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:

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:

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.

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:

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:

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:

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:

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:

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

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:

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

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:

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:

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.