R (Brooke and Others) v Parole Board
| Jurisdiction | England & Wales |
| Judge | Lord Justice Hughes |
| Judgment Date | 07 September 2007 |
| Neutral Citation | [2007] EWHC 2036 (Admin),[2007] EWHC 2277 (Admin) |
| Docket Number | Case No: CO/9344/2006 CO/8167/2006 CO/10269/2006 |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 07 September 2007 |
[2007] EWHC 2036 (Admin)
Lord Justice Hughes
Mr Justice Treacy
Case No: CO/9344/2006 CO/8167/2006 CO/10269/2006
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Mr Sam Grodzinski (instructed by) Irwin Mitchell for Michael Brooke
and GagikTer-Ogannisyan
Miss Phillippa Kaufmann (instructed by) Bhatt Murphy for David O`Connell
Mr Hugh Southey (instructed by) Stephensons LLP for Michael Murphy
Mr Michael Fordham QC Miss Gemma White and Mr Ben Jaffey (instructed by) Treasury Solicitor for The Parole Board
Miss Monica Carss-Frisk QC and Mr Mark Vinall (instructed by) Treasury Solicitor for The Lord Chancellor and Secretary of State for Justice
Hearing dates: Thursday 5 th and Friday 6 th July 2007
Judgement
This is the judgment of the Court, to which we have both contributed.
In recent years Parliament has progressively altered the process of criminal sentencing in a way which has placed ever greater emphasis upon conditional release on licence as part of the sentence. Release upon licence carries with it the possibility of recall; if recall is in question, a decision must be made whether it is justified or not. Meanwhile, some prisoners have always been sentenced to indefinite terms of imprisonment which justify their continued detention whilst they remain an unacceptable danger to the public. Where such a sentence is passed, a judgment must be made from time to time whether the prisoner can now safely be released on terms. If release is right, it will be on conditional licence, as in the case of a fixed term prisoner, and the same decisions whether or not to recall may arise later. That was always true of a comparatively small number of prisoners sentenced to life imprisonment. Most recently, the Criminal Justice Act 2003 has effected a significant policy shift towards preventive sentencing of this kind. It has created two new forms of preventive sentence: imprisonment or detention for public protection ('IPP') and extended sentences. The former is a new form of indefinite sentence, differing only marginally from a life sentence but required by law for a very much larger group of convicted persons than formerly qualified for a life sentence. The second is a sentence with a maximum term, but under which the decision when to release is not made by the sentencing court, but later according to an assessment of the prisoner, and particularly of any risk which he presents; it too is required by law for a large number of convicted persons. All such IPP and extended sentence prisoners are thus added to the list of those who (a) require a decision whether or not to release, made not by the sentencing court but subsequently by another body and (b) whose licence, if they are released, is likely to last for many years, bringing with it the prospect of further decisions, outside court, about recall or re-release. Thus for an increasing number of prisoners sentenced by the criminal courts, vital decisions whether they are incarcerated or not fall to be made not at the point of sentence but subsequently. For all such prisoners those decisions assume an importance at least comparable to the fixing by the sentencing court of the initial sentence. Those decisions are equally important to others affected by them, such as people who were injured by the offences, and people who might be offended against in future if there should be a repetition.
In the great majority of cases these decisions are committed to the Parole Board. It thus makes, daily, decisions which directly decide the liberty of the subject and which may affect the lives of many other members of the public. Its importance is such that for many years it has been held in case after case that it has to function as a court, or court-equivalent, with all the safeguards that that status entails; in particular its independence from the parties whose cases it decides, and from the Executive. It has been common ground before us that, in respect of most of its decisions, such a requirement of law plainly does exist.
These consolidated applications for judicial review are founded on the argument that upon examination the Parole Board proves not sufficiently to enjoy the independence which is the essential hallmark of a court. It should be recorded immediately that nobody questions the independence of mind of the members of the Board. Nor does anyone suggest that in any single individual case any improper attempt has been made to influence its decision. What however is suggested is that the structure of the Board, and the way it is controlled by the Secretary of State, are such as to give it insufficient clear and real independence from the Executive. The Secretary of State is, via a unit in his Department, its sponsor; he controls its budget, appoints its members and may dismiss them, makes its rules, houses it and staffs it within the Ministry, and closely monitors its activities. All these things he does whilst at the same time being in every case also a party appearing before it. And it is said that the members of the Board do not enjoy the essential security of tenure which those performing judicial functions must have for protection of their independence. Accordingly, it is argued, there is a breach of the requirements of the law that every court demonstrate independence and freedom from even unconscious bias. Such requirements of law are well established in the common law of England and Wales, and are manifest also in Article 5(4) European Convention on Human Rights ('ECHR').
Decisions committed to the Parole Board
The principal decisions committed to the Board fall conveniently into two categories:
i) whether to order initial release on conditional licence;
ii) in the event of recall from licence, whether to order re-release, either immediately or subsequently.
Underlying both types of decision is essentially the same exercise, namely the assessment of what risk the prisoner presents, and how that risk can best be managed in the public interest.
There is now a bewildering array of different statutory origins for such decisions, each applicable to different sub-groups of prisoner. This has been the necessary consequence of successive radical changes made by Parliament to the structure of sentencing by, amongst others, the Criminal Justice Act 1991 (' CJA 1991'), the Crime (Sentences) Act 1998 (' CSA 1998') and the Criminal Justice Act 2003 (' CJA 2003'). But those differing statutory origins should not obscure the essential similarity of the task. They now include the following:
i) whether a prisoner who has been sentenced to life imprisonment (or, if under 21, to custody for life or during Her Majesty's Pleasure) should be released conditionally upon licence once the minimum term fixed by the trial judge as commensurate with the offence has been served [ s 28 CSA 1998] – i.e. initial release of life prisoners;
ii) whether a prisoner who has been sentenced to imprisonment or detention for public protection under s 225/226 CJA 2003 should be released conditionally upon licence once the minimum term fixed by the trial judge as commensurate with the offence has been served [ s 28 CSA 1998 as extended by s 34(2)(d) & (e) ibid]—i.e. initial release of IPP prisoners ;
iii) whether a prisoner who has been sentenced to an extended sentence under s 227/228 CJA 2003 should be released conditionally upon licence during the latter half of the custodial element of his sentence [ s 247 CJA 2003] – i.e. initial release of CJA 2003 extended sentence prisoners;
iv) whether a prisoner sentenced between 1 October 1992 and 4 April 2005, or since that latter date for any offence committed before it, to a determinate term between 4 and 15 years should be released conditionally on licence at any time between the half way and the two thirds points of his sentence [ss 35 & 50 CJA 1991 and the Parole Board (Transfer of Functions) Order 1998 (SI 1998 No 3218), preserved by CJA 2003 (Commencement No 8 etc) Order 2005, SI 2005, No 950, Schedule 2, para 19(c)] – i.e. initial release of most CJA 1991 long term prisoners;
v) whether to release on licence at any time between one third and two thirds of his sentence a prisoner sentenced to a determinate term prior to 1 October 1992 [originally s 67 Criminal Justice Act 1967, now s 35 and Schedule 12, para 6 CJA 1991] – i.e. initial release of CJA 1967 prisoners;
vi) whether any life or IPP prisoner who has been released conditionally on licence should be recalled, or, if recalled should be re-released on licence [ s32 CSA 1998, as extended by s 34 ibid] – i.e. recall/re-release of life/IPP prisoners;
vii) whether any fixed term prisoner who has been released conditionally on licence but recalled by the Secretary of State should be re-released on licence [ s 254 CJA 2003, or s 39 CJA 1991 for offences committed and recalls made before 4 April 2005: see CJA 2003 (Commencement No 8 etc) Order 2005, SI 2005 No 950, Schedule 2, para 16] – i.e. re-release of fixed term prisoners;
With the exception of group (v), which must be a rapidly...
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