R (on the application of Faulkner) (FC) v Secretary of State for Justice and another; R (on the application of Sturnham) v Parole Board and another
| Jurisdiction | England & Wales |
| Judge | Mitting J |
| Judgment Date | 14 March 2011 |
| Neutral Citation | [2011] EWHC 938 (Admin) |
| Date | 14 March 2011 |
| Court | Queen's Bench Division (Administrative Court) |
| Docket Number | CO/8670/2010 |
[2011] EWHC 938 (Admin)
Administrative Court
Judge: Mitting J
CO/8670/2010
Appearances: P Rule (instructed by Lewis Nedas & Co) for S; D Mankell (instructed by the Treasury Solicitor) for the First Defendant; S Murray (instructed by the Treasury Solicitor) for the Second Defendant
Issues: Whether a decision not to release someone serving imprisonment for public protection involved the wrong test in law and/or was irrational; whether delays in the hearing before the Parole Board breached Art 5(4) ECHR and required damages.
Facts: In May 2006, S killed a man in a fight, death being caused by punches to the head; he was convicted of manslaughter. S had no previous convictions for violent offending but had problems with alcohol, cocaine and the use of violence. The sentencing judge, concluding that S posed a danger to the public, imposed imprisonment for public protection (IPP). Taking into account time in custody awaiting trial, the minimum term for punishment was set at just over 2 years and 3 months; it expired in May 2009. S had some disciplinary adjudications but had also completed programmes aimed at addressing his use of alcohol and his aggression, with mixed outcomes.
S's case was referred to the Parole Board in July 2008. The dossier of reports from the prison, which should have been supplied in late 2008/early 2009, was not supplied until late July 2009. The reports were mixed. There were hearings in April and May 2010, leading to a recommendation for transfer to open conditions rather than an order for release. In judicial review proceedings, S challenged the decision on the basis that the Board had applied an incorrect test in law by focusing on the risk of further offences, as was required in relation to life sentence prisoners, rather than the risk of serious offences of the sort that led to the imposition of the IPP sentence; it was noted that the Board had referred to Directions from the Secretary of State in which the latter had added a gloss to the statutory test for release (‘no longer necessary for the protection of the public that the prisoner should be confined”, set in s28(6) Crime (Sentences) Act 1997) that the Board should consider whether there was a ‘more than minimal … risk to life and limb”. It was also submitted that the decision was irrational. S also contended that the delays in the process had breached Art 5(4) ECHR.
1. Section 28 of the Crime (Sentences) Act 1997 (1997 Act) provides:
‘28. Duty to release certain life prisoners
(1A) This section applies to a life prisoner in respect of whom a minimum term order has been made;
…
(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 —
… (b) the Board is satisfied that it is no longer necessary for the protection of the public that the prisoner should be confined.”
2. ‘Life prisoner” now has an extended meaning provided in s34 of the 1997 Act, as amended, and includes ‘a person serving one or more life sentences” which includes ‘a sentence of imprisonment for public protection under s225 of the Criminal Justice Act 2003” (s34(2)(d)).
3. This judicial review, permission for which was granted by the single judge, raises an important question of principle and subsidiary questions. The important question of principle is whether the duty to release life prisoners under s28(6) is subject to a gloss in the case of prisoners who have been sentenced to a sentence of imprisonment for public protection under s225 of the 2003 Act. A related subsidiary question is whether or not, in applying the statutory test to this case, the Parole Board applied an impermissible gloss of its own. There are other issues raised by the proceedings with which I will deal later on in this judgment.
4. The principal question has already arisen but not been decided. In Bayliss v Parole Board[2009] Prison LR 308—and on appeal [2009] Prison LR 315—a concession was made on behalf of the Secretary of State. The concession was that the test for release in s28(6) was satisfied if —
‘… it is no longer necessary for the protection of the public against a significant risk of serious harm from the commission of further specified offences that the prisoner should be confined.”
Cranston J accepted that concession at first instance. On appeal, Dyson LJ, giving the lead judgment of the Court of Appeal, was content to accept the concession without deciding the point. In this case, counsel for the Parole Board and for the Secretary of State do not repeat the concession. Indeed, they expressly state that it is not an accurate statement of the law.
5. Section 225 of the Criminal Justice Act 2003 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 section, 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.”
The offences referred to in subs(b) are those listed in Sched 15 to the Act and include all offences of serious violence, all serious sex offences and arson. The schedule does not include drugs offences or any offence of an economic nature, other than those associated with violence such as robbery and burglary with a violent or sexual intent.
6. Before the question of principle can be decided, it is necessary to set out the background facts. On 19 May 2006 the claimant was party to an altercation in a public house. That led to a further altercation in the car park outside which resulted in one of the parties—not the victim—head-butting him. Someone who had been at the public house, but who had not up to that time participated violently or, as far as I can tell, at all in the altercation, tried to calm things down. All he got for his pains was 2 heavy punches from the claimant which concussed him and led on the following day to his death. This was not quite a classic single-punch manslaughter case. There were 2 punches. It seems that the injury caused to the victim resulted from the punches rather than the contact between his head and a hard surface. Nonetheless it fell, broadly speaking, in the same category.
7. The claimant had no previous criminal convictions for offences of violence. He contested the charge but was convicted by a jury. Reports available to the sentencing judge did not suggest that he posed a danger to the public. Despite that, the sentencing judge, in carefully considered sentencing remarks, concluded that it was necessary to impose upon him a sentence of imprisonment for public protection. He said:
‘I have myself reached a conclusion that you will be dangerous. You hold and express strong views. You are physically very strong. You are possessed of a forceful personality. If you meant what you said in evidence, you regard it as your right to respond with violence to anyone who uses it or threatens you. In my judgment you would not shrink from exercising that supposed right. For some years you have not brought your heavy drinking under control and you have not respected court orders for drink-related offences. You are, in addition, a cocaine user. You do not yet show any commitment to change your drinking and drug-taking habit.
I have reached the conclusion therefore that you do pose a danger of the sort described by the Act, largely because of your drinking and your unreformed attitude and your personality.”
8. The judge...
To continue reading
Request your trial
-
The Queen (on the application of Francis Dixon) (Claimant/Appellant) v The Secretary of State for Justice
...Kaiyam. I therefore find it of little assistance in the present context. 39 Another pre- Kaiyam case was R (Sturnham) v Parole Board and Secretary of State for Justice [2011] EWHC 938 (Admin), where an administrative error in supplying a dossier when it should have been led to an unjustifie......
-
R (Lucinda Vowles) v Secretary of State for Justice and Another
...is adverse to the claimant; the claimant is entitled to insist on observance of his procedural rights (see for example, R (Sturnham) v Parole Board [2011] EWHC 838 (Admin)). Indeed as the Supreme Court determined in R (Faulkner) v Secretary of State for Justice; R (Sturnham) v Parole Board ......
-
R (on the application of Sturnham) v The Parole Board of England and Wales and another (No. 2)
...damages for the delay in holding the review. These proceedings were the subject of judgments given by Mitting J on 14 March 2011, [2011] EWHC 938 (Admin), and the Court of Appeal on 23 February 2012, [2012] EWCA Civ 452; [2012] 3 WLR 476. The claim for damages was ultimately disposed of in ......
-
R (Faulkner) v Secretary of State for Justice
...by Mitting J, who rejected the challenge in respect of the lawfulness of the decision. In relation to the issue of delay, he held ( [2011] EWHC 938 (Admin)) that: (1) Mr Sturnham's rights under article 5(4) were breached in that the hearing before the Board did not take place until approxim......
-
Challenging the Ongoing Injustice of Imprisonment for Public Protection: James, Wells and Lee v The United Kingdom
...s 34(1)(2)(d) states that a ‘life prisoner’ includes a person serving anIPP.24 R (on the application of Sturnham) vParole Board [2011] EWHC 938 (Admin).25 Legal Aid, Sentencing and Punishment of Offenders Act 2012, s 123.26 Contrary to Offences Against the Person Act 1861, s 18.Imprisonment......