The Queen (on the application of Audi Johnson) v Parole Board for England and Wales
| Jurisdiction | England & Wales |
| Judge | Mr Justice Fordham |
| Judgment Date | 04 May 2022 |
| Neutral Citation | [2022] EWHC 1026 (Admin) |
| Docket Number | Case No: CO/2050/2021 |
| Court | Queen's Bench Division (Administrative Court) |
[2022] EWHC 1026 (Admin)
Mr Justice Fordham
Case No: CO/2050/2021
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
Stuart Withers (instructed by Kesar and Co) for the Claimant
Fraser Campbell (instructed by GLD) for the First Defendant
The Second Defendant did not appear and was not represented
Hearing date: 24.3.22
Approved Judgment
I direct that no official shorthand note shall be taken of this Judgment and that copies of this version as handed down may be treated as authentic.
THE HON. Mr Justice Fordham
This judgment was handed down by the Judge remotely by circulation to the parties' representatives by email and release to The National Archives. The date and time for hand-down is deemed to be 10:00 on 4.5.22
Introduction
The issue of law which arises in this judicial review case is this. Does the Parole Board (“the Board”) have the power to make a decision to “re-fix” the “date for a person's release on licence”, in a case in which it has already dealt with a reference to it by making a decision to “fix a date for the person's release on licence” pursuant to section 256(1)(a) of the Criminal Justice Act 2003 (“the 2003 Act”). Answering that question involves a legal concept still known by the Latin phrase “functus officio”, or simply “functus”, which describes the situation when “a judicial, ministerial or administrative actor has performed a function in circumstances where there is no power to revoke or modify it”: see R (Dickins) v Parole Board [2021] EWHC 1166 (Admin) [2021] 1 WLR 4126 at §52. The central statutory provisions are section 256 of the 2003 Act and section 12 of the Interpretation Act 1978 (“the 1978 Act”). Here is section 256 of the 2003 Act (there is no subsection (3)):
256. Review by the Board. (1) Where on a reference under section 255B( 4) or 255C(4) in relation to any person, the Board does not direct his immediate release on licence under this Chapter, the Board must either – (a) fix a date for the person's release on licence, or (b) determine the reference by making no direction as to his release. (2) Any date fixed under subsection (1)(a) must not be later than the first anniversary of the date on which the decision is taken. (4) Where the Board has fixed a date under subsection (1)(a), it is the duty of the Secretary of State to release him on licence on that date .
Here is section 12(1) of the 1978 Act:
12. Continuity of powers and duties. (1) Where an Act confers a power or imposes a duty it is implied, unless the contrary intention appears, that the power may be exercised, or the duty is to be performed, from time to time as occasion requires…
It is common ground that the Board's section 256 functions fall within the ambit of section 12(1) and that the crux is whether “the contrary intention appears”.
A decision by the Board to fix a date for the person's release on licence (s.256(1)(a)) is a decision made “on a reference under section 255B( 4) or 255C(4)”. There is an alternative, namely to “determine the reference by making no direction as to his release” (s.256(1)(b)). It was common ground before me that, once the Board has made a decision which fixes a date for the person's release on licence (s.256(1)(a)), the Board would not then have the power to switch to the alternative, so as to reopen its decision and determine the reference by making no direction as to the person's release (s.256(1)(b)). The Board's position is that, having fixed a date for the person's release on licence (s.256(1)(a)), it can reopen the decision so as to ‘re-fix’ the date for release. Whether that is correct is a question of law for the Court to resolve. It is agreed that, whatever the answer to that question is, it cuts both ways. That is to say, if the Board does not have the power to ‘re-fix’ the date for release to put it back, neither would it have power to ‘re-fix’ the date of release to bring it forward.
The factual context
It is common ground that answering the question of law which arises in this case is an exercise which does not depend on the facts. So I need do no more than give a brief factual outline. In July 2017 the Claimant was convicted of possession of Class A drugs with intent to supply, for which he received a 4-year standard determinate sentence. On 20 December 2019 he was released on licence pursuant to section 244 of the 2003 Act – at ‘half-time’ – having served the requisite custodial period (“the RCP”). On 1 April 2020 he was returned to custody, his licence having been revoked on 27 March 2020. Having been assessed by the Second Defendant, the Secretary of State for Justice (“the SSJ”), as not being suitable for automatic release, his case was referred to the Board who considered it at oral hearings on 30 October 2020, 24 November 2020 and 18 February 2021. On 15 February 2021 the Claimant's Community Offender Manager (“the COM”) provided a report for the Board which confirmed that a placement could be made available for the Claimant in approved premises in London, ideally premises at Streatham, which had adapted accommodation suitable for him. On 22 February 2021 the COM added a risk management plan to the Claimant's dossier. On 24 February 2021 the Board issued a decision fixing the Claimant's release date as 10 March 2021 and directing that the Claimant permanently reside at Streatham approved premises. The decision was sent to the Board's Case Manager (“the BCM”), but the BCM did not send it to the COM or to the parties. It had, however, been uploaded to the public protection database by 2 March 2021, on which date the Claimant's solicitor both accessed it and informed the Claimant what the decision was: he was to be released on 10 March 2021.
The circumstances in which the release date came to be ‘re-fixed’, twice, were as follows. On 26 February 2021 the COM completed a Stakeholder Response Form (“the Form”) which informed the Board as follows: that the adapted room at the Streatham approved premises was in use; that a former opposing gang member was present in the premises and due to leave on 7 April 2021; but that the room would be available as from 8 April 2021. That Form was sent to the Board's Panel Chair on 3 March 2021. On 10 March 2021 – the date previously fixed for the Claimant's release – the BCM sent the original decision dated 24 February 2021 to the parties and to the COM. The COM promptly emailed to complain about the delay in receiving the previous decision fixing the date. It became evident that, had the COM known about the fixed date, she could have pursued urgent steps to find a solution. In the circumstances as they by now were, the COM asked the prison to hold off on the Claimant's release until she found out whether the Streatham approved premises was ready to receive him. Later on 10 March 2021 the BCM emailed the parties and the COM with a fresh decision which ‘amended’ the date of the Claimant's release to 8 April 2021. That course of action led to an immediate complaint by the Claimant's solicitor. By 12 March 2021 the COM had identified a possible bed space at approved premises in Camden, available within 3 days (15 March 2021), the Claimant's solicitor had confirmed that the Claimant would take that room, and so the COM emailed the BCM to confirm that the Claimant had been accepted at the approved premises in Camden from 15 March 2021. On 15 March 2021 the Board issued further directions which ‘amended’ the Claimant's date of release to that day (15 March 2021) and the Claimant was released on that day to the approved premises in Camden, with a licence condition: “to permanently reside at an approved premises” which the Claimant was not to “leave to reside elsewhere, even for one night, without obtaining the prior approval of your supervising officer”. It was out of these factual circumstances that the claim for judicial review arose.
A preliminary issue
The claim for judicial review raises – as a central issue – whether the Board had any power to ‘refix’ the release date of 10 March 2021 having made its decision on 24 February 2021. That is not the only issue in the case. In granting permission for judicial review on the papers on 7 October 2021 Heather Williams J directed a one-day hearing of the issue, with directions regarding determination of the secondary issues to be given following that hearing if the Claimant were successful. The hearing was in person. The Board adopts a ‘neutral’ position as to the particular decisions and decision-making in this case but has assisted the Court by taking a clear position on the point of law, maintaining that it has the power to ‘re-fix’ the section 256(1)(a) date for release. The SSJ has adopted a neutral, non-participatory, position.
Features of the legal landscape
It is unnecessary, as well as unwise, to attempt a detailed and comprehensive exposition of the legal framework relating to questions of release and the interrelated functions of the SSJ and the Board. But it will I think be helpful to a relevant understanding of the overall setting in which the arguments in this case have arisen, to describe some key features.
The Board
A good place to start is Stacey J's explanation in Dickins at §14: that the Board was established by section 59 of the Criminal Justice Act 1967 and remains established as a body corporate pursuant to section 239(1) of the 2003 Act; and that, although it is recognised as a court when deciding whether to direct a prisoner's release and for the purposes of Article 5(4) ECHR, it is “entirely a creature of statute” and “has no inherent jurisdiction”.
Release on licence
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