R (on the application of Sturnham) v The Parole Board of England and Wales and another (No. 2)

JurisdictionEngland & Wales
CourtSupreme Court
JudgeLord Mance,Lord Reed,Lord Sumption,Lord Carnwath,Lord Neuberger
Judgment Date03 July 2013
Neutral Citation[2013] UKSC 47

[2013] UKSC 47

THE SUPREME COURT

Trinity Term

On appeal from: [2012] EWCA Civ 452

Before

Lord Neuberger, President

Lord Mance

Lord Sumption

Lord Reed

Lord Carnwath

R (on the application of Sturnham)
(Appellant)
and
The Parole Board of England and Wales and another
(Respondents) (No. 2)

Appellant (Sturnham) Hugh Southey QC Philip Rule (Instructed by Chivers)

Respondent Sam Grodzinski QC Tim Buley (Instructed by Treasury Solicitors)

Respondent Lord Faulks QC Simon Murray (Instructed by Treasury Solicitors)

Heard on 9 May 2013

Lord Mance (with whom Lord Neuberger, Lord Sumption, Lord Reed and Lord Carnwath agree)

Introduction
1

From 4 April 2005 until 3 December 2012, English law provided for the imposition of sentences of imprisonment for public protection ("IPP"). This is another case in which courts have had to address the practical and legal issues resulting from this innovation.

2

To impose a sentence of IPP the court had (inter alia) to be of "the opinion that there is a significant risk to members of the public of serious harm occasioned by the commission by [the offender] of further specified offences" (Criminal Justice Act 2003, section 225(1)(b)). When imposing it, the court was required to specify a minimum period (the "tariff" period) after the expiry of which the prisoner was eligible for review by the Parole Board who could direct his release on licence (Powers of Criminal Courts (Sentencing) Act 2000, section 82A). The Parole Board was required not to direct release unless "satisfied that it is no longer necessary for the protection of the public that the prisoner should be confined" (Crime (Sentences) Act 1997, section 28(6)(b)).

3

The case is before the Supreme Court as an application for permission to appeal, with the appeal to follow if permission be granted. Having heard the submissions, I consider that it raises issues of importance which merit the Court's consideration and would therefore grant permission. On that basis, there are two grounds of appeal before the Supreme Court. The first focuses on the relationship between the criteria for the court to impose a sentence of IPP and for the Parole Board to direct release on licence. The appellant submits that they must, though differently worded, be read as involving the same substantive test. The Parole Board and the Secretary of State submit that the difference in wording represents a difference in substance. The second ground of appeal is that, even if the criteria differ in substance, the Parole Board in fact applied a wrong test when deciding whether to order the appellant's release. Although Mr Hugh Southey QC for the appellant accepts that this ground is now largely, if not entirely, academic in view of the appellant's release, he submits that the court should address it to clarify the test for release.

4

For reasons which follow, I would dismiss the appeal on both grounds.

The factual background
5

During an altercation outside a public house on 19 May 2006 the appellant, then aged 28, punched a man, who fell backwards, struck his head on the ground and died on the next day. The appellant was convicted of manslaughter. The judge, HHJ Findlay Baker, concluded that the appellant was dangerous. He was forceful and physically very strong, had indicated that he regarded it as his right to respond with violence to any tendered or threatened towards him, had uncontrolled heavy drinking and cocaine taking problems, and had shown no commitment to change these. Accordingly, on 31 January 2007 the judge imposed a sentence of IPP, with a tariff of 2 years 108 days, which expired on 19 May 2009. He said that, had it not been appropriate to impose IPP, a sentence of six years' imprisonment would have been appropriate. Deducting half of that, and the time spent on remand, gave the tariff.

6

A Parole Board review took place only on 10 May 2010, when the Board concluded that Mr Sturnham had made significant progress, but still presented a low risk of re-offending and a medium risk of serious harm. It declined to order release, but recommended transfer to open conditions which took place on 12 August 2010.

7

Mr Sturnham issued proceedings for judicial review, claiming that the Parole Board had applied the wrong test and also claiming 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 the Supreme Court by decision on 1 May 2013, [2013] UKSC 23; [2013] 2 WLR 1157, restoring Mitting J's award at first instance of £300 damages for six months undue delay. The former claim is now before the court, having been dismissed by both Mitting J and the Court of Appeal.

8

The result of the present appeal no longer has direct significance for Mr Sturnham's detention. He was released on licence pursuant to a Parole Board decision dated 7 September 2011. But it had a live general significance for the Parole Board at the date when the appeal was considered by the Court of Appeal (23 February 2012) and it may have a continuing significance in other cases, including potentially for prisoners serving life sentences.

The legislation
9

IPP was a child of the Criminal Justice Act 2003. Section 225(1) to (3) of that Act identified the circumstances in which IPP was appropriate (until 13 July 2008 without, but thereafter subject to, any residual discretion on the sentencer's part) by differentiating those in which it required a discretionary life sentence to be imposed. Release after the tariff period was provided for by the insertion into the Crime (Sentences) Act 1997 of a reference to IPP so as to make IPP subject to the same statutory regime of review by and release by direction of the Parole Board as applicable to mandatory and discretionary life sentences.

10

As enacted and in force when Mr Sturnham was sentenced, section 225 read, so far as material:

"225 Life sentence or imprisonment for public protection for serious offences

(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.

(2) If—

(a) the offence is one in respect of which the offender would apart from this section be liable to imprisonment for life, and

(b) the court considers that the seriousness of the offence, or of the offence and one or more offences associated with it, is such as to justify the imposition of a sentence of imprisonment for life,

the court must impose a sentence of imprisonment for life.

(3) In a case not falling within subsection (2), the court must impose a sentence of imprisonment for public protection.

(4) A sentence of imprisonment for public protection is a sentence of imprisonment for an indeterminate period, subject to the provisions of Chapter 2 of Part 2 of the Crime (Sentences) Act 1997 as to the release of prisoners and duration of licences.

(5) An offence the sentence for which is imposed under this section is not to be regarded as an offence the sentence for which is fixed by law."

11

Section 225 falls to be read with section 224 and Schedule 15. Section 224 provided, so far as material:

"224 Meaning of 'specified offence' etc

(1) An offence is a 'specified offence' for the purposes of this Chapter if it is a specified violent offence or a specified sexual offence.

(2) An offence is a 'serious offence' for the purposes of this Chapter if and only if—

(a) it is a specified offence, and

(b) it is, apart from section 225, punishable in the case of a person aged 18 or over by—

(i) imprisonment for life, or

(ii) imprisonment for a determinate period of ten years or more.

(3) In this Chapter—

'relevant offence' has the meaning given by section 229(4);

'serious harm' means death or serious personal injury, whether physical or psychological;

'specified violent offence' means an offence specified in Part 1 of Schedule 15;

'specified sexual offence' means an offence specified in Part 2 of that Schedule."

Schedule 15 contained a very substantial list of over 150 different offences, starting with manslaughter, kidnapping, false imprisonment, threats to kill and malicious wounding. Notably, however, it did not include murder, for the obvious reason that murder would carry a mandatory life sentence.

12

Section 229 explains the concept of risk (or dangerousness) relevant under section 225:

"229 The assessment of dangerousness

(1) This section applies where—

(a) a person has been convicted of a specified offence, and

(b) it falls to a court to assess under any of sections 225 to 228 whether there is a significant risk to members of the public of serious harm occasioned by the commission by him of further such offences.

(2) If at the time when that offence was committed the offender had not been convicted in any part of the United Kingdom of any relevant offence or was aged under 18, the court in making the assessment referred to in subsection (1)(b)—

(a) must take into account all such information as is available to it about the nature and circumstances of the offence,

(b) may take into account any information which is before it about any pattern of behaviour of which the offence forms part, and

(c) may take into account any information about the offender which is before it.

(4) In this Chapter 'relevant offence' means—

(a) a specified offence…"

13

As to release by the Parole Board on licence, sections 28 and 34 of the Crime (Sentences) Act 1997 read, so far as material:

"28 Duty to release certain life prisoners

(1A) This section applies to a life prisoner in respect of whom a...

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