Black, R (on the application of) v Secretary of State for Justice

The claimant is a category A prisoner serving a 24 year sentence for a number of offences. He seeks to challenge a decision of the Secretary of State for the Home Department (“the SSHD”) dated 29 August 2006 to reject a recommendation by the Parole Board that the claimant be released.

On 27 July 1995 the claimant was sentenced to a total of 20 years’ imprisonment for offences of false imprisonment, kidnapping, conspiracy to kidnap and robbery. He also received a sentence of 2 years for the offence of possession of a firearm with intent to commit an indictable offence, which was to run concurrently with the 20 year sentence.

On 8 January 1996 the claimant was sentenced to a term of 4 years’ imprisonment for the offences of escaping from custody and assault with intent whilst he was being conveyed from the Central Criminal Court to HMP Belmarsh. The claimant threatened the prison staff with a home-made weapon (razor blades stuck into a toothbrush) and escaped. The sentence of 4 years was directed to be served consecutively to the 20 year sentence.

The claimant has a long history of offending. He has committed offences in Denmark, Switzerland and Portugal. He received a term of 7 years’ imprisonment for a stabbing offence in Portugal.

On 2 May 2006 the Parole Board recommended the claimant’s release on licence.

On 29 August 2006 the SSHD declined to release the claimant. He did not accept the Parole Board’s recommendation. The SSHD had before him the same material as was before the Parole Board, but he reached a different conclusion on that material about the degree of risk posed by the claimant to public safety. In particular, the SSHD noted that the claimant had been assessed as posing a medium risk of re-offending and that his recent improvement in behaviour had taken place in a very secure environment. The public would be placed in real danger were the claimant to re-offend in the same manner as he had done previously. The psychological report of Dr Stevens had identified that further work was required and the SSHD noted that only one accredited offending behaviour course had been completed. The level of violence used by the claimant in the index offences, the use of physical violence that had led to proven adjudications during the early part of his sentence, his conviction for assault with intent to escape and other factors led the SSHD to conclude that his risk had not been sufficiently reduced and he should not be released.

The claimant does not contend that the risk analysis as such made by the SSHD was not one legally open to him.

On 21 December 2006 the claimant filed this application for judicial review. He sought:

On 26 January 2007 Mitting J granted permission to apply for judicial review.

On 14 May 2007 the application came before me for hearing. Just before the hearing the claimant had given notice that, in the light of the Court of Appeal judgment in R (Johnson) v The Secretary of State for the Home Department [2007] EWCA Civ 427 (“Johnson”), handed down on 9 May 2007, he wished, in addition to the grounds pleaded in the claim form, to rely on article 5(4) of the European Convention on Human Rights (“the ECHR”), as given effect by the Human Rights Act 1998 (“the HRA”). At the hearing on 14 May 2007 the SSHD sought an adjournment for time to consider and to respond to the argument under article 5(4). I granted the adjournment sought and the application was in the event heard on 28 June 2007, both parties having in the meantime submitted supplementary skeleton arguments dealing with the application of article 5(4).

Section 35(1) of the Criminal Justice Act 1991 (“the Act”) provides that once a long-term prisoner (4 years or more) has served one-half of his sentence, the SSHD may, if recommended to do so by the Parole Board, release him on licence. In other words, the SSHD has no power to release if there is no recommendation by the Parole Board. If there is a recommendation, the SSHD has a discretion to decide whether to release. If not otherwise released earlier, the SSHD must release a long-term prisoner on licence at the two-thirds point of his sentence.

In respect of long-term prisoners who have been sentenced to a term of less than 15 years, the SSHD is obliged to release such a prisoner on licence if recommended to do so by the Parole Board: section 50(1), (2) of the Act and paragraph 2 of the Parole Board (Transfer of Functions) Order 1998 (SI 1998/3218) (“the 1998 Order”).

The above provisions do not apply to prisoners who have been sentenced in respect of offences committed on or after 4 April 2005. The relevant provisions of the Criminal Justice Act 2003 (“the CJA 2003”) apply. By section 244 of the CJA 2003 all prisoners serving a determinate period of custody (unless serving extended sentences) are automatically to be released after serving one half of their sentence (with the SSHD’s discretion being limited to releasing them up to 135 days earlier), on licence until the end of their sentence.

The net result for present purposes is that the SSHD has no say in the release of any prisoner serving any kind of indeterminate sentence, or of any prisoner serving a determinate sentence, unless in the latter case the prisoner was sentenced to a term exceeding 15 years for an offence committed before 4 April 2005 or the prisoner seeks release up to 135 days early under the CJA 2003. The claimant, of course, falls within the exceptional category, and is therefore in precisely the same position as was the claimant, Mr Clift, in R (Clift) v Secretary of State for the Home Department, Secretary of State for the Home Department v Hindawi, Secretary of State for the Home Department v Headley (Combined Appeals) [2006] UKHL 54; [2007] 2 WLR 24 (“Clift and others”).

In Clift and others Lord Bingham said of this exceptional category of prisoners:

“33.

When, in October 2002, the Secretary of State rejected the Parole Board’s recommendation that Mr Clift be released on parole, discretionary lifers and HMP detainees had already been brought within the definitive jurisdiction of the Parole Board, and Stafford v United Kingdom (2002) 35 EHRR 1121, requiring the same procedure for mandatory lifers, had already been decided. The differential treatment of prisoners serving 15 years or more had, in my opinion, become an anomaly. That would not, in itself, be a ground for holding it to be unjustified. Anomalies are commonplace. But by 2002 it had, in my opinion, become an indefensible anomaly because it had by then come to be recognised that assessment of the risk presented by any individual prisoner, in the application of publicly promulgated criteria, was a task with no political content and one to which the Secretary of State could not (and did not claim to) bring any superior expertise. I would accordingly resolve this issue in favour of Mr Clift and against the Secretary of State.”

Lord Brown of Eaton-Under-Heywood, after referring to Lord Bingham’s condemnation of the position, added:

“68.

……It follows that only those in Mr Clift’s position, a substantial but obviously dwindling number of 15 year or longer determinate sentence prisoners sentenced for offences committed before 4 April 2005, will continue to have their release dates determined by the Secretary of State.. Not only, therefore, are they now to be contrasted with lesser determinate sentence prisoners and all life sentence prisoners but they are to be contrasted too with all those whose offences were committed after 4 April 2005. Such discrimination in their cases is plainly unjustifiable (although not actually unlawful because, as stated, they do not have the “status” to complain under article 14) and it is difficult to see why the Secretary of State would wish to perpetuate it.

“69.

I add only this. Under the 2003 Act the Secretary of State has surrendered his discretion (save in respect of 135 days) with regard to all determinate sentence prisoners whose offences were committed after 4 April 2005, ie those subject to removal no less than nationals. The anomaly in the case of Mr Hindawi and Mr Headley, therefore, has similarly become more plainly indefensible. Given that the House is now to declare the legislation which still affects these two appellants to be incompatible with their Convention rights, the Secretary of State will surely wish to consider whether the time has not now come to leave all future decisions as to release on licence (fewer, of course, under the 2003 Act than in the past) exclusively to the Parole Board.”

Mr Southey, who appeared on behalf of the claimant, made three submissions why the challenged decision of the SSHD should not stand.

First, he submitted that, following Johnson, article 5(4) of the ECHR applied directly to the relevant provisions concerning early release and that by such direct application early release had to be determined both speedily and by a judicial body independent of the executive, such as the Parole Board.

Secondly, he argued that to cure the unjustified anomaly referred to in the passages from Clift and others that I have cited above, the SSHD must always exercise his power under section 35(1) of the Act so as to accept a favourable recommendation made by the Parole Board in respect of those prisoners in the exceptional position of the claimant. Given the unjustified anomaly, it would be irrational, and hence unlawful, for the SSHD to reject a favourable recommendation in respect of any prisoner serving a sentence of 15 years or more for an offence committed before 4 April 2005.

Thirdly, Mr Southey submitted that it is unlawful for the SSHD to reject a favourable recommendation made by the Parole Board unless the SSHD has fresh material.

It is first convenient to set out article 5(4) of the ECHR:

“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”.

I believe that it is next helpful to consider R v Parole Board, ex parte Giles [2003] UKHL 42; [2004] 1 AC (“Giles”).

In Giles the issue in essence was whether the early release provisions in respect of prisoners given longer than commensurate determinate sentences under section 2(2)(b) of the Act were compatible with article 5 of the ECHR. Under the relevant provisions, namely, sections 33(5), 35(1) and 33 (2) of the Act, the claimant, as a “long- term” prisoner, was eligible for release on the recommendation of the Parole Board after serving one half of his sentence and was entitled to release after serving two-thirds of his sentence. Under section 2(2)(b) of the Act the judge could impose a term that was longer than “commensurate” with the gravity of the offence and that was in the opinion of the judge “necessary to protect the public from serious harm from the offender”. The judge was not obliged to state the length of the extended period imposed for public protection.

Under this regime it was permissible for the sentencing judge to impose a further period that was longer than the commensurate period. For example, the judge could impose a long- term sentence of 10 years, 4 of which comprised the commensurate period and 6 of which represented the further period. However, the prisoner was not eligible for release until he had served half, that is 5 years, of the 10 year sentence. That was the case, even if on a fresh judicial appraisal putatively carried out by the end of year 4 of the sentence it would have been plain that the prisoner no longer posed an unacceptable risk to public safety.

By contrast, a prisoner serving a discretionary life sentence was entitled to be released after he had served the “tariff” imposed for retribution and deterrence if the prisoner was adjudged by the Parole Board no longer to pose an unacceptable risk to public safety. In that respect the prisoner serving a longer than commensurate determinate sentence was less advantageously placed than a discretionary lifer, whose offence could well have been more serious.

The claimant in Giles, therefore, argued that, like the discretionary lifer, he was entitled, by the end of the commensurate term, to have a fresh judicial appraisal under article 5(4) of the ECHR of the risk that he posed to public safety; and that he was entitled to be released at the end of the commensurate term if on such appraisal he was adjudged no longer to pose an unacceptable risk to public safety (see the speech of Lord Bingham, at paragraphs 4 and 6).

The House of Lords unanimously rejected the claimant’s contention that the relevant early release provisions were incompatible with article 5 of the ECHR, rejecting in particular the argument based upon the alleged analogy between a longer than commensurate determinate sentence and a discretionary life sentence.

Lord Hope of Craighead, with whom all their Lordships agreed, set out in his speech an extensive review of Strasbourg jurisprudence. As an introduction to that survey, Lord Hope said:

“25.

The general rule is that detention in accordance with a determinate sentence imposed by a court is justified under article 5(1)(a), without the need for further reviews of detention under article 5(4); David Feldman, Civil Liberties and Human Rights in England and Wales, 2^nd ed (2002), p 446. Article 5(1)(a) is concerned with the question whether detention is permissible. Its object and purpose is to ensure that no one should be dispossessed of his liberty in an arbitrary fashion, and its provisions call for a narrow interpretation: Winterwerp v The Netherlands (1979) 2 EHRR 387,402, para 37. The conviction does not have to be lawful in order to satisfy this requirement, but the detention must be. This means (i) that it must be lawful under domestic law, (ii) that it must conform to the general requirements of the Convention as to the quality of the law in question – its accessibility and the precision with which it is formulated and (iii) that it must not be arbitrary because, for example, it was resorted to in bad faith or was not proportionate: see R v Governor of Brockhill Prison, ex p Evans (No 2) [2001] 2 AC 19, 38E; Mcleod v United Kingdom (72/1997/865/1065), para 41. Detention in accordance with a lawful sentence of imprisonment imposed by a judge on the prisoner for an offence of which he has been convicted satisfied these requirements.

26.

Article 5(4), on the other hand, is concerned with the need for the detention to be reviewed in order that it may be determined whether it is lawful both in terms of domestic law and in terms of the Convention. Its purpose is to ensure that a system is in place for the lawfulness of the detention to be decided speedily by a court and for release of the detainee to be ordered if it is not lawful. The general rule, as I have said, is that detention in accordance with a determinate sentence imposed by a court is regarded as justified under article 5(1)(a) without the need for any further reviews of the detention to be carried out under article 5(4). The question which Mr Fitzgerald has raised is whether that rule, which undoubtedly applies to determinate sentences imposed under subsection (2)(a), can be applied also to determinate sentences imposed under subsection (2)(b). It was agreed that the answer to it is to be found in the jurisprudence of the European Court of Human Rights, to which I now turn.” (emphasis added).

It appears from the words in paragraph 26 of Lord Hope’s speech that I have emphasised that his Lordship took it to be settled law that article 5(4) had no direct application to a simple determinate sentence. At the time of sentencing the judge neither explicitly nor implicitly earmarked any specific part of such a sentence as the part to be served for retribution and deterrence. The extended determinate sentence was arguably different because it could be said that the commensurate term, whether or not made explicit, was imposed for such purposes and that it was fairly comparable in that respect to a life sentence.

Lord Hope at paragraph 50 of his speech referred to Iribane Perez v France (1995) 22 EHRR 153 as “a convenient summary of the guidance which is to be obtained from the Strasbourg jurisprudence”, citing paragraph 30 of the judgment. The European Court of Human Rights recognised that article 5(4) might be directly applicable to detention “after conviction by a competent court”, but “only in specific circumstances”, including the continuing detention of a person sentenced in Great Britain to an indeterminate or discretionary life sentence.

Lord Hope then stated his conclusions at paragraphs 51 and 52:

“51.

It is plain from this summary that the basic rule which the European Court laid down in De Wilde, Ooms and Versyp v Belgium continues to apply. Where the prisoner has been lawfully detained within the meaning of article 5(1)(a) following the imposition of a determinate sentence after his conviction by a competent court, the review which article 5(4) requires is incorporated in the original sentence passed by the sentencing court. Once the appeal process has been exhausted there is no right to have the lawfulness of the detention under that sentence reviewed by another court. The principle which underlies these propositions is that detention in accordance with a lawful sentence passed after conviction by a competent court cannot be described as arbitrary. The cases where the basic rule has been departed from are cases where decisions as to the length of the detention have passed from the court to the executive and there is a risk that the factors which informed the original decision will change with the passage of time. In those cases the review which article 5(4) requires cannot be said to be incorporated in the original decision by the court. A further review in judicial proceedings is needed at reasonable intervals if the detention is not to be at risk of becoming arbitrary.

52.

I would hold that the present case falls within the basic rule. The review which article 5(4) requires was incorporated in the sentence which the judge passed under subsection (2)(b). This is because he fixed the period of the sentence which was needed to protect the public from serious harm. He was able to take this decision in the light of the information before him and, in the exercise of his ordinary powers of sentencing, to decide on the total length of the sentence which in all the circumstances was appropriate. As he was able to take this decision at the outset there is no risk that detention for the minimum period fixed by the sentence will become arbitrary. The appellant has no further right under article 5(4) to have his detention for the minimum period fixed by that sentence reviewed judicially.”

Lord Hutton, with whom Lord Bingham, Lord Steyn and Lord Scott agreed, also analysed Strasbourg jurisprudence and concluded at paragaph 74:

“74.

In my opinion the jurisprudence of the European Commission and the European Court has recognised that article 5(4) has no application where a prisoner is serving or has served a fixed term sentence such as a sentence passed pursuant to section 2(2)(b) of the 1991 Act ..”

Lord Bingham, with whom all their lordships agreed, expressed his conclusions as follows:

“10.

That brings one back to consideration of the core rights which article 5(4), read with article 5(1), is framed to protect. Its primary target is deprivation of liberty which is arbitrary, or directed or controlled by the executive. In the present case there was nothing arbitrary about the sentence, which was announced and explained in open court and upheld by the Court of Appeal when refusing leave to appeal against sentence. Since the first offence involved what the sentencing judge described as “a savage attack” and the appellant had threatened further violence against his first victim, the term imposed does not appear in any way excessive. The sentence left nothing to the executive, since the Parole Board, whose duty it is to consider release at the halfway stage of the sentence, is accepted to be a judicial body. Again, May LJ put the point succinctly in paragraph 19 of his judgment:

“Although the sentence is longer than it otherwise would have been because the sentencing judge is of the opinion that it is necessary to protect the public from serious harm from the offender, (i) the length of the sentence is, and is intended to be, determined by the judge at the time of sentence; (ii) it is not intended to be reviewed, other than on appeal; and (iii) in particular, it is not intended to confer on the executive the responsibility for determining when the public interest permits the prisoner’s release.”

11.

I conclude that the sentence passed on the appellant fell squarely within article 5(1) of the Convention and did not attract the operation of article 5(4). On the review of his case by the Parole Board he was entitled to the same rights as any other long-term prisoner serving a determinate sentence, but no other or greater rights. In considering his release at the half-way stage the Board was bound to apply the same criteria to him as to any other long-term prisoner serving a determinate sentence. The suggested analogy between prisoners sentenced under section 2(2)(b) or 80(2)(b) and discretionary life sentence prisoners is in my opinion false.”

The ratio in Giles was that the early release provisions in respect of prisoners given longer than commensurate determinate sentences under section 2(2)(b) of the Act were compatible with article 5 of the ECHR. However, that conclusion seemed to rest upon the proposition that article 5(4) had no direct application to any determinate sentence. That proposition appears to emerge most clearly from the speech of Lord Hope and seems to be based upon a certain conception of a determinate sentence. Under that conception a judge who imposes a determinate term of, say, 12 years’ imprisonment, after taking account of all relevant penal matters, is not to be treated as having imposed a 6 year sentence for retribution and deterrence, leaving the period required for public protection to be determined subsequently by another judicial body, subject to a “long stop” maximum term of 8 years when the prisoner is entitled to be released. That conception would not be undermined simply because the judge knows, and has to explain to the prisoner, that the prisoner becomes eligible for release after 6 years on a post-sentence assessment of risk to public safety.

That conception of the determinate sentence seems to me to receive further support from the observations of Lord Bingham in R(West) v Parole Board; R (Smith) v Parole Board [2005] UKHL 1; [2005] 1 WLR 350:

“22.

Before turning to the issues, I think it convenient to summarise certain uncontroversial by fundamental and relevant principles upon which the sentencing, licensing and recall regimes rest. First, the ordinary duty of the court when imposing a determinate sentence of imprisonment is to impose such term (not exceeding the permitted maximum) as in the opinion of the court is commensurate with the seriousness of the offence or the combination of the offence and one or more offences associated with it: section 2(2)(a) of the 1991 Act. I need not address the small minority of cases in which a longer than commensurate sentence may be called for: section 2(2)(b) of the 1991 Act. In fixing this term, whether it be measured in days, months or years, the court will take account of all matters relevant to the art and science of sentencing and may, depending on the facts of the particular case, have regard to all the well-known objects of a custodial sentence (retribution, personal and general deterrence, incapacitation, reform, rehabilitation). But the predominant purpose of the sentence will represent the period which the court considers that the defendant should spend in custody as punishment for the crime or crimes of which he has been convicted. An appellate court reviewing the sentence will act on the same basis.

23.

Secondly, the court which imposes a determinate sentence of imprisonment is of course aware of the statutory provisions governing early release, and should pursuant to Practice Direction (Custodial Sentences: Explanations) [1998] 1 WLR 278 outline the effect of these to the defendants when passing sentence. But save in an exceptional case these provisions do not and should not influence the length of the sentence passed. The court does not sentence a defendant to six years’ imprisonment because it judges four years’ to be the appropriate term, or three years’ because it judges that the defendant should be incarcerated for 18 months.”

It does also appear that Giles was interpreted by courts and practitioners as authority for the proposition that article 5(4) has no direct application to determinate sentences. Mr Clift was a prisoner in precisely the same position as the present claimant. He was sentenced under the Act to a period exceeding 15 years. After he had served half his sentence the Parole Board recommended his release, but the SSHD rejected the recommendation. In early 2003 Mr Clift challenged this rejection and failed at first instance on 13 June 2003. It is notable that his notice of appeal indicated that he was proposing to contend that it was inappropriate for the SSHD to have any involvement in the release process. Presumably this proposed ground of appeal rested upon an argument that article 5(4) applied directly to that part of the determinate sentence beginning when the prisoner became eligible for early release. However, Giles was decided by the House of Lords on 31 July 2003, that is, before the hearing of Mr Clift’s appeal to the Court of Appeal in 2004. Leading Counsel for Mr Clift (Mr Tim Owen QC) did not pursue the point on the appeal (see the judgment of Lord Woolf CJ, at paragraph 12). Lord Woolf, with whom Rix LJ and Carnwarth LJ agreed, reverted to this matter at the conclusion of his judgment:

“28.

That brings me to the final point which I should mention. That is the contention that was originally raised by the appellant that the Executive should, as a matter of principle, have no role in the discretionary release of prisoners. Mr Owen on the hearing of the appeal accepted this was not a point which he could argue before us and therefore it is sufficient if I record the position. The point was not argued in the lower court either.”

It seems to me an irresistible inference that the point was not pursed because, in the light of Giles, counsel believed that it was not arguable that article 5(4) applied directly to any determinate sentence. The Court of Appeal did not in terms endorse that concession, but certainly said nothing that might have suggested that it was misconceived.

Mr Hindawi and Mr Headley were prisoners in a different position to that of Mr Clift (and the present claimant). Both had received long-term determinate sentences, in Mr Hindawi’s case exceeding 15 years. Both were liable to removal from the United Kingdom. Accordingly, under the provisions applicable to long- term prisoners liable to removal, neither Mr Hindawi nor Mr Headley enjoyed the potential benefit of any involvement by the Parole Board in their release; and Mr Headley, unlike long- term prisoners not liable to removal serving determinate sentences of less than 15 years, did not have the question of his early release definitively determined by the Parole Board.

It was in theory open to Mr Hindawi and Mr Headley to contend that article 5(4) applied directly to their long- term determinate sentences and that under article 5(4) the SSHD, not being a judicial body, should have no say at all in their early release. Their appeals to the Court of Appeal were heard in July 2004 and neither argued that point. Like Mr Clift, they argued that the early release provisions relating to their determinate sentences were sufficiently within the ambit of article 5 to bring article 14 of the ECHR into play, and that those early release provisions were unjustifiably discriminatory on a Convention ground.

In Secretary of State for the Home Department v Hindawi and Headley [2004] EWCA Civ 1309, Neuberger LJ (as he then was) gave a dissenting judgment. In particular, disagreeing with Kennedy LJ and Sedley LJ, he concluded that the relevant early release provisions were sufficiently within the ambit of article 5 to bring article 14 of the ECHR into play. When the case reached the House of Lords, Lord Bingham expressly approved the conclusion of Neuberger LJ on this point. It is interesting to note how Neuberger LJ interpreted Giles in reaching his conclusion about the ambit of article 5:

“73.

On analysis, I do not indeed consider that the decision or reasoning of the House of Lords in Giles does impinge on, let alone resolve, that issue. What Giles decided is that, where a prisoner is properly convicted, and given a determinate sentence, by a competent court, his right under Article 5(1) and 5(4) not to be deprived of his liberty without a judicial review is exhausted (subject to any right of appeal), because the judicial review has ipso facto taken place at the trial. In other words, the effect of the decision in Giles is that, once a prisoner is “lawfully detained…..following the imposition of a determinate sentence after his conviction by a competent court” there is no right to a further review (subject to the normal appeal process of the courts): see Lord Hope of Craighead at paragraph 51.

75.The fact that Article 5 cannot be invoked to justify a prisoner claiming the right to be granted early release where no early release system exists, does not mean that where an early release system exists it is not within the ambit of Article 5 for the purposes of engaging Article 14 ………

81.

In summary, it seems to me that the effect of the decisions in Giles and Smith (No 2) do not call into question the view that, if the legislature introduces an early release system which results in a prisoner being entitled to early release, Article 5 is thereby engaged….” (emphasis added)

I read those passages to be saying that, although article 5(4) was not directly applicable to the relevant early release provisions, the provisions were sufficiently within the ambit of article 5 to bring article 14 into play. (cf. Kennedy LJ at paragraph 17: although disagreeing about the ambit of article 5, the learned Lord Justice was also proceeding on the footing that article 5 had no direct application).

It seems to me that the foregoing helps to explain that when Clift and others reached the House of Lords it was common ground that article 5(4) had no direct application to the early release provisions relevant to each appellant. Each appellant could again in theory have argued that article 5(4) had direct application and that under that article the SSHD, not being a “court”, was not allowed to have any say in the early release of any of the appellants. In many ways that argument, if it had been properly open, was much simpler and more straightforward than the actual argument founded on discrimination under article 14. Mr Clift in particular would have succeeded, rather than failed, in his appeal if that argument had been properly open and had been upheld. Furthermore, none of their Lordships in the House of Lords, expressly or impliedly, suggested that article 5(4) might have direct application to the relevant early release provisions with the inevitable consequence that the SSHD should not be allowed to have any say in the early release of any of the appellants.

On the contrary, Lord Bingham, with whom all their lordships agreed, stated that:

“12.

The first issue, arising in all three appeals, is whether the appellants’ applications for early release came within the ambit of article 5 of the European Convention so as to engage article 14 of the Convention…….” (emphasis added)

Similarly, Lord Hope of Craighead stated:

“42.

The differential treatment in Mr Clift’s case is the result of the length of his sentence. The question is whether his complaint falls within article 14 of the European Convention…..”

Finally, Lord Brown of Eaton-Under Heywood stated:

“66.

The first concerns issue one, whether the appellants’ applications for early release came within the ambit of article 5 of the European Convention on Human Rights so as to engage article 14 of the Convention….”

In these circumstances I find it inconceivable that their Lordships were proceeding on any basis other than that, in the light of settled law, article 5(4) had no direct application to the early release provisions of prisoners serving determinate sentences so as to render the involvement of the SSHD impermissible. Mr Clift, as I have said, was in precisely the same position as the present claimant. Mr Clift’s appeal failed because, although the provisions were within the ambit of article 5, there was no discrimination on Convention grounds. Mr Southey’s submission before me is that everyone in the House of Lords (and in the Court of Appeal for that matter) simply overlooked a much more fundamental argument, namely, that article 5(4) was directly applicable, and that Mr Clift did not therefore need to rely at all on article 14 or discrimination. I cannot accept that submission because it seems to me a false reading of the proceedings in the House of Lords. It is also necessary to recall that Lord Bingham and Lord Brown were strongly critical of the SSHD’s involvement in the early release of Mr Clift (see paragraphs 15 and 16 above and see also the observations of Baroness Hale of Richmond at paragraph 63 of the report), yet both felt driven to the conclusion that such involvement was not unlawful.

I believe, therefore, that in this application I should proceed on the same basis, namely, that article 5(4) does not have direct application to the early release provisions applying to the claimant (who, I reiterate, is in precisely the same position as was Mr Clift), such that the involvement of the SSHD would be impermissible, unless there is compelling reason to depart from that basis.

Mr Southey submits that the decision of the Court of Appeal in Johnson does provide such a compelling reason. Mr Johnson was a long-term prisoner serving a term of 7 years’ imprisonment. He became eligible for parole, having served half his sentence. However, there was very substantial delay in putting his case before the Parole Board. He claimed that the delay was a breach of article 5(4). At first instance Mr Andrew Nicol QC, sitting as a deputy High Court judge, dismissed the claim, but the Court of Appeal allowed Mr Johnson’s appeal.

Lord Justice Waller, with whom Buxton LJ and Lloyd LJ agreed, analysed in particular Giles, West and Clift and others, and concluded that these cases were not inimical to, but rather supported, Mr Johnson’s contention. In the dispositive part of his judgment Lord Justice Waller began:

“26.

Mr Kovats and Ms Greaney founded their arguments on labelling the seven year sentence passed on Mr Johnson as a “determinate” sentence. In one sense the question is whether his sentence was truly “determinate” in the eyes of the Convention. In none of the cases dealing with determinate sentences has the court been concerned with a situation in which there has been a delay in considering the entitlement of a long term prisoner to parole and it is in that context, and that context alone, that one must consider whether Article 5(4) comes into play.” (emphasis added)

Lord Justice Waller then compared the position of a discretionary lifer with a prisoner serving a long-term determinate sentence, and stated the following conclusion:

“29.

One reason why prisoner B has a remedy for a breach of Article 5(4) is because there is a risk, unless the sentence is kept under review, of his sentence becoming arbitrary. That is a general obligation under the Convention. But if there is a delay in hearing the application to the Parole Board of prisoner B, or differences between the times when life sentence prisoners are having their applications to the Parole Board considered, there is a different form of arbitrariness which was recognised by the Court of Appeal in R (Noorkoiv) v Parole Board. So far as delay in an application coming before the Parole Board is concerned, or so far as there being delays from which it follows that different prisoners with determinate sentences are having their hearings before the Parole Board dealt with at different periods of time after their eligibility date, that same arbitrariness is present in the determinate sentence prisoner context. It is that arbitrariness which, in Convention terms, would, in my view, render the sentence unlawful, and falls within the ambit of Article 5(4). There was in this case an unjustified and indeed arbitrary period of delay of eight and a half months. If Mr Johnson can demonstrate that at an earlier consideration by the Parole Board he would have been released, it would seem to me to follow that his detention for some period was arbitrary, unjustified and therefore unlawful. It would furthermore seem to me that under Article 5(4) Mr Johnson was entitled to have his case considered by the Parole Board “speedily” so that his sentence did not become “arbitrary”.

It seems to me plain that in Johnson the Court of Appeal has decided that, so far as the issue of delay is concerned, article 5(4) has direct application. I am told that the SSHD is seeking to pursue an appeal in Johnson to the House of Lords. However, the ratio in Johnson is, of course, binding on me.

Lord Justice Waller was very careful to limit the ratio to the specific issue of delay. The Court of Appeal was not considering the question whether article 5(4) precluded the SSHD from having any say in the early release of prisoners serving a determinate sentence of 15 years or more for an offence committed before 4 April 2005, that is, prisoners in the position of Mr Clift and the present claimant.

I recognise, on the one hand, that there would be an apparent lack of coherence if article 5(4) was directly applicable on the issue of delay, but was not applicable on the issue of whether the SSHD, not being a “court” within the meaning of that article, should have a say in the early release of determinate prisoners. However, if I were to extend the ratio of Johnson in the manner proposed by Mr Southey, I would inevitably have to conclude that section 35(1) of the Act, in so far as it provided for the SSHD to have such a say, was incompatible with article 5(4) of the ECHR. Under section 35(1) of the Act Parliament has conferred a discretion on the SSHD to determine the early release of prisoners in the position of the claimant. If article 5(4) were directly applicable as regards the involvement of the SSHD, there would be no escape from the conclusion that the primary legislation, in so far as it conferred the relevant discretion on the SSHD, was incompatible with the ECHR. The position in that respect would be materially the same as that in R (Anderson) v Secretary of State for the Home Department [2003] 1 AC 837 (“Anderson”).

Given what I consider to be the basis of the House of Lords’ judgment in Clift and others, and the recognition in that case that the continuing involvement of the SSHD in the early release of a prisoner in exactly the same position as the present claimant was not unlawful, I believe that it would be an extraordinary result if I made a declaration that the primary legislation conferring the relevant discretion on the SSHD was incompatible with article 5(4) of the ECHR. Therefore, I consider that it is properly open to me to limit the ratio of Johnson to the issue of delay and to hold that, so far as concerns the issue of the involvement of the SSHD in the early release of prisoners in the position of the claimant, article 5(4) does not have direct application and that such involvement is not incompatible with article 5(4).

For these reasons I reject Mr Southey’s first submission.

I reject Mr Southey’s second submission for the following reasons.

By section 35(1) of the Act Parliament has conferred an explicit discretion on the SSHD to decide on the early release of prisoners serving a determinate sentence. It is plain that Parliament intended that the SSHD should decide on the material facts of each case whether he considered that it was consistent with public safety to release a prisoner serving a determinate sentence. For the SSHD to have a policy of never exercising the discretion conferred by Parliament, and of leaving all questions of early release to the Parole Board, would be contrary both to the language of section 35 and to its clear purpose. Indeed the language and policy of section 35 require that the SSHD should exercise his discretion in each case, and he cannot decline to exercise the discretion in any particular case or category of cases.

Section 50 of the Act, of course, confers a power on the SSHD by secondary legislation to transfer functions to the Parole Board. As explained earlier, the SSHD has through the 1998 Order transferred his functions under section 35(1) of the Act to the Parole Board, save in respect of the exceptional category to which the present claimant belongs. That is the procedure that Parliament has ordained to allow the SSHD, if he so determines, to release himself from the exercise of any of his powers under section 35(1) of the Act. Mr Southey contends that a policy of never exercising a retained discretion under section 35(1) is not inconsistent with legislative intent, because section 50 shows that Parliament contemplated that the Parole Board might have the final say in the release of any category of determinate prisoner.

However, that argument omits a crucial step. Section 50 provides for a specific and exclusive procedure for transferring the relevant functions: a policy of never exercising a retained discretion under section 35(1) would be inconsistent not only with section 35(1) itself but also with section 50. Such a putative policy would enable the SSHD in fact to achieve the same practical result as if he had by order transferred all his functions to the Parole Board, but at the same time to avoid the specific and exclusive procedure laid down by Parliament for that purpose. On Mr Southey’s argument, the SSHD must conduct himself as if he had transferred all his functions to the Parole Board.

Indeed, on Mr Southey’s argument, section 50 becomes to some extent redundant. If the SSHD wished to release himself from exercising any function under section 35(1), he could simply announce his intention of doing so, saying that it was no longer justifiable for him to retain the power in question, without the need for following the statutory procedure under section 50. Following that route, the SSHD would not have to consult the Parole Board under section 50(1) of the Act and would not need to obtain resolutions from the Houses of Parliament. This simply emphasises the essential point that on the proper construction of section 35(1) the SSHD is not at liberty to delegate his functions to the Parole Board, and that that is the very reason why Parliament provided the express power of transfer under section 50.

This conclusion is not inconsistent with Clift and others. It is plain that their Lordships who were extremely critical of the continuing role of the SSHD in the early release of prisoners in the position of Mr Clift were urging the SSHD to transfer all his functions to the Parole Board and so remove the unjustified anomaly that was identified.

There is also a strong analogy in the present context with Anderson. The appellant there argued that if the continuing role of the SSHD under section 35(2) of the Act was inconsistent with the ECHR, that section of the Act was nonetheless compatible with the ECHR. That was because the SSHD was under a legal duty to adopt a policy of never exercising his power under section 35(2) of the Act. That argument was rejected by the House of Lords: to require the SSHD not to exercise the power conferred by section 35(2) and not to be involved in fixing the tariff of a convicted murderer was simply inconsistent with the language and policy of that section, and no permissible “reading down” of the section could save its compatibility with the ECHR: see Lord Bingham at paragraphs 30-31, Lord Steyn at paragraph 59, and Lord Hutton at paragraphs 80-83. Mr Southey seeks to distinguish Anderson by reference to the fact that there was no equivalent to section 50 in respect of the power under section 35(2), so that the conflict with legislative policy was complete. However, I have already given my reasons why section 50, far from helping Mr Southey’s argument, increases the tension with the legislative scheme. For the same reasons, even if there had been an equivalent of section 50 in respect of section 35(2), the result in Anderson would, in my judgment, have been no different.

For these reasons, I hold that the SSHD has no legal duty to adopt a policy of never exercising his retained power under section 35(1). On the contrary, I would go as far as holding that the adoption of any such policy would itself be inconsistent with section 35(1) and section 50 of the Act, and would be unlawful.

For his third submission Mr Southey relies upon R v Warwickshire County Council, Ex parte Powergen Plc (1997) 96 L.G.R. 617, C.A. (“Powergen”), and R v Secretary of State for the Home Department, Ex parte Danaei [1998] INLR 124 (“Danaei”).

In Powergen a highway authority declined to enter into an agreement with a developer under section 278 of the Highways Act 1980 on the ground that the execution of the relevant works would be detrimental to road safety. However, on an earlier planning appeal the developer, over the objections of the highway authority, had persuaded the planning inspector that the proposed development would not be detrimental to road safety. To comply with a condition of the planning permission, the developer needed the highway authority to enter into the proposed agreement. Within the specific statutory context Simon Brown LJ (as he then was) held that it was Wednesbury unreasonable for the highway authority, having put its road safety case to the planning inspector and having had that case rejected, to rely on precisely the same road safety objections to justify its refusal to enter into the proposed agreement.

In Danaei a special adjudicator on an asylum appeal had accepted the account of the appellant that he had been discovered in Iran in an adulterous relationship, but went on to dismiss his appeal. On an application to the SSHD for exceptional leave to remain the SSHD in his decision refusing leave rejected the factual finding of the special adjudicator. The Court of Appeal quashed the decision, Simon Brown LJ holding that it was irrational for the SSHD to reject the special adjudicator’s finding of fact unless the adjudicator’s factual conclusion was itself demonstrably flawed, as irrational or for failing to have regard to material considerations or for having regard to immaterial ones; or fresh material had since become available to the SSHD such as could have realistically have affected the adjudicator’s finding; or, arguably, if the adjudicator had decided the appeal purely on the documents, or if, despite having heard oral evidence, his findings of fact owed nothing to any assessment of the witnesses.

It is difficult to extract a general principle from these authorities. Each case was decided against a specific statutory background which is materially different from the statutory regime in the present application. Mr Patel, who appeared for the SSHD, submitted that the cases were distinguishable on the straightforward ground that the central issue in each instance was an issue of fact. In the present application, by contrast, the issue which divides the Parole Board and the SSHD is not one of fact: the assessment of risk to public safety if the prisoner is released early involves an exercise of judgement, and the Parole Board and the SSHD have exercised their respective judgements to reach different conclusions about acceptable risk.

However, I do not believe that this is a reliable distinction in the present context. In Powergen what divided the highway authority and the developer was not strictly an issue of fact. It was likely that there was agreement on the primary facts. The question was whether “the proposed signal-control junction offered an adequate degree of traffic safety”, and resolution of that question required an exercise of professional judgement on matters of road safety.

The striking feature of both Powergen and Danaei was that the parties to the dispute had already engaged in an earlier and separate contest on the self same issue (of judgement in the first case, of fact in the second), and, after adjudication by an independent and expert body (the planning inspector and the special adjudicator, respectively), the issue had been resolved adversely to one of the parties. That party then sought to frustrate the result of the independent adjudication by doing no more than reasserting the argument that had been rejected.

There is a strong policy in our law that there should be finality to litigation, and that a party should not be able to re-litigate issues that after a full and impartial hearing had been decided against it, unless there were good justification: see, for example, Henderson v Henderson (1843) 3 Hare 100, and the autorities cited at paragraphs 44.45 and following in Phipson on Evidence, 16^th ed. 2005. The basis of this legal policy is that resources should not be wasted on re-treading old ground, that there should be reasonable certainty in human affairs, and that it would be oppressive and unjust to the successful party to be forced, without good justification, to re-run the previous contest. The affront to an innate sense of fair play is even greater where the unsuccessful party can trump the earlier outcome simply by administrative diktat.

Furthermore, in Powergen and Danaei the court was called upon to assess the interplay of different legislative provisions which, at first sight, were in tension or even conflict.

In the present context there is nothing equivalent to an earlier and separate contest that was resolved adversely to the SSHD. Under section 35(1) of the Act the Parole Board, having considered all the relevant material, makes an assessment of risk to public safety. The same section contemplates that the SSHD makes his own assessment of risk, taking account no doubt of the recommendation of the Parole Board, and that he then makes his own decision. Nothing in the section precludes the SSHD from rejecting the assessment of the Parole Board, so long as his own assessment of risk is rational and not otherwise vitiated by legal error. Risk assessment is plainly not an exact science: there is no demonstrably unique “correct” answer, and even people with the relevant expertise and experience may reasonably reach different assessments. It seems to me that Parliament contemplated that the SSHD might rationally reach a different view from that of the Parole Board, even if the SSHD was making the risk assessment on material which was not significantly different from that considered by the Parole Board. Under section 35(1) the SSHD is not reviewing the recommendation of the Parole Board for rationality or legal correctness: the SSHD may frankly acknowledge, as in this case, that the recommendation is a reasonable one, but still reject it so long as his own decision is rational and not otherwise legally flawed.

Furthermore, the court is not here required to determine the interplay of legislative provisions which are in tension or conflict. The relevant provision is very simply and unambiguously stated in section 35(1). No restriction or limitation is imposed by that section on the SSHD’s power of rejection. If Mr Southey’s submission were correct, a significant gloss would have to be imported into the plain language of section 35(1). I find it impossible to accept that had Parliament intended to limit the powers of the SSHD in this significant manner, the section itself would not have spelled out in terms the limitations on the power of rejection.

Perhaps I should also finally say that I have taken due account of Lord Bingham’s observations in Clift and others that the assessment of risk in relation to determinate prisoners has no political content and that the SSHD does not have, and does not claim to have, any greater expertise in the assessment of risk than that enjoyed by the Parole Board. These, of course, are very powerful considerations indeed when the SSHD is deciding whether to transfer his remaining functions under section 35 of the Act to the Parole Board. However, I do not believe that they can affect the correct interpretation of section 35(1) in the case where the SSHD has not transferred a particular function to the Parole Board and the question is what limitation, if any, that section imposes on the exercise of the SSHD’s power to reject a recommendation of the Parole Board.

For these reasons I reject Mr Southey’s third submission.

All three submissions having failed, I dismiss this application for judicial review.