Gulliver v The Parole Board

This is an appeal against an order made by Collins J on 6 November 2006, in which he dismissed the appellant’s claim for judicial review of a decision by the Parole Board not to direct his re-release from prison, following his recall to prison by the Secretary of State for Justice (“the Secretary of State”) for an alleged breach of the conditions of his licence after he had been released on license. The appeal is brought by permission of Sir Henry Brooke, who said that it seemed to him to be appropriate that the Court of Appeal should consider the legal question at the heart of the appeal, even if it were academic in the case of the appellant.

On 4 February 2005, the appellant was sentenced to three years’ imprisonment for assault occasioning actual bodily harm to his former girlfriend. He was released on licence on 17 March 2006 and only seven days later, on 24 March, the Secretary of State recalled him to prison. The reasons given for the recall were these:

“You have been recalled to prison because you have breached condition 5(vii) of your licence in the following way:

It has been reported that you have failed to comply with such arrangements as may be reasonably put in place and notified to you by your supervising officer so as to allow for your whereabouts to be monitored by global positioning satellite (whether by electronic means or otherwise) in that on 23 March 2006 you failed to re-charge your satellite tracking unit when prompted to do so by Securicor. You acknowledged the message which informed you that your battery was running low but did not put the unit to charge for a further 4 hours and 18 minutes, during which time your whereabouts could not be monitored via satellite tracking. It is your responsibility to ensure that the tracking unit is fully charged and operational.

In view of the offences for which you were originally sentenced, the risk suggested by your offending history and your behaviour as described above, the Home Secretary is no longer satisfied that it is right for you to remain on licence.”

On 28 April written representations were made to the Secretary of State on behalf of the appellant. The appellant’s case came before the Parole Board, initially in May, when it reached preliminary conclusions which were adverse to the appellant, but his case was fully considered by the Parole Board at an oral hearing on 13 June 2006. On 15 June the Parole Board decided that the appellant should not be released until he was compulsorily released on licence, which was required to occur when he had served three-quarters of his sentence. He has now been released.

The reasons given by the Parole Board were these:

Thus, as I read the Parole Board’s reasons, it did not accept that it had been proved that the appellant was in breach of the conditions on his licence. On the other hand, it was persuaded that there was evidence upon which the Secretary of State could reasonably conclude that there had been a breach. The Parole Board had available evidence both from the appellant and from Securicor. In any event, it was correctly conceded by Mr Fitzgerald on behalf of the appellant that the Secretary of State could reasonably think that the appellant was in breach of his licence conditions. In these circumstances the revocation of the licence and the recall was lawful.

The issue in the appeal is whether, having held that there was in fact no breach of the appellant’s licence conditions, the Parole Board was entitled to consider all the evidence available on 13 June, and to hold that the appellant’s risk to the public was such that he should not have been released. If, contrary to his submissions, it is held that the Parole Board was entitled to have regard to all the available evidence and to consider whether the release of the appellant would present an unacceptable risk to the public, Mr Fitzgerald correctly concedes that the decision of the Parole Board was not wrong in law. There was, indeed, ample evidence upon which the Parole Board could reach the conclusion it did and there is no basis for holding that its decision was irrational or otherwise wrong in law.

The statutory framework is somewhat complicated by the fact that because the appellant committed the offence before 4 April 2005, the release provisions applicable to him are to be found in the Criminal Justice Act 1991 (“CJA 1991”), whereas the recall provisions are to be found in the Criminal Justice Act 2003 (“CJA 2003”). Because the appellant was a short-term prisoner but his sentence was one of more than 12 months, he was entitled to be automatically released on licence after serving half his sentence (see the Criminal Justice Act 1991 section 33(1)(b)). The licence was due to last until he would, but for his release, have served three-quarters of his sentence (see CJA 1991 section 37(1)). If the appellant had been a long-term prisoner, the position would have been somewhat different: he would have been entitled to be released after serving two-thirds of his sentence. These provisions are not relevant to the issues in this appeal because no-one suggests that the position would, in principle, be different as between a short-term and a long-term prisoner serving a determinate period of imprisonment.

However, Mr Fitzgerald submits that there are, for present purposes, significant differences between the release and recall provisions for life prisoners by comparison with those for short and long-term prisoners. It is sufficient, for present purposes, to refer to life-prisoners to whom section 28 of the Crime Sentences Act 1997 (“the 1997 Act”) applies, so far as material:

“(5)

As soon as, in the case of a life prisoner to whom this section applies-

(a)

he has served the part of his sentence specified in the order or direction (‘the relevant part’); and

(b)

the Parole Board has directed his release under this section, it shall be the duty of the Secretary of State to release him on licence.

“(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)

the Secretary of State has referred the  prisoner's case to the Board; and

(b)

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

It can thus be seen that by contrast with fixed-term prisoners, including short-term prisoners, a life prisoner is not entitled to be released by the Secretary of State until the Parole Board has directed his release and the Parole Board cannot direct his release until it is “… satisfied that it is no longer necessary for the protection of the public that the prisoner should be confined”.

So, the Parole Board plays no role in the release of a short-term prisoner who has served half his sentence, whereas the Parole Board plays a critical role in the decision to release a life prisoner.

Mr Fitzgerald submits that this is a critical difference in connection with recall and re-release. In the case of short-term prisoners, the provisions as to recall and re-release are to be found in the CJA 2003. Section 254 provides so far as relevant:

“(1)

The Secretary of State may, in the case of any prisoner who has been released on licence under this Chapter, revoke his licence and recall him to prison.

(2)

A person recalled to prison under subsection (1)-

(a)

may make representations in writing with respect to his recall, and

(b)

on his return to prison, must be informed of the reasons for his recall and of his right to make representations.

(3)

The Secretary of State must refer to the Board the case of a person recalled under subsection (1).

(4)

Where on a reference under subsection (3) relating to any person the Board recommends his immediate release on licence under this Chapter, the Secretary of State must give effect to the recommendation.

(5)

In the case of an intermittent custody prisoner who has not yet served in prison the number of custodial days specified in the intermittent custody order, any recommendation by the Board as to immediate release on licence is to be a recommendation as to his release on licence until the end of one of the licence periods specified by virtue of section 183(1)(b) in the intermittent custody order.

(6)

On the revocation of the licence of any person under this section, he shall be liable to be detained in pursuance of his sentence and, if at large, is to be treated as being unlawfully at large.”

Section 254 does not apply to life prisoners who are the subject of section 32 of the 1997 Act. The appellant was recalled before his licence expired, pursuant to section 254(1) of the CJA 2003.

There is an issue between the parties as to whether the Secretary of State is entitled to revoke a prisoner’s licence and to recall him only if the prisoner is in breach of his licence conditions, or whether he can do so for other good reasons, say to protect the public, even when there is no breach of a licence condition. I will return to this question so far as necessary in a moment.

Section 254(6) is important because it makes clear that when a licence is revoked a prisoner will be detained pursuant to his original sentence. Subsections (3) and (4) emphasise the critical role of the Parole Board. Section 254 does not, however, give any indication of how the Parole Board should approach its task. Section 239, which is the successor of section 32 of the CJA 1991, provides so far as relevant:

“(2)

It shall be the duty of the Board 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.

“(3)

The Board shall deal with cases as respects which it makes recommendations under this Part on consideration of—

(a)

any documents given to it by the Secretary of State; and

(b)

any other oral or written information obtained by it,

and if in any particular case the Board thinks it necessary to interview the person to whom the case relates before reaching a decision, the Board may authorise one of its members to interview him and shall consider the report of the interview made by that member …”

“(6)

The Secretary of State may also give to the Board directions as to the matters to be taken into account by it in discharging any functions under this Part; and in giving any such directions the Secretary of State shall in particular have regard to—

(a)

the need to protect the public from serious harm from offenders; and

(b)

the desirability of preventing the commission by them of further offences and of securing their rehabilitation.”

Subsection (3) shows that it is the duty of the Parole Board to have regard to all the material put before it. Section 239 does not specifically provide what questions the Parole Board should ask itself, or what criteria it should apply. In this regard, it is different from section 28 of the 1997 Act which, as I said earlier, deals with life prisoners.

However, section 239(6), which is in the same terms as the old section 32(6) of the CJA 1991, points the way. It provides that, in giving direction to the Parole Board, the Secretary of State must have regard to:

“(a)

the need to protect the public from serious harm from offenders; and

(b)

the desirability of preventing committing by them of further offences and of security their rehabilitation.”

Following the recall of the appellant, the Secretary of State was required to refer his case to the Parole Board (see CJA 2003, section 254(3)). The Parole Board had to decide whether to recommend the release of the appellant, and the Secretary of State was required to give effect to any such recommendation (see section 254(4)). If the Parole Board had recommended that the appellant be released, the appellant would have remained on licence until the three-quarters point of his sentence (see CJA 1991, section 31(1)). As the Parole Board did not recommend the release of the appellant it was required either: a) to fix a date for his release on licence or b) to fix a date as the date for the next review of the appellant’s case (see CJA 2003, section 256(1)).

The Parole Board fixed the appellant’s automatic release date as the date for his release on licence. The appellant was released automatically at the three-quarters point of his sentence (CJA 1991, section 33(3)). He remains on licence until the expiry of his sentence on 17 September 2007 (CJA 1991 section 37(1A)).

The question in this appeal is: what is the nature of the responsibility of the Parole Board, when considering whether to order the immediate release of a prisoner under section 254(4), when the case of a person recalled under section 254(1) is referred to the Parole Board under section 254(3)?

While there is no authority which has considered precisely this question in relation to CJA 2003, the decided cases in my opinion clearly point the way. The cases are authority for these propositions:

Mr Kovats’ submissions are supported by the decision of Richards J in R (Jackson) v the Parole Board and the Home Secretary [2003] EWHC (Admin) 2437, where the claimant was a short-term prisoner. Richards J expressed his conclusions in paragraphs 32 and 33 as follows:

“32.

In order to place the rival submissions in their correct overall context, I think it right to refer at the outset to R v. Parole Board, ex parte Watson[1996] 1 WLR 906.  That case concerned a decision under s.39(4) in relation to a discretionary life prisoner whose licence had been revoked and who had been recalled to prison under s.39(2).  The Court of Appeal rejected an argument that the Board should confine itself to determining the validity of the reasons for recall given by the Secretary of State.  Sir Thomas Bingham MR stated:

‘It would in my view be subversive of the review regime established by the Act if the board confined itself to reviewing the validity of the Secretary of State's reasons for recall.  It is the judgment of the board as an independent quasi-judicial review body, not the judgment of the Secretary of State as an arm of the executive, which matters.  He is a party to the review, and of course his evidence and submissions must be received and weighed.  But the board must make its own mind up, and give its own reasons.  It would seriously undermine the integrity of the system if the board were to defer to the Secretary of State's view unless it were shown to be wrong.  It is itself the primary decision maker.’ (916E-F)

33.

Although Watson concerned a discretionary life prisoner, the statutory context is the same and I see no reason for attributing to the Board in this respect a different role according to whether the recalled prisoner is a discretionary life prisoner or not.  I note further that s.32(3) requires the Board to deal with all cases ‘as respects which it makes recommendations under this Part’ (i.e. including the exercise of its powers under s.39(4)) on consideration of (a) any documents given it by the Secretary of State and (b) any other oral or written information obtained by it, and that it may authorise one of its members to interview the prisoner if in any particular case it thinks it necessary to do so.  Directions given by the Secretary of State to the board under s.32(6) also require the board to determine inter alia whether the prisoner is likely to comply with licence conditions in the future, ‘taking into account in particular the effect of the further period of imprisonment since recall’.  All these considerations tell conclusively in favour of the view that the role of the Board is not simply to review the reasons given by the Secretary of State for recall but to look at the wider picture and decide for itself whether the recall should be maintained or whether the prisoner's immediate release should be recommended.”

Richards J was considering sections 32 and 39 of the CJA 1991. Section 32(3), to which he referred, was in the same terms as section 239(3) of the CJA 2003 and section 32(6) was in the same terms as section 239(6). I agree with Richards J that the considerations to which he refers, namely what are now the contents of section 239(3) and 239(6), tell in favour of the view that the role of the Board is not simply to review the reasons given for the recall, but to look at the wider picture and to decide for itself whether the recall should be maintained or whether the prisoner’s immediate release should be recommended. Whether I would myself have gone so far as to say that they told conclusively in favour of that view, I am not sure. However, in the absence of authority I would certainly agree with Richards J. There is nothing in the terms of any of the relevant statutes which leads to any other conclusion. The key provisions are sections 254 and 239 of the CJA 2003, from which I have already quoted the relevant subsections. Section 254(1) does not say that the prisoner must be in breach of his licence conditions before he can be recalled. It could easily have done so if that had been intended. There is, I think, much to be said for the view that the power to recall is not so limited, although it is not necessary to reach a concluded view on that question in order to decide this appeal because, as I said earlier, it is accepted that the Secretary of State reasonably thought that the appellant was in breach of his licence conditions, and it cannot be said that the recall is unlawful.

The position is that the appellant’s licence was lawfully revoked and the effect of section 254(6) is that he was detained “in pursuance of his sentence” -- that is, his original three-year sentence. There is nothing in section 254 to support Mr Fitzgerald’s submission that the role of the Parole Board is limited to reviewing the recall by the Secretary of State. The same is true of section 239. There is nothing in that section to support Mr Fitzgerald’s submission. On the contrary, as Richards J observed, the pointers are all the other way.

Mr Kovats also refers to the Secretary of State’s policy. He refers to the relevant parts of PSO 6000, and of the directions given to the Parole Board under section 239(6) of the CJA 2003, neither of which supports Mr Fitzgerald’s submissions. However, I doubt whether either of those documents is an aid to the construction of the statute.

What then of the authorities? Mr Fitzgerald relies in particular on West and Smith. West was a short-term prisoner and Smith was a long-term prisoner. They were each recalled and the Parole Board refused to release them. They each said that they were entitled to an oral hearing by reason of article 6 of the Convention. The House of Lords held that the hearing before the Parole Board did not involve the “determination … of a criminal charge” under article 6 because recall was not a punishment. This was on the basis that, when recalled, the prisoner was simply serving his original sentence of imprisonment. The House further held that it was not necessary to decide whether the determination of the Parole Board involved “the determination of [their] civil rights and obligations” within article 6, because the Parole Board had the essential features of a court under article 5(4) of the Convention, and prisoners seeking re-release had the protection of the Board’s common law duty of fairness. The House held that whether prisoners were entitled to an oral hearing depended on all the circumstances of the case, but in the particular circumstances of the cases of West and Smith, each had been entitled to an oral hearing.

It can thus be seen that the question with which we are concerned in this appeal was not one of the questions being determined by the House of Lords in West and Smith. However, Mr Fitzgerald relies upon certain passages in the speech of Lord Bingham; in particular, he relies on paragraphs 25 and 37. At the end of paragraph 25 Lord Bingham said this:

“If a prisoner is released, subject to conditions, before the expiry date of the sentence imposed by the court and he does not comply, or appears not to comply with the conditions to which his release was subject, a question will arise whether, in the interests of society as a whole, he should continue to enjoy the advantages of release.”

In order to put that passage in context I should set out paragraph 26:

“Lastly, it is plain from the statutory provisions already quoted that the resolution of questions of the type indicated is entrusted, and entrusted solely to the Parole Board. In exercising this very important function, it is recognised to be an independent and impartial tribunal for the purposes of article 6(1) of the European Convention. It is the primary decision-maker, not entitled to defer to the opinion of the Secretary of State or a probation officer: R v Parole Board, Ex p Watson [1996] 1 WLR 906, 916.

“As the materials already cited make clear, the Parole Board is concerned, and concerned only, with the assessment of risk to the public: it must

‘[balance] the hardship and injustice of continuing to imprison a man who is unlikely to cause serious injury to the public against the need to protect the public against a man who is not unlikely to cause such injury.’

Ex parte Watson, at p 916. The sole concern of the Parole Board is with risk, and it has no role at all in the imposition of punishment, R v Sharkey [2000] 1 WLR 160, 162-163, 164.”

I see nothing in paragraph 25 to assist Mr Fitzgerald’s argument. On the contrary, in paragraph 25 Lord Bingham says that when a prisoner

“… does not comply or appears not to comply, with the conditions to which his release is subject, a question will arise whether, in the interests of society as a whole, he should continue to enjoy the advantages of release.” [my emphasis]

The reference to “appears to comply” shows that Lord Bingham had in mind a case just like this, where the prisoner appears not to comply with the condition. He contemplated that that was one of the cases in which a question would arise, in the interest of society as a whole, whether the prisoner should continue to enjoy the advantages of release.

Then in paragraph 26 he made it clear that in such a case it was a matter for the Parole Board to decide the question, and in reaching its conclusion the Parole Board is concerned only with risk to the public. I see no reason to think that Lord Bingham meant anything other than risk to the public assessed as at the time the Parole Board makes its decision, not at some earlier date.

It is also of note that in paragraph 26, Lord Bingham expressly referred to Watson as being relevant to the case of West and Smith. Watson was, of course, a case of a life prisoner, and not a person like the appellant who was entitled to be released after half his sentence.

It was in Watson that Sir Thomas Bingham MR had rejected the submission that the Parole Board should confine itself to determining the validity of the reasons for recall given by the Secretary of State. He rejected that submission in the passage quoted by Richards J, which I have set out above. He also rejected a second argument, that the Parole Board should ask itself simply the question:

“… whether it was positively satisfied that recall was necessary to prevent the commission of (in Mr Watson’s case) further serious sexual assaults of the kind that had led to the original sentence.”

Sir Thomas Bingham MR rejected that submission in these terms at page 916g-917a:

“I find Mr Fitzgerald’s alternative argument more persuasive but I reject it for these reasons. (1) Even when released on licence, a discretionary life sentence prisoner remains subject to that sentence, passed because of the likelihood of danger to the public. (2) By the time the Parole Board conducts its review under section 39(4) the prisoner is back in prison, continuing to serve his sentence. (3) Section 39(4) prescribes no statutory test which the board is to apply. But the board’s function under section 39(5) is almost exactly the same as that under section 34(3), namely to direct (or not) the prisoner’s release. In the absence of express statutory provision, it is to be assumed that the same test is applicable. (4) In exercising its practical judgment the board is bound to approach its task under the two sections in the same way, balancing the hardship and injustice of continuing to imprison a man who is unlikely to cause serious injury to the public against the need to protect the public against a man who is not unlikely to cause such injury. In other than a clear case this is bound to be a difficult and very anxious judgment. But in the final balance, the Board is bound to give preponderant weight to the need to protect innocent members of the public against any significant risk of serious injury. This is the test which section 34(4)(b) prescribes, and I think it is equally appropriate under section 39(4).”

Rose LJ and Roch LJ said much the same. It is true that there is no equivalent to section 34(3)(b) of the CJA 1991 in section 239 or 254 of the CJA 2003, but despite that Lord Bingham plainly thought, when he wrote paragraph 26 of West and Smith, that the principles in Watson would apply to the Parole Board when considering recommending the release of a short-term prisoner. This is, I think, because a critical function of the Parole Board is to have regard to the risk of the public in reaching its conclusions. It would be very odd if Parliament had conferred a much narrower duty upon it in this type of case without saying so.

The other passage in West and Smith particularly relied upon by Mr Fitzgerald is paragraph 37 where Lord Bingham noted that it was accepted that for the purpose of revocation proceedings the Parole Board had the essential features of a court within article 5(4). He then referred to a number of Strasbourg cases and said at paragraph 37:

“That means, for present purposes, the Parole Board should be empowered (a) to examine when the circumstances have arisen sufficient in law to justify further detention of a determinate sentence prisoner released on licence, and, if so, (b) to decide whether the protection of the public calls for the further detention of the detainee. The Parole Board is empowered to discharge those functions. Its review will in my opinion satisfy the requirements of article 5(4) provided it is conducted in a manner that meets the requirements of procedural fairness already discussed.”

Mr Fitzgerald draws attention to the words “if so” and says that the fact that there are two questions, the second of which only falls to be answered if the first is answered against the prisoner, is so that the first question the Parole Board must ask is whether the recall was in fact justified in the light of all the facts available to the Parole Board, even if they were not available to the Secretary of State.

However, I am not persuaded that Lord Bingham intended to go so far. Such a conclusion would go much further than Lord Bingham’s conclusions in paragraphs 25 and 26, and would give no weight to the expression “or appears not to comply” in paragraph 25, to which I referred earlier.

Given Lord Bingham’s reference to Watson, in the context of short-term prisoners like West, I conclude that he took the view that the principles in Watson apply to short-term prisoners just as they do to lifers, as indeed Richards J held in Jackson. Thus the role of the Parole Board is essentially the same in each of these classes of case. It is to have regard to all the circumstances of the case, including, of course, the circumstances of the recall, but in the end to decide whether to recommend the release of the prisoner having made an assessment of risk to the public, on the basis of all the material available to it when it makes its decision. One of those considerations will, of course, be whether appropriate licence conditions could be devised. The Parole Board considered the available licence conditions in this case and plainly decided that, in all the circumstances, they could not.

In these circumstances, I would dismiss this appeal. It appears to me that the judge was correct to hold that the Parole Board should take account of all the circumstances of the case in reaching the conclusion which it did.

I only mention one or two further points which were touched on in argument, none of which plays any part in the determination of this appeal. However, in Jackson, Richards J recorded that it was:

“… common ground that if either decision [namely the Secretary of State’s decision to recall and the Parole Board’s decision not to release] was unlawful then the claimant’s imprisonment was unlawful from the date of the unlawful decision”.

Mr Kovats questions the correctness of that concession. He submits that the prisoner who has been recalled to prison is lawfully detained pursuant to his original sentence. The recall may be legally defective but unless and until the Administrative Court quashes the recall the imprisonment of the prisoner is lawful. I would accept Mr Kovats’s submission that the concession in Jackson went too far.

The second point is whether, and in what circumstances, a decision to recall a prisoner can be challenged by the Secretary of State, by way of judicial review. It is not necessary for us to resolve this issue in this appeal, since this is not a challenge to the decision of the Secretary of State but a challenge to the decision of the Parole Board. As I see it, there may be exceptional cases in which it might be appropriate to apply for judicial review, but they will be few and far between.

Finally, I should note that in the course of argument Mr Kovats, on behalf of the Parole Board, questioned the correctness of the decision of the Divisional Court in Rodgers [2003] EWHC 1923 (Admin). It is not necessary to examine that submission in order to determine this appeal. I therefore say no more about it.

However, for the reasons I have given I would dismiss the appeal.

I shall make some general observations about the central question which arises in this appeal. The relevant legislation has been analysed in the judgment of the Master of the Rolls and I shall not repeat it, nor shall I repeat any of the passages in the authorities which have been drawn to our attention. Between them, however, the legislation and the authorities lead to the conclusion that the process by which the Parole Board considers the revocation of a prisoner’s licence by the Secretary of State, and his consequent recall to prison, is a single process with at least two aspects.

The decision of the Secretary of State is made on the basis of the information available to him. The decision of the Parole Board, to recommend or refuse to recommend immediate release, is made on the material available to it. This includes the material available to the Secretary of State, together with any further or additional material which may have come to light for the use of the Parole Board. The effect of this process is that the Parole Board exercises a degree of supervisory responsibility over the Secretary of State’s decision and the process which led to it. Nevertheless, whatever its view of that decision, or the circumstances in which it was reached, it is with public safety in mind that the Parole Board must address and decide whether to recommend the release of the prisoner. It is not divested of that responsibility merely because of reservations about the original decision by the Secretary of State.

The supervisory responsibility provides a valuable check on the original decision-making process. The recall order is examined by an independent body, the Parole Board. This provides a discouragement for the slovenly or the cavalier or the corrupt. It may very well be that in such cases, if they arise, the very fact that the process has been so characterised may lead the Parole Board to conclude that the risk to public safety is not established. Nevertheless, in the end the decision required of the Parole Board must depend on its assessment of public safety. I doubt whether it is possible to envisage any circumstances in which the Parole Board can recommend release, where it would otherwise refuse to recommend release on public safety grounds, merely because of deficiencies in the revocation and recall process.

There may, of course, be exceptional cases where the revocation decision process is so subverted that the prisoner may seek a different or separate remedy, by way of judicial review or, indeed, habeas corpus. In such cases the court may be satisfied that the Parole Board may not be able to provide an adequate or sufficient remedy. If so, it will deal with the application accordingly.

Beyond those general observations, I have nothing to add to the judgment of the Master of the Rolls. Like him, I agree that this appeal should be dismissed.

I agree with both judgments. There is nothing that I wish to add.