R (Hirst) v Parole Board and Secretary of State for the Home Department
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE LAWS,LORD JUSTICE KEENE |
| Judgment Date | 25 September 2002 |
| Neutral Citation | [2002] EWCA Civ 1329 |
| Date | 25 September 2002 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | No C/2002/1347 |
[2002] EWCA Civ 1329
IN THE SUPREME COURT OF JUDICATURE
IN THE COURT OF APPEAL (CIVIL DIVISION)
APPLICATION FOR PERMISSION TO APPEAL
AND AN EXTENSION OF TIME
Royal Courts of Justice
Strand
London WC2
Lord Justice Laws
Lord Justice Keene
No C/2002/1347
MISS F KRAUSE (Instructed by A S Law of Liverpool) appeared on behalf of the Applicant
MR RHODRI THOMPSON QC (Instructed by Treasury Solicitor) appeared on behalf of the First Respondent the Parole Board
MISS K STEYN (Instructed by Treasury Solicitor) appeared on behalf of the Second Respondent the Secretary of State
This is an application for permission to appeal against a decision of Mr Justice Moses given in the Administrative Court on 31st May 2002 when he dismissed the applicant's application for judicial review. He refused permission to appeal to this court.
On 9th August 2002 Lord Justice Pill adjourned the applicant's further application for permission into court to be heard orally on notice; those are the proceedings listed before us today.
The case concerns certain of the statutory functions of the Parole Board viewed in the light of Article 5 of the European Convention on Human Rights. In February 1980 the applicant was convicted of manslaughter on the basis of diminished responsibility. He was sentenced to imprisonment for life. That was of course a discretionary indeterminate sentence. His tariff—that is the time he should serve for the purposes of retribution and deterrence—was set at 15 years and expired in April 1994. He must have served some time on remand before conviction. In May 2001 he was transferred to open conditions. In order to understand the nature of the case it is convenient to set out Section 28 (5) and Section 28 (6) of Crime (Sentences) Act 1997:
"(5) As soon as —
(a) a life prisoner to whom this section applies has served the relevant part of his sentence,
(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."
The functions of the Parole Board under these two subsections are delegated to or performed by its Discretionary Lifer Panel, to which I will refer as the DLP.
In the judicial review proceedings the applicant was concerned to obtain a ruling as to the approach to be taken by the DLP to his case when it next considered the matter. The argument was that the DLP was obliged to approach the case on the footing that, givenArticle 5 of the Convention, it was for the Secretary of State to prove that the applicant was or remained sufficiently dangerous that his release should not be directed: as opposed to the burden being on the applicant to show that any risk to the public was so low that release might properly be directed. This issue was raised by the applicant's solicitors in correspondence with the Parole Board, whose Secretariat replied on 12th July 2001 as follows:
"The Board's view of the 'burden' at Discretionary Lifer Panels is that taken by the courts in respect of post-tariff discretionary lifers; in other words that it has to be shown that the risk is low enough to release a prisoner, not that it is high enough to justify continued imprisonment."
This statement was taken by the applicant as the vehicle for his judicial review challenge. In reality the challenge went to the question, how would the DLP exercise its functions under Section 28 (6) on a future occasion, that is to say upon the occasion when next they came to consider the applicant's case. Mr Justice Moses held that as at the time he was giving judgment the applicant was not a victim within the meaning of Section 7 of the Human Rights Act 1998; and so he dismissed the application, declining to adjudicate upon the substantive issues.
When he adjourned the application for permission Lord Justice Pill was concerned, as Mr Justice Moses had been, with the fact that the court was being asked to give a pre-emptive or advisory opinion as to how the DLP would act in the future when, for all one knew, the applicant might obtain a favourable result from the DLP and so secure his release whatever approach the Panel took to what might be called the "burden of proof" question. Lord Justice Pill directed that the applicant should specifically...
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