R (on the application of Ben King) v The Parole Board The Secretary of State for the Home Department (Interested Party)
| Jurisdiction | England & Wales |
| Judge | Master of the Rolls,Lord Justice Sales,Lord Justice Tomlinson |
| Judgment Date | 09 February 2016 |
| Neutral Citation | [2016] EWCA Civ 51 |
| Docket Number | Case No: C1/2014/1247 |
| Court | Court of Appeal (Civil Division) |
[2016] EWCA Civ 51
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
LORD JUSTICE AIKENS & MR JUSTICE MITTING
CO/12279/2012
Royal Courts of Justice
Strand, London, WC2A 2LL
The Master of the Rolls
Lord Justice Tomlinson
and
Lord Justice Sales
Case No: C1/2014/1247
and
Hugh Southey QC (instructed by Irwin Mitchell LLP) for the Appellant
Sam Grodzinski QC and Tim Buley (instructed by Government Legal Department) for the Respondent
Hearing date: 25/01/2016
This appeal concerns the lawfulness of the guidance given by the Parole Board ("the Board") to its panels in December 2013 ("the December 2013 Guidance") as to the test to be applied by panels of the Board when considering whether to direct the release after recall to custody of a prisoner serving a determinate sentence of imprisonment. The December 2013 Guidance was issued one year after the coming into force of the Legal Aid, Sentencing and Punishment of Offenders Act 2012 ("LASPO") which made major changes to the law on recall and release of such prisoners.
The relevant part of the Guidance stated:
"In order to direct release, the Board should be satisfied that it is no longer necessary for the prisoner to be detained in order to protect the public from serious harm (to life and limb). It is not a requirement to balance the risk against the benefits to the public or the prisoner of release."
The appellant's case is that the Guidance contains two flaws: (i) the first sentence wrongly directs panels to apply the "public protection test" set out in section 255B(3) and section 255C(3) of the Criminal Justice Act 2003 ("the 2003 Act") as amended by LASPO; and (ii) the advice contained in the second sentence is wrong: in an appropriate case, the Board is entitled or obliged to conclude that a significant risk of harm to the public by reason of a prisoner's early release is outweighed by the benefits of such release.
The Divisional Court (Aikens LJ and Mitting J) rejected both contentions in a comprehensive and detailed judgment. Mr Southey QC submits that they were wrong to do so.
The background
The judgment below contains a detailed description of the legislative and case history relating to the release of prisoners: see paras 22 to 49. The following summary should suffice for the purposes of this appeal.
Prior to 1991, there was no statutory test to be applied by the Board in considering the release of prisoners of any kind. The position with regard to prisoners serving discretionary life sentences was as follows. In R v Parole Board, ex parte Bradley [1991] 1 WLR 134, the Divisional Court propounded a test that has become known as the "life and limb" test: is there more than a minimal risk that the prisoner will commit further offences of a violent or sexual nature which will cause serious harm? This test was later approved by this court in R v Parole Board, ex parte Wilson [1992] QB 740.
The Criminal Justice Act 1991 ("the 1991 Act") introduced a statutory test in section 34(4)(b) for prisoners serving discretionary life sentences. This was reproduced in identical language in section 28(6) of the Crime (Sentences) Act 1997 ("the 1997 Act"). It provided:
"(6) the Parole Board shall not give a direction [for release] under subsection (5) above with respect to a life prisoner to whom this section applies unless—-
…
(b) the Board is satisfied that it is no longer necessary for the protection of the public that the prisoner should be confined."
Section 39 of the 1991 Act, which governed release following recall, was silent as to the test to be applied. In R v Parole Board, ex parte Watson [1996] 1 WLR 906, this court decided that the test was the same for release of recalled prisoners as for their initial release.
Sentences of imprisonment for public protection ("IPPs") were introduced by the Criminal Justice Act 2003 ("the 2003 Act"). They are treated as life sentences for the purposes of release decisions by the Board, so that the test in section 28(6)(b) of the 1997 Act applies. In R (Sturnham) (No 2) v Parole Board [2013] UKSC 47, [2013] 2 AC 254, it was held that the Bradley test should be applied to IPP prisoners.
So far as determinate sentence prisoners are concerned, the position was different. Guidance was issued by the Secretary of State (pursuant to section 32(6) of the 1991 Act and section 239(6) of the 2003 Act) in directions issued in May 2004 ("the May 2004 Directions") as to the test to be applied. These provided:
"In deciding whether or not to recommend release on licence, the Parole Board shall consider primarily the risk to the public of a further offence being committed at a time when the prisoner would otherwise be in prison and whether any such risk is acceptable."
Section 29(2) of the Criminal Justice and Immigration Act 2008 ("the 2008 Act") introduced major changes to the provisions of the 2003 Act relating to the recall of prisoners serving determinate sentences. These were contained in sections 255A, 255B and 255C. They were re-enacted by LASPO with amendments which are not material to the issues arising on this appeal. Like the Divisional Court, I find it convenient to set these out in full as an annex to this judgment.
The December 2013 Guidance addresses separately the test for initial release and release following recall of determinate prisoners. It says that the statutory test is the same for the release of all determinate prisoners, viz: the Board must not give a direction for release unless it is satisfied that it is no longer necessary for the protection of the public that the person should be confined ("the public protection test"). It states that the Board will now apply the public protection test in all determinate sentence cases at first release. It states that LASPO is silent as to the test to be applied for the release of recalled determinate sentence prisoners. It goes on to give reasons for saying that the public protection test should also be applied to recalls: see para 2 above.
With that introduction, I can now address the two issues that arise on this appeal.
The first issue: does the section 255B(3) and section 255C(3) test apply to a direction by the Board under section 255B(5) and section 255C(5), respectively?
In R (Clift) v Secretary of State [2007] 1 AC 484, Lord Bingham considered the justification for schemes of early release on licence of prisoners serving long-term determinate sentences. At para 18, he referred to the "recognition that neither the public interest nor the interest of the offender is well served by continuing to detain a prisoner until the end of his publicly pronounced sentence". He made a similar point in R (Smith and West) v Parole Board [2005] 1 WLR 350. At para 25, he referred to the desirability of the process of transition from prison to life in the community being professionally supervised "to maximise the chances of the ex-prisoner's successful reintegration into the community and minimise the chances of his relapse into criminal activity". Mr Southey relies on these observations in support of his submission that there can be a powerful public interest in favour of the early release of a determinate prisoner even where the prisoner poses a high risk to the public. Determinate prisoners, however dangerous they may be, will always be released when they have served their sentence. If they are detained until the expiry of their sentence, they will not on their release be supervised and supported in the community. There is, therefore, a real public interest (and the protection of the public will be enhanced) if a determinate prisoner who has been recalled is released before the expiry of his sentence with the support of probation officers and other professionals.
Mr Southey submits that the Divisional Court was wrong to conclude that the Board is precluded from considering the public interest in the benefit of early release to the prisoner and the public. It would be surprising if Parliament had required a public body such as the Board to act contrary to the public interest.
He relies on the fact that, although, since the passing of the 2008 Act, the Secretary of State has been subject to the statutory public protection test in relation to the release of a determinate prisoner who has been recalled, the Board has never been subject to such a statutory test. He submits that this shows that Parliament did not intend to impose on the Board any test for the release of determinate prisoners who have been recalled. It must be taken to have been content with the test that the Board was required to apply before the enactment of the 2008 Act (as well as LASPO) which was clearly set out in the May 2004 Directions. Mr Southey submits that Parliament is taken to know the state of the law at the time when it legislates: see, for example, R v Immigration Officer at Prague Airport, ex parte European Roma Rights Centre [2005] 2 AC 1 at para 42. Accordingly, if Parliament had intended to amend the test to be applied by the Board in relation to recalled determinate prisoners, it would have made this intent clear by expressly so providing. It did not do so.
The May 2004 Directions could not amend the statutory release test: see R (Girling) v Parole Board [2007] QB 783. It must, therefore be assumed that they reflected the statutory test. They were not withdrawn until July 2013....
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