R (Noorkoiv) v Secretary of State for the Home Department and Another

JurisdictionEngland & Wales
CourtCourt of Appeal (Civil Division)
JudgeLord Justice Buxton,Lord Justice Simon Brown
Judgment Date30 May 2002
Neutral Citation[2002] EWCA Civ 770
Docket NumberCase No: C/01/1140

[2002] EWCA Civ 770

IN THE SUPREME COURT OF JUDICATURE

COURT OF APPEAL (CIVIL DIVISION)

ON APPEAL FROM The High Court of Justice

Queens Bench Division Administrative Court

Before

The Lord Chief Justice of England and Wales

Lord Justice Simon Brown

Lord Justice Buxton

Case No: C/01/1140

CO/1204/2001

Leo Robert Noorkoiv
Appellant
and
Secretary of State for the Home Department the Parole Board
Respondent

Mr Kris Gledhill (instructed by Messrs Tuckers for the Appellant)

Ms Jenni Richards (instructed by the Treasury Solicitor for the Respondents)

Lord Justice Buxton

Introduction: life sentences

1

In this appeal the court has again to confront the difficulties created in Convention terms by the English institution of life sentences. Three cases must be distinguished:

i) The "mandatory" life sentence for murder, imposed under section 1(1) of the Murder (Abolition of Death Penalty) Act 1965;

ii) The "discretionary" life sentence, imposed in cases where such a sentence is statutorily available to the sentencing judge, and which fulfil the further requirements laid down in the jurisprudence of the Court of Appeal (Criminal Division), the most important of which being that the offence must have been sufficiently serious to justify a long sentence and the offender a person who is likely to commit specially injurious offences in the future or is otherwise dangerous;

iii) The "automatic" life sentence, introduced by section 2 of the Crime (Sentences) Act 1997 and continued in being by section 109 of the Powers of Criminal Courts (Sentencing) Act 2000, whereby an offender who commits one of a list of specified "serious" offences will be sentenced to life imprisonment if he has previously committed another such listed offence, unless there are "exceptional circumstances" permitting the court not to take that course.

2

In none of these instances is it thought, except in very exceptional cases, that life means life. As Lord Mustill put it in Doody [1994] 1 AC at p556H:

"the indeterminate sentence is at a very early stage formally broken down into penal and risk elements. The prisoner no longer has to hope for mercy but instead knows that once he has served the 'tariff' the penal consequences of his crime have been exhausted."

In accordance with that approach, in the case of discretionary and automatic life sentences the sentencing court is required by section 82A of the Powers of the Criminal Courts (Sentencing) Act 2000 to specify a "tariff" period to be served by the prisoner, and also to order that the "early release" provisions should apply to him. Those provide, in short, for his release after the tariff period has expired to be determined by the Parole Board.

3

The status in relation to the Convention of the arrangements for mandatory life sentences was exhaustively reviewed by this court in R (Anderson) v SSHD [2002] 2 WLR 1143, and will not be further canvassed here. In relation to both discretionary and automatic life sentences, the fundamental requirement of the Convention that persons should not, save in very limited circumstances, be detained other than under the authority of a court is met in the case of the tariff period by the authority of the sentencing court; and in respect of any part of the sentence required to be served after the expiry of the tariff period by the control of that period of imprisonment by the Parole Board.

4

That control operates through the terms of section 28(5)-(7) of the 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

(7) 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; and

(b) where there has been a previous reference of his case to the Board, after the end of the period of two years beginning with the disposal of that reference; and

(c) where he is also serving a sentence of imprisonment or detention for a term, after he has served one-half of that sentence;

The case of Mr Noorkoiv

5

Mr Noorkoiv was convicted on 22 October 1998 of two offences falling under section 2 of the 1997 Act (see §1 above). He had been convicted of another such offence in 1997, and was therefore given an automatic life sentence. His tariff period was fixed by the court as 30 months, and therefore expired on 21 April 2001. His hearing before the Parole Board to determine whether he should continue to be detained under section 28 (5)-(6) of the Crime (Sentences) Act was held on 22 June 2001. The Board refused to order his release, since it considered that his detention continued to be necessary for the protection of the public, and he remains in prison. Mr Noorkoiv does not and could not challenge that decision, but he complains in these proceedings of the delay in affording him a hearing before the Parole Board.

6

The delay was quite deliberate. The Board wrote to Mr Noorkoiv's solicitors on 1 March 2001 informing them that

"The Secretary of State referred Mr Noorkoiv's case to the Parole Board to be listed some time after 22 April 2001."

This delay was inherent in the scheme for consideration of life sentence prisoners by the Parole Board, to which I must now turn.

The Parole Board scheme

7

The process starts with the reference of a discretionary or automatic life sentence case to the Board by the Secretary of State. His policy is to refer cases approximately six to nine months in advance of the expected hearing date. On receipt of the reference the Board institutes a process that depends on the hearing date fixed by them. The process provides for the assembly of a dossier of reports on the prisoner; his written representations on the dossier; and the making of directions by the chairman of the DLP [Discretionary Life Prisoner] panel that is to hear the case. The only detail that need be noted at this stage is that the dossier is produced and served on the prisoner 16 weeks in advance of the hearing.

8

It is the policy of the Board and, it would seem from the letter quoted in §6 above, of the Secretary of State that hearings are only scheduled for a date after the expiry of the tariff period. The gap between the end of the tariff period and the hearing date will vary from case to case, for two principal reasons. First, it is the Secretary of State's policy to refer cases to the Board in quarterly "batches": all cases whose tariff date will accrue during a particular quarter are referred on the same date, and scheduled thereafter on the same basis, with the result that a case whose tariff date accrued shortly before the beginning of the quarter may not be heard until the end of the quarter. Second, the Board can only schedule hearings within the resources, in terms of judicially qualified DLP chairmen and psychiatrists, available to it. That shortage of personnel in turn dictates that in principle all cases pending at a particular prison should be heard at the same time by the same panel. It may therefore fall out that a hearing in respect of a particular prisoner can only be scheduled at the prison where he is held towards the end of the quarter.

9

As we have seen, that is what occurred in the case of Mr Noorkoiv. His case was referred to the Board by the Secretary of State on 28 September 2000. The Board arranged that hearings at the prison at which Mr Noorkoiv was held should take place over the period of 20–21 June 2001, and the preparatory timetable referred to in §7 above counted back from that date.

These proceedings

10

The present proceedings were issued on 25 March 2001, the Parole Board having refused a request by Mr Noorkoiv's solicitors that his hearing date should be brought forward. The relief then sought presents some problems, to which I shall have to return, but in essence the claim was for (i) a mandatory order requiring the expedition of Mr Noorkoiv's hearing date; and (ii) some sort of declaratory relief that the system or policy that produced the hearing date were unlawful. Henriques J dismissed the application on 27 April 2001.

11

The central complaint is that the procedure and its outcome caused in the case of Mr Noorkoiv a breach of article 5(4) of the Convention:

"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"

Put shortly, the lawfulness of Mr Noorkoiv's detention in Convention terms expired with the expiry of his tariff period. The delay of two months before the Parole Board determined the lawfulness of his continued detention meant that that latter decision had not been taken "speedily".

12

It has been the position of the Secretary of State and of the Board throughout the proceedings that lack of resources prevents any improvement on the present procedures. As the Board's deponent put it:

Each case involving a life sentence prisoner (whether oral or on paper) is considered by a Panel of the Parole Board, comprising a judicial member, a lay member and a...

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