Girling v Secretary of State for the Home Department & Anor

Mr Norman Girling was born on 27 July 1943. Between 1956 and 1983 he was convicted of a considerable number of criminal offences. On 25 September 1984 he was convicted of murdering his partner, Edith Gorton. He was sentenced to life imprisonment. His case was subsequently considered a number of times by the Parole Board (“the Board”). On 27 May 1993 the Board decided not to direct his release. His twelve year tariff expired on 7 February 1996 and in the same month the Board again decided not to recommend his release. In June 2000 he was diagnosed with acute myeloid leukaemia. On 6 July 2001 and 8 October 2004 the Board again considered his case but on each occasion decided not to direct his release.

On 30 December 2004 a claim form was issued on behalf of Mr Girling against the Board and the Home Secretary (“the Secretary of State”) claiming judicial review of the decision made by the Board on 8 October 2004. On 7 January 2005 Gray J granted permission to apply for judicial review. He said this:

The judge summarised the issues identified on behalf of Mr Girling as follows:

Mr Girling was represented before the judge by Ms Flo Krause and both the Secretary of State and the Board were represented by Mr Stephen Kovats. The judge resolved issues 1 and 2(i) against Mr Girling with the result that he dismissed the claim. However, that order was subject to his decision on issue 2(ii), which he resolved in part against the defendants. He reflected that part of his decision by making a declaration that section 32(6) of the Criminal Justice Act 1991 (“the CJA 1991”) should be “construed so as not to apply to the judicial functions of the Parole Board”. He made no order for costs and refused all parties’ applications for permission to appeal. Applications for permission to appeal on behalf of both Mr Girling and the Secretary of State were subsequently granted by Hooper LJ.

Sadly, Mr Girling died on 9 August 2005 and, despite the best efforts of the Prison Service and indeed of the Court of Appeal Office, it has unfortunately not been possible to identify Mr Girling’s family or any personal representatives. As a result, neither his dependants (if he has any) nor his personal representatives have come forward to advance an appeal on his behalf. We will revert to his appeal after considering the appeal brought by the Secretary of State.

The Board was constituted as a body corporate by section 32(1) of the CJA 1991, which has since been variously amended. It is the duty of the Board under section 32(2) to advise the Secretary of State with respect to any matter referred to it by him which is connected with the early release or recall of prisoners. By section 32(4), which applies here, the Board must, in deciding whether to give directions, consider all such evidence as may be adduced before it. Subsection (5) gives the Secretary of State power to make procedural rules and subsection (6) provides:

The judge held that the power conferred on the Secretary of State by section 32(6) of the CJA 1991 to give directions to the Board when exercising its judicial functions was incompatible with it acting in an independent judicial capacity, with the consequence that subsection (6) must be construed so as not to apply to the judicial functions of the Board. He reached that conclusion by application of the common law on the footing that, unless so construed, the power to give directions to the Board as a court would infringe the principle of the separation of powers or impugn the independence of the Board.

It seems to us to be likely that the judge would have reached the same conclusion if he had been construing the subsection, in the light of section 3(1) of the Human Rights Act 1998 (“the HRA”), so as to be compatible with the Convention rights of prisoners. Article 5 of the European Convention on Human rights (“the Convention”) provides, so far as relevant:

The question in this appeal by the Secretary of State is whether the judge was right to construe section 32(6) as he did, whether at common law or under the HRA. Ms Monica Carss-Frisk QC and Ms Kate Gallafent submit on behalf of the Secretary of State that he was not. Although not an appellant, the Board was separately represented before us as an interested party by Mr Michael Fordham QC and Ms Gemma White. We have also had the benefit of the assistance of Mr Jeremy Johnson as an advocate to the court and of written submissions from Ms Flo Krause, who was anxious to assist the court in the unusual circumstances of the case. We have taken account of her written submissions in reaching our conclusions.

This can be shortly stated for present purposes. Mr Girling was a life prisoner to whom section 28 of the Crime (Sentences) Act 1997 (“the 1997 Act”) applied: see section 276 and paragraphs 1, 3(3) and 16 of schedule 22 of the Criminal Justice Act 2003 (“the CJA 2003”). Although at the time that Mr Girling’s case was referred to the Board by the Secretary of State the Board was in practice required to apply the same criteria as those applied in cases referred under section 28 in order to comply with the decision of the European Court in Stafford v United Kingdom (2002) 31 EHRR 32, by the time the Board made its decision on 8 October 2004, section 28 applied to Mr Girling’s case by reason of section 276 and schedule 22 of the CJA 2003.

Section 28 of the 1997 Act provides, so far as presently material:

The independence of the Board as a judicial body and as a “court” within the meaning of article 5.4 has been recognised in a number of cases, both in the European Court and here. For example, in Weeks v United Kingdom (1987) 10 EHRR 293 the European Court considered the role of the Board (or strictly its predecessor) in some detail and said at [62] that it saw no reason to conclude that the Board and its members were not independent and impartial. The same approach was adopted in Hirst v United Kingdom, (Application no 40787/98), in which, on 21 March 2000, a complaint that the Board was not independent of the executive and was not thus a court for the purposes of article 5.4 was ruled inadmissible. It is now well settled that, in order to be a court within the meaning of article 5.4, it is not necessary for a body to be a court of the classic kind integrated within the judicial machinery of the state concerned, but it must exhibit the necessary judicial procedures and safeguards appropriate to the kind of deprivation of liberty in question, including most importantly independence of the executive and the parties: see eg Benjamin and Wilson v United Kingdom (2003) 36 EHRR 1 at [33]. The Board is such a body.

It is sufficient to refer to two cases in this jurisdiction. In R v Parole Board ex p Watson [1996] 1 WLR 906, Sir Thomas Bingham MR said this in relation to a recall decision (at page 916 E-F):

It is true, as Ms Carss-Frisk observes, that each of these decisions was made at a time when the Secretary of State had power to make procedural rules and to issue directions to the Board. On the other hand, there is no case in which the court was expressly considering the point which arises in this appeal and, as Ms Carss-Frisk submitted, none which affords support for the judge’s decision in the instant case.

The starting point is that the role of the Board, when deciding whether or not to direct the release of a prisoner, is judicial. As Sir Thomas Bingham explained in Watson, the Secretary of State is a party to the review procedure, whereas the Board is the decision-maker. Submissions are made to the Board on behalf of the Secretary of State which are often directly opposed to those made on behalf of the prisoner. Where the Board directs release, the effect of section 28(5) of the 1997 Act is that the Secretary of State must release the prisoner. He has no discretion. As we understand it, this was accepted on all sides before the judge, in our opinion correctly.

The judge rejected the submission that the inability of the prisoner to have access to the Board without, as issue 2(ii) put it, first passing through the Secretary of State under section 28(7) of the 1997 Act, infringed the prisoner’s rights under article 5.4 of the Convention: see [63] to [66]. That conclusion is not of course challenged on behalf of the Secretary of State and is not relevant to the Secretary of State’s appeal. On the other hand, the judge held that a power to give directions to the Board as to how to perform its judicial responsibility of deciding whether or not to direct the release of a prisoner was incompatible with the principle of the separation powers as between the executive and judicial organs of the state. He noted (at [76]) that the Board has advisory as well as judicial powers and construed section 32(6) of the CJA 1991 as being applicable to such powers or functions but as being inapplicable to the judicial functions of the Board. He put it in this way at [76]:

It is we think accepted on behalf of the Secretary of State that, if he were to make directions which encroached upon or interfered with the exercise by the Board of its judicial responsibilities when deciding whether or not to direct the release of a prisoner, he would be acting unlawfully and any such directions would be subject to a successful application for judicial review. However, Ms Carss-Frisk submits on his behalf that he has not done so and that the power to give directions conferred on the Secretary of State by section 32(6) of the CJA 1991 is lawful, both at common law and under the Convention, and can properly apply both to the judicial functions of the Board and to its other functions, so that the judge was wrong to grant the declaration which he did.

It will be recalled that section 32(6) of the CJA 1991 gives the Secretary of State power to give directions to the Board as to the matters to be taken into account by it in discharging its functions, which include its duty to consider whether or not to direct the release of a prisoner such as Mr Girling. It further provides that, in giving any such directions, the Secretary of State shall in particular have regard (a) to the need to protect the public from serious harm from offenders and (b) to the desirability of preventing the commission by them of further offences and of securing their rehabilitation.

Like all English words used in a statute (or indeed elsewhere), the meaning of the word ‘directions’ depends upon its context. The conclusion reached by the judge would we think be correct if the power to give directions included a power to direct the Board how it was to decide a particular case or class of case, because that would be to impugn the independence of the Board and to interfere with its functions as a court. However, if the power to give directions is construed as including, and being limited to, a power to give general directions to the Board to assist it to exercise its powers within the law, we can see no objection in principle to such a power being conferred on the Secretary of State.

Thus, the Secretary of State could not properly be given a power to determine by what legal principle the Board should decide whether or not to direct the release of a prisoner. Section 28(6)(b) of the 1997 Act provides that the Board shall not direct the release of a prisoner unless it is satisfied that it is no longer necessary for the protection of the public that the prisoner should be confined. The Secretary of State could not lawfully direct the Board to apply some different test. Equally, in deciding whether it is so satisfied, the Board must have regard to considerations which are relevant to the determination of the question whether it is necessary to confine the prisoner any longer and it must not have regard to considerations which are not legally relevant to the determination of that question. The Secretary of State could not properly direct the Board to have regard to an irrelevant consideration or not to have regard to a relevant consideration.

On the other hand, there are many considerations which are potentially relevant as a matter of law in a particular case and which it is the duty of the Board to weigh in the balance in deciding whether the statutory test is satisfied. We can see no reason why the Secretary of State should not be given power to give directions to the Board that it should take account of such considerations in so far as it may be appropriate to do so on the facts of a particular case. In these circumstances, if the power to give directions in section 32(6) of the CJA 1991 can properly be construed as contemplating and being limited to directions of this class, we can see no objection to it in principle and no warrant for the declaration granted by the judge.

We can see no reason why the word ‘directions’ should not be given that limited meaning. As an English word, it can be given more than one meaning. It can certainly mean what the judge took it to mean, namely mandatory directions to act in a particular way. However, in a different context, it can mean directions from A to B. If a person gives such directions, he merely expresses his or her opinion as to how to proceed from A to B. Similarly, in the present context, if the power to give directions is construed to mean a power to give guidance to the Board as to the matters to be taken into account, in so far as they are legally relevant, the Secretary of State can in our opinion properly be empowered to give such directions in order to assist the Board to reach a structured decision on the question which is its duty to decide.

We so construe section 32(6) of the CJA 1991. The subsection expressly gives power to “give the Board directions as to matters to be taken into account”. Parliament could not, in our judgment, have intended to give the Secretary of State power to give mandatory directions to the Board which would conflict with or otherwise usurp the responsibility of the Board to determine the question whether to direct the release of a prisoner in accordance with the law; that is by directing itself in accordance with the correct legal test and by taking into account legally relevant and disregarding legally irrelevant considerations. In these circumstances, it seems to us that subsection (6) should be construed as suggested above, namely that the Secretary of State is given power to give directions so as to provide guidance to the Board as to the matters to be taken into account, in so far as they are legally relevant, in order to assist the Board to reach a structured decision on the question which is its duty to decide.

The point raised by this appeal has not, so far as we are aware, been argued in any previous case. It is no doubt for this reason that courts have used somewhat different expressions in describing the position under section 32(6). In R v Parole Board ex p Gordon, unreported, 7 November 2000, Smith J asked whether the Board had carried out a balancing exercise “as required by the statutory directions”. In R v Parole Board ex p Owen Oyston, unreported, 1 March 2000, Pill LJ described the Board as “required to apply directions made by the Secretary of State”. By contrast, in Williams v Secretary of State for the Home Department [2002] EWCA Civ 498, [2002] 1 WLR 2264, Judge LJ, giving the judgment of the court, said at [23] that the Discretionary Lifer Panel of the Board was under a statutory obligation “to take account of any relevant directions issued to it by the Secretary of State”. By relevant in that context, we feel sure that Judge LJ meant lawful directions. As we see it, the approach of Judge LJ is entirely consistent with the approach suggested above. The purpose of the statutory power to give directions is to guide the Board in carrying out its statutory functions, including its duty to decide judicially whether or not to direct the release of a prisoner in a case of this kind.

With one possible exception, the Secretary of State has approached the exercise of his powers under section 32(6) in this way. The directions with which this appeal is concerned were issued by the Secretary of State in 2004. They relate to the release and recall of life sentence prisoners. The section which relates to the release of such prisoners is in these terms:

protecting the public by ensuring that their safety would not be placed unacceptably at risk;

securing the lifer's successful re-integration into the community.

It may be important to note that, although the whole document is entitled “Directions to the Parole Board under section 32(6) of the Criminal Justice Act 1991”, each section, including that quoted above, is divided into two parts, the first entitled “Introduction” and the second entitled “Directions”. No criticism has been advanced of paragraphs 5 to 7, which are headed “Directions”. We can see no possible objection to paragraph 5. As to paragraph 6, there can equally be no objection because the detailed considerations are prefaced by the express statement, which is underlined, that the Board should consider them “where relevant and where available”. That seems to us to be an impeccable direction. Finally, we can see no problem with paragraph 7, which sets out matters which are self-evidently relevant or capable of being relevant.

In this connection it is perhaps helpful to refer to two statements by Lord Hoffmann, albeit in a planning context, in Tesco Stores Ltd v Secretary of State for the Environment [1995] 1 WLR 759. The first is at page 780 F-G:

The first of those passages stresses the difference between an immaterial consideration, which is legally irrelevant and must be left out of account by a decision making body, and a material consideration, which must be taken into account. The second passage stresses that in the case of a material consideration, the decision making body may give it no weight in the circumstances of the particular case and that there is no distinction in law between a material consideration which is given no weight and such a consideration which is given very little weight. It is open to the decision making body to give it no weight if that is appropriate on the facts of the particular case. The approach of paragraph 6 of the directions is entirely consistent with that of Lord Hoffmann in those two passages.

The only possible problem with paragraphs 1 to 7, which are the only paragraphs relevant to a case like that of Mr Girling, is paragraph 4, which is part of the “Introduction”. We see no difficulty with paragraph 1, which is not directly relevant here. Paragraph 2 restates the powers conferred on the Board and paragraph 3(a) and (b) reflect the express terms of section 28(6)(a) and (b) of the 1997 Act respectively. In particular paragraph 3(b) restates the statutory test.

Paragraph 4 states the test in terms which are different from those of the statute. There was some argument in the course of oral submissions as to whether it states the relevant principle correctly. Since the end of the argument, Ms Carss-Frisk and Ms Kate Gallafent have provided detailed written submissions in support of the submission that it does, with references to a number of decided cases. In response Mr Fordham and Ms White have filed a note in which they say that it is not necessary for the court to determine this question and that in R v Parole Board ex p Lodomez (1994) 26 BMLR 162 Leggatt LJ said at page 184 that it was unhelpful to invent alternative versions of the statutory test. Mr Fordham and Ms White further submit that it is not necessary or appropriate for the Secretary of State to purport to describe “the test to be applied” in directions or in an introduction to directions and that the Board should be left to apply the statutory test in accordance with any relevant guidance from the case law, both domestic and European.

We accept the submission that it is not necessary to consider any of the decided cases which discuss the statutory test. In these circumstances, we do not think that it is appropriate to do so. We would only add that, although it is not necessary for the decision in this appeal, we also accept the submission that it is not appropriate for the Secretary of State to restate the statutory test. The Board should indeed be left to decide what principles to apply by reference to the case law in the light of appropriate submissions on behalf of the prisoner and the Secretary of State. Subject to that caveat, we agree with the judge that the directions issued were innocuous.

We reach those conclusions notwithstanding Ms Krause’s submissions to the contrary. We accept her submission that it is critical that the Board should act independently of the Secretary of State when it is exercising its judicial functions. However, if the power to give directions is construed as we have indicated, we see no interference with the independence of the Board. Moreover, except for the problem with paragraph 4 which we have identified, we detect no problem with the directions in fact given by the Secretary of State. On this footing, again notwithstanding Ms Krause’s submissions to the contrary, we see no basis upon which it could be said that a prisoner’s right to a fair hearing under article 6 of the convention is infringed. Finally, we should note that this case concerns the Secretary of State’s power to give directions. It is not concerned in any way with his power to make procedural regulations.

In all these circumstances, we allow the appeal of the Secretary of State and set aside the declaration made by the judge.

As we said earlier, Mr Girling has died since permission to appeal was granted and he has no family, dependants or personal representatives to advance the appeal. Ms Krause, instructed by Messrs Nelson, represented Mr Girling when he was alive but is not instructed to represent his family, dependants or estate now. No application has been made under CPR 19.8 for anyone to represent the estate of Mr Girling, although it may well be that the court could make such an order of its own motion under its case management powers, which include CPR 1.4(1), 3.1(1)(m) and 3.3(1).

The death of Mr Girling has made both his appeal and that of the Secretary of State academic as between himself and the Secretary of State, or indeed the Board. The general rule is that the court will not consider academic appeals, although it retains a discretion to do so: R v Secretary of State for the Home Department ex p Salem [1999] 1 AC 450 per Lord Slynn at page 456 G-H. This court held in Bowman v Fels [2005] 4 All ER 609 that an academic appeal can proceed where there is no live issue between the parties themselves but a point of general public importance arises: see per Brooke LJ, giving the judgment of the court at [10] to [18].

In the instant case, it is appropriate for the court to consider and determine the appeal of the Secretary of State because of the declaration made by the judge, which we have concluded should not have been made. The scope of the Secretary of State’s power to give directions in this class of case will, we hope, be clarified by our decision. In addition, even if, contrary to our view, it was appropriate to make a declaration, the form of declaration made by the judge was inappropriate. If left uncorrected, it would have been difficult to apply. In particular the line between the Board’s “judicial functions”, which are covered by the declaration and its other functions, which are not, would not always be easy to define.

The question is whether the court should consider the appeal brought by Mr Girling himself, notwithstanding the fact that he has died. Ms Krause does not suggest that it would be appropriate for the court to entertain Mr Girling’s appeal in so far as it seeks or might seek to argue grounds which affected him personally. It follows that she does not suggest that we should consider grounds (i) and (ii), which related to a failure to take account of Mr Girling’s failing health and to the link between the risk he presented and a release plan. Ground (iii) asserts that the issuing of directions offended against article 5.4 of the convention. For the reasons given in the course of our judgment on the Secretary of State’s appeal, we do not agree. Ground (iv) asserts that the fact that a prisoner’s case is only referred to the Board through the executive is incompatible with article 5.4 of the Convention. However, that is not a live question here because Mr Girling’s case was considered by the Board.

In Ms Krause’s more recent written submissions she submits that the court should consider what she describes as the wider lack of independence of the Board and she refers to and relies upon a paper written by His Honour Judge Anthony Thornton QC, who is a member of the Board, and prepared for the CPL Conference held at Cambridge on 15 and 16 September 2006. The paper was written in his personal capacity and not on behalf of the Board. It contains a wide-ranging discussion of many issues relating to the Board, including the advisory role of the Board.

We do not think it appropriate to extend the debate in this appeal beyond the issues raised by the Secretary of State’s appeal, which involve the court deciding upon the scope of the power conferred upon the Secretary of State to give directions under section 32(6) of the CJA 1991 in the context of the Board’s duty to decide whether or not to direct the release of a prisoner in Mr Girling’s position. It may be that other issues will arise calling for decision in the future but they should be decided in the context of an issue between parties in which the resolution of the issue is important as between them. For example, both Judge Thornton and Ms Krause in her written submissions focus on the advisory role of the Board. Neither the appeal of the Secretary of State nor any appeal on behalf of Mr Girling could properly be concerned with those functions of the Board.

In all the circumstances we do not think that this is an exceptional case in which it is appropriate for the court to consider Mr Girling’s appeal.

Having regard to the fact that Mr Girling died since permission to appeal was granted and to the further fact that he has no family or personal representatives to represent his estate, this is not one of those exceptional cases in which the court should entertain his appeal. It is, however, appropriate for the court to consider whether the judge should have made a declaration that section 32(6) of the Criminal Justice Act 1991 (“the CJA 1991”) should be “construed so as not to apply to the judicial functions of the Parole Board”. This issue is of potential significance for the future. For the reasons given above, we hold that the judge should not have granted the declaration and that section 32(6) of the CJA 1991 should be construed as giving the Secretary of State power to give directions so as to give guidance to the Board as to the matters to be taken into account, in so far as they legally relevant, in order to assist the Board to reach a structured decision on the question which is its duty to decide. We allow the Secretary of State’s appeal accordingly.