Bayliss v The Parole Board of England And Wales & Anor

As long ago as 5^th February 2013, Geraldine Andrews Q.C. (as she then was) dismissed a renewed application by Lee Bayliss for permission to apply for judicial review of a decision of the Parole Board in relation to his continued detention following a sentence of imprisonment for public protection with a minimum term of 2 years which had been imposed on 30^th June 2006. The original application (rejected on paper) was made while he was still in custody but, on 15^th November 2012, shortly prior to its renewal application, the Court of Appeal (Criminal Division) quashed the indeterminate sentence which led to his release; this resulted in the claim being restricted to a claim for damages on the grounds that his detention after the expiry of the minimum term had been unlawful and was incompatible with Article 5 of the European Convention on Human Rights (‘ECHR’). This claim was pursued only against the Parole Board.

Permission to appeal was refused by Underhill LJ but, on renewal, the full court (Sir Terence Etherton C and Fulford LJ) granted leave on one only of the six grounds advanced, namely whether, when the Court of Appeal (Criminal Division) decides that an indeterminate sentence should not have been imposed in the first place, because, for instance, the criteria were not satisfied, any period of post-tariff detention was or may have been “arbitrary” in nature, thereby offending Article 5. It is to be noted that these grounds could not possibly have been advanced at the initiation of this application for judicial review. To deal with it, the Secretary of State for Justice was joined as a second respondent to the appeal.

On 30th June 2006, at the Crown Court at Oxford, before His Honour Judge Hall, the appellant pleaded guilty to offences of aggravated vehicle taking, causing death by dangerous driving and driving whilst disqualified. Having on 20th April 2006 taken a motor vehicle without the consent of its owner, two days later, he drove dangerously and at high speed over a bridge approaching Wytham in Oxfordshire. He lost control of the car and struck a stone wall, killing his passenger, Susan Fenton, and suffering comparatively serious injury himself. The judge described the incident in these terms:

"This was a dreadful bit of driving. You killed your best friend but you killed her in circumstances where the way you were driving was patently obviously dangerous. That road is single-carriageway; it narrows; there are ample signs to tell you to slow down and there is an extremely obvious T junction with a brick wall facing you. No-one approaching that junction could have had any doubt at all that there was no way of going straight on. You started to brake only 30 yards before and there are tyre marks from there up to the moment of side impact, which was so severe that it left the car in the sort of condition that we see in the photographs, and your friend dead. It was not your car.”

The appellant was then 29 years of age with many previous convictions. He had appeared before the criminal courts on at least 19 occasions since 1992 for offences relating to motor vehicles (principally driving whilst disqualified, driving without insurance, taking a motor vehicle without consent and theft). Of greater significance, he had been disqualified from driving on no fewer than 16 occasions and previously been sentenced to a term of imprisonment for dangerous driving in the course of a police chase.

The judge correctly identified that causing death by dangerous driving was a specified serious offence and, as required by s. 225 of the Criminal Justice Act 2003 (‘the 2003 Act’), turned to the question of risk: see para. 48 of Schedule 15. He made clear the way in which he exercised his judgment by observing:

“I have to decide whether, because this offence is what is called in the Act of Parliament a specified serious offence, I am of the opinion that I think that there is a significant risk to members of the public of serious harm if you were to commit further specified offences. Well I think there is. It is as simple as that. The risk of people being killed on the road, in a car chase with somebody else’s car, driving whilst disqualified, is significant in your case, I rule.”

Having reached that conclusion, s. 225(3) mandated a sentence of imprisonment for public protection. A minimum term of 2 years less time spent on remand was specified: this was the punitive part of the sentence calculated on the basis of a notional 6 years’ imprisonment after trial less one third for his prompt guilty plea, then halved to reflect the early release provisions. Thus, the minimum term expired on 28 April 2008 after which date his release was dependent on the view taken by the Parole Board as to the risk that he then posed to the public.

The appellant’s case first came before the Parole Board on 7^th July 2008 when he was then represented by Mr Philip Rule who continues to represent him today. His release was not ordered and applications for judicial review of that decision were refused both on 13^th November 2008 by the Administrative Court (see [2008] EWHC 3127 (Admin) per Cranston J) and, on 22^nd July 2009, by the Court of Appeal (see [2009] EWCA Civ 1016 and the judgment of Dyson LJ with which Arden and Moore-Bick LJJ agreed).

Whilst on the Rehabilitation for Addicted Prisoners Trust Programme in custody, the appellant had misused controlled drugs and been the subject of a number of adjudications for unauthorised use of such drugs. Against that background, his case was reviewed by the Parole Board: on 5^th October 2010, it was decided not to release him or to move him from closed conditions. That decision was also subject to judicial review, which, we are told was dismissed on 17^th February 2011 as totally without merit. On 21^st December 2011, a further application for release was rejected, the Parole Board observing that he had been assessed as:

“... posing a significant risk. He had long- standing problems with drugs misuse and it was considered that the risk factors could only be addressed whilst he was in the security of those conditions.”

This application for judicial review was issued on 20^th March 2012 and was directed to the Parole Board on the grounds that the decision was incompatible with Article 5 of the ECHR, on the basis that the length of the sentence had become so long compared with the original tariff that there was no longer a ‘causal link’ between the offence and the risk from which the public was being protected. Further grounds included that the decision represented the application of a secret policy, was disproportionate and was Wednesbury unreasonable.

Meanwhile, the appellant (advised by Mr Rule) revisited the imposition of the sentence and he sought to appeal (over 6 years out of time) to the Court of Appeal (Criminal Division). In this approach, he was more successful: on the 15^th November 2012, the court (Hughes LJ, Ramsey J and Sir Geoffrey Grigson) allowed his appeal, quashed the order of imprisonment for public protection and substituted a determinate sentence of 4 years’ imprisonment: see [2012] EWCA Crim 2720. To justify the sentence, Sir Geoffrey recognised that there had to be a significant risk of a further offence of causing death by dangerous driving and went on to explain the exercise of judgment by that court in these terms (at para. 7):

“In our view whilst there was at point of sentence very obviously a significant risk that the appellant would continue taking cars without consent and driving whilst disqualified, there was no proper basis for the judge to find a significant risk of serious harm to members of the public by commission of further specified offences.”

The application for judicial review had been mounted only against the Parole Board on the basis (among others) that his detention was incompatible with Article 5 of the ECHR. After he had been released by the Court of Appeal, it was put on the basis that article 5(1) can be breached even if a lawful sentence of imprisonment for public protection is in place; even more so is detention arbitrary if the sentence was, as Mr Rule puts it, “unlawful”. It was therefore submitted that it must be arguable that there is arbitrary detention or a breach of article 5(1) if the indeterminate sentence which was in place turns out to be unlawful. Miss Andrews Q.C. observed ([2013] EWHC 1464 (Admin) at para. 8) that the proper defendant to such a claim was the Secretary of State and that the Parole Board could bear no liability for it. She also dismissed the other grounds of complaint (in respect of which leave to appeal to this court was refused).

On 14^th February 2014, Underhill LJ refused permission on the papers, finding on the merits (at para. 1):

“This [Article 5] ground is based on an elementary misconception. Even if it were appropriate for a claim on this basis to be brought against the Board, the fact that the IPP was quashed on appeal does not mean that it was unlawful in any relevant sense. An excessive sentence is still a lawful sentence...”

Underhill LJ also agreed with the Deputy Judge as to the proper defendant, finding that an unlawful detention claim can only be directed against the Secretary of State. The Board’s function was to determine whether to release by reference to the criteria set out in s.28(6) of the Crime (Sentences) Act 1977 (‘the 1977 Act’). It therefore could only be a defendant where there is a discrete challenge to such a decision. Although this claim was pleaded as such a challenge, it was in fact concerned with unlawful detention.

On the renewed application, the Parole Board remained the sole respondent. As I have identified, permission was granted by the full Court only on the ground advanced by Mr Rule that the detention of the appellant was unlawful ab initio because the criteria for the term of imprisonment for public protection were not met. He relied on James and ors v United Kingdom [2013] 56 EHRR 12, to the effect (at paras 191ff) that Article 5(1) requires both compliance with domestic law and that any deprivation of liberty be in keeping with protection from arbitrariness. He went on that, in order for detention not to be arbitrary, it was critical that the indeterminate sentence be imposed because the prisoner was considered by operation of the relevant statutory assumption to pose a risk to the public.  

It was in those circumstances that the full court granted leave, Fulford LJ observing (at para. 16):

“Against that background I am just persuaded that it is arguable that if the Court of Appeal (Criminal Division) decides that an indefinite prison sentence should not have been imposed in the first place, because, for instance, the criteria were not satisfied, then any period of post-tariff detention may have been ‘arbitrary’ in nature, thereby offending Article 5. Given the indefinite detention was dependent on the court passing a particular kind of sentence, if that sentence was unjustified, it is arguable that the proper causal link between the order of the court and the detention was broken. Put otherwise, because the foundation for the IPP did not exist, it is open to the applicant to suggest on appeal that his post-tariff detention was arbitrary.”

The court ordered that the Secretary of State be joined, as the substantive appeal would go to the lawfulness of detention. As for the other grounds advanced on the appeal, permission was refused. Notwithstanding that conclusion, the Parole Board remain a party to the litigation.

I deal first with the submission, advanced by Ben Collins on behalf of the Parole Board, that in the light of the limited permission granted to pursue this appeal, the case against the Parole Board should have been abandoned. Its presence is based in the history of the claim which started life as a challenge to its decision dated 21 December 2011 rejecting his application for release. That challenge has failed.

Every prisoner shall be deemed to be in the legal custody of the governor of the prison in which he is held: see s. 13(1) of the Prison Act 1952; thus responsibility in law for that prisoner and his detention falls ultimately to the Secretary of State for Justice. The Parole Board, on the other hand, has no power to review the lawfulness of the sentence. Its relevant powers are set out in s. 28 of the 1997 Act and in relation to a life prisoner in respect of whom a minimum term order has been made (which includes prisoners sentenced to imprisonment for public protection: see 34(2)(d) of the 1997 Act) in these terms:

“(5)

As soon as—

(a)

a life prisoner to whom this section applies has served the relevant part of his sentence; 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.”

There is no doubt that at the time of the various reviews, the appellant was, indeed, a life prisoner to whom the section applied and that the Parole Board was responsible for post-tariff review of the detention. There is no basis, however, for contending that the fact that the Court of Appeal (Criminal Division) subsequently quashed the sentence retrospectively affects its decisions.

Mr Rule submits that the identity of the public authority defendant in a human rights claim is not a question of fault or culpability, but of responsibility. He further submits that the responsibility for post-tariff detention is shared by the defendants: the Parole Board makes the decisions, which the Secretary of State implements. As authority for this proposition, he relies on a line of cases based upon Article 5(4) of the ECHR and delay in parole hearings. He points to Noorkoiv v Secretary of State for the Home Department and anr [2001] 1 WLR 3284 in which Buxton LJ said (para. 30):

“Mr Noorkoiv was detained by the Secretary of State, who was implementing arrangements made by the state, including the slowness of consideration by the Parole Board forced on it by the limited resources made available to it by the state. The Secretary of State cannot therefore excuse any failing under article 5(4) by pointing to policies adopted by other departments; nor, I am constrained to say, should he seek to do so.”

This, and other cases of delay (such as R (Faulkner) v Secretary of State for the Home Department and anr. [2013] 2 AC 254 and R (Betteridge) v Parole Board and anr. [2009] EWHC 1638) demonstrate that there is, indeed a shared responsibility in relation to the implementation of review decisions but this case does not impact on any decision that the Parole Board has authority by statute to make. Its responsibility was to review detention post tariff with a view to public safety; it was not, and could never be, to review the order itself. Neither statute nor the ECHR confers such authority on it.

In the light of the limited permission granted to this appellant, the case against the Parole Board is misconceived and should have been abandoned: it is dismissed.

The substantive submissions advanced by Mr Rule are that a consequence of the decision of the Court of Appeal (Criminal Division) to quash the sentence of imprisonment for public protection was to render unlawful the detention of the appellant after the tariff period less remand time (that is to say, between 28 April 2008 and 15 November 2012). Alternatively, that detention was arbitrary within the jurisprudence of Article 5(1) of the ECHR. I will deal with these arguments in turn.

Mr Rule first submits that the appellant’s post-tariff detention was unlawful as a matter of domestic law; this, he argues, is a direct result of the decision on appeal replacing his imprisonment for public protection with a determinate sentence. He does not suggest that the tort of false imprisonment is established and is correct not to do so: the warrant of commitment is sufficient justification for detention by the governor of the prison at which the appellant was detained and does not, in any event, depend on the lawfulness of the underlying sentence.

Mr Rule reverts to the original sentence and points to the requirement that there be established that the appellant posed a significant risk to members of the public of serious harm of further specified offences (see s. 225(1)(b) of the 2003 Act) and the fact that, although Judge Hall found the risk established, the Court of Appeal (Criminal Division) rejected his analysis. The result of this conclusion, so it is argued, is that the original sentence was beyond the statutory power of the Crown Court, or outside its jurisdiction. This is to be distinguished from a sentence that is quashed only on the grounds that it is manifestly excessive or wrong in principle. In consequence, detention pursuant to the Crown Court sentence was unlawful.

It is appropriate to start with an analysis of the powers of the Court of Appeal (Criminal Division) contained within s.11(3) of the Criminal Appeal Act 1968 (‘the 1968 Act’) in these terms:

“(3)

On an appeal against sentence the Court of Appeal, if they consider that the appellant should be sentenced differently for an offence for which he was dealt with by the court below may—

(a)

quash any sentence or order which is the subject of the appeal; and

(b)

in place of it pass such sentence or make such order as they think appropriate for the case and as the court below had power to pass or make when dealing with him for the offence;

but the Court shall so exercise their powers under this subsection that, taking the case as a whole, the appellant is not more severely dealt with on appeal than he was dealt with by the court below.”

If the Crown Court has passed a sentence that it had no power to impose (such as by exceeding the maximum sentence prescribed by law, or a sentence on an individual who was not of an age that permitted such a sentence), in that sense, the sentences imposed were unlawful i.e. in excess of jurisdiction. Much more commonly, however, the Court of Appeal differs in its assessment of the merits of a particular case. The test ‘wrong in principle or manifestly excessive’ underlines that, in the judgment of the court, without justification, the sentence either falls outside the relevant principles or guidelines or, in the opinion of the court, is otherwise out of step with sentences for that particular offence. It is not sufficient that the court would have passed a different sentence.

In this case, there is no question but that Judge Hall acted within the jurisdiction of the Crown Court when imposing the sentence of imprisonment for public protection: causing death by dangerous driving was a specified offence and he was required to reach a judgment (which is what it was) on the issue of dangerousness. For my part, although the Court of Appeal disagreed, it was, at the very least, understandable that the judge concluded that a man who had so disregarded the road traffic laws to have been disqualified some 16 times and had, for the second time, been involved in driving at a dangerous speed (the first during the car chase with the police) posed a significant risk of being involved in a further episode of speedy dangerous driving leading to loss of life.

In any event, the language used must not mask the effect of the sentence when passed as to which there is a long line of authority. In R v Cain [1985] AC 46, the House of Lords considered jurisdiction to appeal a criminal bankruptcy order where it was contended that the Crown Court had exceeded the power conferred by Parliament. Lord Scarman (with whom the other members of the House agreed) set out the approach (at 55C):

“The terms used to formulate the law by the judges of the Court of Appeal (which include myself in Wehner's case) have not been happy. They have spoken of orders being void or null for lack of jurisdiction in the court to make them. But you cannot describe as a nullity an order made by a superior court of record, which is what the Crown Court is: section 4(1) of the Courts Act 1971. Nor is the question really one of jurisdiction: it is a question whether the court has exceeded its power. An order of the Crown Court, once made, may be in excess of its statutory power or otherwise irregular. But it is not a nullity. And it would undermine the authority of the criminal law if orders made by the highest court of trial in criminal matters could be disregarded as nullities. The order of the Crown Court stands unless and until set aside by the court itself upon application or, if appeal lies, by the appellate tribunal to which the appeal is taken.”

This reasoning was applied in R v Reynolds and ors [2008] 1 WLR 1075 in which the Crown Court had passed an extended sentence when the legislation mandated a (more severe) sentence of imprisonment for public protection. Being unable to increase the sentence, Latham LJ put the matter in this way (at para. 23):

“If the sentence in question had not been appealed, the sentence would have been a perfectly valid and effective sentence. As Lord Scarman explained in R v Cain [1985] 1 AC 46, at page 55, a sentence of a Crown Court cannot be a nullity. It remains an effective order unless and until varied or quashed. An extended sentence, for example, passed when there should have been an indeterminate sentence, therefore remains a perfectly valid and effective sentence. … Further, … an extended sentence is within the powers of the court. In that sense, also, it is not an ‘unlawful’ sentence.”

Finally, following the same line, in R (Modhej and anr) v Secretary of State for Justice [2012] EWCA Civ 957, sentences of imprisonment for public protection passed prior to changes to the 2003 Act were replaced in the Court of Appeal by extended sentences after the change in the law which mandated automatic release after half the custodial term. It was argued that the release provisions in place at the time of the hearing in the Court of Appeal applied. In this court, it was held that the effect of s.11(3)(b) of the 1968 Act was that the sentences of the Court of Appeal effectively replaced those of the lower court: this did not render the original sentences void ab initio. Lord Judge CJ observed (at para. 14):

“The question for decision is whether the claimants were ‘sentenced’ under the dangerous offender provisions in the 2003 Act when the amendments were brought into force. The short answer is that they were. They continued in force and governed the detention of the appellants until the moment when they were substituted by the sentence ordered in the Court of Appeal. The appeals against sentence, although successful on the grounds that the sentence was excessive, did not nullify the sentences imposed in the Crown Court. They simply replaced them. Accordingly the provisions in the 2008 Act were ‘of no effect’ in the relation to them.”

In the light of this analysis, I have no doubt that the appellant remained subject to imprisonment for public protection until the Court of Appeal allowed his appeal and reduced the sentence to the determinate term. Furthermore, the other domestic authorities cited in support of the proposition that a quashed sentence is unlawful and rendered of no effect do not support the contrary proposition. Mr Rule’s submissions were over-laden with excessive citation of authorities, clearly distinguishable by reference to the subject matter: I address only two.

TTM v London Borough of Hackney and ors [2011] 1 WLR 2873 concerned the operation of the scheme for compulsory admission for treatment pursuant to s. 3 of the Mental Health Act 1983 in circumstances in which the nearest relative had objected to admission so that the criteria for continued compulsory detention were not met. Not surprisingly, the patient was entitled to claim damages for unlawful detention. Similarly, R (Evans) v Governor of HMP Brockhill (No. 2) [2001] 2 AC 19 concerned the incorrect calculation of a release date which fell to be determined by the Governor and led to a finding of unlawful detention: there was no challenge to the sentence.

Neither is Mr Rule assisted by the ECHR jurisprudence. Article 5(1)(a) provides:

“Everyone has the right to liberty and security of person. No one shall be deprived of his liberty save in the following cases and in accordance with a procedure prescribed by law:

(a)

the lawful detention of a person after conviction by a criminal court…”

Although detention must not be otherwise arbitrary, lawfulness refers to detention rather than the conviction and will, in principle, be lawful if imposed pursuant to a court order: see Benham v UK (1996) EHRR 293 at para 42.

Benham also makes it clear that detention following sentence by a magistrates’ court is capable of being unlawful although error will not necessarily retrospectively affect the lawfulness of detention. Thus, although detention following an order which has no foundation in law because of a failure to observe a statutory condition precedent is in excess of jurisdiction, acts of a magistrates’ court which were within its jurisdiction were valid and effective unless or until they were overturned by a superior court: see para. 43. This decision is not inconsistent with the decision in Cain and, for the reasons set out above, does not assist the appellant.

More on point is Krzycki v Germany [1978] 13 DR 57 in which the Commission was concerned with compensation for preventative detention after a successful appeal against revocation of provisional release from detention. Although factually different from the present case, the principles were expressed in these terms (at page 11):

“This Commission is of the opinion that the situation is comparable to that of a person who has been imprisoned after having been convicted and sentenced and whose conviction is later quashed following an appeal or a request for a retrial.

“Art. 5(1)(a) does not require a ‘lawful conviction’ but only speaks of ‘lawful detention’. This detention must be ordered ‘in accordance with a procedure prescribed by law’ as Art. 5(1) lays down. Consequently the Commission has always refused to consider applications of prisoners who have been convicted and sentenced in accordance with a procedure prescribed by law and who complain that their conviction was based on error of law or fact (Decisions on the admissibility of Applications Nos 45859, Yearbook 3, pp. 222, 232; 1140/61, Coll. Of Dec. 8, pp. 57, 62).

“The Commission has also held that a national court’s decision setting aside a conviction did not retroactively affect the ‘lawfulness’ of the detention following that conviction (Decision on the admissibility of Application No. 3245/67, Yearbook 12, pp 208, 236; cf. also Decisions on the admissibility of Applications Nos. 367/58 and 2932/66, Coll. Of Dec. 31, pp. 8, 14).”

Thus, an appeal decision quashing a sentence does not render detention pursuant to that sentence unlawful within Article 5(1).

I turn to the second limb of Mr Rule’s argument that, as a consequence of the decision of the Court of Appeal, the appellant’s detention has been arbitrary. James and ors v United Kingdom (2013) 56 EHRR 12 concerned delay in the provision of (or failure to provide) work to allow indeterminate prisoners who had passed tariff to demonstrate that they did not pose a risk to the safety of the public. The proposition is simply articulated (at para. 191) that:

“having regard to the object and purpose of Article 5(1) … it is clear that compliance with national law is not sufficient in order for a deprivation of liberty to be considered “lawful”. Article 5(1) also requires that any deprivation of liberty should be in keeping with the purpose of protecting the individual from arbitrariness…”.

The court set out a number of situations where lawful detention may become arbitrary. In relation to detention for public protection, it found that, to avoid arbitrariness, there must be a causal link between the continuing detention and the original sentence. Mr Rule submits that if the original sentence was unlawful, there cannot be a causal link; lawful sentences are capable of being arbitrary, so a fortiori unlawful sentences must be.

For the reasons set out above, I do not accept the hypothesis that the Crown Court sentence was unlawful. As for the proposition that the causal link is broken, the basis for the proposition in James (at para. 195) is that:

“… in circumstances where a decision not to release or to re-detain a prisoner was based on grounds that were inconsistent with the objectives of the initial decision by the sentencing court, or on an assessment that was unreasonable in terms of those objectives, a detention that was lawful at the outset could be transformed into a deprivation of liberty that was arbitrary (see Grosskopf, cited above, §§ 44 and 48; Weeks, cited above, § 49; and M. v. Germany, cited above, § 88)…”

That is not the case here. As Tom Cross for the Secretary of State submits, at all times, the detention of the appellant was justified by reference to the objectives of the sentence which he was then serving and the requisite causal link was present. That objective was concerned with the risk identified by the trial judge and it is not irrelevant that, as recently as 5 October 2010, the Parole Board was concerned that the appellant’s “drug misuse, poor thinking skills, and risk-taking behaviour continue to be evident in custody”. That the Court of Appeal decided that the criteria of dangerousness were not met did not mean there was no risk to the safety of the public and neither did it retrospectively affect the compatibility of his detention with Article 5.

Therefore the appellant must fail on this limb too. If, as is submitted, arbitrariness is predicated on unlawfulness, he cannot succeed in relation to the sentence of the Crown Court. Further, the implications of the submission are striking for I can see no basis for distinguishing this case from any other in which the Court of Appeal (Criminal Division) reduces a custodial sentence below that which the prisoner has then served: that is a greater risk when appeals are mounted out of time. If Mr Rule is right, in every such case, a claim for damages for unlawful detention could arise. Such an outcome would be surprising and unsatisfactory.

It is important to underline that the appellant was not left without a way of challenging the sentence imposed upon him. An appeal against sentence should be mounted within 28 days of sentence and it was certainly open to him to seek leave to appeal to the Court of Appeal (Criminal Division) well before the expiry of the minimum term to which he was subject or, indeed, thereafter when Mr Rule was instructed. That he did not may reflect the recognition of the risk posed which Judge Hall identified. The fact that a different view was eventually taken when an appeal was mounted does not affect the lawful justification for his detention prior thereto.

In my judgment, this appeal is misconceived. It should not have been pursued against the Parole Board and, in respect both of the Board and the Secretary of State, should be dismissed.

I agree.

I also agree.