Payne v Lord Harris of Greenwich
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE BRIGHTMAN,LORD JUSTICE SHAW |
| Judgment Date | 19 March 1981 |
| Judgment citation (vLex) | [1981] EWCA Civ J0319-4 |
| Docket Number | 81/0121 |
| Court | Court of Appeal (Civil Division) |
| Date | 19 March 1981 |
(The Chairman of the Parole Board sued on behalf of himself and on behalf of and as representing all other members thereof)
(The Chairman of the Local Review Committee for Maidstone sued on behalf of himself and on behalf of and representing all other members thereof)
[1981] EWCA Civ J0319-4
The Master of the Rolls
(Lord Denning)
Lord Justice Shaw
and
Lord Justice Brightman
81/0121
1977 P. No. 3952
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
(MR. JUSTICE McNEILL)
Royal Courts of Justice.
B. DAVID TURNER—SAMUELS, Q.C. and MR. BRIAN LANGSTAFF (instructed by Messrs. Gulland & Gulland, Maidstone) appeared on behalf of the Plaintiff (Appellant).
MR. SIMON BROWN and MR. JOHN LAWS (instructed by the Treasury Solicitor) appeared on behalf of the Defendants (Respondents).
THE MASTER OF THE ROILS: Nearly thirteen years ago, on the 24th May, 1968, Roger John Payne—being then aged about 26—was convicted of the murder of a woman and was sentenced to life imprisonment. (He had two previous convictions when he was about 18 and 23 years old. Each of them involved an assault on a woman).
On the 4th December, 1968 he was placed in prison in category A as being a man whose escape would be highly dangerous to the public. He was in that category for seven years until the 7th July, 1975 when he was placed in category B as being a man for whom escape must be made very difficult. Three years later, on the 23rd March, 1978, he was placed in category C as one for whom simple basic precautions would be sufficient. He is now in category D. He is still in prison in that category.
Throughout his time in prison he has been exceptionally well-behaved. He is described as a "model prisoner". He is in the "blue band" allocated to the Educational Department at Maidstone Prison.
Being a life-sentence prisoner, Roger Payne does not qualify for remission. Whereas, a prisoner who is given a determinate sentence may, if he is well behaved, get one-third of his sentence remitted—in which case he is released unconditionally without being liable to recall.
Yet even a life-sentence prisoner may be released on licence—subject always to conditions, and in particular to being liable to recall. It is so provided in section 61 of the Criminal Justice Act 1967.
Roger Payne has sought to be released on licence ever since he had completed six years in prison. But he has never been granted a licence. His case has been reviewed from time to time, but he has never been let out on parole. He has asked to be told the reasons for refusal. He wants them, he says, so as to be able to prepare his representations for the next review.
Now he has brought an action in the High Court seeking a declaration that he is entitled to know the reasons. Mr. Justice McNeill rejected his claim. He appeals to this court.
I would like to say that, instead of seeking a declaration, it would have been more appropriate to proceed by judicial review, see Heywood v. Hull Prison Visitors (1980) 1 Weekly Law Reports 1386. But, as the case is before us, we will deal with it.
THE PROCEDURE
The procedure is governed by sections 59 to 62 of the Criminal Justice Act 1967 and the Local Review Committee Rules 1967 (1967 No. 1462). The stages are as follows:
The prisoner (if he is willing) is interviewed by a member of the Local Review Committee. At that interview "he shall be given a reasonable opportunity to make any representation he wishes to be considered by the Committee". The member writes a report of the interview. He includes in it any representations made by the prisoner. The Local Review Committee considers the report of their member. They then make a report to the Secretary of State of the suitability of the prisoner for release on licence. The Secretary of State then refers the case to the Parole Board. The Parole Board advises the Secretary of State. If they recommend that the man should be released on licence, the Secretary of State may then release a life-sentence prisoner—but only after consultation with the Lord Chief Justice and the trial judge. If the Parole Board do not recommend that he be released on licence, that is the end of the matter—until his case comes up for a further review.
THE INTERPRETATION OF THE PROVISIONS
It seems to me that the statute and the rules together form a comprehensive code. They set out the procedure in such detail that there is nothing more needed to supplement it. They set out the occasions when a man is entitled to make representations: and when he is to be informed of reasons. In particular, it is specifically provided in section 62(3) of the 1962 Act that, if he is recalled, he "shall on his return to prison be informed of the reasons for his recall". There is no corresponding provision when he is refused a licence. That goes to show that the legislature did not think that reasons were necessary.
But I hesitate to decide this case on that simple ground. In a parallel case when we thought it sufficient to go by the procedure laid down by the statute, see Wiseman v. Borneman (1968) 1 Chancery 429, the House of Lords said that natural justice was still to be considered, see Wiseman v. Borneman (1971) Appeal Cases 297, especially by Lord Wilberforce at page 317.
NATURAL JUSTICE
No doubt it is the duty of all those concerned—from the member of the Local Review Committee, to the Parole Board, to the Secretary of State—to act fairly. That is the simple precept which now governs the administrative procedure of all public bodies. But the duty to act fairly cannot be set down in a series of set propositions. Each case depends on its own circumstances. As Lord Justice Sachs said in Pergamon Press (1971) 1 Chancery at page 403:
"In the application of the concept of fair play, there must be real flexibility, so that very different situations may be met without producing procedures unsuitable to the object in hand".
Sometimes fairness may require that the man be told the outline of the case against him. As in the Gaming Board case (1970) 2 Queen's Bench 417, I said:
"…without disclosing every detail, I should have thought that the board ought in every case to be able to give to the applicant sufficient indication of the objections raised against him so as to enable him to answer them". That is what Mr. Turner-Samuels, Q.C. urged here.
At other times it may not be necessary to have a hearing or even to tell the man the case against him, because it must be obvious to him. As, for instance, in Cinnamond v. British Airport Authority (1980) 1 Weekly Law Reports at pages 590–1; and Reg. v. Home Secretary, ex parte Santillo (1981) 2 Weekly Law Reports at pages 374–5.
SUBMISSIONS ON BEHALF OF ROGER PAYNE
Mr. Turner-Samuels, Q.C. submitted that, in the case of life-sentence prisoners at any rate, it was only fair that they should be given the reasons, at any rate in outline, why they were refused to be let out on licence. One reason was because he would be better able to make adequate representations on the next occasion when his case was reviewed. Another reason was that it would be beneficial to the man, as a human being, to be told the reasons for refusal. In support of this view, Mr. Turner-Samuels, Q.C. called Mr. Blom-Cooper, Q.C., who said:
"It can only be beneficial in helping the prisoner grapple with the problems of perhaps long confinement or even to grapple with the probability of a release which may be some years away".
Mr. Blom-Cooper, Q.C. also said that Lord Justice James was very much in favour of giving reasons in the parole system, and he quoted Lord Hunt, the first Chairman of the Parole Board as saying:
"It is a moral right that cannot be indefinitely denied and it is a failure of natural justice which has lasted for far too long".
Only a few days ago Mr. Turner-Samuels drew to our notice the Golder case in the European Court of Human Rights on the 7th May, 1974. Golder complained that it was a wrong statement in his prison record that prevented him being recommended for parole.
SUBMISSIONS TO THE CONTRARY
There are equally strong submissions to the contrary. The first is the practical difficulty of giving the reasons of a body of five members. One or two may have a different reason from the other three or four. Some may be spoken. Other unspoken. The next is the danger that the reasons, if given, would tend to become short and stereo-typed, rather than full and informative. So they would be of little avail. If they were full and informative, they would give the prisoner an opening with which he could challenge the refusal. He could lodge an application for judicial review complaining that the Board took things into account which they should not have done—or that their decision was unreasonable. If he were refused judicial review, he would harbour a grievance which would become obsessive—just as much as if he is refused parole without reasons being given.
Apart from these practical considerations, I would suppose that in most cases the man will know the reasons well enough himself. He will have known the gravity of his crime. He will know whether he is thought to be a danger or not. He will know whether he has behaved well in prison or not. He will be able to deal with all these points in the representation which he is allowed to make. If there should be any new factor adverse to him—of which he is unaware—the...
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