QUEEN'S BENCH DIVISION
Strand, London, WC2A 2LL
B e f o r e :
| The Queen on the application of
|- and –
|SECRETARY OF STATE FOR JUSTICE
PAROLE BOARD FOR ENGLAND AND WALES
Sir James Eadie QC and Jason Pobjoy (instructed by the Government Legal Department) for the Defendant
The Interested Party did not appear and was not represented
Hearing date: 26 June 2020
Crown Copyright ©
Covid-19 Protocol: This judgment is to be handed down by the judge remotely by circulation to the parties' representatives by email and release to BAILII. The date for hand-down is deemed to be 18 September 2020.
The Honourable Mr Justice Fraser :
The Claimant's individual case
"This decision is provisional for 21 days from the date it is issued to the parties. Within this time, either party may apply for the decision to be reconsidered on the basis that it is either 'irrational' or 'procedurally unfair', or both. If no applications are received, the decision will become final after the 21 days. If an application is received, the party which has not made the application will have 7 days to submit their own representations before the application is sent to a member for consideration. When a decision is made, both parties will be notified of whether the Parole Board has decided to reconsider the decision or not."
(emphasis present in original)
"…we do not have to. It is entirely at our discretion. I would however, advise that it is not in the interests of justice to do so. The reconsideration mechanism allows a 21-day period for the Secretary of State to apply for reconsideration of the decision. They will need time to study the case. They may also need to take into account any representations received from victims. There is no indication … that the Secretary of State has said that they will not make such an application … [T]he statutory timescale applies in all other cases where the PB have made a provisional decision for release and there does not appear to be anything that would suggest that (1) the expectation it would apply does not apply here (2) this case should be treated any differently from any other."
"… we must still follow the appropriate procedures for release decisions, Mr Logan's 21 days ends COP 06/04/2020 and the first date he can be released is the 07/04/2020 … no release can be made before the 21-day process"
The underlined sentence is not correct in law, given the 21-day period can be reduced if the Parole Board grants such an application. Even the Defendant will make an application to do so in exceptional circumstances. The letter does not take into account that an application could be made to reduce the period. Mr Logan was not released until 7 April 2020. However, the Defendant points out that Mr Logan did not make an application to reduce the 21-day period, even though he shared the same legal representatives as Mr Lloyd who had done so. The implication being made by the Defendant is that these advisers must have known such an application was possible; against that must be balanced the terms of the letter which expressly stated that "no application can be made before the [end of] the 21-day process".
The Parole Board Rules 2019
"At present, the only way to challenge parole decisions is through the courts by seeking a judicial review. While this is an effective form of scrutiny, it can be a costly, complex, time-consuming and intimidating process, especially for victims of crime. The Worboys case was unusual in many ways but it shone a light on the need to have a more accessible way to review parole decisions in those rare cases where the decision may be flawed. The majority of consultation respondents welcomed the possibility of having an alternative way to review decisions and the Government has decided that we should proceed to make provision in the Parole Board Rules to implement a new reconsideration mechanism".
"Appointment of panels
5.-(1) For all cases which have been referred to the Board, the Board chair must appoint one or more members of the Board to constitute a panel to consider, in accordance with rule 19, the release of a prisoner on the papers, or to advise the Secretary of State.
(2) If, following consideration on the papers under rule 19, a case is directed to be considered at an oral hearing, the Board chair must appoint one or more members of the Board to constitute a panel to hear that case in accordance with rules 22 to 26.
(3) If following consideration of whether a case should be decided on the papers following receipt of further evidence, in accordance with rule 21, a direction is made for the case to be decided by a panel on the papers, the Board chair must appoint one or more members of the Board to constitute a panel to make a decision on the release of the prisoner on the papers.
(4) For any application made for reconsideration of a provisional decision under rule 28, the Board chair must appoint one or more members of the Board to constitute an assessment panel to consider the application".
"Case management and directions
6.-(1) A panel chair or duty member may be appointed in accordance with rule 4 to carry out case management functions and may at any time make, vary or revoke a direction.
(2) The panel chair or duty member appointed under paragraph (1) may make any direction necessary in the interests of justice, to effectively manage the case or for such other purpose as the panel chair or duty member considers appropriate.
(3) Such directions may in particular relate to-
(a) the timetable for the proceedings;
(b) the service of information or a report;
(c) the submission of evidence;
(d) the attendance of a witness or observer.
(4) A direction given under this rule may not relate to withholding information or reports; such directions are governed by rule 17.
(5) A party or third party who is subject to a direction may apply in writing for a direction to be given, varied or revoked."
7.-(1) A panel chair or duty member may hold a directions hearing."
9. A panel chair or duty member may alter any of the time limits prescribed by or under these Rules where it is necessary to do so for the effective management of the case, in the interests of justice or for such other purpose as the panel chair or duty member considers appropriate."
10.-(1) Subject to paragraph (2), a party may appoint a representative (whether a solicitor or barrister or other representative) to represent that party in the proceedings."
"Consideration on the papers
19.-(1) Where a panel is appointed under rule 5(1) to consider the release of a prisoner, the panel must decide on the papers either that-
(a) the prisoner is suitable for release;
(b) the prisoner is unsuitable for release, or
(c) the case should be directed to an oral hearing.
(2) Where a panel has received a request for advice from the Secretary of State concerning whether a prisoner should move to open conditions, the panel must recommend whether-
(a) the prisoner is suitable for a move to open conditions, or
(b) the prisoner is not suitable for a move to open conditions.
(3) Where a panel makes a decision that the case should be directed to an oral hearing under this rule, the panel may at the same time make any directions relating to the oral hearing.
(4) Any decision made under paragraph (1)(a) which is eligible for reconsideration under rule 28 is provisional, and becomes final if no application for reconsideration is received within the period specified by that rule.
(5) Any decision made under paragraph (1)(a) which is not eligible for reconsideration under rule 28 is final.
(6) Any decision made under paragraph (1)(b) is provisional.
(7) Where the Board receives a request for advice with respect to any matter referred to it by the Secretary of State, the Board may advise or make a recommendation to the Secretary of State without an oral hearing.
(8) The decision or advice of the panel must be recorded in writing with reasons for that decision or advice, and the written record provided to the parties within 14 days of that decision or advice".
"Procedure after a provisional decision on the papers
20.-(1) Where a panel appointed under rule 5(1) has made a decision that a prisoner is unsuitable for release under rule 19(1)(b), the prisoner may apply in writing for a panel at an oral hearing to determine the case.
(2) A prisoner who makes an application under paragraph (1) must serve the application, together with reasons for making an application, on the Board and the Secretary of State, within 28 days of the provision of the written record under rule 19(8).
(3) If no application has been served by the prisoner under paragraph (2) after the expiry of the period specified by that paragraph, a provisional decision made under rule 19(1)(b)-
(a) remains provisional if it is eligible for reconsideration under rule 28, and becomes final if no application for reconsideration is received within the period specified by that rule, or
(b) becomes final if it is not eligible for reconsideration under rule 28.
(4) Where no application is served by a prisoner under paragraph (2), the decision must be provided to the parties by the Board within 35 days of the written record under rule 19(8).
(5) If an application is served in accordance with paragraph (2), the decision about whether the case should be determined at an oral hearing must be taken by a member of the Board who-
(a) is a duty member, and
(b) was not part of the constituted panel appointed under rule 5(1) who made the provisional decision.
(6) If the decision taken under paragraph (5) is that the case should not be determined at an oral hearing, a provisional decision under rule 19(1)(b)-
(a) remains provisional if it is eligible for reconsideration under rule 28 and becomes final if no application for reconsideration is received within the period specified by that rule, or
(b) becomes final if it is not eligible for reconsideration under rule 28.
(7) Where the decision taken under paragraph (5) is that the case should not be determined at an oral hearing, that decision must be provided to the parties by the Board within 35 days of the written record under rule 19(8).
(8) A decision under paragraph (5) cannot be deferred or adjourned by a panel chair or duty member under rule 6 and the time limit in paragraph (7) cannot be extended under rule 9".
"Decision on the papers after a direction for an oral hearing
21.-(1) Subject to the provisions of this rule, where further evidence is received by the Board after a panel have directed that a case should be determined at an oral hearing under rule 19(1)(c) or 20(5), a panel chair or duty member can direct that the case should be decided on the papers if an oral hearing is no longer necessary.
(2) Where further evidence is received under paragraph (1), the Board must notify the parties of the receipt of the evidence as soon as practicable.
(3) Within 14 days of notification of the receipt of further evidence under paragraph (2), the parties may make representations on-
(a) the contents of the further evidence, and
(b) whether they agree to the case being decided by a panel on the papers.
(4) After the 14-day period for the parties to make representations under paragraph (3), the panel chair or duty member will consider the further evidence and any representations made, and make a direction that the case should-
(a) be decided by a panel on the papers, or
(b) continue to be determined by a panel at an oral hearing under rule 25.
(5) Where a direction is made under paragraph (4)(a) for a decision to be made by a panel on the papers under paragraph (7), the panel may be constituted of the panel chair who made the direction or by a new panel appointed under rule 5(3).
(6) A direction for a case to be decided on the papers under paragraph (4)(a) cannot be made where there is less than 3 weeks until the oral hearing.
(7) Where a direction is made that the case should be decided on the papers under paragraph (4)(a), the panel must decide either that-
(a) the prisoner is suitable for release, or
(b) the prisoner is not suitable for release.
(8) Any decision made under paragraph (7) is provisional if it is eligible for reconsideration under rule 28, and becomes final if no application for reconsideration is received within the period specified by that rule.
(9) Any decision made under paragraph (7) which is not eligible for reconsideration under rule 28 is final."
"Decision by a panel at an oral hearing
25.(1) Where a panel has considered a prisoner's case at an oral hearing, the panel must decide either that-
(a) the prisoner is suitable for release, or
(b) the prisoner is unsuitable for release.
(2) Any decision made by the panel under paragraph (1) which is eligible for reconsideration under rule 28 is provisional, and becomes final if no application for reconsideration is received within the period specified by that rule.
(3) Any decision made by the panel under paragraph (1) which is not eligible for reconsideration under rule 28 is final."
"Reconsideration of decisions
28.(1) Subject to paragraph (2), where a decision has been made under rule 19(1)(a) or (b), 21(7) or 25(1), a party may apply to the Board for the case to be reconsidered on the grounds that the decision is-
(a) irrational, or
(b) procedurally unfair.
(2) Decisions are eligible for reconsideration only where the prisoner is serving-
(a) an indeterminate sentence;
(b) an extended sentence;
(c) a determinate sentence subject to initial release by the Board under Chapter 6 of Part 12 of the 2003 Act.
(3) An application for a provisional decision to be reconsidered under paragraph (1) must be made and served on the other party no later than 21 days after the written decision recorded under rules 19(8), 21(12) or 25(6) is provided to the parties.
(4) Where a party makes an application under paragraph (3), the other party may make representations, and those representations must be provided to the Board and the party who made the application within 7 days of service of the application.
(5) Where an application made under paragraph (3) is received by the Board, the application must be considered on the papers by an assessment panel.
(6) After assessing the application under paragraph (5), the assessment panel must-
(a) direct that the provisional decision should be reconsidered, or
(b) dismiss the application.
(7) The assessment panel may direct that the provisional decision should be reconsidered under paragraph (6)(a) only if it has identified a ground for reconsideration under paragraph (1).
(8) Where the assessment panel dismiss the application under paragraph (6)(b), the provisional decision becomes final.
(9) Where the assessment panel directs that the provisional decision should be reconsidered under paragraph (6)(a), the assessment panel must direct that the case should be-
(a) reconsidered on the papers by the previous panel or a new panel appointed under rule 5(1), or
(b) reconsidered at an oral hearing by the previous panel or a new panel appointed under rule 5(2).
(10) The decision of the assessment panel must be recorded in writing with reasons, and that record must be provided to the parties not more than 14 days after the decision."
"There is a general power under Rule 9 of the Parole Board Rules 2019 for the Parole Board to alter any of the normal time limits set out in the 2019 Rules 'where it is necessary to do so for the effective management of the case, in the interests of justice or for such other purpose as the panel chair or duty member considers appropriate'. An application to alter the normal time limits could be made by the Secretary of State or a prisoner. This guidance identifies the cases in which the Secretary of State is likely to apply to the Parole Board to shorten the 21-day reconsideration period, pursuant to Rule 9.
The Secretary of State is likely to apply to the Parole Board to shorten the 21-day reconsideration period where the following three conditions are satisfied.
1. There are no victims signed up to the Victim Contact Scheme or the Secretary of State has received and considered an application from a victim for reconsideration, and there is no likelihood of further victim applications; and
2. The Secretary of State is satisfied that there are no grounds on which to make a reconsideration application; and
3. There are exceptional reasons which justify an application to shorten the 21-day reconsideration period, including circumstances where:
(1) the prisoner is at risk of losing their place in an Approved Premises or other specialist accommodation;
(2) the prisoner may lose an opportunity to take up employment;
(3) the continuity of a prisoner's healthcare, treatment or medication will be compromised.
(4) continued detention may significantly impede arrangements to deport the prisoner;
(5) there are other exceptional reasons which justify an application to shorten the 21-day reconsideration period to allow the prisoner's earlier release."
"18. The SSJ acknowledges that there may be exceptional circumstances where detaining the prisoner for the duration of the 21-day window following a provisional parole decision may impede the prisoner's release plan. We anticipate that this will only occur in a very limited number of cases, given that in most cases it will take longer than 21 days to put the release arrangements in place and so the provisional decision window would not affect the date of release. In this respect, it is important to note that the expectation is that all efforts will be made to progress release plans during the provisional window, and to organise release for the earliest day outside the 21-day provisional window.
19. There is a procedural mechanism which allows the SSJ or a prisoner to apply to alter any of the normal time limits set out in the 2019 Rules, which includes the 21-day provisional decision period: see Rule 9 of the 2019 Rules."
The First Ground of Challenge
(1) The Parole Board is to continue to be, by that name, a body corporate and as such is—
(a)to be constituted in accordance with this Chapter……
(2) It is the duty of the Board to advise the Secretary of State with respect to any matter referred to it by him which is to do with the early release or recall of prisoners.
(3) The Board must, in dealing with cases as respects which it makes recommendations under this Chapter or under Chapter 2 of Part 2 of the 1997 Act, consider—
(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 must consider the report of the interview made by that member.
(4) The Board must deal with cases as respects which it gives directions under this Chapter or under Chapter 2 of Part 2 of the 1997 Act on consideration of all such evidence as may be adduced before it.
(5) Without prejudice to subsections (3) and (4), the Secretary of State may make rules with respect to the proceedings of the Board, including proceedings authorising cases to be dealt with by a prescribed number of its members or requiring cases to be dealt with at prescribed times".
(1) This section applies to—
(a) any power conferred by this Act on the Secretary of State to make an order or rules;
(2) The power is exercisable by statutory instrument.
(3) The power—
(a) may be exercised so as to make different provision for different purposes or different areas, and
(b) may be exercised either for all the purposes to which the power extends, or for those purposes subject to specified exceptions, or only for specified purposes.
(4) The power includes power to make—
(a) any supplementary, incidental or consequential provision, and
(b) any transitory, transitional or saving provision,
which the Minister making the instrument considers necessary or expedient."
"(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.""
" …s 28 of the 1997 Act cannot sensibly be interpreted to provide that as soon as a Parole Board takes a decision in which it directs release, albeit under conditions or at some future time, the Secretary of State is under a duty there and then and thereby to ensure that that release takes place forthwith. That would give no effect to the provisions of s.31; it would not recognise the difference in language between s.28 and s.32; it would in my view simply have been beyond the contemplation of Parliament that the alternative, which would need to have been in place immediate release to be effected, would operate in an impractical way – as Ms Davies points out, if it were to be the case that it was anticipated that a Parole Board might make a direction which was conditional as to time or circumstance, that (so far as a circumstance such as accommodation in a hostel was concerned) the hostel would have to be held available just in case the Board at its hearing might decide that particular prisoner under review was to be released, even though it equally might not. Supervision arrangements would have to be made in anticipation of a possible outcome; appointments with psychiatrists and the like would have to be in place – all of which would be on a provisional basis which, given that the decision lies in the power of the Parole Board which has not yet considered it, might or might not be given effect to. I cannot sensibly construe s.28 in such a way that it would have that effect."
" It is accepted by Mr Flanagan on behalf of the respondent (in my view, correctly) that if release is directed with a recommended condition of residence at Approved Premises the release must not be delayed beyond a reasonable time on the facts of each individual case, but he submits that, with that limitation, the s.28(5) duty is fulfilled once the release occurs within such reasonable time.
 He referred us to the decision of Langstaff J in R (Elson) v Greater Manchester Probation Trust  EWHC 3692 (Admin). This was a decision refusing permission to apply for judicial review and would not normally be citable as authority. However, the judge referred to it in paragraph 25 of her judgment and, to my mind, we could not sensibly ignore it, since (in effect) the judge adopted the decision as part of her own reasoning".
" I agree with Langstaff J and the judge that Parliament cannot have intended the section to work in a way that would have the impracticable results that flow from the construction which Mr Rule would have us adopt. Of course, prior planning is made by the offender manager to see when a place at Approved Premises would be available, as happened here. It enables the panel to know that, if it directs release to Approved Premises, the release can be safely achieved with the relevant risk management precautions in place. However, to my mind, an intention to require immediate release at a time before such precautions are known to be available is not something that one should readily attribute to Parliament. As Langstaff J also pointed out, if a prisoner is released on condition of residence at a place which is not available to him it would have the result that he would have to be brought back to prison immediately the condition was broken on the first day out of custody. Such a result can hardly have been intended.
 In my judgment, all this shows that the construction of s. 28 advanced on behalf of the appellants cannot be correct.
 Under that section the Board will direct release in such a way as to satisfy it, in accordance with s. 28(6), that it is no longer necessary to confine the prisoner to custody. If conditions are necessary to achieve protection of the public it will recommend their imposition, it being implicit that its direction is subject to those conditions. The alternative is simply to refuse to direct release which can hardly be in the interests of the prisoner. I simply do not accept Mr Rule's contention that if release subject to residence at Approved Premises cannot be achieved immediately, then the prisoner has to be released without any such condition. To attribute such an intention to Parliament in enacting s. 28 seems to me to be fanciful."
""It is the judgment of the board as an independent quasi-judicial review body, not the judgment of the Secretary of State as an arm of the executive, which matters. He is a party to the review, and of course his evidence and submissions must be received and weighed. But the board must make its own mind up, and give its own reasons. It would seriously undermine the integrity of the system if the board were to defer to the Secretary of State's view unless it were shown to be wrong. It is itself the primary decision-maker.""
Although Sir Thomas Bingham there described the Board as a quasi-judicial body, it is now correctly accepted as a court."
" Like all English words used in a statute (or indeed elsewhere), the meaning of the word 'directions' depends upon its context. The conclusion reached by the judge would we think be correct if the power to give directions included a power to direct the Board how it was to decide a particular case or class of case, because that would be to impugn the independence of the Board and to interfere with its functions as a court. However, if the power to give directions is construed as including, and being limited to, a power to give general directions to the Board to assist it to exercise its powers within the law, we can see no objection in principle to such a power being conferred on the Secretary of State.
 Thus, the Secretary of State could not properly be given a power to determine by what legal principle the Board should decide whether or not to direct the release of a prisoner. Section 28(6)(b) of the 1997 Act provides that the Board shall not direct the release of a prisoner unless it is satisfied that it is no longer necessary for the protection of the public that the prisoner should be confined. The Secretary of State could not lawfully direct the Board to apply some different test. Equally, in deciding whether it is so satisfied, the Board must have regard to considerations which are relevant to the determination of the question whether it is necessary to confine the prisoner any longer and it must not have regard to considerations which are not legally relevant to the determination of that question. The Secretary of State could not properly direct the Board to have regard to an irrelevant consideration or not to have regard to a relevant consideration.
 On the other hand, there are many considerations which are potentially relevant as a matter of law in a particular case and which it is the duty of the Board to weigh in the balance in deciding whether the statutory test is satisfied. We can see no reason why the Secretary of State should not be given power to give directions to the Board that it should take account of such considerations in so far as it may be appropriate to do so on the facts of a particular case. In these circumstances, if the power to give directions in section 32(6) of the CJA 1991 can properly be construed as contemplating and being limited to directions of this class, we can see no objection to it in principle and no warrant for the declaration granted by the judge.
 We can see no reason why the word 'directions' should not be given that limited meaning. As an English word, it can be given more than one meaning. It can certainly mean what the judge took it to mean, namely mandatory directions to act in a particular way. However, in a different context, it can mean directions from A to B. If a person gives such directions, he merely expresses his or her opinion as to how to proceed from A to B. Similarly, in the present context, if the power to give directions is construed to mean a power to give guidance to the Board as to the matters to be taken into account, in so far as they are legally relevant, the Secretary of State can in our opinion properly be empowered to give such directions in order to assist the Board to reach a structured decision on the question which is its duty to decide.
 We so construe section 32(6) of the CJA 1991."
The Second Ground of Challenge
"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;
(b) the lawful arrest or detention of a person for noncompliance with the lawful order of a court or in order to secure the fulfilment of any obligation prescribed by law;
(c) the lawful arrest or detention of a person effected for the purpose of bringing him before the competent legal authority on reasonable suspicion of having committed an offence or when it is reasonably considered necessary to prevent his committing an offence or fleeing after having done so;
(d) the detention of a minor by lawful order for the purpose of educational supervision or his lawful detention for the purpose of bringing him before the competent legal authority;
(e) the lawful detention of persons for the prevention of the spreading of infectious diseases, of persons of unsound mind, alcoholics or drug addicts or vagrants;
(f) the lawful arrest or detention of a person to prevent his effecting an unauthorised entry into the country or of a person against whom action is being taken with a view to deportation or extradition.
"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."
Post-tariff detention must be speedily reviewed by a court; this is required under Article 5(4). The court for these purposes is the Parole Board.
"The deprivation of liberty must genuinely be for one of the purposes permitted by article 5(1) and must, in the case of a sentence, retain a sufficient causal connection with the original conviction."
"The present appeal does not in any event concern procedural fairness. It concerns alleged failures in the provision of appropriate opportunities to prisoners to progress towards release from sentences about the imposition of which, as such, no complaint is or can be made. In this context, there is a real difficulty about accepting a proposition that the Convention rights require a life or IPP prisoner's release, before the Parole Board is satisfied that his detention is no longer required for the protection of the public."