R (Girling) v Parole Board and another
| Jurisdiction | England & Wales |
| Judgment Date | 08 April 2005 |
| Neutral Citation | [2005] EWHC 546 (Admin) |
| Date | 08 April 2005 |
| Court | Queen's Bench Division (Administrative Court) |
: [2005] EWHC 546 (Admin)
Court and Reference: Administrative Court, CO/6728/2004
: Walker J
Appearances: F Krause (instructed by Nelsons) for G; S Kovats (instructed by the Treasury Solicitor) for the Parole Board and Home Secretary
: Whether the Board's decision not to release a life sentence prisoner had given insufficient weight to his medical condition, or had followed an erroneous approach as to the need for a release plan; whether the Home Secretary could issue directions to the Board in relation to the release of life sentence prisoners.
: In 1984 G was sentenced to life imprisonment for the murder of his female partner in a drunken rage; his tariff - the minimum term to be served for punishment - was set at 12 years and had passed. Under the statutory regime in place to comply with rulings of the European Court of Human Rights as to the requirements of Art 5(4) European Convention, the release of post-tariff lifers is a matter for the Parole Board. However, the Board cannot direct release unless "the Secretary of State has referred the prisoner's case to the Board" (s28(6)(b) Crime (Sentences) Act 1997). The substantive test for the Board, also in s. 28, is whether it "is satisfied that it is no longer necessary for the protection of the public that the prisoner should be confined", which involves asking whether the prisoner poses an unacceptable risk to life or limb.
Under s. 32 Criminal Justice Act 1991, the Home Secretary is able to "give the Board directions as to the matters to be taken into account by it…" Under s. 32 the Board has a duty to advise the Home Secretary on matters relating to early release. In August 2004, the Home Secretary issued fresh directions relating to the release of life sentence prisoners, including in Direction 7(b) that the Board shall consider "the content of the resettlement plan and the suitability of the release address".
In June 2000, G was diagnosed with acute leukaemia. On 5 October 2004, G's ongoing detention was reviewed by the Parole Board. In a letter of 8 October 2004, the Board refused to direct release; it set out various still current risk factors, the lack of any suitable release plan or realistic relapse prevention strategies. On 10 December 2004, G's solicitors asked that the matter be reconsidered by the Board on the basis that they had given inadequate consideration to his deteriorating health; other criticisms were made of its decision, including an issue as to the risk of harm and the lack of a release plan. On 16 December 2004, the Board replied that it had no power to release G without a reference of a case to it by the Home Secretary under s. 28 Crime (Sentences) Act 1997; and that the arrangements in a release plan were usually an integral part of the decision on whether to release or not and the Home Secretary's Directions to the Board required it to take such factors into account.
G issued a claim for judicial review. The main issues were: 1. Whether the Board had failed to give sufficient account of G's medical condition in assessing the risk he posed; 2. Whether the Board wrongly linked the issue of risk with the lack of a release plan, G's argument being that the issue was the risk posed irrespective of whether there was a release plan; and 3. Whether the Directions by the Home Secretary to the Board and the lack of access to the Board except via the Home Secretary compromised its independence.
1. Since 1965 it has been mandatory for all persons convicted of murder to be sentenced to imprisonment for life. However it has long been the case that the Home Secretary, as a member of the executive, has released such prisoners before expiry of their sentence where this has been thought appropriate. In 1983 procedures (subsequently refined) were introduced to separate consideration of retribution and deterrence from consideration of risk to the public. On the former advice was sought from the judiciary and on the latter advice was sought from the Parole Board.
2. On 25 September 1984 the claimant was sentenced to life imprisonment for the murder of his female partner in a drunken rage. Thereafter a minimum period before he could be considered for parole was set at 12 years. His status in the penal system was that of a "mandatory lifer". The minimum period was commonly known as the "tariff," and from late 1996 onwards he was a "post-tariff mandatory lifer."
3. The Parole Board is now charged with determining (among other things) whether such a prisoner should be given parole by being released on licence. In the case of the claimant a decision of the Parole Board dated 8 October 2004 refused his release. In this application for judicial review the claimant says that when deciding not to order his release the Parole Board failed to take proper account of medical evidence, and improperly had regard to the lack of a release plan.
4. The claimant also relies on Art 5 of theEuropean Convention on Human Rights. Article 5 states, so far as material:
"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."
5. It has recently been established that in circumstances applicable to the claimant Art 5.4 of the Convention applies: as the prisoner is post-tariff, detention is no longer necessary in order to punish. There may from time to time be changes in the facts relevant to those matters which are thought to warrant continued detention. Accordingly there must be an entitlement to take proceedings by which the lawfulness of detention will be decided speedily by a court and release ordered if the detention is not lawful. The claimant says that the Parole Board fails to meet the criteria of a "court" under Art 5.4, being insufficiently independent of the Home Secretary.
The relief sought by the claimant
6. The Parole Board is the first defendant. Against this defendant the claimant seeks an order requiring that it reconsider its decision of 8 October 2004 forthwith.
7. The second defendant is the Home Secretary. Against this defendant 4 declarations are sought. First, the claimant seeks a declaration that directions given by the Home Secretary to the Parole Board contravene Art 5.4. These directions identify matters which are to be taken into account by the Parole Board in discharging its functions concerning post-tariff lifers. They include an instruction that before directing release on life licence, the Parole Board shall consider the content of the resettlement plan and the suitability of the release address. The second, third and fourth declarations sought are declarations of incompatibility under s. 4 of the Human Rights Act 1998. The second and (by amendment) the fourth assert that Art 5.4 is contravened by s. 28(6)(a) and s. 28(7) of the Crime (Sentences) Act 1997 respectively. Under these provisions the Parole Board can only direct the release of relevant prisoners on licence if the Secretary of State has referred the prisoner's case to the Board, and such prisoners have only limited entitlements to require a reference. The third declaration sought (also by amendment) returns to the directions given by the Home Secretary to the Parole Board. If, contrary to the claimant's primary submission, s. 32(6) of the Criminal Justice Act 1991 permits the Home Secretary to give directions applicable to the claimant's case, then the claimant seeks a declaration that this contravenes Art 5.4.
The facts
8. In June 2000, while serving his sentence, the claimant was diagnosed with acute leukaemia. On 5 October 2004 the claimant had a Parole Board review. The Parole Board had power to direct that he be released, and to recommend licence conditions to apply on release, if satisfied that it was no longer necessary for the protection of the public that he be confined. A letter from the Parole Board dated 8 October 2004 recorded that it was not so satisfied and therefore had not directed his release. Reasons were given which included the following:
"3. You were convicted by a jury in 1984 of murder of your common-law wife and sentenced to life imprisonment, with the tariff set at 12 years. You have spent 20 years in prison and, therefore, are 8 years beyond tariff.
4. This conviction was preceded by a lengthy history of offending during which on several occasions you failed to comply with the terms of suspended sentences. This offending commenced at an early age and included 2 of a sexual nature and a further one of assault.
5. Previous panels held by the Parole Board have been concerned that your index offence was linked to alcohol abuse, pathological sexual jealousy, use of violence, problems with women and that you had not dealt with these risk areas. Since the last panel you have refused assessment for the R&R programme, the Sex Offender Treatment Programme and have not had any involvement with the CARAT team.
6. The Panel notes that your health has deteriorated over the past few years and read 2 recent reports commissioned by your legal representative giving some details of your illness. The first report was compiled by Dr D Somekh, consultant forensic psychiatrist, and the second by Dr A Abdul-Cader, consultant haematologist. Although Dr Somekh asked the panel to consider release on compassionate grounds, your solicitor acknowledged that this was beyond the Board's remit. The panel considered that notwithstanding your current state of health, you still present a substantial risk to the community if you are released or...
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