R (Girling) v Parole Board and another

JurisdictionEngland & Wales
JudgeSir Anthony Clarke MR
Judgment Date21 December 2006
Neutral Citation[2006] EWCA Civ 1779
Docket NumberCase No: C1/2005/0832 and 0873
CourtCourt of Appeal (Civil Division)
Date21 December 2006
Between:
Norman Girling
Claimant
and
Secretary of State for The Home Department
Defendant
and
The Parole Board
Interested Party

[2006] EWCA Civ 1779

[2005] EWHC (Admin) 546

Before:

Sir Anthony Clarke Mr

Sir Igor Judge President of The Queen's Bench Division and

Lord Justice Carnwath

Case No: C1/2005/0832 and 0873

IN THE SUPREME COURT OF JUDICATURE

COURT OF APPEAL (CIVIL DIVISION)

ON APPEAL FROM THE HIGH COURT OF JUSTICE

QUEEN'S BENCH DIVISION

ADMINISTRATIVE COURT

The Hon Mr Justice Paul Walker

Royal Courts of Justice

Strand, London, WC2A 2LL

Monica Carss-Frisk QC and Kate Gallafent (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

Jeremy Johnson (instructed by the Attorney General) as Advocate to the Court

The deceased claimant was not represented

Sir Anthony Clarke MR

This is the judgment of the court.

Introduction

1

Mr Norman Girling was born on 27 July 1943. Between 1956 and 1983 he was convicted of a considerable number of criminal offences. On 25 September 1984 he was convicted of murdering his partner, Edith Gorton. He was sentenced to life imprisonment. His case was subsequently considered a number of times by the Parole Board ("the Board") . On 27 May 1993 the Board decided not to direct his release. His twelve year tariff expired on 7 February 1996 and in the same month the Board again decided not to recommend his release. In June 2000 he was diagnosed with acute myeloid leukaemia. On 6 July 2001 and 8 October 2004 the Board again considered his case but on each occasion decided not to direct his release.

2

On 30 December 2004 a claim form was issued on behalf of Mr Girling against the Board and the Home Secretary ("the Secretary of State") claiming judicial review of the decision made by the Board on 8 October 2004. On 7 January 2005 Gray J granted permission to apply for judicial review. He said this:

"I grant leave limited to the question whether the Parole Board should be directed to reconsider its decision of 8.10.04. The key question appears to me to be whether that decision is vitiated by the failure alleged to take account of the C's medical condition as it impacts on risk."

The application came before Paul Walker J ("the judge") on 1 February 2005. His judgment is reported as [2005] EWHC 546 (Admin) at [2006] 1 WLR 1917.

3

The judge summarised the issues identified on behalf of Mr Girling as follows:

"Issue 1: whether the decision of the Board is vitiated by failure to take account of the claimant's medical condition as it impacts on risk.

Issue 2(i) : whether the linking of risk with a release plan is lawful when applying the test of risk to life and limb.

Issue 2(ii) : whether the existence of directions by the Home Secretary to the Board in the discharge of its functions under section 28 of the Crime (Sentences) Act 1997 and the inability of the claimant to have access to the Board without first passing through the Home Secretary raise any questions of the true independence of the Board."

4

Mr Girling was represented before the judge by Ms Flo Krause and both the Secretary of State and the Board were represented by Mr Stephen Kovats. The judge resolved issues 1 and 2(i) against Mr Girling with the result that he dismissed the claim. However, that order was subject to his decision on issue 2(ii) , which he resolved in part against the defendants. He reflected that part of his decision by making a declaration that section 32(6) of the Criminal Justice Act 1991 ("the CJA 1991") should be "construed so as not to apply to the judicial functions of the Parole Board". He made no order for costs and refused all parties' applications for permission to appeal. Applications for permission to appeal on behalf of both Mr Girling and the Secretary of State were subsequently granted by Hooper LJ.

5

Sadly, Mr Girling died on 9 August 2005 and, despite the best efforts of the Prison Service and indeed of the Court of Appeal Office, it has unfortunately not been possible to identify Mr Girling's family or any personal representatives. As a result, neither his dependants (if he has any) nor his personal representatives have come forward to advance an appeal on his behalf. We will revert to his appeal after considering the appeal brought by the Secretary of State.

The issue

6

The Board was constituted as a body corporate by section 32(1) of the CJA 1991, which has since been variously amended. It is the duty of the Board under section 32(2) to advise the Secretary of State with respect to any matter referred to it by him which is connected with the early release or recall of prisoners. By section 32(4) , which applies here, the Board must, in deciding whether to give directions, consider all such evidence as may be adduced before it. Subsection (5) gives the Secretary of State power to make procedural rules and subsection (6) provides:

"(6) The Secretary of State may also give to the Board directions as to the matters to be taken into account by it in discharging any functions under this Part or Chapter II and in giving any such directions the Secretary of State shall in particular have regard to –

(a) the need to protect the public from serious harm from offenders; and

(b) the desirability of preventing the commission by them of further offences and of securing their rehabilitation."

Section 239 of the Criminal Justice Act 2003 ("the CJA 2003") replaced the relevant provisions of section 32 of the CJA 1991 with what for present purposes are identical provisions, which variously came into force on 7 March and 4 April 2005.

7

The judge held that the power conferred on the Secretary of State by section 32(6) of the CJA 1991 to give directions to the Board when exercising its judicial functions was incompatible with it acting in an independent judicial capacity, with the consequence that subsection (6) must be construed so as not to apply to the judicial functions of the Board. He reached that conclusion by application of the common law on the footing that, unless so construed, the power to give directions to the Board as a court would infringe the principle of the separation of powers or impugn the independence of the Board.

8

It seems to us to be likely that the judge would have reached the same conclusion if he had been construing the subsection, in the light of section 3(1) of the Human Rights Act 1998 ("the HRA") , so as to be compatible with the Convention rights of prisoners. Article 5 of the European Convention on Human rights ("the Convention") provides, so far as relevant:

"5.1 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;

5.4 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."

9

The question in this appeal by the Secretary of State is whether the judge was right to construe section 32(6) as he did, whether at common law or under the HRA. Ms Monica Carss-Frisk QC and Ms Kate Gallafent submit on behalf of the Secretary of State that he was not. Although not an appellant, the Board was separately represented before us as an interested party by Mr Michael Fordham QC and Ms Gemma White. We have also had the benefit of the assistance of Mr Jeremy Johnson as an advocate to the court and of written submissions from Ms Flo Krause, who was anxious to assist the court in the unusual circumstances of the case. We have taken account of her written submissions in reaching our conclusions.

The statutory framework

10

This can be shortly stated for present purposes. Mr Girling was a life prisoner to whom section 28 of the Crime (Sentences) Act 1997 ("the 1997 Act") applied: see section 276 and paragraphs 1, 3(3) and 16 of schedule 22 of the Criminal Justice Act 2003 ("the CJA 2003") . Although at the time that Mr Girling's case was referred to the Board by the Secretary of State the Board was in practice required to apply the same criteria as those applied in cases referred under section 28 in order to comply with the decision of the European Court in Stafford v United Kingdom (2002) 31 EHRR 32, by the time the Board made its decision on 8 October 2004, section 28 applied to Mr Girling's case by reason of section 276 and schedule 22 of the CJA 2003.

11

Section 28 of the 1997 Act provides, so far as presently material:

"(5) As soon as –

(a) a life prisoner to whom this section applies has served the relevant part of his sentence; and

(b) the Parole Board has directed his release under this section,

it shall be the duty of the Secretary of State to release him on licence.

(6) The Parole Board shall not give a direction under subsection (5) above with respect to a life prisoner to whom this section applies unless –

(a) the Secretary of State has referred the prisoner's case to the Board; and

(b) the Board is satisfied that it is no longer necessary for the protection of the public that the prisoner should be confined.

(7) A life prisoner to whom this section applies may require the Secretary of State to refer his case to the Parole Board at any time –

(a) after he has served the relevant part of his sentence; and

(b) where there has been a previous reference of his case to the Board, after the end of the period of two years beginning with the disposal of that reference; and

(c) ….

and in this...

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