R (Giles) v Parole Board
| Jurisdiction | England & Wales |
| Judge | MR JUSTICE ELIAS |
| Judgment Date | 05 October 2001 |
| Neutral Citation | [2001] EWHC 834 (Admin) |
| Docket Number | CO/0828/2001 |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 05 October 2001 |
The Queen on the Application of
[2001] EWHC 834 (Admin)
Mr Justice Elias
CO/0828/2001
IN THE HIGH COURT OF JUSTICE
ADMINISTRATIVE COURT
Royal Courts of Justice
The Strand
London
MISS PHILLIPPA KAUFMANN (instructed by Messrs Irwin Mitchell, Sheffield S1 2EL) appeared on behalf of THE CLAIMANT
MISS ELEANOR GREY (instructed by the Treasury Solicitor) appeared on behalf of THE DEFENDANTS
Friday 5 October 2001
1. This application for judicial review raises issues of some importance. They concern the legality of the procedures and principles which should be adopted by the Parole Board when they consider applications for parole from prisoners who received a determinate sentence pursuant to section 80(2)(b) of the Powers of Criminal Courts (Sentencing) Act 2000. This was formerly, and at the time of the application, section 2(2)(b) of the Criminal Justice Act 1991.
2. The issue, in broad terms, is whether the current procedures are compatible with Article 5(4) read together with Article 5(1)(a) of the European Convention on Human Rights.
3. Permission to apply was given by Popplewell J on 23 May 2001, following a renewed application by the claimant after permission had been refused on paper by Newman J on 4 April 2001. Popplewell J gave a full ex tempore judgment, thereby going well beyond the call of duty for a permission application, apparently because he had been under the misapprehension that he was hearing the full application and not simply the application for permission. He found in favour of the claimant. He invited the parties to treat the application for permission as a substantive application, but the defendants were not willing to do that. Hence this hearing before me.
Background
4. The claimant pleaded guilty to two offences. One was for unlawful wounding and one was for assault occasioning actual bodily harm. He was sentenced on 10 January 1997 by His Honour Judge Bennett. He received four years for the unlawful wounding and three years to be served consecutively for the assault, thereby making seven years' imprisonment in all. When imposing the sentence the learned judge made it clear that he was passing the sentences on the basis that the claimant posed a danger to the public and that the offences were offences of violence. He invoked section 2(2)(b) of the Criminal Justice Act 1991, which allows for longer than usual sentences in such cases. In the course of his sentencing remarks the learned judge said this:
“Your attitude no doubt is governed by your personality disorder and I agree with your counsel that you require treatment for that if it is possible. But if it is not you will have to be locked up for a substantial period.”
5. An application to appeal against the sentences was refused.
6. The estimated date of release of the claimant from prison was 9 September 2001. In fact he was released on 17 May 2001. It was argued before Popplewell J that this rendered the argument an academic one because the question of any hearing at all by the Parole Board was moot as far as the claimant was concerned. Popplewell J rejected that argument and so would I, essentially for the reasons that he gave. I heard no argument on this issue from the defendants, although they did not formally abandon the point. In my judgment, this is clearly a case which needs to be heard. It is a matter of some public importance affecting other persons. The liberty of the subject is at stake and, accordingly, if the practice of the Parole Board does infringe Article 5(4), it is important to put the matter right sooner rather than later. Furthermore, the argument is quite independent of any particular factual context. The submissions advanced by the claimant would apply equally to all cases where a determinate sentence is imposed pursuant to section 80(2)(b).
The Statutory Background
7. Section 80 of the Powers of Criminal Courts (Sentencing) Act 2000, so far as is relevant, provides:
“(1) This section applies where a court passes a custodial sentence other than one fixed by law or falling to be imposed under section 109(2) below.
(2) Subject to sections 110(2) and 111(2) below, the custodial sentence shall be —
(a) for such term (not exceeding the permitted maximum) as in the opinion of the court is commensurate with the seriousness of the offence or the combination of the offence and one or more offences associated with it; or
(b) where the offence is a violent or sexual offence, for such longer term (not exceeding that maximum) as in the opinion of the court is necessary to protect the public from serious harm from the offender.”
8. As Lord Steyn observed in R v Home Secretary, ex parte Stafford [1999] 2 AC 38, 49, subsection (2)(a) enshrines the common law principle that the sentence should be proportional to the seriousness of the crime. It is commensurate with the gravity of the offence and reflects the elements of retribution and deterrence which the sentence seeks to achieve. By contrast, section 80(2)(b) enables the court to depart from that basic principle where the conditions set out in that subsection apply: it must be a violent or sexual offence; the additional period over and above that commensurate with the seriousness of the offence must be such as in the opinion of the court is necessary to protect the public from serious harm from the offender (the preventative function); and that period must not exceed the maximum for the offence. It may be that the effect of this additional period is in some cases to reinforce the elements of retribution and deterrence in the sentence, but it is plain from the subsection that the objective is simply to achieve the preventative purpose. Subsection (3) lays down certain procedures which must be complied with by the sentencing judge when passing a sentence of this kind. It provides:
“Where the court passes a custodial sentence for a longer term than is commensurate with the seriousness of the offence, or the combination of the offence and one or more of the offences associated with it, the court shall —
(a) state in open court that it is of the opinion that subsection (2)(b) above applies and why it is of that opinion; and
(b) explain to the offender in open court and in ordinary language why the sentence is for such a term.”
9. It is to be noted that the subsection does not in fact require that a judge, in passing a sentence under section 2(2)(b), should specify which period he or she considers to be commensurate with the seriousness of the offence, and which period is imposed to protect the public from serious harm. In practice, some judges do indicate the different periods in their sentencing remarks, although many do not. In this case the learned judge did not do so.
10. In some cases the judge can impose what is called a discretionary life sentence pursuant to subsection (2)(b). In such cases the court has since 1981 had to specify the period for which the offender will have to remain in prison before becoming eligible for consideration for parole by the Parole Board (the “tariff” period). This period is calculated by determining what would have been the appropriate sentence if the sentence had not reflected the need to protect the public, and then specifying a period which is normally one-half, but may theoretically be up to two-thirds, of that term: see R v Marklew and Lambert [1999] 1 Cr App R(S) 6.
11. As I indicate below, the European Court of Human Rights has made it plain that such discretionary life sentences are regulated by Article 5(4) and that in such cases the Parole Board, as an independent and impartial body, is required to give oral hearings of an adversarial nature. In essence, the question in this case is whether determinate sentences pursuant to subsection (2)(b) are required to be treated in the same way.
12. The most recent case on the imposition of determinate sentences and discretionary life sentences imposed pursuant to this subsection is R v Chapman [2000] 1 Cr App R 77. In that case the appellant pleaded guilty to arson being reckless as to whether life was endangered. After considering various medical and psychiatric reports, the judge sentenced him to life imprisonment. The judge stipulated a period of twelve months as the “tariff” period to be served before consideration of release. The Court of Appeal considered that the life sentence was inappropriate. The court held that three years was the appropriate determinate sentence, but it added a further seven years for the purposes of public protection under subsection (2)(b). Accordingly, a sentence of ten years' imprisonment was substituted for that of life imprisonment. The judgment of the court was given by Lord Bingham CJ. He stated that the court accepted certain submissions made by Mr Fitzgerald QC on behalf of the appellant which can, I think, be fairly summarised as follows:
(1) Where a custodial sentence is imposed, the basic rule of sentencing is that the term to be imposed should be commensurate with the gravity of the offence: see section 80(2)(a) of the 2000 Act.
(2) A longer than commensurate sentence may be imposed under section 80(2)(b) if the conditions there are fulfilled.
(3) A discretionary sentence of life imprisonment imposed for the purposes of public protection and not for the purposes of pure retribution or deterrence must be passed under section 80(2)(b). (It was noted that the courts had often imposed discretionary life sentences without referring to that subsection, but this case makes it clear that that is indeed the source of the power to impose discretionary life sentences.)
(4) The first precondition...
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