R (Sturnham) v Parole Board & Secretary of State for Justice
| Jurisdiction | England & Wales |
| Judge | Lord Justice Laws,Lord Justice McFarlane |
| Judgment Date | 23 February 2012 |
| Neutral Citation | [2012] EWCA Civ 452 |
| Docket Number | C1/2011/0904, C1/2011/0979,Case No: C1/2011/0904 + C1/2011/0979 |
| Court | Court of Appeal (Civil Division) |
| Date | 23 February 2012 |
[2012] EWCA Civ 452
Lord Justice Laws
Lord Justice Mcfarlane
and
Lord Justice Kitchin
Case No: C1/2011/0904 + C1/2011/0979
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
(MR JUSTICE MITTING)
Royal Courts of Justice
Strand, London, WC2A 2LL
Mr Hugh Southey QC and Mr Philip Rule (instructed by Lewis Nedas and Co) appeared on behalf of the Appellant.
Mr Simon Murray (instructed by Treasury Solicitor) appeared on behalf of the First Respondent (SSJ).
Mr David Mankell (instructed by Treasury Solicitor) appeared on behalf of the Second Respondent/Interested Party (Parole Board).
The appeals before the court arise out of a judgment given by Mitting J on 14 March 2011 ( [2011] EWHC Admin 938) in judicial review proceedings in which the claimant, who had been sentenced to imprisonment for public protection ("IPP"), contended that the Parole Board had applied the wrong test in deciding whether to direct his release and also that his rights protected by Article 5.4 of the European Convention on Human Rights had been violated by delay in the conduct of a Parole Board review. The Parole Board and the Secretary of State for Justice were both named as defendants in the proceedings. Mitting J rejected the arguments concerning the test for release, but accepted that there had been a breach of Article 5.4 and awarded £300 damages.
On 13 July 2011 Sir Richard Buxton granted the claimant permission to appeal against the judge's rejection of his case as to the test for release. This grant of permission was on one ground only relating to the construction of Section 28(6)(b) of the Crime Sentences Act 1997 ("the 1997 Act"). Sir Richard refused permission on a second ground to the effect that the Parole Board had taken account of directions issued by the Secretary of State which were unlawful or ultra vires. However permission on this second ground was granted by Patten LJ on 23 November 2011 following a renewed application. Sir Richard Buxton on 13 July 2011 also granted permission to the Secretary of State to appeal against the award of damages for delay. The claimant seeks to cross-appeal against the award, contending that it should be in the sum of £1,000 rather than £300. He has not obtained permission to mount that argument.
I turn to the 1997 Act. Section 28(5) and (6) provide in part:
"5 (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.
(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."
The term "life prisoner" includes a person serving a sentence of IPP pursuant to section 225 of the Criminal Justice Act 2003 (see Section 34(2)(d) of the 1997 Act). The statutory conditions for the imposition of a sentence of IPP include the requirement given by Section 225(1)(b) of the Criminal Justice Act 2003:
"…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"
I turn briefly to the facts of the case. On 31 January 2007 the claimant, having been convicted by a Crown Court jury, was sentenced to IPP with a minimum term of two years and 108 days for an offence of manslaughter. On 19 May 2006 he had twice punched the victim in a car park outside a public house. The victim died the next morning. Mitting J quoted the observations of the trial judge passing sentence and so shall I :
"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."
The minimum term of two years and 108 days expired on 19 May 2009. In prison the claimant had what Mitting J described as a chequered history. He assaulted a fellow inmate, disobeyed orders and was involved on a number of occasions in brewing hooch in jail. Reports prepared in order to assist the Parole Board in deciding whether to direct his release under Section 28 of the 1997 Act contained a somewhat mixed picture. They are summarised at paragraphs 10 to 16 of his judgment by Mitting J, who stated at paragraph 17:
"That brief description of the views of responsible officials about the claimant demonstrates that this was a far from straightforward case for the Parole Board when it came to consider its decision."
The Secretary of State referred the case to the Parole Board on 10 July 2008. A dossier was prepared but was not provided to the Parole Board until 13 July 2009, over two months after the expiry of the claimant's minimum term. Directions were given, representations were submitted, and a hearing was convened on 14 April 2010. However the claimant became ill that day and so the hearing was adjourned until 10 May 2010. A decision was issued four days after that. I need only set out the two paragraphs which were quoted by the judge at paragraphs 18 and 19 of his judgment :
"The Parole Board is empowered to direct your release if it is satisfied that it is no longer necessary for the protection of the public that you be confined. The panel of the Parole Board that considered your case on 14 April and 10 May 2010 was not so satisfied that your risk was low enough to direct release. However it does recommend your transfer to open conditions."
Then later:
"Having taken into account the written and oral evidence and the matters specified in the Secretary of State's directions, the panel commends you for your progress but considers that your risk was not low enough to be released. However there would be significant benefits to a period of time in open conditions where you could test and develop your relapse prevention plans and further build your relationship with your family."
The Secretary of State's direction, which it is said was wrongly taken into account by the Parole Board, is contained in paragraph 4 of directions issued by the Secretary of State in relation to prisoners sentenced to life imprisonment as follows :
"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 likelihood of risk to life and limb of others is considered to be more than minimal."
It is convenient also to notice at this stage guidance issued by the Parole Board itself to its own members relating to prisoners sentenced to IPP and contained in paragraph 8.1 of a document issued in July 2010:
"The Board is empowered to direct the release of those indeterminate sentence prisoners who have served a period of imprisonment necessary to satisfy the requirements of retribution and deterrence, the tariff. In order to direct release, the Board must be satisfied that it is no longer necessary for the protection of the public that the prisoner should be confined. The test to be applied is whether the offender's level of risk to life and limb is considered to be more than minimal. There is a presumption that release will not be directed unless the evidence demonstrates to the Board's satisfaction that the level of risk is acceptable for release. The Board should refuse to direct release where it is satisfied that there exists the risk of serious violence or sexual offending, including arson, irrespective of the precise nature of the index offence."
The claimant was released on licence by direction of the Parole Board on 7 September 2011.
It is convenient first to address the issue relating to damages. There is no challenge to the finding of the judge (paragraph 40) that there was a violation of the claimant's right pursuant to ECHR Article 5.4 to a speedy hearing of the Parole Board proceedings. The judge held (paragraphs 37 to 39) that there was a delay of at least six months in the delivery of the dossier to the Board, but no adequate explanation had been offered for the delay and that in consequence the Parole Board did not consider the case until at least six months after it should have done. The primary responsibility was that of the Secretary of State (paragraph 41). The judge granted a declaration that the claimant's Article 5.4 right was violated. He proceeded to consider whether he should also make an award of compensation. He noted (paragraph 44) that this was not a case in which the claimant's release on licence had been postponed by the delay. He accepted (paragraph 47) as "substantially true" a short witness statement made by the claimant in which he speaks of the stress and anxiety occasioned to him by the delay. Having referred...
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