R Terry Giles v The Parole Board and Another
| Jurisdiction | England & Wales |
| Judge | SIR OLIVER POPPLEWELL |
| Judgment Date | 23 May 2001 |
| Neutral Citation | [2001] EWHC 463 (Admin) |
| Court | Queen's Bench Division (Administrative Court) |
| Docket Number | CO/828/2001 |
| Date | 23 May 2001 |
[2001] EWHC 463 (Admin)
IN THE HIGH COURT OF JUSTICE
(ADMINISTRATIVE COURT)
Royal Courts of Justice
Strand
London WC2
Sir Oliver Popplewell
CO/828/2001
MISS P. KAUFMANN (instructed by Messrs. Bhatt Murphy, Finsbury, London) appeared on behalf of the Applicant.
MISS E. GREY (instructed by The Treasury Solicitor) appeared on behalf of the Respondent.
( )
Wednesday, 23rd May 2001
1. This is a renewed application by the applicant after refusal of permission by Newman J. on 4th April 2001.
The issue.
2. The issue involved in this case is whether a prisoner is entitled as of right to an oral hearing before the Parole Board where he received a sentence passed under section 2(2)(b) of the Criminal Justice Act 1991.
Preliminary matters.
3. The facts are quite shortly these. The applicant was convicted on 10th January 1997 before his Honour Judge Bennett after a plea involving two offences. One was an offence of unlawful wounding, for which he was sentenced to four years' imprisonment, and the other was an offence of assault occasioning actual bodily harm, for which he was sentenced to three years' imprisonment. Those sentences were ordered to run consecutively, making a total of seven years' imprisonment in all. In imposing the sentences on the applicant, the learned judge made it clear that he was passing the sentences upon the basis that the applicant posed a danger to the public and the offences were offences of violence. He thereby invoked section 2(2)(b) of the Criminal Justice Act 1991, which allows for a longer-than-usual sentence in such cases. An application to appeal against the sentences was refused.
4. The estimated date of release of the applicant from prison was 9th September 2001. He was in fact released on 17th May of this year. Therefore, the first point taken by the Parole Board and the Secretary of State is that this is an academic argument because the question of an oral hearing is moot so far as this applicant is concerned. That is the first matter which I have to consider.
5. My attention was drawn to the principles laid down in relation to academic cases in the case of R. v. Secretary of State for the Home Department, Ex parte Salem [1999] A.C. 450 and the passage in the speech of Lord Slynn at page 456.
“My Lords, I accept, as both counsel agree, that in a case where there is an issue involving a public authority as to a question of public law, your Lordships have a discretion to hear the appeal, even if by the time the appeal reaches the House there is no longer a lis to be decided which will directly affect the rights and obligations of the parties inter se. The decisions in the Sun Life case and Ainsbury v. Millington (and the references to the latter in rule 42 of the Practice Directions applicable to Civil Appeals (January 1996) of your Lordship's House) must be read accordingly as limited to disputes concerning private law rights between the parties to the case.”
6. The discretion to hear disputes even in the area of public law must, however, be exercised with caution, and appeals which are academic between the parties should not be heard unless there is a good reason in the public interest for doing so —as, for example (but only by way of example), when a discrete point of statutory construction arises which does not involve detailed consideration of facts and where a large number of similar cases exist or are anticipated, so that the issue will most likely need to be resolved in the near future.
7. Counsel have been unable to supply me with any details about similar cases, and my experience sitting in criminal cases and in the Court of Appeal (Criminal Division) is that cases involving section 2(2) are not of the most frequent. But the matter has been well and fully argued before me, and it is obvious that it will arise again. It is an issue, in my judgment, where public interest requires that I should deal with it, even if, as in the instant case, detailed consideration of the facts is unnecessary.
8. Miss Grey has pointed out that the facts may be necessary because the question of the length of imprisonment involved if parole is applied for and an oral hearing is not granted may be a relevant consideration, having regard to one of the observations in the authorities to which I shall refer. But, for my part, I do not accept that submission. It seems to me that there is sufficient agreement about the facts in the instant case to enable the court to reach a decision, even though it is academic.
9. The submission of Miss Kaufmann on this matter can be put quite simply. It is that there is no distinction in fact between the section 2(2) cases and those subject to a discretionary life sentence; that is to say, in each case there is a period of punishment which is for retribution or deterrence and a period of punishment for prevention. Given that those who are subject to discretionary life sentences are entitled now to an oral hearing, it is illogical that those subject to the section 2(2) regime are not, she submits.
10. It is necessary, therefore, to set out the statutory provisions and such authorities as there are. Section 2 of the Criminal Justice Act 1991 reads as follows:
“(1) This section applies where a court passes a custodial sentence other than one fixed by law.
(2) The custodial sentence shall be—
(a) for such term (not exceeding the permitted maximum) as in the opinion of the court is commensurate with the seriousness of the offence, or the combination of the offence and other offences associated with it….”
11. That is properly described as the term which covers retribution and deterrence and has to be proportionate to the nature of the offence. Section 2(2)(b) reads as follows:
“where the offence is a violent or sexual offence, for such longer term (not exceeding the maximum) as in the opinion of the court is necessary to protect the public from serious harm from the offender.”
12. If the judge takes the view that he is going to impose an additional sentence under section 2(2)(b) he has to go through a number of matters of procedure:
“(3) Where the court passes a custodial sentence for a term longer than is commensurate with the seriousness of the offence, or the combination of the offence and other offences associated with it, the court shall—
(a) state in open court that it is of the opinion that subsection (2)(b) above applies and why it is of that opinion; and
(b) explain to the offender in open court and in ordinary language why the sentence is for such a term.”
13. Then sub-section 4 reads:
“A custodial sentence for an indeterminate period shall be regarded for the purposes of subsection (2) and (3) above as a custodial sentence for a term longer than any actual term.”
14. Thus the discretionary life sentence is subject to sub-sections (2) and (3).
15. In discretionary life sentence cases it is the practice for the court to set out what is the period for punishment and what is the period for prevention. In cases under section 2(2)(b) there does not seem to be a standard practice. In the instant case, the learned judge did not express the period for punishment and the period for prevention, simply passing the sentence of seven years. This is not in any way a criticism because that has certainly been the practice of some judges; but clearly it would be helpful to a parole board, at any rate, and no doubt to prisoners, if a judge, when passing a section 2(2)(b) sentence, specified what part of the totality was punishment and what part was prevention. (I draw the attention of the Court of Appeal (Criminal Division) to that fact so that they may decide what direction, if any, they wish to make on that matter.)
16. The learned judge who refused leave in the permission application took the view that the section 2(2)(b) cases, which concerned determinative sentences, were different in kind and in substance from the discretionary life sentence; and accordingly the Parole Board, while being required to consider representations from the prisoner, was not required to carry out an oral hearing, as they are required to do under the discretionary life sentence.
17. The only authority directly in point on section 2(2)(b) is a decision of the European Commission of Human Rights, before which Miss Kaufmann herself had made written submissions. There was apparently no oral hearing and nothing by way of representations. That case, which was that of Craig Jason Mansell, heard in private on 2nd July 1997, concerned a man who was found guilty of three counts of indecent assault. The trial judge said that the sentence of two and a half years would normally be appropriate for an act of indecent assault but in that case the proper sentence was five years' imprisonment. The question was how the Parole Board should deal with it. The Commission said this:
“The sentence imposed on the applicant was a fixed term sentence of five years. There is no question of the sentence being imposed because of the presence of factors which ‘were susceptible to change with the passage of time, namely mental instability and dangerousness’…”
18. The Commission then referred to the case of Thynne, and went on:
“Rather, there was an element of ‘simple’ punishment as well as an element of deterrence. It is true that the latter part of the sentence was imposed pursuant to Section 2 of the Criminal Justice Act 1991, which provides for sentences in the case of violent or sexual offenses to be longer than ‘normal’ in order to protect the public from serious harm. Such an ‘increased’ sentence...
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R (Giles) v Parole Board
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