R v Parole Board and Another, ex parte Wilson
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE TAYLOR,LORD JUSTICE SCOTT,LORD JUSTICE NOURSE |
| Judgment Date | 30 January 1992 |
| Judgment citation (vLex) | [1992] EWCA Civ J0130-5 |
| Docket Number | 92/0052 |
| Court | Court of Appeal (Civil Division) |
| Date | 30 January 1992 |
and
[1992] EWCA Civ J0130-5
Lord Justice Nourse
Lord Justice Taylor
Lord Justice Scott
92/0052
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
(MR JUSTICE SIMON BROWN)
Royal Courts of Justice
MR EDWARD FITZGERALD, instructed by the Legal Dept., National Council for Civil Liberties, appeared for the Appellant (Applicant).
MR ROBERT JAY, instructed by the Treasury Solicitor, appeared for the Respondents (Respondents).
In 1972 this appellant was given a discretionary life sentence of imprisonment for buggery of a boy under 16. He is now, nearly 20 years later, aged 76 and, despite a number of reviews of his case by the Parole Board, he is still in prison. By these judicial review proceedings he sought declarations as to his rights in regard to the last review in 1989 and the current review which began in October last and is due to continue later this month. On 24th July 1991 Simon Brown J. rejected his application. He now appeals against that decision.
Before the life sentence was imposed, the appellant had a long history of committing sexual offences against young boys going back to 1935. In 1959 he was sentenced to four years imprisonment for buggery (two cases) and a number of indecent assaults. In 1962 he received a five year sentence and in 1966 a six year sentence, on each occasion for a number of indecent assaults on young boys. In May 1972 he pleaded guilty to one count of buggery of a nine year old boy, two counts of attempted buggery and seven of indecent assault, all on boys under 16. Those offences were committed between April and December 1971 after his release from the 1966 sentence in May 1970. The trial judge, when exercising his discretion to impose the life sentence, made it clear that he did so for the protection of the public and not because a determinate sentence would have been inadequate punishment. He said:
"I entirely accept that, to a large extent, you cannot help yourself. To that extent your moral guilt is the less, but I have…a duty to the public, and in particular to the young public, to protect them from people like you who, for one reason or another, cannot control themselves.
I hope that, in the course of time, a method of treatment for your particular freakish affliction can be found. I think it will be in the best interest of society generally, and yourself in particular, if some form of treatment for you could be found. What I am going to do in your case may sound harsh from your point of view, but…it may in fact hold out more hope to you than if I merely went up to perhaps 4, 5 or 6 years, or even 7 years in a particular case."
On the recommendation of the Parole Board, the appellant was released on licence on 14th September 1982 subject to certain conditions. In February 1983, again on the recommendation of the Parole Board, the Secretary of State recalled the appellant to prison where he has remained ever since. In September 1983, when the Parole Board declined to recommend his re-release, the appellant sought judicial review of their decision, contending he had not been given adequate reasons for his recall and was therefore unable to make effective representations to secure his release. The Home Office then conceded adequate reasons had not been given and further reasons were supplied. These were, shortly, that reports from the probation service and a doctor suggested that certain actions by the appellant indicated an unwillingness to comply with his licence conditions and a risk of re-offending. In March 1985 the Divisional Court set aside the Parole Board's decision of September 1983 because inadequate reasons had been given. An undertaking was given to the court to refer the case back to the Parole Board. In March 1985, the Board again declined to recommend re-release and they have since reviewed his case in 1987 and 1989 with the same result each time.
Meanwhile, the appellant took his case to the European Commission on Human Rights. In September 1989, the Commission found in the appellant's favour that there had been a violation of article 5(4) of the European Convention on Human Rights which provides:
"Everyone who is deprived of his liberty by arrest or detention shall be entitled to take proceedings by which the lawfulness of his detention shall be decided speedily by a Court and his release ordered if the detention is not lawful."
The Secretary of State challenged that decision in the European Court of Human Rights. On 25th October 1990 the court upheld the decision of the Commission in the appellant's case which was heard jointly with those of appellants Thynne and Gunnell. The review procedure of the Parole Board was held not to comply with the requirement of review by a court.
Notwithstanding that ruling and the government's acceptance of the need to change procedures to comply with it (as described below), requests by the appellant's advisers for disclosure of "reasons, reports or facts adverse to his request for release" were rejected by the Parole Board and the Secretary of State in January 1991. Hence, these proceedings.
Relief sought
Originally the appellant sought to challenge three decisions. (1) The refusal to recommend his release in 1989; (2) the refusal after the European Court's decision to order an immediate review of his case and (3) the refusal to disclose the material to be put before the Parole Board on its current review. Before this court the challenge has been confined to decision (3) above, which was communicated by the Parole Board on 23rd January 1991 and by the Secretary of State on 29th January 1991.
In opening the appeal Mr Fitzgerald sought two declarations:
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(1) That the applicant can only be lawfully detained if there is evidence that he is likely to re-offend if released.
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(2) That the applicant is entitled to be informed of any reports or information that will be placed before the Parole Board to suggest that he still constitutes a danger to the public.
The first declaration would constitute a reversal of the holding in Reg, v. Parole Board, Ex parte Bradley [1991] 1 W.L.R. 134. There, the Divisional Court rejected the test of dangerousness to be applied by the Parole Board, advanced by Mr Fitzgerald and raised again by him in this case. Stuart-Smith L.J., giving the judgment of the court, described the rationale of the discretionary life sentence and the justification for its continuing beyond the length of the tariff sentence, i.e the sentence merited by way of punishment. He went on at page 146 as follows:
"The imposition of the life sentence itself can only be justified by a very high degree of perceived public danger: there would otherwise be the temptation to impose it altogether too often simply in the interests of long-term public safety. But, once lawfully imposed, the life sentence then justifies the prisoner's continued detention, even although the risk as ultimately perceived is substantially less than an actual probability of his seriously re-offending upon release, and common sense surely supports such a conclusion. Were it otherwise, the Parole Board would be required to release back into society a relatively high risk group, some of whom (although logically, of course, less than 50 per cent.) would commit further serious offences of violence. Parliament cannot be thought to have intended such an approach. We certainly do not feel driven to circumscribe the Parole Board's discretion in such a fashion.
It follows that we reject Mr. Fitzgerald's contention that the Parole Board is fixed with the same standard as the sentencing judge. But that leaves still wholly undefined the level of risk required to justify continued detention of post-tariff discretionary lifers. Yet undefined we fear it must remain. Unless the required test is expressed in percentage terms (in the same way that likelihood arguably implies more than 50 per cent.), which is surely impossible, it seems inevitable that one can say really no more than this: first, that the risk must indeed be 'substantial' (Mr. Fitzgerald's fall-back position), but this can mean no more than that it is not merely perceptible or minimal. Second, that it must be sufficient to be unacceptable in the subjective judgment of the Parole Board to whom Parliament has of course entrusted the decision—the decision, that is, whether to recommend release on licence, which recommendation is itself a necessary precondition to the exercise of the Secretary of State's final discretion. Third, that, in exercising their judgment as to the level of risk acceptable, the Parole Board must clearly have in mind all material considerations."
On reflection, Mr Fitzgerald did not pursue his challenge to that ruling on this appeal and abandoned his claim to the first declaration. In our judgment he was right to do so.
Test of Dangerousness
However, in his written argument, Mr Fitzgerald placed reliance on a particular interpretation of the passage immediately following that cited above from the judgment in Ex parte Bradley. That interpretation seemed to us contrary to principle and accordingly we heard argument on the point. The passage in question reads:
"Certainly one such consideration should be the intrinsic and increasing unfairness of leaving the prisoner languishing in gaol, ex hypothesi for longer than punishment requires, unless there is sufficient public risk to justify this.
What it all comes to is this. The Parole Board have to carry out a balancing exercise between the legitimate conflicting interests of...
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