R (Hirst) v Parole Board and Secretary of State for the Home Department
| Jurisdiction | England & Wales |
| Judge | MR JUSTICE MOSES |
| Judgment Date | 31 May 2002 |
| Neutral Citation | [2002] EWHC 1592 (Admin) |
| Date | 31 May 2002 |
| Court | Queen's Bench Division (Administrative Court) |
| Docket Number | CO/3938/2001 |
[2002] EWHC 1592 (Admin)
IN THE HIGH COURT OF JUSTICE
Royal Courts of Justice
The Strand
London WC2
Mr Justice Moses
CO/3938/2001
MISS F KRAUSE (FOR HEARING) MR K GLEDHILL (FOR JUDGMENT) (instructed by AS LAWS SOLICITORS, LIVERPOOL L1 2TQ) appeared on behalf of the Claimant.
MR R SINGH QC (instructed by THE TREASURY SOLICITOR, LONDON) appeared on behalf of the Defendant.
MISS K STEYN (instructed by THE TREASURY SOLICITOR, LONDON) appeared on behalf of the Interested Party.
Introduction:
1. The claimant is a discretionary life prisoner. His tariff was 15 years. It was set in February 1980 and, accordingly, it has now expired. His suitability for release is due to be considered by a Discretionary Lifer Panel some time between June and October of this year, 2002. He contends that the test which that panel would be bound to apply pursuant to section 28(6)(b) of the Crime (Sentences) Act 1997 will be incompatible with Article 5(1) and Article 5(4) of the European Convention on Human Rights. He seeks a declaration of incompatibility pursuant to section 4 of the Human Rights Act 1998. Alternatively, he seeks a declaration that the Discretionary Lifer Panel's interpretation of section 28(6)(b) will not be compatible and I can and should interpret it, at this stage, in a manner compatible with Article 5 in accordance with the statutory obligation set out in section 3 of the 1998 Act.
Facts:
2. The stage at which this application comes to be made is important in the light of the argument by the Parole Board and the Secretary of State that no act or decision or no proposed act or decision capable of being subjected to judicial review has taken place, and that the claimant is not a victim within the meaning of section 7(1) of the 1998 Act.
3. The claimant was convicted of manslaughter on the grounds of diminished responsibility in February 1980. As I have said his tariff was set at 15 years and, accordingly, expired in April 1994. In May 2001 he was transferred to open conditions, but apart from that, there are few if any other facts known to the court. There were earlier reviews, but I know nothing of them, save that they were apparently unsuccessful.
4. Solicitors for the claimant wrote to the Lifer Unit and Parole Board on 7th June 2001. It is unnecessary to read the whole of the letter but the relevant part reads:
“Could you also please confirm, or otherwise, on behalf of the Secretary of State that it is now accepted that for the purpose of a Parole Board decision as to whether or not to release a post-tariff discretionary lifer, the burden is on the Secretary of State to satisfy the Parole Board that it is necessary for the protection of the public that the prisoner should continue to be confined.”
5. The letter goes on to refer to the case of H, to which I shall shortly come, and asks if the Secretary of State accepts the proposition that appropriate guidance should be given to the Parole Board and adds:
“For the sake of completeness we have used the phrase ‘burden’ and we accept that the Court said that to talk in terms of “burden of proof” in the context of tribunals may not be appropriate but it may be useful as a shorthand to express the statutory position.”
6. The response of the Parole Board was given by an official of the Parole Board's secretariat on 12th July 2001 and reads in the material part:
“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.”
7. It then goes on not to accept the analogy with Mental Health Review Tribunals.
Statutory Provisions:
8. The relevant section of the Crime (Sentences) Act 1997 reads at section 28(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 the 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.”
9. Subsection (5) reads:
“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.”
10. Section 32 of the Criminal Justice Act 1991 creates the Parole Board and reads:
“The Board shall deal with cases as respects which it makes recommendations under Part II on consideration of—
(a) any documents given to it by the Secretary of State; and
(b) any other oral or written information obtained by it and if in any particular case the Board thinks it necessary to interview the person to whom the case relates before reaching a decision, the Board may authorise one of its members to interview him and shall consider the report of the interview made by that member.”
11. The hearing procedures are regulated by the Parole Board Rules 1997. By Rule 13(2):
“…the panel shall conduct the hearing in such manner as it considers most suitable to the clarification of the issues before it and generally to the just handling of the proceedings; it shall so for as appears to it appropriate, seek to avoid formality in the proceedings.”
12. Rule 5(1) provides for the Secretary of State to serve on the Board information specified in Part A Schedule 1 and reports specified in Part B. Schedule A details information relating to the prisoner and Part B identifies reports relating to the prisoner which include such things as current reports on his behaviour and performance in prison.
13. The essential argument in the instant case echoes the letter sent on the claimant's behalf on 7th June. It is that section 28(6)(b), as will be applied by the Parole Board, requires a prisoner to satisfy the Parole Board that the risk of dangerousness to the public which he presents will be low enough to justify release. So to place the burden on the prisoner, it is argued, is contrary to Article 5. This raises the issue whether it is possible to interpret section 28(6)(b) in a way which places the burden on the Secretary of State to prove that the prisoner presents too high a risk to justify release. If it is not possible then the provision is incompatible.
14. Miss Krause, on behalf of the claimant, relied strongly on the decision of the Court of Appeal in relation to those detained as mental health patients in R (H) v North London and East Region Mental Health Review Tribunal, (Secretary of State for Health intervening), [2001] 3 WLR 512. The very suggestion that the Parole Board will interpret the section as suggested raises the first issue, namely whether there is an act or proposed act and whether the claimant is a victim.
15. Is there an act or proposed act? Is the claimant a victim? Section 6 of the Human Rights Act 1989 states:
“6 Acts of public authorities
(1) It is unlawful for a public authority to act in a way which is incompatible with a Convention right.
(2) Subsection (1) does not apply to an act if—
(a) as the result of one or more provisions of primary legislation, the authority could not have acted differently; or
(b) in the case of one or more provisions of, or made under, primary legislation which cannot be read or given effect in a way which is compatible with the Convention rights, the authority was acting so as to give effect to or enforce those provisions.
(3) In this section “public authority” includes—
(a) a court or tribunal, and
(b) any person certain of whose functions are functions of a public nature,
but does not include either House of Parliament or a person exercising functions in connection with proceedings in Parliament.
(4) In subsection (3) “Parliament” does not include the House of Lords in its judicial capacity.
(5) In relation to a particular act, a person is not a public authority by virtue only of subsection (3)(b) if the nature of the act is private.
(6) “An act” includes a failure to act but does not include a failure to—
(a) introduce in, or lay before, Parliament a proposal for legislation; or
(b) make any primary legislation or remedial order.
7 Proceedings
(1) A person who claims that a public authority has acted (or proposes to act) in a way which is made unlawful by section 6(1) may—
(a) bring proceedings against the authority under this Act in the appropriate court or tribunal, or
(b) rely on the Convention right or rights concerned in any legal proceedings,
but only if he is (or would be) a victim of the unlawful act.”
16. Section 7(7) provides:
(7) For the purposes of this section, a person is a victim of an unlawful act only if he would be a victim for the purposes of Article 34 of the Convention if proceedings were brought in the European Court of Human Rights in respect of that act.”
17. It is plain that the letter on behalf of the Secretariat of the Parole Board is not an act or proposed act. It was merely a view expressed as to how the test laid down in 28(6)(b) should be interpreted. It was argued by Miss Krause that since it is obvious that the Parole Board will apply the statutory wording, the court is already in a position to know how the board will approach the question of the test to be applied. The test necessarily involves imposing a burden on the prisoner and accordingly the proposed act of application...
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R (Sim) v Parole Board
...and would like matters resolved sooner rather than later. 17 My attention was drawn to the decision of Moses J in R (Hirst) v Parole Board and The Home Secretary [2002] EWHC 1592 (Admin) in which he was unwilling to decide whether the test of release for prisoners given discretionary life ......