R (on the Application of Caron Foley) v The Parole Board for England and Wales and Another
| Jurisdiction | England & Wales |
| Judge | Mr Justice Treacy |
| Judgment Date | 27 July 2012 |
| Neutral Citation | [2012] EWHC 2184 (Admin) |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 27 July 2012 |
| Docket Number | Case No: CO/3816/2011 |
[2012] EWHC 2184 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
President of the Queen's Bench Division
Mr Justice Treacy
Case No: CO/3816/2011
Hugh Southey QC (instructed by Irwin Mitchell LLP Solicitors) for the Claimant
Sam Grodzinski QC (instructed by Treasury Solicitor) for the Defendants
Hearing dates: 15th May 2012
Introduction
In this case the Claimant challenges the lawfulness of the Parole Board's decision dated 20 th January 2011 in which the Board found her unsuitable for release on licence. The Claimant was at about the half way stage of a determinate sentence of eighteen years imprisonment imposed for offences including arson with intent to endanger life and manslaughter.
In December 2001 the Claimant started two fires in a house belonging to an acquaintance of hers. In the course of the second fire a forty five year old man and his seven year old daughter were killed. The Claimant pleaded not guilty at trial. She denied that she had deliberately started the fires. The jury convicted her on counts of arson, arson with intent to endanger life, and two counts of manslaughter. She was sentenced by Sachs J on 1 st November 2002 at Manchester Crown Court. In his sentencing remarks he referred to her having acted out "a bizarre charade of denial" and said that in his view she was a very dangerous and manipulative woman. This conviction was, of course, recorded before the dangerousness provisions of Chapter 5 of the Criminal Justice Act 2003 had been enacted. Accordingly the judge had a choice between the imposition of a life sentence and a long determinate sentence. The judge imposed the latter form of sentence.
That being so, the Claimant's release is governed by the provisions of the Criminal Justice Act 1991. Section 33(5) of that Act defines a long term prisoner as "a person serving a sentence of imprisonment for a term of four years or more". The Criminal Justice Act 2003 has affected the release provisions of the 1991 Act. Because the Claimant's offences fall within a list of violent and sexual offences set out in Schedule 15 of the Criminal Justice Act 2003, her release is governed by Sections 33(2) and 35(1) of the 1991 Act. The effect of these provisions is that the Claimant was eligible for release upon reaching the half way point of her sentence if the Parole Board recommended such release, (Section 35(1)), and entitled to release at the two thirds point of her sentence, (Section 33(2)). The latter date would be on 10 th January 2014.
Section 32(6) of the 1991 Act provides as follows:
"The Secretary of State may also give to the Board directions as to matters to be taken into account by it in discharging any functions under [this Part or Chapter II]; and in giving any such directions the Secretary of State shall in particular 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."
In May 2004 the Secretary of State issued directions pursuant to Section 32(6) of the 1991 Act in relation to determinate sentence prisoners. In contrast to the position in relation to indeterminate sentence prisoners, there is no statutory test for the release of determinate sentence prisoners.
The May 2004 directions state that:
"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."
As already indicated the release regime for indeterminate sentence prisoners is somewhat different. Firstly, Section 28(6)(b) of the Crime (Sentences) Act 1997 provides a statutory test for the release of indeterminate sentence prisoners, namely that such prisoners should be released if:
"the Board is satisfied that it is no longer necessary for the protection of the public that the prisoner should be confined."
In August 2004 the Secretary of State issued directions pursuant to Section 32(6) of the 1991 Act to the Parole Board. These directions state that:
"The test to be applied by the Parole Board in satisfying itself that it is no longer necessary for the protection of the public that the prisoner should be confined, is whether the lifer's level of risk to the life and limb of others is considered to be more than minimal."
This is sometimes referred to as "the life and limb test".
The point at which a lifer or other person serving an indeterminate sentence may apply for release is at the expiry of their tariff. The tariff expires at the half way point of the notional determinate sentence which will have been identified by the court when sentencing the offender to an indeterminate term. That half way point, or tariff as it is commonly called, represents the punitive and deterrent element of a sentence passed. Time spent in custody after that point is not regarded as the punitive element of the sentence, but rather as the element necessary to manage the risk to life and limb which the offender poses to the public and which forms part of the rationale for the passing of an indeterminate sentence. This latter phase of the sentence which will continue until the Parole Board judges that the offender is safe to be released is in effect risk management by way of custody.
It will be appreciated that there are differences between the two tests. In relation to determinate sentence prisoners the focus is on the risk to the public from any further offending (violent or otherwise) being committed at a time when the prisoner would otherwise be in prison. Moreover, the consideration is as to whether the risk is "acceptable". This latter aspect involves a balancing of benefits to public and offender of early release into the community under supervision which might help rehabilitation and thus lessen the risk of reoffending in the future against the benefits of safeguarding the public by continuing to detain the offender.
In the case of indeterminate sentence prisoners the focus relates specifically to risk to the life and limb of others rather than from the commission of offences generally. In addition a different threshold is in place, namely whether the risk is considered to be "more than minimal" as opposed to "acceptable".
Prior to the consideration of the Claimant's case by the Parole Board on 20 th January 2011 her representatives had submitted that the test to be applied in determining whether she should be released after serving half her sentence was that which applied when consideration was given to release of those serving an indeterminate sentence. This submission was rejected by the Parole Board which commented that the panel had no discretion in relation to which test it applies. It applied the determinate prisoner's test as set out in the May 2004 direction.
The Claimant asserts that the test applied to her is more onerous than that applied when the release of an indeterminate prisoner is considered. It is argued that this represents a violation of Article 14 of the European Convention on Human Rights. Article 14 provides:
" Prohibition of discrimination
The enjoyment of the rights and freedoms set out in this Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with an national minority, property, birth or other status."
It is the last of those categories, "other status", with which we are concerned in this matter.
Although the Parole Board made plain in its decision that it was applying the test applicable to determinate rather than indeterminate sentencing prisoners, it is clear that the risks about which the Board was concerned in this case included a risk of the Claimant committing further offences of a type similar to those for which she had been imprisoned. The panel was also concerned about the Claimant's ability to be able to manage "any risky situation that might arise should your life destabilise in future…". There would therefore be an argument available to the Defendants that even if the Board had applied the "life and limb" test applicable to the release of indeterminate sentence prisoners, it could not realistically be said that it would have reached a different conclusion in the Claimant's case. However, the Defendants recognise that the Claimant's argument raises a point of principle which, if not decided in the present case, is likely to arise in another one. Accordingly, this potential argument has not been pressed and the court has not been invited to dispose of the claim on the grounds that it is academic.
The claim which is summarised at paragraph 13 above requires a court to consider a number of distinct questions. The answers to some of those questions are not in dispute between the parties. I will identify them and then move on to the two issues which the parties pose for the court's consideration.
Firstly the court must ask whether the matters complained about come within the ambit of a right protected by the European Convention on Human Rights. The parties agree that this is the case, having regard to the decision of the House of Lords in R (Clift) v Secretary of State [2007] 1 AC 484, hereinafter referred...
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