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Court of Appeal in Northern Ireland Decisions
You are here: BAILII >> Databases >> Court of Appeal in Northern Ireland Decisions >> Peart, Re an Application for Judicial Review [2003] NICA 26 (30 June 2003)
URL: http://www.bailii.org/nie/cases/NICA/2003/26.html
Cite as: [2003] NICA 26
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NICHOLSON LJ
[1] The appellant, a prisoner currently serving a sentence of imprisonment in HMP Magilligan, applied for judicial review of the decision of the Parole Board for England and Wales refusing his application for parole. These decisions were made on 9 August 2002 and 29 August 2002. [2] Kerr J held that the Parole Board wrongly decided that it could and should deal with the appellant's entitlement to parole on the basis that sentences passed in May 1998 in Scotland should be treated as a single term of imprisonment with sentences by an English court in July 1998 which were stated by the English court to be passed concurrently with the sentences of the Scottish court. But he further held that the Parole Board would have been bound to reach the same conclusion if it had approached the question in the proper manner. Accordingly in the exercise of his discretion he refused judicial review on that ground and held that none of the other grounds advanced on behalf of the appellant had been made out. [3] The appellant appealed to this court and the Parole Board, the respondent to the appeal, served a respondent's Notice contending that the decision of the court should be affirmed, without prejudice to the overall conclusion of the trial judge, on grounds other than those relied on by him, namely that the respondent approached the question in the proper manner. [4] The appellant was convicted of criminal offences involving violence against his ex-girlfriend in Scotland on 6 May 1998. He was sentenced on two charges of assault to 5 years and 6 months imprisonment from 6 May 1998. [5] After sentence he was transferred to England for the purpose of criminal proceedings against him there by order of the Secretary of State in exercise of the powers conferred on him by paragraph 2(1)(b) and 5(1) of Schedule 1 to the Criminal (Sentences) Act 1997. The transfer was subject to conditions which included (i) that he should, for the duration of his transfer to England, be treated for the relevant purposes of the 1997 Act … as if he were still subject to the provisions applicable for those purposes under the law of Scotland. Those purposes related to release from prison, supervision while released on licence and recall from release on licence. For all other purposes he was to be subject to the rules and regulations governing prisons in England. [6] On transfer to England he was tried for offences committed in England. He was convicted of offences of importing drugs and on 22 July 1998 was sentenced to three concurrent sentences of 9 years and 6 months, 3 years and 5 years which were stated to be served concurrently with the sentences imposed in Scotland. [7] The appellant was transferred from England to Northern Ireland by order of 11 March 1999. The order of the Secretary of State recited his convictions for drug offences in England but made no reference to the Scottish offences. The transfer was subject to the following conditions (i) that he should, for the duration of the transfer to Northern Ireland be treated for the relevant purposes of the 1997 Act as if he were still subject to the provisions applicable for those purposes under the law of England and Wales, (ii) that for all other purposes he should be subject to the rules and regulations governing prisons in Northern Ireland. He was transferred to HMP Maghaberry on 24 March 1999 and from there to HMP Magilligan on 23 September 1999. [8] Under Scottish law it is provided by section 1(2) of the Prisoners and Criminal Proceedings (Scotland) Act 1993:"As soon as a long-term prisoner has served two-thirds of his sentence, the Secretary of State shall release him on licence."
A long-term prisoner is defined by section 27 of the 1993 Act as a person serving a sentence of four years or more. The appellant would, therefore, have been mandatorily released from prison in Scotland on 8 January 2002 if he had been serving the sentence imposed by the Scottish court. The Parole Board in Scotland ceased to have a role to play in his sentence on 8 January 2002.
[9] Kerr J rightly decided that this was so. He was also correct in holding that the Parole Board of England and Wales was not entitled to treat the sentences passed in May 1998 in Scotland as a single term of imprisonment with the sentenced passed by the English court in July 1998 by virtue of section 51(2) of the Criminal Justice Act 1991. Despite the argument cogently advanced to Kerr J and to this court by Mr Maguire on behalf of the respondent, neither Kerr J nor this court was persuaded that section 51(2) of the 1991 Act applied to sentences other than those passed in England and Wales: see section 102(4) of the 1991 Act. We were also satisfied that the Parole Board did treat the Scottish and English sentences as a single term of imprisonment. [10] Kerr J held that the Parole Board would have been bound to reach the same conclusion if it had approached the question of parole in the proper manner. We respectfully disagree. The Secretary of State's Directions to the Parole Board – Release of Determinate Sentence Prisoners – made under section 32(6) of the 1991 Act provide as follows:-"1. 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 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.
2. Before recommending early release on licence, the Parole Board shall consider whether:-
(1) the safety of the public will be placed unacceptably at risk. In assessing such risk, the Board shall take into account:
(a) the nature and circumstances of the original offence;
(b) whether the prisoner has shown by his attitude and behaviour in custody that he is willing to address his offending behaviour by understanding its causes and its consequences for the victims concerned, and has made positive effort and progress in doing so;
(c) in the case of a violent or sexual offender, whether the prisoner has committed other offences of sex or violence, in which case the risk to the public of release on licence may be unacceptable;
(d) that a risk of violent or sexual offending is more serious than a risk of other type of offending.
(2) The longer the period of supervision that parole would provide is likely to reduce the risk of further offences being committed.
(3) The prisoner is likely to comply with the conditions of his licence."[11] The Parole Board were in error in regarding "the original offence" as being or including the offences of violence committed in Scotland. The original offence(s) were the drug offences. Bearing in mind the Directions of the Secretary of State, we are of the view that if the Parole Board had approached the risk of re-offending correctly, they may have reached a different conclusion, having regard to the documents placed before them and before us. It would be wholly inappropriate for us to express any view about the merits of the appellant's application. But we understand that up-to-date reports are available to the Parole Board. [12] They were and are entitled to have regard to the appellant's criminal record, including the convictions and sentences passed in Scotland. But they should have approached their task on the basis that the appellant was mandatorily entitled to his release under licence in January 2002 in respect of the Scottish offences and that the Parole Board in Scotland ceased to play a role in respect of those offences in January 2002. [13] We do not propose to deal with the other arguments advanced to us at this stage. A full judgment will be written later. [14] We allow the appeal, remit the appellant's application for parole to the Parole Board for reconsideration in the light of this summary of our judgment and request that they reach a decision by 31 July 2003.