R (James and Others) v Secretary of State for Justice ; R (Walker) v Secretary of State for Justice; R (Wells) v Parole Board

JurisdictionEngland & Wales
CourtCourt of Appeal (Civil Division)
Judgment Date01 February 2008
Neutral Citation[2008] EWCA Civ 30
Docket NumberCase No: C1/2007/1959, C1/2007/2091 (C1/2007/2091)
Date01 February 2008

[2008] EWCA Civ 30

IN THE SUPREME COURT OF JUDICATURE

COURT OF APPEAL (CIVIL DIVISION)

ON APPEAL FROM

Laws LJ and Mitting J (C1/2007/1959)

Collins J (C1/2007/2091)

Before :

The Lord Chief Justice of England and Wales the Right Honourable Lord Justice Dyson and

The Right Honourable Lord Justice Toulson

Case No: C1/2007/1959, C1/2007/2091 (C1/2007/2091)

Between
The Secretary of State for Justice
Appellant
and
David Walker
Respondent
The Secretary of State for Justice
Appellant
and
Brett James
Respondent

Mr Robert Jay QC and Mr Steven Kovats (instructed by Treasury Solicitors) for the Appellant

Mr Rabinder Singh QC and Mr Dan Squires (instructed by Treasury Solicitors) for the Parole Board

Mr Tim Owen QC and Mr Hugh Southey (instructed by Messrs Irwin Mitchell) for the Respondent Walker

Mr Pete Weatherby and Ms Melanie Plimmer (instructed by Messrs Switalskis) for the Respondent James

Lord Phillips of Worth Matravers CJ

This is the judgment of the Court.

1

These appeals raise three important questions concerning the Parole Board. The first is whether the Secretary of State has acted unlawfully by failing to provide for measures to allow and encourage prisoners serving indeterminate sentences for public protection ('IPPs') to demonstrate to the Parole Board by the time of the expiry of their minimum terms (often referred to as 'tariff periods') that it is no longer necessary for the protection of the public that they continue to be detained. Mr Walker and Mr James are what are referred to as 'short tariff lifers'; ie they received IPPs with minimum terms of no more than 5 years' detention. The Divisional Court (Laws LJ and Mitting J) in the case of Mr Walker and Collins J in the case of Mr James held that the Secretary of State had acted unlawfully by failing to provide such measures. The second question is whether, if the Secretary of State has acted unlawfully in this way, it follows that the detention of an IPP prisoner after the expiry of the minimum term is unlawful. The Divisional Court stated that it does. This part of their judgment was strictly obiter, because Mr Walker had not yet served his minimum term. Mr James had, however, served his minimum term. Collins J (following the decision of the Divisional Court) held that his detention was unlawful, ordered his immediate release, but granted a stay of the order pending the outcome of this appeal. The third question is whether the conduct of the Secretary of State has, in the case of Mr James, infringed his rights under Article 5(1) and Article 5(4) of the European Convention on Human Rights ('ECHR') and is, in the case Mr Walker, capable of infringing his rights under these. Collins J did not determine the question as he did not consider it necessary to do so. Laws LJ held that the decision of this court in R v Secretary of State for the Home Department ex p Cawser [2003] EWCA 1522, to which he was party, precluded a finding that the Secretary of State's conduct was capable of infringing Article 5( 1) or (4) of the ECHR.

2

The Secretary of State appeals against both decisions with the permission of the lower courts. The Parole Board, as interested party, has made no submissions in relation to the first question. In relation to the second question it has contended that the Divisional Court and Collins J were wrong to hold that the Secretary of State's conduct rendered unlawful the detention of IPP prisoners after the expiry of their minimum terms. In relation to the third question, it has contended that Laws LJ was correct to find that Cawser precluded any argument that Articles 5(1) and 5(4) were or might be infringed.

The relevant statutory material

3

Section 225 of the Criminal Justice Act 2003 (“the 2003 Act”) provides:

“(1) This section applies where –

(a) a person aged 18 or over is convicted of a serious offence committed after the commencement of this Act, and

(b) the court is of the opinion that there is a significant risk to members of the public of serious harm occasioned by the commission by him of further specified offences.

[“Serious offence” and “specified offence” are defined in section 224.]

(2) If –

(a) the offence is one for which the offender would apart from this section be liable to imprisonment for life, and

(b) the court considers that the seriousness of the offence, or of the offence and one or more offences associated with it, is such as to justify the imposition of a sentence of imprisonment for life,

the court must impose a sentence of imprisonment for life.

(3) In a case not falling within subsection (2), the court must impose a sentence of imprisonment for public protection.

(4) A sentence of imprisonment for public protection is a sentence of imprisonment for an indeterminate period, subject to the provisions of Chapter 2 of Part 2 of the Crime (Sentences) Act 1997 as to the release of prisoners and duration of licences…”

4

The provisions referred to in section 225(4) introduce the minimum term into IPP sentences. Section 28(5) of the Crime (Sentences) Act 1997 (“the 1997 Act”) provides:

“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.”

5

“Life prisoner” includes a person serving an IPP: see section 34(1) and (2)(d) of the 1997 Act. Section 28(6) of the 1997 Act provides:

“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:

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

Section 28(7) of the 1997 Act provides:

“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…”

6

The “relevant part” of the sentence is a reference to the “minimum term” (section 28(1A)). Section 28(8A) provides that a “minimum term order” means an order under section 82A(2) of the Powers of Criminal Courts (Sentencing) Act 2000 (“the 2000 Act”), which by sub-section (1) applies where a sentence of IPP is passed. Section 82A(2) of the 2000 Act provides:

“The court shall… order that the provisions of s.28(5) to (8) of [the 1997 Act] … shall apply to the offender as soon as he has served the part of his sentence which is specified in the order.”

Section 82A(3) of the 2000 Act provides:

“The part of his sentence shall be such as the court considers appropriate taking into account –

(a) the seriousness of the offence, or the combination of the offence and one or more offences associated with it…”

7

The 2003 Act contains provisions relating to the Parole Board. Section 239 provides:

(3) The Board must, in dealing with cases as respects which it makes recommendations under this Chapter or under Chapter 2 of Part 2 of the 1997 Act, consider —

(a) any documents given to it by the Secretary of State, and

(b) any other oral or written information obtained by it…

(5) Without prejudice to subsections (3) and (4), the Secretary of may make rules with respect to the proceedings of the Board…

(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 Chapter or under Chapter 2 of Part 2 of the 1997 Act; and in giving any 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.”

8

Section 142(1) of the 2003 Act provides that:

“Any court dealing with an offender in respect of his offence must have regard to the following purposes of sentencing –

(a) the punishment of offenders,

(b) the reduction of crime (including its reduction by deterrence),

(c) the reform and rehabilitation of offenders,

(d) the protection of the public,

(e) the making of reparation by offenders to persons affected by their offences.”

Section 142(2), however, provides that subsection (1) does not apply to an offence the sentence for which falls to be imposed under any of sections 225 to 228 of the 2003 Act.

9

Pursuant to section 32(5) of the Criminal Justice Act 1991 (now section 239(5) of the 2003 Act), the Secretary of State has made the Parole Board Rules. The rules apply to cases which come before the Board under section 28 of the 1997 Act ie those prisoners who are subject to sentences of imprisonment for life and IPP prisoners: see rule 2(1). Rule 6 and Schedule 1 require the Secretary of State to provide the Board with certain information and current reports relating to the prisoner, including (para 3 of Part B) “current reports on the prisoner's risk factors, reduction in risk and performance and behaviour in prison, including views on suitability for release on licence as well as compliance with any sentence plan”.

10

Pursuant to section 32(6) of the 1991 Act (now section 239(6) of the 2003 Act), the Secretary of State has issued directions to the Board in relation to the release and recall of life sentence prisoners. Direction 6 provides:

“In assessing the level of risk to life and limb presented by a lifer, the Parole Board shall consider the following information, where relevant and where available, before directing the lifer's release, recognising that...

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