The Queen (on the application of Dean Pearce) v The Parole Board of England and Wales

JurisdictionEngland & Wales
JudgeLord Hodge,Lord Hughes,Lord Kitchin,Lord Hamblen,Lord Richards
Judgment Date05 April 2023
Neutral Citation[2023] UKSC 13
CourtSupreme Court
Year2023
R (on the application of Pearce and another)
(Respondents)
and
Parole Board of England and Wales
(Appellant)

[2023] UKSC 13

before

Lord Hodge, Deputy President

Lord Kitchin

Lord Hamblen

Lord Richards

Lord Hughes

Supreme Court

Hilary Term

On appeal from: [2022] EWCA Civ 4

Appellant

Ben Collins KC

Sarah Sackman

Conor Fegan

(Instructed by Government Legal Department)

Respondent (Dean Pearce)

Philip Rule KC

Jake Rylatt

(Instructed by Instalaw Solicitors (Nottingham))

Respondent (Secretary of State for Justice)

Myles Grandison (written submissions)

(Instructed by Government Legal Department)

Heard on 9 and 10 November 2022

Lord Hodge AND Lord Hughes ( with whom Lord Kitchin, Lord Hamblen and Lord Richards agree)

1

The issue in this appeal is what approach the Parole Board (“the Board”) may properly take, when deciding whether or not to direct the release of a prisoner on licence, to potentially relevant assertions or allegations made about the prisoner which have not been determined, either by the Board or some other body, to be either proved or disproved on the balance of probabilities. After the decision of the Divisional Court in R (D) v Parole Board; [2019] QB 285 (the Worboys case; hereinafter “ R(D)”) the Board published Guidance directed to this issue. The lawfulness of that Guidance is in issue in these proceedings.

2

The claimant, Dean Pearce (“the claimant”), is a prisoner whose release the Board declined to direct. He brought the present proceedings for judicial review to challenge that decision and in doing so contended that the published Guidance is unlawful. That contention was upheld by the Court of Appeal ( [2022] 1 WLR 2216), although the decision of the Board on the particular facts of the claimant's case was held to have been proper and justified. There is no longer any dispute about the Board's decision in relation to the claimant, but the challenge to the lawfulness of the general Guidance remains.

(1) The Parole Board
3

The Board is a statutory body, in being since 1967 and presently established under section 239 of the Criminal Justice Act 2003 (“ CJA 2003”). Although in the past its functions were to advise the Home Secretary on the exercise of the Royal prerogative power to release prisoners before the end of their sentence, it now has statutory responsibilities for itself making the decision about early release, that is to say release on licence sooner than the end of the court's sentence. The Secretary of State (now of Justice) is obliged to follow any directions for release which it may give. In so doing, the Board acts judicially and as a body independent of the executive. It is properly treated as a court for the purposes of the European Convention on Human Rights. In Weeks v United Kingdom (A/11) (1987) 10 EHRR 293 the Strasbourg Court explained that the relevant attributes of a court are that it is independent and impartial and that its procedures are fair, which includes the requirement that the prisoner is able properly to participate in the proceedings of the Board: paras 61–65.

4

Sentencing provisions have been extensively and frequently amended in the past 25 years or so, and early release schemes more than most. There are as a result several different permutations of sentencing and early release provisions. At present, there are six principal categories of prisoner in respect of which the Board has the function of considering whether to direct early release. They are:

(i) those serving a sentence of life imprisonment, or one of imprisonment for public protection (“IPP”) imposed before that sentence was abolished for the future in 2012, and who in either case have completed the minimum term stipulated by the sentencing court as that to be served before any question of parole should be considered;

(ii) those serving an extended determinate sentence under provisions introduced by the Legal Aid, Sentencing and Punishment of Offenders Act 2012 (“ LASPO”), where either the custodial term is ten years or more or the offence is within Parts 1–3 of what is now Schedule 18 to the Sentencing Act 2020, and who have served two-thirds of the appropriate custodial term as stipulated by the sentencing court;

(iii) those categorised by the Criminal Justice and Courts Act 2015, section 6 and Schedule 1, as offenders of particular concern (chiefly those whose offences are linked to terrorism or to the sexual abuse of children under 13), and who have served either half or two-thirds (depending on the date of sentence) of the appropriate custodial term as stipulated by the sentencing court;

(iv) those serving sentences for terrorist offences, either determinate terms or extended determinate sentences (as introduced by LASPO), and who have served two-thirds of the custodial element of the sentence;

(v) those serving determinate sentences, of any length, who have been referred to the Board by the Secretary of State, pursuant to a new power created by the Police, Crime, Sentencing and Courts Act 2022 (“PSCA 22”) and inserted as section 244ZB of the CJA 2003, as posing a high risk of the commission of certain very serious offences; and

(vi) those who have been released on licence under the CJA 2003 having reached either the halfway or two-thirds point of a determinate term, but whose licence has been revoked by the Secretary of State so that they have been recalled to prison, and who have not subsequently been re-released by the Secretary of State under rules for so-called “automatic release”.

5

It is not necessary here to set out the complex statutory provisions which contain the rules for these various categories of prisoner, because, convoluted as they are, they all involve the common feature that release on licence is made conditional upon the decision of the Board, and the statutory test to be applied by the Board is expressed in the same terms in each case. In all these cases, the effect of the statutes is that the prisoner will remain in prison under the sentence of the court unless the Board directs his earlier release.

6

In some (but by no means all) circumstances, the Board also has a separate function in relation to the question whether the prisoner merits transfer to a less severe regime, especially, but not only, to open conditions. In this case the Board's role is to advise the Secretary of State, who makes the decision. In this role also the Board fulfils a judicial function and the principles on which it acts are in many respects similar to those applicable to directions to release. In many cases where release is considered but refused, the Board may move on to consider a recommendation for transfer. This separate function is not, however, the subject of the present appeal, which concerns only the decision-making powers of the Board in relation to release on licence.

(2) The Statutory Test for Release
7

For all the cases where the Board has the duty to make the decision whether to direct release, the statutory test which it must apply is in effect the same, albeit written in several different places in the statute book. It is enough to set out just one of the provisions, found in section 28(6)(b) of the Crime (Sentences) Act 1997 (“ CSA 1997”) and applicable to the first category of prisoner mentioned, ie those on life and IPP sentences:

“28 (6) The Parole Board shall not give a direction under subsection (5) above with respect to a life prisoner to whom this section applies unless—

(a)…….; and

(b) the Board is satisfied that it is no longer necessary for the protection of the public that the prisoner should be confined.”

8

It is convenient to note that in R (Sim) v Parole Board [2004] QB 1288 (“ Sim”) it was held that in the specific case of an early model of extended sentence, created by the Crime and Disorder Act 1998, article 5(4) of the European Convention on Human Rights (“ECHR”) required the Board positively to be satisfied that it remained necessary for the protection of the public that the prisoner remain in custody, as distinct from permitting release only when the Board was satisfied that it was no longer necessary for him to remain confined. This inversion of the natural meaning of the words of the universally formulated statutory test was held to result from the fact that for that particular form of extended sentence the sentencing court would not necessarily have found the prisoner to pose any risk of causing serious harm to the public, and would not, as a result, have had it in mind that he should be detained unless it was shown that he no longer presented a danger to the public of such harm: see para 47 in the judgment of Keene LJ in the Court of Appeal. The Board appears since to have taken the view that this approach is also required in the case of extended sentences of two different models, created by the CJA 2003 (the Extended Sentence for Public Protection (“EPP”) and the LASPO Extended Determinate Sentence (“EDS”)). The correctness of this view has not been debated in the present case, and it does not affect the question which is raised before us. It ought, however, to be observed that there is an arguably significant difference between the 1998 model of extended sentence and the two later models. Both later models are available to the sentencing court where, and only where, the prisoner is found to be dangerous, that is to say presents a danger to the public of serious harm through the commission of further offences — see sections 227(1)(b) CJA 2003 and s 226A(1)(b), now section 280(1)(c) Sentencing Act 2020. In this respect, both later model extended sentence prisoners are in a similar category to those made subject to life or IPP indeterminate sentences. In all such cases, it might be said that the sentencing court did indeed have it in mind that continued detention after the end of the custodial element of the sentence would be necessary unless...

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