R Benjamin King v The Parole Board The Secretary of State for Justice (Interested Party)
| Jurisdiction | England & Wales |
| Judge | Lord Justice Aikens,Mr Justice Mitting |
| Judgment Date | 04 March 2014 |
| Neutral Citation | [2014] EWHC 564 (Admin) |
| Docket Number | Case No: CO/12279/2012 |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 04 March 2014 |
[2014] EWHC 564 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
Lord Justice Aikens
and
Mr Justice Mitting
Case No: CO/12279/2012
Hugh Southey QC (instructed by Irwin Mitchell) for the Claimant
Sam Grodzinski QC & Tim Buley (instructed by TSOL) for the Defendant
Hearing date: 15/01/2014
I. The Issue
The Legal Aid, Sentencing and Punishment of Offenders Act 2012 ("LASPO 2012") has made major changes to the law on sentencing and the release of prisoners. The issue raised in this claim for judicial review 1 concerns the lawfulness of guidance issued by the Parole Board (PB) to its panels in December 2013, 2 ("the December 2013 Guidance"), a year after the relevant parts of LASPO 2012 dealing with release of prisoners came into force. The part of the December 2013 Guidance under challenge concerns the test to be applied by PB panels when considering the re-release after recall to custody of a prisoner who is serving a determinate sentence of imprisonment. The relevant part of the December 2013 Guidance states:
"In order to direct release, the Board should be satisfied that it is no longer necessary for the prisoner to be detained in order to protect the public from serious harm (to life and limb). It is not a requirement to balance the risk against the benefits to the public or the prisoner of release".
The challenge is to the lawfulness of the second sentence of this extract. It is said on behalf of the claimant that the balancing exercise of "risk" against "benefits" had always correctly been adopted previously by PB panels when considering the release of prisoners who have been serving a determinate sentence of imprisonment. It is argued that this balancing test is consistent both with the current statutory framework contained in LASPO 2012 and the history of the previous statutory framework, as interpreted by the courts.
II. The History of relevant events.
In 2008 the claimant, ("Mr King") who was then aged 19, pleaded guilty in the Crown Court to an offence of causing death by dangerous driving which he had committed on 9 October 2007. On 20 May 2008 Mr King was sentenced to a determinate sentence of seven years detention in a Young Offender Institution. 3 At the time of conviction Mr King had 13 previous convictions for 28 offences committed between December 2004 and October 2007. On 23 September 2011 Mr King was released on licence after he had served (net of time spent on remand) half the seven year period of detention. That obligatory "half-time" release was made pursuant to section 244(1) and (3) of the Criminal Justice Act 2003, ("the CJA 2003"). The sentence expiry date (that is the date by which Mr King would have served the full seven year term) is calculated to be 1 June 2015. After Mr King's release on licence, he went to live with an uncle in south Yorkshire in accordance with the terms of his licence. However, he then moved to Brighton.
On 20 December 2011 Mr King was charged with two offences of common assault against two of his associates. It was alleged that he had threatened them with broken
glass whilst he was under the influence of alcohol. Mr King's licence was revoked on 29 December 2011 and he was recalled to custody, pursuant to section 254 of the CJA 2003. However, Mr King did not return to custody immediately. He remained unlawfully at large for about nine weeks after the date of his recall.Under the statutory regime in force prior to LASPO 2012, the Secretary of State had the power, first under section 32(6) of the Criminal Justice Act 1991 and then by its replacement, section 239(6) of the CJA 2003, to give the PB directions as to the matters to be taken into account by it in discharging any of its functions concerning (amongst other things) the release of a prisoner on licence under what became the terms of Chapter 6 of Part 12 of the CJA 2003. Pursuant to that power, the Secretary of State had (under the 1991 Act provision) issued directions in May 2004 relating to the early release of determinate sentence prisoners ("the May 2004 Directions"). These directions had stated:
"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 the 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".
Pursuant to the terms of the CJA 2003 then in force and operating under the May 2004 Directions, in April 2012 a PB panel considered the question of Mr King's possible re-release. The panel's recommendation dated 5 April 2012 was that he should not be re-released. It gave reasons. In paragraph 1 the PB panel stated that "in deciding whether to recommend release the panel weighed the possible benefits of further supervision against the risks of re-offending during the licence period". Paragraph 2 of the reasons referred to the evidence considered by the panel. Paragraph 3 was an analysis of the original offending and paragraph 4 recounted the circumstances of Mr King's recall. Paragraph 5 is headed "Risk Assessment". It stated:
"You are now assessed as position a high risk of causing serious harm to the public based on the new alleged offences. Your risk of violent reconviction ( sic) is assessed as medium and your risk of non-violent reconviction ( sic) is assessed as high. The panel agreed with this assessment based on your offending history to date. Risk factors include thinking skill deficits and alcohol, which acts as a disinhibitor and fuels your violent behaviour".
The conclusions and recommendations of the PB panel are set out in paragraph 7 of its reasons. This stated:
"The panel noted all information. You have been charged with further offences of violence and your risk of causing serious harm has increased to high as a result. Rather than handing yourself in, you compounded matters by remaining unlawfully at large for a long period which dos not give confidence that you would comply in future. Furthermore, accommodation remains outstanding and this will be an important part of the risk management plan. For these reasons the panel made no recommendation regarding release."
The reasons also stated that if Mr King's case was referred back to the PB in future, then it would require, amongst other things, an assessment of his motivation to "comply in the community in future and an updated risk management plan with accommodation identified and a date when it will be made available".
Mr King issued a claim for judicial review on 16 November 2012. 4 Originally the claim alleged that the PB had violated Article 14 of the European Convention on Human Rights ("ECHR") by applying a "release test" that was said to be more onerous for prisoners serving a determinate sentence by comparison with the release test applied to those serving indeterminate sentences. The claim also challenged generally the decision of the PB panel dated 5 April 2012.
On 3 December 2012 the parts of LASPO 2012 making amendments to the statutory regime on the release of prisoners on licence, their recall and their re-release after recall all came into force. These provisions made amendments and additions to sections in the CJA 2003 dealing with these topics. In relation to the early release of offenders serving a determinate sentence imposed after 4 April 2005 and the re-release of such prisoners after recall, the new regime was put in place by making amendments and additions to section 255 of the CJA 2003. Insofar as the decision to direct the re-release such prisoners after recall was to be made by the Secretary of State, the provisions in the new sections 255A and 255B of the CJA 2003 propounded two new statutory tests, depending on the particular situation concerned. I will analyse these below, but they can broadly be called "public protection" tests. No "balancing exercise" is mentioned in these revised statutory provisions. It is vital to note, however, that no statutory test was laid down for use in circumstances (set out in the new sections 255C) in which a PB panel, rather than the Secretary of State, would have to make the decision on whether or not to direct the re-release of a recalled prisoner who had been sentenced since the CJA 2003 came into force.
Schedule 17 of LASPO 2012 introduced a new Schedule 20B into the CJA 2003. This set out new transitional provisions dealing with the possible re-release of prisoners who had been sentenced under pre- CJA 2003 Act sentencing regimes and one CJA 2003 sentencing regime which remained in force until 14 July 2008. In all cases under these new transitional provisions where a PB panel is entitled to give a direction that the prisoner be released, the statutory test that the PB panel had to apply is stated to be that it is satisfied "that it is no longer necessary for the protection of the public that the person should be confined". 5
On 16 November 2012, that is just before the provisions of LASPO 2012 on the release of prisoners were about...
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