Re Findlay

JurisdictionEngland & Wales
CourtHouse of Lords
JudgeLord Scarman,Lord Diplock,Lord Roskill,Lord Brandon of Oakbrook,Lord Brightman
Judgment Date15 November 1984
Judgment citation (vLex)[1984] UKHL J1115-4
Date15 November 1984

[1984] UKHL J1115-4

House of Lords

Lord Scarman

Lord Diplock

Lord Roskill

Lord Brandon of Oakbrook

Lord Brightman

In re Findlay (A.P.)
In re Hogben (A.P.)
In re Honeyman (A.P.)
In re Matthews (A.P.)
(Consolidated Appeals)
Lord Scarman

My Lords,

1

The four appeals now before the House arise in proceedings brought by four convicted prisoners in which they apply for judicial review of the decision of the Secretary of State for the Home Department to make major policy changes in the administration of the parole system for the release of prisoners on licence. The system was introduced by Part III (sections 59-64) of the Criminal Justice Act 1967. These appeals will turn, therefore, on the proper construction to be put upon those sections and certain subsequent legislation amending and adding to them.

2

The case for the appellants is that prior to the policy change each of them legitimately expected that he would be released on licence in the reasonably near future, that their expectations were shattered by the change of policy, that in adopting the new policy the Secretary of State acted unlawfully, and that in the circumstances the court should declare that the policy is unlawful in that it contravenes the relevant sections of the statute. Further relief by order of prohibition (Findlay and Matthews) and by order of certiorari (Hogben and Honey man) was sought but is no longer appropriate. If the applicants or any of them succeed on the substantive issue, declaratory relief will meet the justice of the case.

3

The applications were heard by a Divisional Court of two judges, who disagreed, Parker L.J. being for dismissal of the proceedings but Forbes J. being in favour of granting relief. The applicants chose, very sensibly, to treat the result as a dismissal and went at once to the Court of Appeal. The appeal failed, a majority of the Court being against them. Sir John Donaldson M.R. and Griffiths L.J. were for dismissing the applications but Browne-Wilkinson L.J. was for allowing them.

4

The four appeals, therefore, reach the House against a background of diverging judicial opinion. For this reason I propose to set out the facts and the statutory background of the case in greater detail than might otherwise be necessary. My task has, however, been made lighter by the admirable and careful judgments delivered by the learned judges below. Their differences have exposed with clarity the true issues upon which the House has to rule.

5

The facts

6

On 11 October 1983, the Secretary of State for the Home Department, who is the respondent in the four appeals, announced at the Conservative Party Conference in Blackpool that he was introducing far-reaching changes of policy in the exercise of his statutory discretion to release on licence persons serving sentences of imprisonment for certain serious offences. The proposed changes of policy would affect those serving life sentences as well as those serving substantial fixed sentences. Put shortly, parole for certain classes of offenders would not be granted save in exceptional circumstances or for compelling reasons until the minimum period specified in the policy announcement had been served in prison. He indicated that he would be making a parliamentary statement and that he would consult the Parole Board on the "precise way of achieving the new policy." But it was perfectly plain, as indeed was the fact, that he was not consulting the Parole Board in the formulation of the new policy. In the announcement he emphasised that he was responding to the pressure of public opinion. In his judgment the public "do want to know with certainty what will actually happen to the most serious offenders, and they want what happens to reflect the gravity of the offences that have been committed." He was attentive to "growing public criticism about the gap between the length of sentence passed and the length of the sentence actually served … that gap can endanger public confidence in our criminal justice system. People want to know with some certainty what a sentence that has been passed actually means in practice."

7

On 30 November 1983, the respondent made the promised policy statement in Parliament. He emphasised that he must take account of the general public concern about the increase in violent crime and of "the growing criticism of the gap between the length of sentences passed and the length of sentences actually served in certain cases." The statement was in these terms:

"On 4 August 1975, the Rt. Hon. member for Glasgow, Hillhead, (Mr. Jenkins) as Home Secretary, made a statement about the ways in which he proposed to exercise the discretion given him in the Criminal Justice Act 1967 with regard to the release of prisoners on parole. That statement was made after consulting the Parole Board and agreeing with it new guidelines for parole selection."

"Since then the numbers of prisoners released on parole licence have steadily increased, and in 1982, of all prisoners released from sentences which qualified them for parole consideration, 66.3 per cent had been granted parole. I do not propose to exercise my discretion in ways which will significantly affect this trend since it accords with my broad strategy for dealing with crime and offenders."

"I must, however, take account of the general public concern about the increase in violent crime and the growing criticism of the gap between the length of sentences passed and the length of sentences actually served in certain cases. I have therefore decided to use my discretion to ensure that prisoners serving sentences of over five years for offences of violence or drug trafficking will be granted parole only when release under supervison for a few months before the end of a sentence is likely to reduce the long-term risk to the public, or in circumstances which are genuinely exceptional. The offences concerned are those where the Secretary of State may not order the early release of prisoners under section 32 of the Criminal Justice Act 1982 and are set out in Schedule 1 to that Act. In 1982 about 240 prisoners sentenced for these offences were recommended for parole before their final review. In future, there will have to be the most compelling reasons before I would agree to parole being granted in such cases."

"I have consulted the Parole Board about how this objective might best be achieved in a way that ensures that the crucial role of the board in the parole scheme is maintained. The Parole Board expressed a wish to continue to see all of the cases that are currently scrutinised by the board, following the initial review by the local review committees, in order to give full consideration to the circumstances of each individual prisoner. Accordingly, I have agreed that the present practice should continue on the understanding that the reviews will take account of the policy contained in this statement. Under the statute the acceptance or rejection of a Parole Board recommendation is, of course, a matter for me."

"I am asking the Parole Board to implement this new policy with immediate effect. This statement will be issued to local review committees for their guidance. The board intends to publish the text in its next Annual Report as an addition to the detailed 'Criteria for Selection for Parole', in which there will also be some minor consequential amendments."

"Life Sentence Prisoners

The release of life sentence prisoners is at the discretion of the Home Secretary, subject to a favourable recommendation by the Parole Board and to consultation with the Lord Chief Justice and, if he is available, the trial judge. Taking account again of the public concern about violent crime, in future I intend to exercise my discretion so that murderers of police or prison officers, terrorist murderers, sexual or sadistic murderers of children and murderers by firearm in the course of robbery can normally expect to serve at least 20 years in custody; and there will be cases where the gravity of the offence requires a still longer period. Other murders, outside these categories, may merit no less punishment to mark the seriousness of the offence."

"At present I look to the judiciary for advice on the time to be served to satisfy the requirements of retribution and deterrence and to the Parole Board for advice on risk. I shall continue to do so."

"The joint Parole Board/Home Office committee was established in 1973 to give initial consideration, usually after a life sentence prisoner has been detained for about three years in custody, to the date for the first formal consideration of the case by the Parole Board machinery. The Lord Chief Justice has agreed with me that this is the appropriate time to obtain an initial judicial view on the requirements of retribution and deterrence. In future, therefore, I shall decide the date of the first reference of a case to a local review committee following the initial consultation with the judiciary. The joint committee has therefore been disbanded."

"The first local review committee review will normally take place three years before the expiry of the period necessary to meet the requirements of retribution and deterrence. This would give sufficient time for preparation for release if the Parole Board recommended it, having considered risk. The judiciary will also be consulted when release is an actual possibility to meet fully the requirements of section 61 of the Criminal Justice Act 1967."

"These new procedures will separate consideration of the requirements of retribution and deterrence from consideration of risk to the public, which always has been, and will continue to be, the pre-eminent factor determining release. They will enable the prison and other staff responsible for considering and reporting on life sentence cases, the local review committees and the Parole Board to concentrate on risk. The judiciary will...

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