R (Brooke and Others) v Parole Board

[2008] EWCA Civ 29




Hughes LJ and Treacy J

Before :

The Lord Chief Justice Of England and Wales The Right Honourable Lord Justice Dyson and

The Right Honourable Lord Justice Toulson

Case No: C1/2007/2229

The Queen on the Application of
(1) Michael Brooke And Gagik Ter-ogannisyan
(2) David O'connell
(3) Michael Murphy
The Parole Board
1st Appellant
The Lord Chancellor and Secretary of State for Justice
2nd Appellant

Philip Sales QC and Mark Vinall (instructed by the Treasury Solicitor) for the Secretary of State

Michael Fordham QC and Gemma White (instructed by the Treasury Solicitor) for the Parole Board

Sam Grodzinski (instructed by Irwin Mitchell, Bhatt Murphy and Stephensons LLP) for the Respondents

Royal Courts of Justice

Strand, London, WC2A 2LL

(Transcript of the Handed Down Judgment of WordWave International Limited A Merrill Communications Company 190 Fleet Street, London EC4A 2AG Tel No: 020 7404 1400, Fax No: 020 7831 8838 Official Shorthand Writers to the Court)

Hearing dates : 19th and 20th November 2007

Lord Phillips of Worth Matravers CJ:

This is the judgment of the Court



This is an appeal by the Lord Chancellor and Secretary of State for Justice against declarations made by Hughes LJ and Treacy J sitting in the Divisional Court on 7 September 2007. The Divisional Court itself gave permission to appeal. The Parole Board, which was the first defendant in the proceedings, has at all times adopted a neutral stance. This is one of two appeals heard by this Court over a period of three days that raise fundamental issues as to whether aspects of our system for dealing with offenders who are sentenced to imprisonment comply with the common law and with the European Convention on Human Rights ('the Convention').


The purposes of sentencing include both the punishment and the reform and rehabilitation of offenders – see section 142 of the Criminal Justice Act 2003 (' CJA 2003'). Where an offender is sentenced to imprisonment it has, for the past 40 years, been the practice that in most cases he should be released before completing his full term. In some cases release is dependent upon the prisoner demonstrating that his release will not involve risk to the public that he will commit further offences. It is the practice to provide prisoners with appropriate forms of rehabilitative treatment before they are considered for release. This affords them a better opportunity – often the only realistic opportunity—of demonstrating that they no longer pose a risk. The body that decides whether a prisoner is ready for release is the Parole Board.


The appeal heard with this one, The Secretary of State for Justice v Walker and James, addresses the consequences of the fact that provisions of the CJA 2003 have resulted in more offenders in need of rehabilitation being imprisoned than existing resources can accommodate. This appeal is concerned with the standing of the Parole Board.


Decisions taken by the Parole Board determine, in a variety of situations, whether offenders who have been convicted, have been sentenced to imprisonment and have served parts of their sentences are to remain in prison or be released on licence. It is well established that this role requires that the Parole Board shall be, and appear to be, independent and impartial, both under common law and by reason of the requirements of Article 5(4) of the European Convention on Human Rights as applied by the Human Rights Act 1998.


The Divisional Court declared that “the Parole Board does not meet the requirements of the common law and of Article 5(4) of the Convention for a court to have demonstrated objective independence of the executive and of the parties”. The court reached this conclusion because it found that the relationship between the Parole Board and the Department of State that sponsored it placed the Secretary of State in a position of apparent influence over the approach of the Parole Board to its curial duties, a position from which on a number of particular occasions he had sought, inappropriately, to influence the manner in which the Board performed those duties. On those occasions the Secretary of State was the Home Secretary and the sponsorship functions of his Department were carried out through the National Offender Management Service ('NOMS'). On the formation of the Ministry of Justice, and the transfer of NOMS to the Ministry, the sponsorship of the Board was transferred with it. These proceedings have been conducted on the premise that this transfer has made no difference to the independence, or lack of it, of the Board.


The Secretary of State contends that the Divisional Court has erred in its approach. He contends that the Parole Board is an institution of long standing whose independence has been recognised by the European Court of Human Rights ('ECtHR'). He further contends that, in so far as the Secretary of State may have acted inappropriately, judicial review provided the appropriate remedy to ensure the actual and apparent independence of the Parole Board.


The respondents are three prisoners whose claims for judicial review were originally joined with the claim of a fourth claimant, David O'Connell. Each is in prison under a different type of sentence but each has depended or will depend for his release upon the decision of the Parole Board:

i) Michael Brooke was sentenced on 6 July 2001 under the Criminal Justice Act 1991 (' CJA 1991') to a determinate sentence of 8 years for five burglary related offences. He was thus a long term prisoner for the purposes of that Act. He was released on licence on 5 May 2006. On 31 May 2006 he was arrested on suspicion of attempted burglary and recalled to prison. It fell to the Board to consider whether he should be re-released or that his recall should remain effective for the maximum duration of the licence. Since that date he has been convicted of the new offence and sentenced to a fresh determinate term of imprisonment.

ii) Gagik Ter Ogannisyan is an Armenian national who is serving a mandatory life sentence for his involvement in two murders committed in 1993. The tariff fixed in his case was 15 years, which tariff is due to expire in August 2008. At that stage he will be eligible for a review by the Board, which will determine whether he can be released on licence.

iii) Michael Murphy received an extended sentence under the Powers of Criminal Courts (Sentencing) Act 2000 ('the 2000 Act') on 20 October 2005, for a sexual assault on a child under 13. The custodial element was 9 months' imprisonment and the extension period was 18 months. He was released on licence on 3 March 2006 but was recalled on 14 March 2006 for alleged breaches of his licence conditions. The Parole Board declined to release him on 27 September 2006, despite having adjourned an earlier hearing in order to receive reports from probation officers, who concluded that the risk to the public posed by Mr Murphy could be appropriately managed in the community. Subsequently, on 22 June 2007, the Board concluded that his recall should stand for the maximum period under the original sentence (the three quarter point).


The Divisional Court restricted the relief granted to declarations. It concluded that there was no basis for finding that the Parole Board's lack of independence had had any effect on the decisions reached in relation to Brooks and Murphy.


The fourth claimant was David O'Connell. He was convicted of an offence of assault occasioning actual bodily harm on 20 May 2005. On 26 July 2005 he was sentenced to an extended sentence under the Criminal Justice Act 2003 (' CJA 2003') of 5 years, comprising a custodial term of 2 years and an extension period of 3 years. He fell to be considered for release half way through the custodial element of his sentence. The Board decided on 18 July 2006 that he was not suitable for release. There was an issue in his case as to whether Article 5(4) of the Convention applied. The Divisional Court had insufficient time to deal with that issue and, accordingly, adjourned the claim that he based on the Convention. It was heard by a Court consisting of Latham LJ, Vice-President and Simon J which, on 15 October 2007 delivered a judgment in which they held that Article 5(4) applied in his case also.

The role of the Parole Board


The Parole Board, since its creation, has existed to consider whether prisoners should be released before serving the full term of their sentences. Originally the Board provided advice on this matter to the Secretary of State, who took the decision whether or not prisoners should be released. He it was who also decided, in the case of life sentences, the minimum term to be served by prisoners before being considered for release ('the tariff'). Progressively, under the influence of decisions of the European Court of Human Rights, decisions on release have been made the responsibility of the Parole Board and decisions on tariffs the responsibility of the judiciary.


Prior to 1967 prisoners might be released by the Secretary of State before serving the full term of their sentences under a system of remission. Such release depended upon the conduct of the prisoner while serving his sentence. The Criminal Justice Act 1967 introduced a new regime under which the Secretary of State was given power to release prisoners on licence and to recall prisoners so released. Section 59 of that Act created the Parole Board. The primary function of the Board was to advise the Secretary of State in relation to the exercise of his powers under the Act and the Home Secretary was under no obligation to comply with the advice given.


Today the Board is established under section 239 and Schedule 19 of the CJA 2003. It was constituted a body corporate under section 149 of the Criminal...

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