On 18^th July 2002 at Harrow Crown Court, the Claimant was sentenced to 12 years imprisonment for being concerned in the importation of 18 kilos of heroin at 100% purity. It had an estimated street value of £2.3 million.

Because the offence pre-dates the Criminal Justice Act 2003, the early release provisions under s.35 of the Criminal Justice Act 1991 applied to the Claimant as a long term prisoner. S35(1) reads: “After a long term prisoner has served one half of his sentence, the Secretary of State may, if recommended to do so by the Board, release him on licence”.

If not released earlier the Claimant must be released once he has served two thirds of his sentence (s.35(2)).

Under the 1991 Act the Secretary of State had a discretion whether to release on licence after half of the sentence has expired up until two thirds. That was an unfettered discretion save that the discretion could only be exercised to release if recommended by the Parole Board. That discretion has effectively been transferred to the Parole Board (see Parole Board (Transfer of Functions) Order SI 1998/3218).

The Claimant was first eligible for parole on 29^th August 2007. He will be released automatically if he fails to get parole, on 29^th August 2009. The Parole Board did not recommend parole at the first possible date. They gave their reasons in a letter dated 20^th July 2007. That letter recorded the Claimant’s progress in prison; adjudications which had taken place; the courses he had been on; and a breach of temporary leave. The letter also recorded the results of risk assessments and considered the views of probation officers.

The conclusion of the letter is that ‘Mr. Pilgrim’s risk profile is not great – perhaps reaching a medium risk of further offending in the light of his own admissions – but his breach of temporary leave as recently as February 2007 do suggest that further work is needed on consequential thinking. Given the evidence of impulsivity, further testing in open conditions is advised before Mr. Pilgrim’s application is next reviewed. On balance, parole is refused on this occasion.’

By s.239 of the Criminal Justice Act 2003, which came into force on 26^th January 2004 and replaced s.32(6) of the Criminal Justice Act 1991, the Secretary of State may give directions to the Parole Board as to the matters it must take into account in deciding whether to recommend parole. In giving any such directions the Secretary of State must have regard to:

The need to protect the public from serious harm from offenders.

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

On 1^st May 2004, the Secretary of State gave directions to the Parole Board pursuant to his powers under s.239. He directed that in deciding whether or not to recommend release on licence, the Parole Board should consider primarily the risk to the public of a further offence being committed at a time when the prisoner could otherwise be in prison and whether any such risk is acceptable. The full text of the directions is at p.131 of the bundle.

It is that direction which the Claimant says is unlawful. He argues that the only matter that the Parole Board should consider when deciding whether to recommend release on parole is whether it is no longer necessary for the protection of the public that the prisoner be confined, because the prisoner’s level of risk to the life and limb of others is considered to be no more than minimal.

The test as I have set it out is a paraphrase of the directions given by the Secretary of State relating to the release and recall of life sentence prisoners (for the full text see p.133). The Claimant argues that the same test should be applied to prisoners serving determinate sentences.

So, in so far as the reasons for refusal in this case may be a risk of re-offending; that, on the Claimant’s case, cannot be a bar to parole unless it is demonstrated that the re-offending carries a risk to life and limb. If the risk related to Class A drug importing or supplying then that, it is accepted, would carry such a risk but, the Claimant argues, as the Parole Board have not made clear what the risk consists of, it is not clear they have applied the correct test.

So is it correct that when considering parole for a prisoner serving a determinate sentence, it can only be refused if there is risk to life and limb if he is released?

In my judgment it is not. S.35 of the Criminal Justice Act 1991 gave the Secretary of State and now the Parole Board an unfettered discretion. In exercising that discretion, a risk of further offending is a matter which the Secretary of State could properly take into account unless his discretion was prescribed by Parliament so as to exclude it.

S.239(6) of the Criminal Justice Act 2003 specifically includes ‘the desirability of preventing the commission by them of further offences’ as one of the matters the Secretary of State must have regard to in giving directions to the Parole Board.

The Claimant’s argument, if correct, would also have unlikely consequences. A man serving a 7 years determinate sentence for high value theft applies for parole at the end of three and a half years. The Claimant argues that, even if he tells the Parole Board that once released he is going to commit immediately another substantial theft, the Secretary of State must grant parole because he doesn’t present a risk to life and limb.

Of course, if that unattractive conclusion is the inevitable result of the correct legal analysis of statute and precedent, then it must follow. But is it?

The Claimant argues that because the test for the release of a lifer relates only to the risk to life and limb of his release, a prisoner serving the equivalent determinate sentence cannot be in a worse position.

S.28 of the Crime (Sentences) Act 1997 governs the duty to release life prisoners who have served the minimum term prescribed by the Court. By s.28(6)(b) the test is that ‘the Parole Board is satisfied that it is no longer necessary for the protection of the public that the prisoner should be confined’. The directions to the Parole Board issued by the Secretary of State are all designed to comply with that requirement.

The reason for this different statutory framework is clear. Life sentences are imposed because the prisoner represents a serious danger to the public. For that reason he may be required to serve longer than the proper sentence commensurate with the offence. Once he is no longer a danger, it would be wrong for him to serve more than the proper commensurate sentence.

Theoretically, there is a possibility that a lifer may be more likely to get parole than a prisoner serving a determinate sentence; if he is no longer dangerous but is still indicating an intention to continue offending but in a way which involves no danger to life and limb.

Because of this possible unfairness, the Claimant argues that Parliament intended the same test to apply to determinate prisoners and life sentence prisoners. So it is submitted the guidance given by the Secretary of State is unlawful because the guidance is different for determinate prisoners and life sentence prisoners.

I consider that that is unarguable. The statutory provisions are clear. They set out different tests for parole for lifers than for prisoners serving determinate sentences. No other interpretation is possible. It is as a result of those differences that the Secretary of State’s directions are different. They accord with the different statutory provisions. They are accordingly lawful. I have found nothing in the authorities to which I have been referred which could result in any different conclusion.