R (Gourlay) v Parole Board
| Jurisdiction | England & Wales |
| Judge | Lord Justice Hickinbottom,Lord Justice David Richards,Lady Justice Gloster |
| Judgment Date | 14 July 2017 |
| Neutral Citation | [2017] EWCA Civ 1003 |
| Docket Number | Case No: C1/2015/1521 |
| Court | Court of Appeal (Civil Division) |
| Date | 14 July 2017 |
[2017] EWCA Civ 1003
Lady Justice Gloster
(Vice President of the Court of Appeal, Civil Division)
Lord Justice David Richards
and
Lord Justice Hickinbottom
Case No: C1/2015/1521
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT (QUEEN'S BENCH DIVISION)
THE HON MR JUSTICE KING
Royal Courts of Justice
Strand, London, WC2A 2LL
Hugh Southey QC and Stephen Thornton (instructed by Chivers Solicitors) for the Appellant
Ben Collins QC (instructed by The Treasury Solicitor) for the Respondent
Hearing date: 4 May 2017
Further written submissions: 20–22 May 2017
Introduction
This is an appeal against the Order of King J dated 2 February 2015, in which he made no order for costs in a judicial review brought by the Appellant, a life prisoner serving his sentence in closed conditions, challenging the decision of the Parole Board ("the Board") on 10 March 2014, in which, on review, the Board declined to release him or recommend his transfer to open prison conditions. The Board played no active part in the judicial review. In the event, the Appellant's claim was successful, in that King J found that the Board had acted unlawfully and he remitted the matter to the Board for reconsideration.
The appeal, brought with the permission of the judge below, turns on one issue, which is of some importance. Does the established practice of the High Court, to make no order for costs for or against an inferior tribunal or court which plays no active part in a judicial review of one of its decisions, extend to the Board?
Before us, Hugh Southey QC and Stephen Thornton appeared for the Appellant, and Ben Collins QC for the Board.
The Board has various functions relating primarily to the assessment of the continuing risk posed by prisoners. This appeal concerns its role in relation to life prisoners, and particularly in relation to (i) the transfer of life prisoners, as they progress towards eventual release, from closed to open conditions, and (ii) the actual release of life prisoners from custody. I will focus on the functions of the Board in those particular circumstances.
Except in rare cases where it is considered that a "life sentence" requires a particular offender to spend the rest of his life in prison, it has been the practice to release those subject to "life imprisonment" at some stage during their sentence. Reflecting the punitive purpose of sentencing, for each such individual, a period is assessed as being the minimum time he should serve in prison by way of punishment ("the tariff"). Thereafter, he will be released on licence, but only when he has demonstrated that the risk he poses to the public has been reduced and is acceptably low.
Until 2003, although the trial judge would make a recommendation, the tariff was fixed by the Home Secretary, who was not in any way bound by any advice he received. Similarly, after the expiry of the tariff, the Secretary of State was responsible for deciding when, if at all, a life prisoner should be released.
Progressively, under the influence of the European Court of Human Rights ("the ECtHR"), decisions on both tariff and release have been taken away from the Secretary of State. Responsibility for the former has passed to the judiciary. Responsibility for the latter has passed to the Board.
The Board was established by section 59(1) of the Criminal Justice Act 1967 ("the 1967 Act"), as essentially an advisory board to the Secretary of State. It was required to advise upon (amongst other things) the release of life prisoners on licence whose cases had been referred to it by the Secretary of State (section 59(3)). The Secretary of State was under no obligation to follow the advice given.
Section 149 of the Criminal Justice and Public Order Act 1994 constituted the Board as a body corporate; and, as such, it has the status of an executive non-departmental body. In May 2007, responsibility for the Board passed from the Home Secretary to the Secretary of State for Justice, but that status was maintained. Although it continues to have the Ministry of Justice as its sponsor – to provide funding, and to ensure that funding provided is justified – the object of that status "is to enable the [Board] to perform administrative activities free from direct governmental control" ( R (Brooke) v Parole Board [2008] EWCA Civ 29; [2008] 1 WLR 1950 at [12] per Lord Phillips of Worth Matravers LCJ).
Section 239 of, and Schedule 19 to, the Criminal Justice Act 2003 ("the 2003 Act") re-constituted the Board, which is now established under those provisions.
Harking back to the Board's historical roots, section 239(2) provides:
"It is the duty of the Board to advise the Secretary of State with respect to any matter referred to it by him which is to do with the early release or recall of prisoners."
"Any matter… to do with the early release or recall of prisoners" has been construed to include matters relating to the progression of life prisoners towards release, such as transfer from closed to open conditions. So far as the Board's duty to advise in the context of such transfer decisions is concerned:
i) The duty arises only where the Secretary of State refers a particular prisoner for consideration by the Board. It is generally recognised that, for a life prisoner, a key step in his progression towards eventual release is his re-classification from a category C closed conditions prisoner, to a category D open conditions prisoner; but, in respect of such a matter, the Secretary of State has an open discretion as to whether to make a reference ( R (Gilbert) v Parole Board [2015] EWHC 927 (Admin) at [56])).
ii) Having referred a matter to the Board, the Secretary of State (through the National Offender Management Service ("NOMS")) is entitled to make submissions to the Board with regard to his own view on transfer. Thus, the Secretary of State has two roles to play: as the general sponsor of the Board, and as a potential representor or "party" before the Board in respect of a particular case.
iii) However, as pre-2003, the advice by the Board in relation to a transfer is not binding on the Secretary of State, who is required to take into account all relevant factors, including the Board's advice, but come to his own decision ( R (Harris) v Secretary of State for Justice [2014] EWHC 3752 (Admin) at [30]). Nevertheless, in practice, if, having properly considered the matter, the Board considers the risk posed by the prisoner renders transfer to open conditions inappropriate, it is unlikely that the Secretary of State will decide otherwise, the assessment of such risks being the Board's primary statutory function.
This part of the statutory scheme reflects the general law relating to the classification of prisoners. Section 12(2) of the Prison Act 1952 provides that a prisoner may be lawfully confined in any prison as the Secretary of State directs. Section 47 of that Act empowers the Secretary of State to make rules about the classification of prisoners. Rule 7 of the Prison Rules 1999 (SI 1999 No 728) gives the Secretary of State a very broad discretion in classifying prisoners.
Section 239(6) of the 2003 Act provides that:
"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…; and in giving such directions the Secretary of State must 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."
There is no objection to such directions as a matter of principle, so long as they are restricted to guidance on legally relevant matters to be taken into account. Directions that stray beyond that scope will be ultra vires ( Brooke at [36] per Lord Phillips).
The Secretary of State has used his power under section 239(6) to give the Board directions as to how it should approach its decision-making in relation to transfers to open conditions. The relevant direction, issued in August 2014, states:
"A move to open conditions should be based on a balanced assessment of risk and benefits. However, the Parole Board's emphasis should be on the risk reduction aspect and, in particular, on the need for the lifer to have made significant progress in changing their attitudes and tackling behavioural problems in closed conditions, without which a move to open conditions will not generally be considered."
I will refer to this as "the August 2014 Direction".
That is the position where the Board's decision concerns a progressive step towards release. Where its decision rather concerns whether the prisoner should in fact be released on licence, the position is different. Section 28 of the Crime (Sentences) Act 1997 provides for the following scheme.
i) After the expiry of his tariff, a prisoner may require the Secretary of State to refer his case to the Board at various specified times, but essentially upon expiry of the tariff and then every two years (section 28(7)).
ii) The Board may direct a prisoner's release if, and only if, his case has been referred to the Board by the Secretary of State; and it "is satisfied that it is no longer necessary for the protection of the public that the prisoner should be confined" (section 28(6)).
iii) Where the Board gives a direction that the prisoner be released, then the Secretary of State must comply with that direction (section 28(5)).
Therefore, whether the decision is in respect of merely a progressive step towards release or the actual release of the prisoner, the Board's task is the same: adopting similar procedures, it assesses the risk...
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