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

The Claimant is a Life Prisoner to whom Section 28 of the Crime (Sentencing) Act 1997 applies. He challenges the decision of the Secretary of State for the Home Department that his next review should take place 15 months after his transfer to open conditions where the Discretionary Lifer Panel of the Parole Board recommended that his next review take place 9 months after his transfer to open conditions.

The Claimant was born in April 1971.

In May 1986 he pleaded guilty to an offence of aggravated arson contrary to Section 1(2),(3) of the Criminal Damage Act 1971. The Court ordered that he be detained for life. A recommendation was made that he serve 3 years detention as the ‘relevant part’ of the sentence. That recommendation was accepted.

On the 14^th January 1989 the 3 year period expired.

On the 2^nd November 1989 Clough was released on licence.

On the 20^th April 1990 the Secretary of State for the Home Office revoked Mr. Clough’s licence following

He was held in a Young Offender Institution. The Discretionary Lifer Panel was to consider his case in March 1993 but Mr. Clough absconded whilst on a home visit on the 14^th December 1992.

He surrendered to custody in February 1993. In May 1993 he entered the adult prison system. The Discretionary Lifer Panel considered his case in October 1993 but did not order his release.

On the 12^th November 1993 the Discretionary Lifer Panel did not direct Mr. Clough’s release.

On the 23^rd September 1996 Mr. Clough was transferred to a Category C Prison following a recommendation of the Discretionary Lifer Panel.

A further review took place on the 14^th October 1997: no recommendations were made.

On the 7^th December 1999 the Discretionary Lifer Panel recommended that Mr. Clough be transferred to open conditions and that his case be reviewed in 2 years. At paragraph 5 of their report dated the 10^th December 1999 (p55) the Panel stated:

“A review in two years would allow sufficient time to enable you to prepare for your release particularly, in the light of your institutionalisation, and to demonstrate that you can now be trusted not to abscond in the light of your previous history.”

On the 9^th May 2000 Mr. Clough was transferred to open conditions and on the 20^th August 2000 he absconded. He was arrested and returned to secure conditions in September 2000.

On the 16^th February 2001 the Discretionary Lifer Panel directed he remain in closed conditions until the next review.

In September 2001 he was transferred to a category C prison.

On the 11^th July 2002 the Discretionary Life Panel considered Mr. Clough’s case again. On the 15^th July the Panel recommended:

By letter of the 6^th August 2002 the Lifer Unit of the Home Department informed Mr. Clough:

On the 20^th August 2002 solicitors acting for Mr. Clough requested that he be located near his family and requested the Secretary of State to give reasons for his variation of the Panel’s recommendation. Reasons were given in a letter of the 23^rd August 2002. In that letter the author states that Mr. Clough must undertake the Reasoning and Rehabilitation Course at H.M.P. Wealstun, that transfer directions would be issued shortly and that a review should take place 15 months after transfer.

By the 4^th September the Prison authorities had realised that the Reasoning and Rehabilitation Course was not available in the open part of Wealstun Prison, and proposed to transfer Mr. Clough to H.M.P. Sudbury. That prison is in Derbyshire and consequently further removed from Mr. Clough’s home. The transfer could not be achieved until January 2003.

Solicitors acting for Mr. Clough made further submissions. The Prison authorities decided that Mr. Clough should undertake the course in closed conditions and then be transferred to open conditions. Necessarily, his review by the Discretionary Lifer Panel would take place 15 months from date of transfer.

On the 16^th September Mr. Clough’s solicitor sent a letter before claim and on the 7^th October 2002 the claim form was issued.

On the 22^nd November 2002, Mr. Clough having completed the appropriate course was transferred to an open prison.

The summary of the Claimant’s case set out in Mr. Gledhill’s skeleton argument reads:

Section 28 of the Crime (Sentencing) Act.

(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.

(7)

A life prisoner to whom this section applies may require the Secretary of State to refer his case to the Parole Board at any time:

a)

after he has served the relevant part of his sentence; and

b)

where there has been a previous reference of his case to the Board after the end of the period of two years beginning with the disposal of that reference; and

c)

N.A.

and in this subsection “previous reference” means a reference under subsection (6) above or Section 32(4) below.

Section 32 Criminal Justice Act 1991.

(1)

There shall continue to be a body to be known as the Parole Board (“the Board”) which shall discharge the functions conferred on it by this Part.

(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.

(4)

The Board shall deal with cases as respects which it gives directions under this Part on consideration of all such evidence as may be adduced before it.

(5)

Without prejudice to subsection (3) and (4) above, the Secretary of State may make rules with respect to the proceedings of the Board, including provision authorising cases to be dealt with by a prescribed number of its members or requiring cases to be dealt with at prescribed times.

(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.

(7)

Schedule 5 to this Act shall have effect with respect to the Board.

Article 5(4) of the European Convention on Human Rights and Fundamental Freedoms.

“5(4) Everyone who is deprived of his liberty by arrest or detention shall be entitled to take proceedings by which the lawfulness of his detention shall be decided speedily by a Court and his release ordered if the detention is not lawful.”

Mr Gledhill’s submissions i) That when properly construed, the provisions of Section 28(7) Crime (Sentencing) Act 1997 do not allow the Home Secretary to choose when a discretionary life sentence prisoner should be able to apply to the Parole Board but merely provide a mechanism for referral.

The effect of Section 28 of the Crime (Sentencing) Act 1997 in relation to this case.

The effect of Section 32 Criminal Justice Act. 1991.

It is convenient to mention here that the Secretary of State used to ask the Parole Board for advice as to the timing of the next review. He ceased to do so before the Parole Board considered Mr Clough’s case. However the Parole Board were asked to advise on this aspect in respect of Mr Clough but only because the referral was sent on the form which pre-dated the Secretary of State’s decision. That was an error but nonetheless the Parole Board responded.

It would seem that the motive for this change of policy was to avoid or at least hamper applications of the sort made by Mr. Clough. That change does not affect this decision. I comment only that it seems unfortunate and unnecessary for the Secretary of State to deprive himself of what may be valuable advice.

Oldham v United Kingdom (2001) 31 EHRR 813

It was accepted by the Court that Article 5(4) requires not only that the competent Court must reach its decision ‘speedily’ but also that when an automatic review of the lawfulness of detention has been instituted the reviews must occur at ‘regular intervals’. The Court noted that in practice the system of review of discretionary life prisoners involves automatic reviews set at periods of 2 years or less, at the direction of the Secretary of State who may or may not have received a recommendation as to timing by the Discretionary Life Panel at the previous review. At para 31 the Court said

“It is true that the question of whether periods comply with the requirement must – as with the reasonable time stipulation in Art 5(3) and 6(1) – be determined in the light of the circumstances of each case. It is therefore not for this Court to attempt to rule as to the maximum period which should automatically apply to this category of life prisoner as a whole. It notes that the system as applied in this case has a flexibility which must reflect the realities of the situation, namely that there are significant differences in the personal circumstance of the prisoners under review.”

The Court also noted that whilst the Secretary of State could bring forward the date of the review and that the Discretionary Lifer Panel could recommend earlier review, there was no machinery for the prisoner to apply for early review.

The Court did not consider whether the fixing of the date of review was a judicial or administrative function. They did take into account the fact that the prisoner could not apply for an early hearing when considering the reasonableness of the period. Mr Kovats, Counsel for the Defendant, relies upon the absence of that consideration in circumstances where the Court could have considered it, had they chosen to do so. He points out that there is no consideration of the point in any of the cases cited, save in R(John Spence) v. The Secretary of State for the Home Office Neutral Citation No [2002] EWHC 2717 (Admin). In that case Mr Justice Newman upheld the legality of the present system. Mr Gledhill argues that the Claimant’s case then was wrongly argued and the decision consequently was in error.

Both parties agree that it follows from Oldham that the decision as to the release of the prisoner:

It is accepted that the decision by the Secretary of State as to the date of the Review is susceptible to judicial review.

The position (save as to the timing of the next review) is accurately summarised in the judgement of Lord Justice Peter Gibson in R(MacNeil) v. Parole Board Neutral Citation No. [2001] EWCA Civ. 448 Para 3.[2001] Prison Law Reports 246.

“If it (Discretionary Lifer Panel) decides not to direct release, it frequently gives a recommendation as to the timing of the next review. That is only a recommendation and the decision whether to accept that recommendation is taken by the Secretary of State. If the prisoner seeks an early review, he can make representations to the Secretary of State whose decision can be challenged by judicial review. The Secretary of State, of his own motion, can direct an earlier review ”

There is no mechanism whereby a discretionary life sentence prisoner can apply to the Parole Board. The Prisoner’s case comes before the Parole Board only by the Home Secretary’s referral. The prisoner may make submissions as to the timing of his next review a) to the Parole Board at his review hearing and b) to the Secretary of State at any time. The prisoner can require the Home Secretary to refer his case to the Parole Board if he has served the relevant part of his sentence and, when there has been a previous referral of his case, after the end of the period of two years beginning with the disposal of that referral.

In my judgement the terms of Section 28(7) read in conjunction with Section 32 make it plain that only the Secretary of State can refer the prisoner’s case to the Parole Board and as a matter of necessary consequence, only he can choose the period at the expiry of which the Board will consider the prisoner’s case. The exact date is a matter for the Parole Board.

Mr Gledhill’s submissions ii) The Home Secretary is not entitled to delay referral beyond the date suggested by the Board; to give the executive this power is a breach of the common law rule as to the right of access to the Courts, and nothing in the statutory language gives this exclusive power to executive. and iii) This is reinforced by Art. 5(4) and either directly or by analogy, Art. 6 European Convention.

The statute plainly governs access to the judicial body. As appears from Section 28(7) of the Crime (Sentencing) Act 1997 the prisoner can enforce access after two years has expired from his previous referral. Otherwise it is for the Secretary of State to decide. His decision must be reasonable and is subject to judicial control if it is not.

Mr Gledhill has relied on the case of R v. Lord Chancellor ex p. Witham [1998] QB 575. In that case, Mr Justice Laws (as he then was) said:

“It seems to me, from all the authorities to which I have referred, that the Common Law has clearly given special weight to the citizen’s right of access to the Courts. It has been described as a constitutional right, though the cases do not explain what that means. In this whole argument, nothing to my mind has been shown to displace the proposition that the executive cannot in law abrogate the right of access to justice unless it is specifically so permitted by Parliament; and this is the meaning of the constitutional right.”

At face value Mr. Gledhill may gain some support from that passage although Mr Kovats argues that Parliament, by the statute has arrogated the right of access to the Home Secretary.

The passage that immediately follows the above supports Mr Kovat’s submission:

“But I must explain, as I have indicated I would, what in my view the law requires by such a permission. A statute may give the permission expressly; in that case it would provide in terms that in defined circumstances the citizen may not enter the Court door.”

As I have already found, the terms of Section 28(7) are clear. Access is provided in defined circumstances.

Article 6 provides that everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law,

I have been referred to Aerts v. Belgium 1998 29 EHRR 50. The Court, having found a breach of Art 5(1) went on to consider if there had been a violation of Article 6(1) of the convention. The basis of the complaint was that:

Mr Gledhill seeks to draw a comparison between the case of Mr Aerts and the case of Mr Clough. He argues that Mr Clough has been denied access to a Judicial body just as Mr Aerts was. I do not accept the validity of the comparison. Mr Aerts was denied any access to the Court of Cassation. Mr Clough can trigger a referral to the Parole Board after the expiry of a two year period. He can make representation to the Secretary of State at any time. He can make representations to the Discretionary Lifer Panel.

Mr Kovats has referred me to para 59 of the judgement where the Commission quoted with approval a passage from Ashingdane v. United kingdom 7 EHRR 528. In that case the Court reiterated that Section 6(1) secures to everyone the right to have any claim relating to his civil rights and obligations brought before a Court. At para 55 the Court said:

“This ‘right to a Court’ of which the right to access is an aspect, may be relied on by anyone who considers on arguable grounds that an interference with by executive of his (civil) rights is unlawful.

“56.

The applicant did have access to the High Court and then to the Court of Appeal only to be told his actions were barred by operation of law. To this extent, he thus had access to the remedies that existed within his domestic system.

“57.

This of itself does not necessarily exhaust the requirements of Art 6(1). It must still be established that the degree of access afforded under the national legislation was sufficient to secure the individual’s ‘right to a court’ having regard to the rule of law in a democratic society.

“58.

Certainly the right of access to the Courts is not absolute but may be subject to limitation; these are permitted by implication since the right of access, ‘by its very nature calls for regulation by the State, regulation which may vary in time and place according to the needs and resources of the community and of individuals.’ In laying down such regulation, the contracting states enjoy a certain margin of appreciation. Whilst the final decision as to observance of the convention’s requirements rest with the Court, it is no part of the Court’s function to substitute for the assessment of the national authorities any other assessment of what might be the best policy in this field.

“59.

Nonetheless, the limitations applied must not restrict or reduce the access left to the individual in such a way or to such an extent that the very essence of the right is impaired. Furthermore, a limitation will not be compatible with Art 6(1) if it does not pursue a legitimate aim and if there is not a reasonable relationship of proportionality between the means employed and the aim sought to be achieved.

It is possible to extract from these passages the following propositions

In my judgement there is a very obvious need to control the right of access to the Discretionary Lifer Panel of the Parole Board. If there were no limitation, one unsuccessful application for review could be followed immediately by another ad infinitum. The undesirable effect of such uncontrolled access does not need to be spelt out.

The question then arises as to whether the ‘two year’ restriction is such as to impugn upon the very essence of the rights of access. If it were a fixed period then, on the authorities, it seems likely it would. But it is not: it is a maximum or a fail-safe mechanism. Access is governed by the exercise of the judgement of the Secretary of State, advised by the Parole Board (where they are asked) and subject to the supervision of the High Court.

R (Spence) v. Secretary of State for the Home Office.

Mr Gledhill submits that there is a rational basis for outlawing the judgement of the Secretary of State namely that provided by his submissions at i), ii) and iii) above.

At para 12 Newman J. referred to the evidence of Mr Watts. That gentleman occupied a similar position to Mr McMurdo in the lifer unit of H.M. Prison Service Headquarters and his witness statement provided the evidence relied on by the Secretary of State just as Mr McMurdo’s statement does in this case. He said:

“In an important respect his statement presents a factual basis for the contention that the Secretary of State is in a better position to determine the timing of reviews than the Board. The question of timing depends upon the decision maker having a detailed knowledge as to the current functioning of the prison estate. Together with knowledge and timing of coursework and other offence risk related work available and likely to be needed within the prison estate at any particular time. According to the evidence and submissions to the court these matters are almost exclusively so far as the detail is concerned, within the knowledge of the Lifer Unit in the Home Office and outside the knowledge of the Board.”

Mr Gledhill submits that the evidence before the Secretary of State is almost the same as that put before the Discretionary Lifer Panel. In so far as it differs, the material as to the current functioning of the prison estate, the knowledge of and timing of course work and other case related work can all be put before the Panel for consideration. He argues that the fallacy of this approach is illustrated by what happened in the case of Mr Clough, between the decision of the Secretary of State and his eventual placement in open conditions.

Mr Kovats has countered this argument by pointing out that what the Panel has is in effect a ‘snapshot’ of the prisoner at the date of review. I do not find the term snapshot helpful. The material put before the Panel is extensive and covers the whole of the prisoner’s life up to and including the period immediately before the review. The decision of the Panel as to risk and, if asked, as to the transfer to open conditions and date of next review although based upon what has happened in the past is predictive. However, the argument that the additional material could be conveniently put before the Panel ignores the reality of the situation which must be judged. The details of the ‘prison estate’ are of necessity fluid. For example, the prison population, the availability of courses, the availability of places in open conditions may vary from day to day. So may the ‘fitness’ or state of the prisoner.

Because the circumstances of the prisoner and the state of the prison estate are both potentially volatile it is important that the decision as to referral be capable of re-consideration and if necessary variation. A decision by the Discretionary Lifer Panel would be fixed.

In short terms, in my judgement there are advantages in the decision as to timing of the next review being retained by the executive.

At para 15 Newman J. dealt with the Claimant’s principle argument which was that the delay in the timing of review should be regarded as analogous to a sentencing exercise. [In my copy of the judgement it say “timing of release” I think this must be ‘review’]. Mr Gledhill does not adopt that argument.

At para 17 Newman J said:

“In my judgement the claimant’s fundamental rights are sufficiently protected by the requirement to be derived from Article 5(4), that the lawfulness of his detention must be reviewed at reasonable intervals (see Lord Phillips MR MacNeil v HM Prison Discretionary Lifer CA Transcript 21^st March 2001). There is no basis in domestic law for the conclusion that the Board must set the timing of reviews. There is no basis for concluding that the decision to require the claimant to be exposed to open conditions, for eighteen months is, in all the circumstances of his case, an infringement of the requirement that his reviews be at reasonable intervals.”

With that paragraph I respectfully agree. The restrictions on access do not restrict or reduce access to such an extent that the very essence of the right is impaired.

Mr Gledhill’s Submissions. iv) The date chosen in Mr Clough’s case is unreasonable.

The first point for this Court to bear in mind is that the Panel did not order release: they found that Mr Clough had not shown that there was no risk to the public. That decision is not challenged.

Next, it is clear that the Secretary of State exercised a judgement having accepted the Panel’s assessment as to risk. As Newman J. said in Spence’s case at para 13:

“There was scope for him (the Secretary of State) to exercise a judgement which differed from the Board on the material considered by the Board and no other material, namely a judgement as to how the risk identified by the Board could be reduced by and within a further period of detention. Two decision makers having experience of prison conditions and prisoners could reasonably differ as to how long it was necessary to properly test and assess a prisoner.”

Mr Gledhill has made a variety of attacks upon Mr McMurdo’s statement supporting the decision of the Secretary of State. In approaching this case I accept and adopt the propositions advanced by Newman J. above. Consequently I am not going to deal with all of Mr Gledhill’s criticisms, only those which in my judgement go to the heart of the decision.

In support of his arguments Mr Gledhill has seized upon a sentence in the statement of Mr McMurdo a senior manager of the Lifer Unit of H.M. Prison Service Headquarters. He is Head of Caseworker Section which actually sets the date for the next review of Life Sentence Prisoners. The sentence is at para 5 of Mr McMurdo’s statement:

“It is vital, however, to ensure that the prisoner has sufficient time to demonstrate his fitness for release on life licence before the issue is considered by the Parole Board.”

Mr Gledhill submits that this means that the prisoner must have demonstrated his fitness for release before the review. That is not what Mr McMurdo actually says. There is a difference between giving an applicant time to demonstrate his fitness and the actual finding of fitness. A man given a fixed period before his next review may demonstrate his fitness at any time during that period. He may demonstrate that he is not fit for release at all. It is plainly important and certainly not unreasonable that sufficient time is given so that i) the prisoner’s position is clear and ii) the time of the Parole Board and the Prison establishment is not wasted on premature reviews.

Mr Gledhill points out that with the possible exception of the incident which led to Mr Clough’s recall on the 20^th August 1990 (see para. 6 above) Mr. Clough has not re-offended. This has included periods when he has been ‘at liberty’ having absconded.

He refers to paragraphs 5 & 6 of the Board’s decision:

“5.

The Panel did not believe at this stage, that the risk is such that you can safely be released. The reports make it clear that there is still work to be done before you can be released into the community. In particular it is necessary for there to be a period when you can be tested and monitored in open conditions so as to ensure that you can cope with re-settlement into the community. There also needs to be sufficient time for a release plan to be put in place.”

“6.

In the circumstances, in order to give sufficient time for this to take place the Panel recommended a further review, 9 months from the date of transfer. In setting this time for review the Panel wishes to stress that in its view it is highly desirable for you to be transferred to open conditions within a very short period of time.”

I comment that what is desirable and what is practicable are two different things. About the second, what is practicable, the judgement is peculiarly. within the remit of the Secretary of State, as is illustrated by this case.

Mr Gledhill argues that these requirements do not address re-offending. In my judgement that argument gives no regard to two particular aspects. It ignores the finding as to risk and it fails to recognise that it is often when an offender fails to cope with re-settlement that further offences or other inappropriate behaviour occur.

Having considered the approach adopted by Mr McMurdo as set out in his witness statement and the material upon which he exercised his judgement I am quite unable to say that his decision was not reasonable.

It follows that I reject Mr Gledhill’s submissions challenging the decision of the Secretary of State for the Home Department.