of the system might render continued detention arbitrary because the Parole Board is unable to perform its function at all, continued detention will only become unlawful when the Board decides that it is no longer necessary for the protection of the public that the prisoner should be confined. Until that stage is reached each step that the Board takes in the review process confirms the lawfulness of the detention.
Ground 1 (a): LASPO as a mandatory material consideration
(i) the test for release is set out in s.28(6) 1997 Act and is not in dispute. The Supreme Court's judgment in Sturnham v SSJ and Parole Board  2 AC 254 does not accordingly assist because it does not address the factors that are required to be considered when answering the question whether detention remains necessary;
(ii) the test of necessity in s.28(6) is sufficiently wide and flexible to enable consideration of all matters positive or negative that are material to the question whether continued detention remains necessary for the protection of the public;
(iii) in answering that question it is for the Parole Board to decide what weight to give to any material or relevant consideration;
(iv) since a prisoner in exactly the same position as either claimant and regarded as similarly 'dangerous', but convicted after 3 December 2012, would have received an EDS rather than IPP with automatic release at the end of his custodial term, and the only thing that has changed is the date of conviction, this must be a mandatorily relevant consideration to be weighed in the individual case.
(v) If on an ordinary reading of s.28(6) this is not a mandatorily relevant consideration, any decision to continue detention without regard to the LASPO changes renders the ongoing detention arbitrary given that the difference of treatment flows only from the chance date of conviction, itself an entirely arbitrary feature. This is incompatible with Article 5 of the convention and given the strong interpretive obligation imposed by s.3 Human Rights Act 1998, the provision must be interpreted as encompassing that consideration.
(vi) It is also incompatible with Article 7 of the Convention (read with or without Article 14) and the principle requiring retrospective application of a more lenient sanction in criminal law as applied by the Grand Chamber in Scoppola v Italy No.2 (2010) 51 EHRR 12. There it was held that the principle embodied by Article 7 is that "where there are differences between the criminal law in force at the time of the commission of the offence and subsequent criminal laws enacted before a final judgement is rendered, the courts must apply the law whose provisions are most favourable to the defendant" (at ). This principle is engaged when the Parole Board conduct a review under s.28(6) and requires it to have regard to the LASPO changes accordingly.
(vii) So far as Article 14 is concerned, 'being a prisoner convicted before 3 December 2012 and sentenced to IPP' is an 'other status' by analogy with the approach adopted by the ECHR in Clift v United Kingdom Application No. 7205/07; such a person is in a materially analogous position to that of a person convicted of the same offence on or after that date and subsequently found to be 'dangerous'; and the differential treatment cannot be objectively justified.
"In Bradley the court was concerned with the extent of the risk relevant to sentencing and to release on licence. In rejecting Mr Edward Fitzgerald's submission that the two must equate, the court said (paragraphs 145F-H):
"the sentencing court recognises that passing a life sentence may well cause the accused to serve longer, and sometimes substantially longer, than his just deserts. It must thus not expose him to that peril unless there is compelling justification for such a course. That compelling justification is the perception of grave future risk amounting to an actual likelihood of dangerousness. But of course the court's perception of that future risk is inevitably imprecise. It is having to project its assessment many years forward and without the benefit of a constant process of monitoring and reporting such as will be enjoyed by the Parole Board. When at the post-tariff stage the assessment comes to be made by that Board they are thus much better placed to evaluate the true extent of the risk which will be posed by the prisoner's release. And they are a more expert body, custom built by Parliament for the purpose. Given those considerations, and given too that their recommendation for release on licence, if accepted by the Secretary of State, will have immediate effect in terms of endangering public safety – quite unlike the decision of the Trial Judge whose sentence would in any event have protected society for an appreciable time – it seems to us perfectly appropriate for the Parole Board to apply some lower test of dangerousness, i.e. one less favourable to the prisoner".
"The court went on to say of the level of risk relevant at the release stage, that it "must indeed be 'substantial' …, but this can mean no more than that it is not merely perceptible or minimal", that it must be unacceptable in the subjective judgment of the Parole Board and that the Parole Board must have in mind all material considerations, scrutinising ever more anxiously whether the level of risk is unacceptable, the longer the time the offender has spent in prison post-tariff (paragraph 146D-F, and see R v Parole Board, Ex p Wilson  QB 740, 747E-G)."
"Whether the claimant is in an analogous situation to others convicted after 3 December 2012 must be judged in the context of his complaint that he is subject to an indeterminate period of imprisonment and cannot be released without satisfying the Parole Board that he is no longer a danger to the public. He maintains he is not challenging his original sentence. But however he cloaks his application, the real complaint he advances is a challenge to his original sentence, the essence of which is that he will not be released until it is safe to do so. The reality of his argument is that he was sentenced under a different regime. It is not coherent then to allege discrimination when compared to other offenders sentenced under a different regime. They are not in an analogous situation precisely because they were sentenced under a different regime. The claimant cannot complain because Parliament has now abolished IPPs and introduced a different type of sentence. The United Kingdom is not obliged, under the Convention, to re-open historical sentences and re-sentence merely because it has introduced a new sentencing regime. I would dismiss this application on both the two grounds before the court."
"(1) No one shall be held guilty of any criminal offence on account of any act or omission which did not constitute a criminal offence under national or international law at the time when it was committed. Nor shall a heavier penalty be imposed than the one that was applicable at the time the criminal offence was committed."
Ground 1 (b): Article 8 as a mandatory material consideration
"There shall be no interference by a public authority with the exercise of this right except such as in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others".
"the prisoner's continued liberty or, as the case may be, immediate release, would present an unacceptable risk to the public of further offences being committed."
e. That it is no part of the Parole Board's role to balance the protection of the public against the prisoner's interests;
f. That there is no interference with the right to respect for family life in requiring the continuing detention of a serving prisoner who presents an unacceptable risk of reoffending. The extent to which private and family life can in practice be respected is constrained by the fact that the Claimant is a serving prisoner. It is the fact of the sentence which must be safely administered which determines the manner in which the Claimant's family and private life can be respected;…
I therefore accept … that the Board is not required to balance the protection of the public against the interests of the individual prisoner in determining whether or not to recommend release on licence. The restriction upon private and family life complained of flowed necessarily from the fact of the claimant's imprisonment. In those circumstances, provided that, as here, the detention was lawful and justified under Article 5(1) of the ECHR, and provided that, as here, there is no flaw in the Board's assessment of risk, the Board's decision is unassailable. I reject Mr Southey's submissions to the contrary effect."
Ground 2: Guidance
(i) the need for anxious scrutiny to be exercised in assessing the level of risk the longer the time the offender has spent in prison post tariff, and the fact that detention may become arbitrary or the causal link may be broken by that passage of time;
(ii) the need to consider the different risk management schemes employed by different sentencing regimes, recognising the application of the Human Rights Act 1998 and the principle of 'lex mitior';
(iii) the need for compliance with the provisions of Articles 5, 7, 8 and 14 of the Convention more generally.
Ground 3: Mr Hall's substantive challenge to his ongoing detention as unlawful
(i) A considerable number of risk factors are identified including an obsession with sex, feeling inadequate, lack of intimate relationships, believing men have a right to sex, sexual interest in teenage girls, child abuse supportive beliefs, poor problem-solving skills, lack of consequential thinking and lack of self-management.
(ii) The panel was concerned to consider how aspects of Mr Hall's behaviour in open conditions that did not directly link to harm to children, nevertheless related to his risk on release. For example, his propensity to be manipulative and to deceive had a bearing on the risk he posed and therefore raised concerns over his thinking and decision-making skills. He demonstrated on several occasions in open conditions that his capacity for deceptive, manipulative and untrustworthy behaviour and his feelings of entitlement, which were factors in the grooming of his sexual victims, had not reduced.
(iii) Mr Hall's risk of serious harm to children as measured in the most recent OASys is assessed as high and remains particularly high in relation to under-age girls. In the panel's view, the Risk Matrix 2000 under-estimated his risk of serious harm.
(iv) Both Mr Hall's Offender Manager and Offender Supervisor are justifiably extremely sceptical about his ability to comply with supervision which the panel regarded as fundamental to the management of his risk, not only in the community but also when released on licence from open conditions. It was not therefore possible for the panel to be satisfied that his risk had reduced to the level where he met the criteria for release, nor was the panel satisfied that his risk is manageable in open conditions.
(v) The panel accordingly concluded that Mr Hall's risk remains too high for it to direct his release. It noted in this context, that at the time of the commission of the index offences when the risk he posed was escalating, Mr Hall was achieving "glowing" reports whilst undertaking a sex offenders' programme in the community.
(vi) The panel considered that his return to closed conditions had been fully justified in the circumstances and that until he satisfactorily completed such further work as was recommended to address the deficits in his thinking, behaviour and associated risk, he would remain unsuitable for open conditions "as the remaining areas of risk will outweigh the benefits of testing" in open conditions.
(vii) It recommended a full psychological risk assessment be completed before the next panel review, dealing among other things with the issues of entitlement and manipulation in Mr Hall's day-to-day activities.