Spinks, R (on the application of) v Secretary of State for the Home Department

LORD JUSTICE BUXTON: The appellant, Mr Clive Spinks, appeals from a decision of Mr Justice Elias on 12 November 2004 with the permission of the learned judge. Mr Spinks was convicted of murder on 15 March 1996 and was then sentenced to life imprisonment. The terms of his sentence were such that he will not become eligible for consideration for parole until the beginning of 2008.

In October 2003 Mr Spinks was, most unfortunately and sadly, diagnosed as suffering from terminal cancer of the colon. The original prognosis at that time was in terms of a life expectancy of no more than three or six months, but he subsequently received palliative chemotherapy treatment and his expectancy has somewhat extended. But it must be emphasised that there is no prospect of recovery and his life expectancy is at this time very short.

We have had the benefit of a very recent brief medical report by the responsible member of the prison medical service, dated 12 January 2005, in which he says that Mr Spinks is still in the normal area of the prison whilst attending the treatment room in the prison for medication and enabling the nursing staff there to observe his progress. Dr Evans adds - and this is of some slight importance in the context of this appeal:

It is a feature of this case that Mr Spinks complains of a series of difficulties that have been caused to him by reason of the clearly most unfortunate combination of his being detained in prison, on the one hand, and suffering from a very serious condition. I will at this stage set out what those complaints are and will, for this purpose, effectively take them at their highest as stated on behalf of Mr Spinks. It must be emphasised that some part of the account that follows is not agreed by the Secretary of State.

Firstly in relation to the palliative chemotherapy, it is complained that the fact of imprisonment has caused difficulties in that treatment which otherwise would not occur, in particular, that appointments for attendance at hospital for that purpose have had to be re-arranged. Dr Cooper, the consultant oncologist treating Mr Spinks, points out that that circumstance is likely to reduce the effectiveness of the chemotherapy, which depends on its being delivered according to a timetable as advised by the oncologists. Mr Spinks has now completed that course of chemotherapy. But it is pointed out on his behalf by Mr Southey, who represents him in these proceedings, that other hospital assistance may be - indeed is - necessary, for instance there may be occasions when attendance at hospital would be required for immediate pain relief, when the difficulties about attendance might equally arise.

Secondly, when he has been attending his hospital appointments Mr Spinks has been handcuffed or otherwise restrained and has been attended by prison officers. He was also restrained when he was recovering from emergency surgery. The particular question of the appropriateness and extent of restraint of a physical nature so far as Mr Spinks is concerned is a specific issue in this appeal, to which I shall have to return.

Thirdly following his emergency surgery effectively a colostomy was performed and for that reason Mr Spinks needs to use a colostomy bag. That limits, to some extent, his freedom of movement within the prison and also he needs spare bags to replace those that are full. He claims that there have been times when such have not been available. That is a particular point that is clearly disputed by the Secretary of State.

Fourthly Mr Spinks has received some medical advice about diet which, it is alleged, has not always been acceptable to those running the prison.

Fifthly, although, as I have said, it is the current advice that Mr Spinks does not require hospice care in the sense of being a full-time patient - a view taken not only by Dr Evans in the report I have just referred to, but also by Mr Spinks' own consultant in a report that she wrote in July 2004 - Dr Cooper nonetheless suggested, in September 2004, that Mr Spinks might benefit from day attendance at a hospice where there is a centre once a week where patients can attend principally for psychological support, a matter clearly that is highly desirable in a case such as this. Dr Cooper however did not feel able to recommend this course because the attendance of Mr Spinks together with his necessary accompanying prison officers might well cause difficulties and disruption in the work of the hospice generally.

I should say also that there is a point about Mr Spinks' own conduct in this connection, or potential conduct, to which I shall return in detail shortly.

The relief that was sought in the judicial review application was the quashing of a decision by the Secretary of State that Mr Spinks should not be released from prison on compassionate grounds. The Secretary of State's power to take that course is a matter again to which I shall have to return.

Before Mr Justice Elias and before us the matter became somewhat less straightforward. Mr Southey submitted that his case arose solely under Article 3 of the European Convention on Human Rights. Not necessarily his preferred, but his opening, case was that if there was an arguable breach of Article 3 then the Secretary of State should be required to refer the case to the Parole Board for investigation, as I would understand it, of, first, whether a breach of Article 3 had occurred and was occurring and, secondly, if so, to make appropriate recommendations or possibly appropriate directions to the Secretary of State as to the prisoner's release. Mr Southey went on to say that if, despite there having been an arguable breach of Article 3, investigation by the Parole Board was for reasons of domestic law or otherwise not considered by the court to be a possibility or acceptable course, then the court itself should investigate the case with a view to itself ordering release if the current detention of Mr Spinks was found to be incompatible with Article 3.

In order to explain how those arguments arise, and why they take the form they do, it is necessary to turn to the legal framework that governs the ability of the Secretary of State to release a life prisoner on compassionate grounds. The power of the Secretary of State to do that is to be found in Section 30 of the Crime (Sentences) Act 1997 which provides in sub-section (1):

Faced with Mr Spinks' condition, the Secretary of State considered whether he should exercise those powers. It is his decision that he would not exercise those powers that is the starting point of these proceedings.

The Secretary of State, in order to inform himself about the decision he had to take, commissioned a very extensive series of reports about Mr Spinks and his situation. The persons from whom he received reports were Dr Evans, the prison medical officer already referred to; the prison probation officer Miss Johnson; and the deputy governor of the prison Mr Flinton. He then obtained further reports from Dr Evans, an external probation officer's report; and a report from a gentleman described as the life manager, governor Zserdicky. Also he considered medical reports that had been placed before him by Mr Spinks and those advising him, first from his surgeon Mr Irvine, and then a series of reports by Dr Cooper a consultant oncologist already referred to; and he received representations from Mr Spinks' solicitors.

The decision on the basis of those matters by Miss Morley, who took the decision on behalf of the Secretary of State, was that that relief should not be granted. In taking that decision, Miss Morley was guided by the published policy of the Secretary of State within the compass of Section 30 that is to be found in a written answer by the Minister of State at the Home Office in February 1999 set out by the judge at his paragraph 11:

Miss Morley looked at those criteria. First it was pointed out that in the most recent prognosis then available - that was the report of Dr Cooper of 15 March 2004 - the consultant considered that the life expectancy was in the range of 6 to 12 months depending on the effect of the palliative chemotherapy to which I have already referred. That was a view also taken by the hospital that Mr Spinks was attending. At that time Mr Spinks was fully mobile and fully self-caring. The Secretary of State concluded therefore that the case did not meet the first criteria of the policy just set out.

Secondly some considerable attention was paid to the risk of re-offending. Mr Spinks had a number of previous convictions but they had all occurred some 20 years before the murder for which he was in prison. I do not think that the Secretary of State placed much, and certainly not excessive, weight on that. He did have a number of reports about the question of whether there was a risk of re-offending at the present time. Both the reports that he had from the prison governors suggested that there was a significant such risk. Mr Spinks had never accepted his guilt. He accepted that he had killed the person he was accused of murdering, but his case was that that had occurred in a brawl in which the other party was the aggressor. Therefore, whatever other offence he might have committed, he had not committed the offence of murder. As a result of taking that posture, Mr Spinks had not been prepared to carry out the various work within the prison on offending behaviour which might have alleviated or assisted him in his view of future offending. The medical evidence was also that Mr Spinks was physically capable - and it was put no higher than that - of further acts of violence. So it was not a case where his medical condition necessarily gave a guarantee in that respect.

The only person who, at least initially, did not take that same view was the assigned probation officer in the prison, a Miss Johnson. She had initially reported that in her view Mr Spinks posed a low risk of re-offending and suggested that he would be a suitable person for hospice care. She produced a further report after the Secretary of State's determination which related to an incident which had occurred in the health care centre where Mr Spinks had allegedly behaved aggressively to a member of staff. He was put on report for that. He claimed that the report was fabricated, and for procedural reasons that matter was never resolved. Miss Johnson however, in view of that incident, which she believed to have occurred, said in her report of 2 July 2004:

I have gone into that point in some detail because it is a matter that has been of concern to those representing Mr Spinks: in that they consider that the decision is being made on the basis of an incident that he strongly disputes and the truth of which has never been comprehensively resolved. I do not think that that issue significantly affects the case. First of all the Secretary of State formed his conclusion despite the original report of Miss Johnson. He was, in my view, entitled to do that in view of the fact that he had received a number of other reports in a contrary sense from other officials.

Secondly it is only fair to Miss Johnson to assume that when writing her report in July 2004 she was not over-impressed by the allegations of the prison authorities but rather had taken a balanced view, as her report indicates that she had, about the whole incident and the rights and wrongs of it. That she came to that conclusion - this incident having occurred - simply reinforces the view that the Secretary of State had already formed about the potential for danger in this case. It was on the basis of those factors that the Secretary of State took his decision, added to which he pointed out, as is undoubtedly the case, that no release plan had been produced by Mr Spinks or on his behalf, and that it was, or appeared to be, unclear (certainly is unclear on the papers that the court has seen) exactly how Mr Spinks would be accommodated were he to be released and what his relationship was with his family group.

It is important to add, because it is still important, that the Secretary of State emphasised in that decision, as was properly emphasised to Mr Justice Elias, that the prison had been placed under a duty to continue to monitor Mr Spinks' situation particularly from the point of view of whether there was a material change in his life expectancy. If that should arise, and if the Secretary of State then, on the basis of new information, took the view that he should release Mr Spinks compassionately under Section 30, the judge was told that it would be possible for the Parole Board to discharge its role under Section 30 (2) in a very short period of time appropriate to the emergency that by then would have arisen.

That is the factual and statutory background. Mr Southey places his argument squarely on Article 3. But in order to see how that argument fits into the general structure of controlling life prisoners, and in order to understand how the argument before this court took the precise form that it did, it is necessary to say something first about what would be the potential grounds of challenge, on a purely domestic law basis, to a decision such as that which the Secretary of State has taken.

Section 30 (1) gives the Secretary of State a power, but not an obligation, to release the prisoner on licence if he is satisfied that circumstances justify that release on compassionate grounds. When the Secretary of State takes a decision not to release someone, it seems to me that in domestic terms that could only be challenged on Wednesbury, or enhanced Wednesbury, grounds, speaking in terms of there being no proper consideration or that the decision was one that a reasonable Secretary of State, carrying the obligations of humanity as well as his other obligations, could not have taken.

Should Article 3 be brought into the picture - as shortly in this judgment it will be - circumstances would be entirely different.

As to the argument that Mr Southey advances, that in a potential Article 3 case there is an obligation to refer to the Parole Board, it is necessary to say something about how the two parts of Section 30 fit into each other. Mr Southey sought to argue that on its normal construction - forgetting entirely about the Convention - Section 30 (2) created some form of obligation on the Secretary of State to consult the Parole Board before he came to the conclusion that he was satisfied or not satisfied that exceptional circumstances existed justifying the prisoner's release.

I fear that I cannot accept that view of the section. It gives the Parole Board a role, both in terms of consultation and apparently in terms of some form of controlling function over the Secretary of State's decision, that the section does not contain.

The structure is in fact quite simple. First the Secretary of State considers whether the prisoner should be released on compassionate grounds. If he decides he should not, then, in my view, the Parole Board has no role at all to play. If he decides that he wishes to release, but only then, he is obliged, before actually releasing a prisoner, that is to say before putting the decision into operation, to consult the Parole Board. That is a perfectly understandable structure - whatever might be said about the policy concerned - in that the Parole Board acts as a check on the Secretary of State, no doubt exercising its functions which is to consider the effect on society at large of the presence of a particular prisoner within it. If this section had the meaning that Mr Southey seeks, Section 30 (2) would not say:

That however is by way of background to Mr Southey's argument based on Article 3. He founded this on the argument that in the case of an arguable breach of Article 3 the State has an obligation of investigation, or further investigation, in order to determine whether a breach of Article 3 has in fact occurred. That investigation must be independent of the persons allegedly committing or responsible for the breach of Article 3. So in this case, it was said, the Parole Board would be the appropriate body to perform that task, being both independent and expert. For the contention that there is an obligation to investigate in cases of alleged or potential breaches of Article 3, Mr Southey relied on the decision of the Administrative Court in Wright v Secretary of State for the Home Department [2001] EWHC Admin 520, in which Mr Justice Jackson said:

But the objection and concern in the present case is that a breach of Article 3 is, or may be, actually in place and is continuing. The whole basis of the case is that the remedy of release is to terminate a continuing breach of Article 3. To suggest that such a case is appropriately addressed by placing an obligation to investigate upon a state organ seriously undervalues the nature of the obligation that the state bears in such a case. The obligation of the state, if a breach of Article 3 is taking place, is to terminate that breach: as the state is asked to do in this case by releasing Mr Spinks. The cases that require investigation by the state of the sort referred to by Mr Justice Jackson all relate to breaches that have already occurred and are over, usually in the form of a death for which the state is, or may be, culpable.

The reason why Article 2 and, in an appropriate case, Article 3 require such investigation is in order to ensure that accountability for such a death in breach of Article 3 is established: either in order that those who suffered thereby may be appropriately compensated, or in an attempt to ensure that such conduct does not reoccur. That is made quite clear by the European Court of Human Rights in a number of cases, of which I will only mention Jordan v United Kingdom [2001] 37 EHRR 52, paragraphs 105,109, cited in that sense by Lord Bingham of Cornhill in R (Amin) v Secretary of State for the Home Department [2004] 1 AC 653, paragraph 20. I do not therefore think that this type of obligation to investigate meets the present case at all.

However, if it were correct that there is duty on the State to investigate current and continuing breaches there is no reason that I can see why that duty should be placed on the Parole Board. The Parole Board has been brought into this argument and sought to be given this role only because of its purely adventitious presence in Section 30 of the 1997 Act, where it does not play any investigatory role of this sort at all. The Parole Board has no role in disciplining the Secretary of State for actual current breaches of Article 3. That role within the national legal order is to be played by the court, whose job it is to control the administration if the administration is breaking the law, be it domestic or Convention. It is clear that the court's role is to determine whether an actual breach of Article 3 is in progress and, if it is, to require its termination. If, in such circumstances, termination would only be possible by release of a prisoner, then the court can either rule that under Section 30 circumstances exist which require the Secretary of State to act, that is to say that he cannot lawfully exercise his power under Section 30 (1) except by exercising the terms of release; or, more simply, the court could itself straightforwardly order the release of the prisoner under its powers under Section 8 (1) of the Human Rights Act 1998.

The court therefore has to make a judgement as to whether a breach of Article 30 is in progress, a judgement which Mr Justice Elias made in this case. I well accept that in making that judgement rights under the Convention are in issue. The review has to be an intense review of the sort referred to by Lord Walker of Gestinsthorpe in a case mentioned to us by Mr Southey - Pro-life Alliance [2004] 1 AC 185 at paragraph 139. The review will be of the decision made by the Secretary of State, but it will be a review which looks again at the evidence and in certain circumstances may have itself de novo to look at further evidence. That is not this case because there is some, but not much, dispute about what the factual position is. The dispute is to as to how that factual position stands under Article 3.

In my judgement that is how Mr Justice Elias did approach the matter, even though the case does not seem to have been put to him in quite that way.

In inviting the court to find that the facts of this case engaged a breach of Article 3, much reliance was placed, and rightly placed, on a recent case in the European Court of Human Rights, Mouisel v France (2004) 38 EHRR 34. That case acknowledged, which I think was never in dispute , that adverse prison conditions,can in themselves, amount to a breach of Article 3, whether they are to be found in this country, or whether they are conditions to which the authorities are thinking of transferring persons who are immigrants to this country.

The facts in Mouisel, put shortly, were that Mr Mouisel had been sentenced to as long as 50 years' imprisonment for a series of violent and fraudulent offences. He had the misfortune to contract leukemia, and received chemotherapy sessions in hospital. He complained of the conditions in those sessions, of the fact that he had been chained up during them, and the behaviour of the guards. A medical report said it was strongly recommended that he should be transferred to a specialist clinic but there was delay in acting on that report. Subsequently he was released on licence subject to the condition of obtaining medical treatment. But his complaint in his action against the Republic of France was in respect of his earlier treatment before he had been released, which he claimed had infringed Article 3.

There were two main heads of complaint. First the failure to release him, in other words his being maintained in prison against medical advice; and, secondly, the circumstances in which he had been restrained and handcuffed.

In order to make the appropriate comparison between that case and our case, one needs to refer to some more extensive parts of the judgment of the European Court of Human Rights. At paragraph 45 the court addressed the general question of the applicant's health and said:

So far as handcuffing is concerned, in paragraph 47 the court said this, after reiterating that handcuffing in itself does not normally give rise to an issue under Article 3, bearing in mind (but they did not quite put it quite like this) proportionality and the question of the possibility of injury or damage to other persons:

Effectively this court was asked, as was the judge, to accept that there was a sufficient commonality of fact between the case of Mr Spinks and the case of Mr Mouisel for the determination of the European Court of Human Rights, that Mr Mouisel's Article 3 rights had been infringed, to follow also in our case.

The judge did not accept that argument. He accepted an argument advanced by Mr Kovats, for the Secretary of State, that there were significant and material differences between the case of Mr Mouisel and the case of Mr Spinks.

I would accept also that submission. The judge dealt with this briefly, but if I may say so satisfactorily and succinctly, in paragraphs 51 and 52 of his judgment. He addressed, first, the matter of the retention in prison of Mr Mouisel as compared with the case of Mr Spinks. He pointed out that Mr Mouisel was said to be in a weak state, but Mr Spinks was, for the moment, fit and mobile and that, in particular, there had been no recommendation that he should be treated full-time in a specialist clinic or be removed to hospital. Nor was there any evidence, in the judge's view, of significant psychological harm. As to the last point, it is fair to say that the doctors considered, and rightly considered of course, that Mr Spinks needed psychological assistance. But there is no actual evidence, contrary to what there was in Mr Mouisel's case, of actual psychiatric or psychological difficulty. It is also the view of the doctors in Mr Spinks' case, contrary to those in Mr Mouisel's case, that he does not need full-time treatment in a hospital or hospice. I have of course noted what Dr Cooper said about the possibility of occasional day care.

So far as the matter of handcuffing was concerned, the judge said, first of all, that the treatment of Mr Spinks had not reached a level of severity sufficient to amount to a breach of Article 3, and also that in the case of handcuffing there had, in Mr Spinks' case, been a risk assessment carried out which had reached a conclusion that Mr Spinks presented a continuing significant degree of risk. That was to be contrasted with the way in which the French authorities appeared to approach the matter, and which was the subject to adverse comment by the European Court of Human Rights in these terms. In paragraph 46 of the judgment that states:

It is however absolutely clear from the judgment, and from paragraph 47 thereof which I have already read, that the European Court of Human Rights accepted that in a case such as this the question of whether Article 3 had been infringed was relevant to be looked at, amongst other things, in the context of whether the prisoner was dangerous; and therefore it was open to the Secretary of State in this case to bear that in mind.

There were, as we have seen, other difficulties, actual or alleged, affecting Mr Spinks' condition. I do not want to undervalue those or the difficult position in which he finds himself. But, I am bound to say, looking at the matter with care and with the degree of intensity that is required, that I accept the view of the judge below that this case does not meet the high standard that is required to be established before a breach of Article 3 is demonstrated. Sympathetic though one is to the situation in which Mr Spinks finds himself, we do have to remember that Article 3 is an important article not least because it forbids conduct of a serious kind on the part of the State, a serious and wholly unacceptable kind. That is why the obligation under Article 3, in contrast with the obligation under some other articles, is absolute; and the reverse side of that absolute obligation is that a comparatively high standard has to be established before the article can be shown to be broken. That is not, in my judgement - agreeing with the judge - established in this case.

I would say two further things. First the Secretary of State made it clear, as I have pointed out, that the matter is going to be kept under review. If it should be the case that Mr Spinks' condition deteriorates to the stage that protection under Article 3 can only be provided by his release from custody, then the Secretary of State would be under an obligation so to release him: which, as far as the court can discern, is an obligation that the Secretary of State accepts. It is an obligation that the court will supervise, and will supervise along the lines of the jurisprudence that I have already set out.

Secondly there is the matter of handcuffs. I agree that the use of handcuffs in this case has not reached the level required for Article 3. At the same time I would respectfully agree with what the judge said in paragraphs 53 and 54 of his judgment:

I would dismiss this appeal, but I would commend those observations of Mr Justice Elias to the responsible authorities.

LORD JUSTICE MAY: I agree that this appeal should be dismissed for the reasons which Lord Justice Buxton has just given.

I do not accept Mr Southey's suggested construction of Section 30 of the Crime (Sentences) Act 1997. Under Section 30 (1) of the 1997 Act, it is the Secretary of State who has to judge whether a life prisoner should be released on compassionate grounds. Section 30 (2) requires the Secretary of State to consult the Parole Board before releasing a life prisoner unless this is impracticable. He is obviously required to take account of the product of this consultation before making his final decision about release. He does not have to consult the Parole Board if he is not thinking of releasing the prisoner. Section 30 (2) does not transfer the making of the decision or any part of it to the Parole Board. It remains with the Secretary of State. It is to be supposed that the Parole Board's input will be mainly concerned with the risk of re-offending.

The Secretary of State is required to consider whether there are "exceptional circumstances" and "compassionate grounds". The written Parliamentary answer of 15 February 1999 states the criteria which the Secretary of State uses in all cases. It is not suggested that these are inappropriate criteria or that they are incomplete. They include relevantly that the prisoner is suffering from a terminal illness and that death is likely to occur soon and that the risk of re-offending is past. Addressing "exceptional circumstances" and "compassionate grounds" against these and the other criteria necessarily demands a judgment of balance. It is for the Secretary of State to evaluate that balance. Where, as here, the Secretary of State has clearly given detailed consideration to Mr Spinks' condition in the context of possible release, the court would not require the Secretary of State, by whatever particular order, to take the matter further unless the court concluded that the Secretary of State's balance evaluation was plainly wrong.

There has to be added to this analysis consideration of Article 3 of the Human Rights Convention. If Mr Spinks' continued detention amounted to a breach of Article 3, the Secretary of State would be obliged to take steps to stop the breach. It may be possible to stop the breach by means other than releasing the prisoner. If the only way of stopping the breach was to release the prisoner, the Secretary of State would be obliged to permit release. In the context of Section 30 of the 1997 Act, this may be seen as meaning that, if there is a breach of Article 3 and the only way to stop the breach is to release the prisoner, the balance of "exceptional circumstances" and "compassionate grounds" has to fall in favour of release. Since, at the margins at least, the question whether there is a breach of Article 3 is a matter of evaluation, a decision whether there is a breach of Article 3 is no different in quality from a decision whether there are exceptional compassionate circumstances under Section 30. Article 3 is a necessary statutory overlay to the question whether there are exceptional compassionate circumstances under Section 30, but it does not alter or add to the quality of the evaluation the Secretary of State has to make. This, in my judgment, means that the injection of Article 3 considerations into the evaluation does not alter or add to the task of the court in a case such as the present. The court would not require the Secretary of State, by whatever particular order, to take the matter further unless the court concluded that the Secretary of State's balance evaluation, taking account of Article 3, was plainly wrong. In reaching this decision, the court will review the Secretary of State's decision "with an intensity appropriate to all the circumstances of the case" (see for example R (Bloggs 61) v Home Secretary [2003] 1 WLR 2724 at 2746 paragraph 64 citing R (ProLife Alliance) v British Broadcasting Corporation [2003] 2 WLR 1403, at 1439 paragraph 139.

The State's duty to investigate, for instance, a death in custody, such as Lord Bingham of Cornhill discussed in paragraph 30 of his speech in R (Amin) v Home Secretary [2004] 1 AC 653 at 672, normally arises after the event. But the State has a further duty, in that context, to take steps to protect the lives of those involuntarily in its custody from the criminal acts of others. The State also has a duty to take steps to stop breaches of Article 3 for those in custody. That duty will, in my judgment, be discharged for terminally ill life prisoners by the proper implementation of Section 30 of the 1997 Act, subject to the supervision of the court I have described. There is no warrant or need, within the statutory framework, for a separate obligation to refer the matter to the Parole Board other than for the purpose, which I have described, of Section 30 (2).

I agree with Lord Justice Buxton as to the propriety of the Secretary of State's evaluation of exceptional compassionate circumstances in the context of Article 3 in the present case. As I have said, I would dismiss this appeal.

LORD JUSTICE SEDLEY: The critical question for us is how Section 30 distributes functions between two public authorities, the Home Secretary and the Parole Board, each of them required, by Section 6 of the Human Rights Act, to act in conformity with the claimant's Convention rights. Specifically, what is the threshold for referral by the Home Secretary to the Parole Board? Is it only where the Secretary of State has decided to release the prisoner unless the Parole Board's advice is adverse? Or is it wherever the Parole Board's view will help the Secretary of State to decide whether he should release him? If it is the former, then it is only where the Secretary of State is prepared to release the prisoner that he has a duty to refer; that is to say the Parole Board, on this view, is limited to a red light role. If it is the latter, then it is only where the Secretary of State has formed the view that even with favourable Parole Board advice he would not release the prisoner that he has no duty to refer. Otherwise his decision itself will depend on the Parole Board's advice, and on this view the Parole Board would have a green-light role.

I note in passing that for determinate sentence prisoners similar provision to that of Section 30 is now made by Section 248 of the Criminal Justice Act 2003.

A third possible construction which has not formed part of the case - and which I therefore note simply for the record - is that sub-section (1) requires the Home Secretary only to decide whether compassionate grounds for release exist, and that, if he does, sub-section (2) then requires him to obtain the Parole Board's view on risk before making his own decision on release.

Of the two constructions canvassed before us, I, like my Lords, think that the right one is the first which I have mentioned. Section 30 (2) does not say "before deciding whether he is so satisfied ..... ". It says "before releasing a life prisoner ..... " It thus assumes and therefore necessarily implies that the Secretary of State must already have decided under sub-section (1) that release is in principle justified.

Does Section 3 of the Human Rights Act modify this reading? Insofar as Article 3 is relied on for this purpose, it is invoked by Mr Southey both directly, that is to say as a gauge of executive action, and as an aid to the construction of the statute governing that action, but in each case to the same end, that the statutory power must be so exercised as not to place the State in breach of Article 3. This much, as I understand Mr Kovats' skeleton argument, although we did not need to call on him, is uncontentious. But, for the reasons I have given, as well as those given by my Lords, I agree that Mr Justice Elias determined this question correctly. He was also right to hold that on the evidence before the court there had been no breach of Article 3 by the Home Secretary and no obligation, given his decision, to consult the Parole Board.

I agree, too, that there is no implicit elective power in the absence of a legal obligation for the Home Secretary to consult the Parole Board on the compassionate release of a life sentence prisoner. The Parole Board's own functions are prescribed by statute and do not, so far as Mr Southey has been able to show us, include power to form and express a view on a matter not within their statutory remit. While I too share Mr Justice Elias's concern at some of the indignities which the claimant has had to suffer as a result of his condition and treatment, I also share his conclusion that the claimant cannot show that the Home Secretary has acted unlawfully in deciding, as he has done, against compassionate release at this stage.