R Anwar Hussain v The Parole Board of England and Wales
| Jurisdiction | England & Wales |
| Judge | Mr Justice Hickinbottom |
| Judgment Date | 24 February 2016 |
| Neutral Citation | [2016] EWHC 288 (Admin) |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 24 February 2016 |
| Docket Number | Case No: CO/1022/2015 |
[2016] EWHC 288 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
Mr Justice Hickinbottom
Case No: CO/1022/2015
Philip Rule and Varsha Jagadesham (instructed by EBR Attridge LLP Solicitors) for the Claimant
Ben Collins and David Bedenham (instructed by Government Legal Service) for the Defendant
Hearing dates: 3–4 February 2016
Introduction
In this case, the court returns to the legal effect of delays in the Parole Board advising and making recommendations to the Secretary of State in respect of life prisoners, this time in the context of pre-tariff reviews to determine whether a prisoner should be transferred from closed to open prison conditions. The case raises an important issue as to the scope of the duties owed by the state to an indeterminate sentence prisoner during the currency of his minimum custodial term to enable him to demonstrate, after the expiry of that term, that he no longer presents an unacceptable danger to the public; and thus he can and should be released.
Before me Philip Rule and Varsha Jagadesham appeared for the Claimant prisoner, and Ben Collins and David Bedenham appeared for the Defendant Board. I thank them at the outset for their full submissions.
The Legal Background
The claim is made under article 5 of the European Convention on Human Rights ("ECHR") and at common law.
Article 5, so far as relevant, provides:
"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;
…
…
4. 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.
5. Everyone who has been the victim of arrest or detention in contravention of the provisions of this article shall have an enforceable right to compensation."
Turning to the relevant domestic sentencing provisions, a person convicted of murder, who was under 18 at the time the offence was committed, must be sentenced to be detained during Her Majesty's pleasure (sections 90 and 93 of the Powers of Criminal Courts (Sentencing) Act 2000).
That is a mandatory life sentence to which section 28(5)-(8) of the Crime (Sentencing) Act 1997 ("the 1997 Act") and section 269 of the Criminal Justice Act 2003 ("the 2003 Act") apply. Those provisions require the sentencing court to fix a "tariff" by reference to the seriousness of the offence and the circumstances of the offender, the object of which is punishment. Subject to an offender who was a minor being entitled to apply for advancement of the date if he is able to demonstrate exceptional and unexpected progress during the course of his sentence (under the principles set out in R (Smith) v The Secretary of State for the Home Department [2005] UKHL 51 ("Smith")), that tariff is the minimum term which the offender must spend in custody. However, even after that term has been served, he will remain in detention unless and until he can demonstrate that he no longer presents an unacceptable risk to the public. The object of that second part of the sentence is to prevent unacceptable risks to the public as presented by the offender, coupled with the continued rehabilitation of the offender with a view to reducing the risk he poses to an acceptable level to allow his release. If and when released, he will still be subject to licence conditions (and liable to recall) for the rest of his life.
The date the offender will be released is therefore not determined at the time the sentence is passed. A life sentence is thus one of several forms of "indeterminate sentence" and those serving a life sentence are part of a cohort of "indeterminate sentence prisoners" ("ISPs").
In terms of article 5, the fact that an ISP has been sentenced by a court following conviction means that his whole period in custody is justified by article 5(1)(a); and, for the minimum custodial term, article 5(4) is satisfied by the fact that that term was fixed by the sentencing court as punishment in the form of the appropriate determinate period. However, after the expiry of the tariff, the original sentence is insufficient to satisfy article 5(4). That second and indeterminate part of the sentence cannot be justified on the grounds of punishment, but only on the basis that this is a period for rehabilitation and risk reduction until a point is reached when the offender's risk to the public is reduced to an acceptable level, whereupon there is no further lawful purpose in his continued detention. Since, after the tariff period has expired, there is a question whether an offender's continued detention is consistent with that object, the offender has an entitlement under article 5(4) to have that question determined "speedily by a court".
It is immediately apparent that, once an ISP's tariff has expired, both our domestic scheme and article 5(4) require the assessment of the risk he poses to the public and, in particular, an assessment of whether that risk has been reduced to an acceptable level to allow for his release. Those assessments are made by the Parole Board for England and Wales ("the Board"), established by the Criminal Justice Act 1967 as an arm of the executive government but transposed into an independent executive non-departmental public body exercising judicial functions by the Criminal Justice and Public Order Act 1994. It is associated with the Ministry of Justice, and the Secretary of State for Justice is ultimately responsible for it.
The Board operates in the following way. By section 239(2) of the Criminal Justice Act 2003, the Board has a duty 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". Most referrals "to do with the early release… of prisoners" seek the Board's advice on the risk that a prisoner would represent to the public on release, and a consequent direction as to whether he can now be released permanently subject only to licence conditions. For any particular prisoner who might be ready for release, the first such referral takes place at a time to enable release at, or reasonably shortly after, the expiry of tariff (i.e. "at tariff"); and, if unsuccessful, regularly thereafter.
By section 28(5) of the 1997 Act, the Secretary of State is required to release a prisoner if he has served the minimum term and the Board has directed his release. However, by section 28(6), the Board shall not direct release unless "[it] is satisfied that it is no longer necessary for the protection of the public that the prisoner should be confined". Thus, the decision to release a life prisoner from preventative detention after the tariff period has expired is effectively in the hands of the Board who are required to assess the relevant risk he poses after the Secretary of State refers him to them for assessment and recommendation.
To satisfy the Board that his risk has been reduced to an acceptable level, a prisoner needs an evidential foundation. In practice, that is likely to include evidence of successful completion of courses designed to address his offending behaviour, whether of a violent or sexual nature; and evidence that he has had his progress and eventually readiness to be released into the community successfully tested by phased release involving a transfer from closed to open prison conditions.
In open conditions, the offender's progress is assessed in a number of ways not in practice available whilst he is in closed conditions, e.g. in the context of short-term temporary release on day and overnight licence. Paragraph 4.8.1 of Prison Service Order ("PSO") 4700 (the Indeterminate Sentence Prisoner Manual, guidance issued by the Secretary of State), inserted by Prison Service Instruction ("PSI") 36/2010, therefore acknowledges that:
"In most mandatory lifer cases, a phased release from closed to open prison is necessary in order to test their readiness for release into the community on life licence."
Similarly, paragraph 4 of Annex A to PSO 2300 (Resettlement), recognises that phased release enables:
"… life sentence prisoners… [to] be tested and monitored under varying degrees of supervision to enable the Parole Board to take an informed view of their suitability for release on licence."
This theme is taken up in the Secretary of State's directions to the Board itself. The directions at the relevant time were those published on 28 July 2004 which, under the heading "Transfer of life prisoners to open conditions", stated:
"1. A period in open conditions is essential for most life sentence prisoners (lifers). It allows the testing of areas of concern in conditions that more closely resemble those that the prisoner will encounter in the community often after having spent many years in closed prisons. Lifers have the opportunity to take resettlement leave from open prisons and, more generally, open conditions require them to take more responsibility for their actions.
2. The main facilities, interventions, and resources for addressing and reducing core risk factors exist principally in the closed lifer estate. In this context, the focus in open conditions is to test the...
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