AUDI JOHNSON (R on the application of) v PAROLE BOARD FOR ENGLAND AND WALES & Anor

The issue of law which arises in this judicial review case is this. Does the Parole Board (“the Board”) have the power to make a decision to “re-fix” the “date for a person’s release on licence”, in a case in which it has already dealt with a reference to it by making a decision to “fix a date for the person’s release on licence” pursuant to section 256(1)(a) of the Criminal Justice Act 2003 (“the 2003 Act”). Answering that question involves a legal concept still known by the Latin phrase “functus officio”, or simply “functus”, which describes the situation when “a judicial, ministerial or administrative actor has performed a function in circumstances where there is no power to revoke or modify it”: see R (Dickins) v Parole Board [2021] EWHC 1166 (Admin) [2021] 1 WLR 4126 at §52. The central statutory provisions are section 256 of the 2003 Act and section 12 of the Interpretation Act 1978 (“the 1978 Act”). Here is section 256 of the 2003 Act (there is no subsection (3)):

A decision by the Board to fix a date for the person’s release on licence (s.256(1)(a)) is a decision made “on a reference under section 255B(4) or 255C(4)”. There is an alternative, namely to “determine the reference by making no direction as to his release” (s.256(1)(b)). It was common ground before me that, once the Board has made a decision which fixes a date for the person’s release on licence (s.256(1)(a)), the Board would not then have the power to switch to the alternative, so as to reopen its decision and determine the reference by making no direction as to the person’s release (s.256(1)(b)). The Board’s position is that, having fixed a date for the person’s release on licence (s.256(1)(a)), it can reopen the decision so as to ‘re-fix’ the date for release. Whether that is correct is a question of law for the Court to resolve. It is agreed that, whatever the answer to that question is, it cuts both ways. That is to say, if the Board does not have the power to ‘re-fix’ the date for release to put it back, neither would it have power to ‘re-fix’ the date of release to bring it forward.

It is common ground that answering the question of law which arises in this case is an exercise which does not depend on the facts. So I need do no more than give a brief factual outline. In July 2017 the Claimant was convicted of possession of Class A drugs with intent to supply, for which he received a 4-year standard determinate sentence. On 20 December 2019 he was released on licence pursuant to section 244 of the 2003 Act – at ‘half-time’ – having served the requisite custodial period (“the RCP”). On 1 April 2020 he was returned to custody, his licence having been revoked on 27 March 2020. Having been assessed by the Second Defendant, the Secretary of State for Justice (“the SSJ”), as not being suitable for automatic release, his case was referred to the Board who considered it at oral hearings on 30 October 2020, 24 November 2020 and 18 February 2021. On 15 February 2021 the Claimant’s Community Offender Manager (“the COM”) provided a report for the Board which confirmed that a placement could be made available for the Claimant in approved premises in London, ideally premises at Streatham, which had adapted accommodation suitable for him. On 22 February 2021 the COM added a risk management plan to the Claimant’s dossier. On 24 February 2021 the Board issued a decision fixing the Claimant’s release date as 10 March 2021 and directing that the Claimant permanently reside at Streatham approved premises. The decision was sent to the Board’s Case Manager (“the BCM”), but the BCM did not send it to the COM or to the parties. It had, however, been uploaded to the public protection database by 2 March 2021, on which date the Claimant’s solicitor both accessed it and informed the Claimant what the decision was: he was to be released on 10 March 2021.

The circumstances in which the release date came to be ‘re-fixed’, twice, were as follows. On 26 February 2021 the COM completed a Stakeholder Response Form (“the Form”) which informed the Board as follows: that the adapted room at the Streatham approved premises was in use; that a former opposing gang member was present in the premises and due to leave on 7 April 2021; but that the room would be available as from 8 April 2021. That Form was sent to the Board’s Panel Chair on 3 March 2021. On 10 March 2021 – the date previously fixed for the Claimant’s release – the BCM sent the original decision dated 24 February 2021 to the parties and to the COM. The COM promptly emailed to complain about the delay in receiving the previous decision fixing the date. It became evident that, had the COM known about the fixed date, she could have pursued urgent steps to find a solution. In the circumstances as they by now were, the COM asked the prison to hold off on the Claimant’s release until she found out whether the Streatham approved premises was ready to receive him. Later on 10 March 2021 the BCM emailed the parties and the COM with a fresh decision which ‘amended’ the date of the Claimant’s release to 8 April 2021. That course of action led to an immediate complaint by the Claimant’s solicitor. By 12 March 2021 the COM had identified a possible bed space at approved premises in Camden, available within 3 days (15 March 2021), the Claimant’s solicitor had confirmed that the Claimant would take that room, and so the COM emailed the BCM to confirm that the Claimant had been accepted at the approved premises in Camden from 15 March 2021. On 15 March 2021 the Board issued further directions which ‘amended’ the Claimant’s date of release to that day (15 March 2021) and the Claimant was released on that day to the approved premises in Camden, with a licence condition: “to permanently reside at an approved premises” which the Claimant was not to “leave to reside elsewhere, even for one night, without obtaining the prior approval of your supervising officer”. It was out of these factual circumstances that the claim for judicial review arose.

The claim for judicial review raises – as a central issue – whether the Board had any power to ‘refix’ the release date of 10 March 2021 having made its decision on 24 February 2021. That is not the only issue in the case. In granting permission for judicial review on the papers on 7 October 2021 Heather Williams J directed a one-day hearing of the issue, with directions regarding determination of the secondary issues to be given following that hearing if the Claimant were successful. The hearing was in person. The Board adopts a ‘neutral’ position as to the particular decisions and decision-making in this case but has assisted the Court by taking a clear position on the point of law, maintaining that it has the power to ‘re-fix’ the section 256(1)(a) date for release. The SSJ has adopted a neutral, non-participatory, position.

It is unnecessary, as well as unwise, to attempt a detailed and comprehensive exposition of the legal framework relating to questions of release and the interrelated functions of the SSJ and the Board. But it will I think be helpful to a relevant understanding of the overall setting in which the arguments in this case have arisen, to describe some key features.

A good place to start is Stacey J’s explanation in Dickins at §14: that the Board was established by section 59 of the Criminal Justice Act 1967 and remains established as a body corporate pursuant to section 239(1) of the 2003 Act; and that, although it is recognised as a court when deciding whether to direct a prisoner’s release and for the purposes of Article 5(4) ECHR, it is “entirely a creature of statute” and “has no inherent jurisdiction”.

There are a number of different scenarios in which a person, on whom a custodial sentence has been imposed, may come to be released (or re-released after recall), on licence. These scenarios include: the case of a determinate sentence prisoner; the case of an indeterminate sentence prisoner (for example a life sentence prisoner); and the case of an extended sentence prisoner. Release “on licence” is important. It means there will be licence conditions with which the person who is released is required to comply. In the case of a life prisoner, provision for licence conditions is found in section 31 of the Crime (Sentences) Act 1997 (“the 1997 Act”). In the case of licences under chapter 6 of Part 12 of the 2003 Act, provision for licence conditions is found in section 250 of the 2003 Act. In the design and imposition of licence conditions there is a prescribed division of labour between the SSJ and the Board: see R (Latif) v Secretary of State for Justice [2021] EWHC 892 (Admin) [2021] 4 WLR 61. Licence conditions may be “standard conditions”, or they may be ‘bespoke’ conditions, species of both of which are identified in the Criminal Justice (Sentencing) (Licence Conditions) Order 2015 (SI 2015 No. 337) (“the 2015 Order”).

A primary example of a bespoke licence condition is a condition concerning “residence at a specified place”: see Article 7(2)(a) of the 2015 Order. That means a bespoke licence condition can require residence in an approved premises (“a RAP Condition”). Such a condition was an integral part of the Board’s decision-making in the present case. RAP Conditions were the subject of the Court of Appeal’s judgment in R (Bowen) v Secretary of State for Justice [2017] EWCA Civ 2181 [2018] 1 WLR 2170, a case in which – following oral hearings – the Board directed the relevant individuals’ release from custody on the basis that a number of conditions would be imposed by the SSJ in their release licences, namely a period of residence at specified approved premises in Cardiff (see Bowen at §4). In that case there had been a risk management plan which had elicited that a bed was to be available from a known date (see §18). The Court discussed the statutory scheme and practical features relating to approved premises (at §§24-25).

Another particular species of electronically-monitored curfew licence condition (“an EMC Condition”) arises in cases where a fixed-term prisoner is released on licence before ‘half-time’: in the period up to 135 days before the RCP, pursuant to the SSJ’s statutory power in section 246(1)(a) of the 2003 Act. In that special situation the licence conditions for release are required by statute to include a section 253 EMC Condition: see sections 250(5) and 253. So, one scenario of release on licence arises where a fixed-term prisoner is released in the period up to 135 days prior to having served the RCP. In that scenario release on licence is pursuant to a discretionary power conferred on the SSJ (2003 Act s.246).

One scenario of release on licence arises in the case of a life prisoner to whom section 28 of the 1997 Act applies. There, Parliament has provided (in s.28(5)) that: “As soon as (a) a life prisoner to whom this section applies has served the relevant part of his sentence [and] (b) the Board has directed his release under this section, it shall be the duty of the [SSJ] to release him on licence”. In Bowen the Court of Appeal concluded that the SSJ’s section 28(5) duty is fulfilled, in a case where release is directed by the Board with a recommended RAP Condition, where within “a reasonable time” the RAP placement arrangements are made, and the prisoner released. What this means can be encapsulated as follows. Section 28(5) release, in accordance with a decision of the Board, is statutorily-mandated release on licence after a Board decision, but without any ‘immediacy’ obligation and without any fixed future date. I will call this “Section 28(5) Release”.

Another scenario arises in the context of a fixed-term prisoner at half-time, having served the RCP pursuant to section 244 the 2003 Act. As to that scenario, Parliament has imposed a statutory duty on the SSJ to release the prisoner on licence once that point in time has been reached. Section 244(1) provides, leaving aside the specified exceptions: “As soon as a fixed-term prisoner … has served the requisite custodial period for the purposes of this section, it is the duty of the [SSJ] to release him on licence under this section”. I will call this “Section 244(1) Release”.

Various scenarios arise after a revocation and recall, where these have been actioned by the SSJ pursuant to statutory powers conferred in sections 254 and 255 of the 2003 Act. Here are the basic features:

The Parole Board Rules 2019 (“the Rules”) were made by the SSJ under powers contained in the 2003 Act. The Rules include provisions which are applicable in a situation where the individual’s case has been referred (or re-referred) to the Board by the SSJ. The Board, acting through its appointed Panel, “to consider the release of a prisoner” by first deciding “on the papers” (Rule 19(1)) whether “(a) the prisoner is suitable for release; (b) the prisoner is unsuitable for release; or (c) the case should be directed to an oral hearing”. The Panel’s decision “must be recorded in writing with reasons… and the written record provided to the parties within 14 days” (Rule 19(8)). Where a Panel has “considered a prisoner’s case at an oral hearing”, it must then decide (Rule 25(1)) whether “(a) the prisoner is suitable for release, or (b) the prisoner is unsuitable for release”. The Panel’s decision must be recorded in writing with reasons and that record must be provided to the parties not more than 14 days after the end of the hearing (Rule 25(6)).

The Rules contain an express mechanism whereby decisions are “provisional” and “final”. A decision by the Board’s Panel, whether on the papers or after an oral hearing, that the prisoner is (a) suitable for release or (b) unsuitable for release is “eligible for reconsideration” in classes of case – specified in the Rules – which include cases involving a life (indeterminate) sentence and cases involving an extended sentence (Rule 28(2)). If “ineligible” for reconsideration, the decision is “final” (Rules 19(5), 25(3)). If “eligible” for reconsideration, the decision is “provisional”, but if no application for reconsideration is received within the specified period, the decision becomes “final” (Rules 19(4), 25(2)). Reconsideration under the Rules is on the grounds that the decision is “irrational” or “procedurally unfair” (Rule 28(1)) and if the application for reconsideration is dismissed the decision becomes “final” (Rule 28(8)). One point decided in Dickins is that “mistake of law” is not a ground for reconsideration.

There are a number of different scenarios which may involve changes in circumstances including new information coming to light, which could warrant adjustment in actions being taken in relation to release on licence, or post-recall re-release on licence. (1) In R (SSJ) v Parole Board [2020] EWHC 3490 (Admin) [2021] ACD 28 the Board had dealt with a post-recall reference (s.255C(4)) and what later came to light was information relating to the nature of the original custodial sentence. (2) In Dickins the Board had dealt with the question of Section 28(5) Release of a lifer, and what later came to light was information about alleged conduct in prison. (3) As the SSJ’s express power in section 255B(8) recognises, new information may come to be received “about” the prisoner. (4) As the same express power (s.255B(9)) also recognises, new information may also come to be received, not “about” the prisoner, but which is “other relevant information”. (5) As the express ‘caveat’ provisions in sections 255B(6)(7) and 255C(6)(7) recognise, information may come to light which relates to whether licence conditions are in place so that the licence condition can be complied with. (6) As was discussed in Bowen, there in the context of a decision on Section 28(7) Release, information relating to the availability of a place for the purposes of an RAP Condition may change and if the expected availability date of the RAP place should change, for any reason, this could affect the timing of release including that “release would be brought forward” (Bowen §18).

There are two recent cases of this Court which address issues as to functus in the context of the 2003 Act. They are SSJ and Dickins. An important note of caution is that, in each of those cases, it can convincingly be pointed out that the legal analysis of functus was ‘obiter dictum’ (not part of the decisive reasoning of the Court in deciding the case): see SSJ at §28 (the functus issue “did not arise”); Dickins at §51 (the functus issue was “academic”). Having said that, in each case the functus point was fully argued and the Court was specifically asked by the parties to deal with it. What is more, in the present case it is common ground between the parties that the reasoning as to functus in the two earlier cases was legally correct. I have heard no argument which contends that there is a basis for this Court to disagree with that analysis in those cases. The parties have proceeded on the basis that the two earlier cases were correct in their analysis of the functus issues. So do I.

The SSJ case involved an extended sentence imposed in March 2012 from which the prisoner had been released, having served the RCP in June 2015. His licence had subsequently been revoked and he had been recalled to prison in March 2020. His case was referred to the Board (s.255C(4)) who considered it believing that the extension period associated with the extended sentence had in fact already expired. In those circumstances, the Board (on 17 June 2020) dealt with the purported reference by saying it had “no decision to make” and making clear that the prisoner should be “immediately released”. The true position, in fact, was that the extension period associated with the extended sentence had not in fact expired but ran to 22 June 2023. That having come to light, the SSJ then purported to ‘re-refer’ the case to the Board (on 17 July 2020). On the ‘re-reference’, the Board concluded that it had no power to make a decision, being functus. The SSJ brought a judicial review claim, which was all about whether the Board should now reconsider the case on the correct factual basis. Three points were prominent. (1) The first point was the argument that the Board could not be functus since it had made “no decision”. (2) The second point was that the 17 June 2020 decision, if it was a “decision”, was unfair or irrational and should be quashed and the matter remitted. (3) The third point was that – based on the 1978 Act section 12(1) – the SSJ had a continuity of statutory power (s.255C(4)) to refer (ie. re-refer) a case to the Board, even if the Board had dealt with a referral by making a s.255C(5) direction for “immediate release on licence” to which the SSJ “must give effect”.

The case came before William Davis J who granted the claim for judicial review. The consequence was that the Board would need to reconsider the question of the prisoner’s release afresh, and on a correct appreciation of the nature of the extended sentence and extension. The claim succeeded for two reasons. The first reason was that the Board had made no decision (§§25, 38). The second reason was that, even if the Board were characterised as having made a decision directing immediate release on licence, that decision was unfair or unreasonable (irrational) given the misappreciation of the true nature of the sentence (§§26-27, 38). These two reasons – indeed, either one of them – were sufficient to dispose of the claim.

At the parties’ invitation and encouragement, William Davis J went on specifically to consider the following question. Where the Board has made a decision on a section 255C(5) reference and directs the prisoner’s “immediate” release on licence, is there any statutory power for the Board to revisit its decision, including by virtue of any re-referral by the SSJ in the exercise of a ‘continuity’ of statutory function arising by virtue of section 12(1) of the 1978 Act. William Davis J’s answer to that question was “no”. He concluded that there was no statutory power for the Board to revisit such a decision, and there was no statutory power of re-referral to the Board by the SSJ (§§30-37, 39). Underpinning that conclusion where the observations: that “the [SSJ] must give effect to a direction by the Board for the immediate release of a prisoner on licence”; that when the Board “makes such a direction the [SSJ] must give effect to the direction”; and that this “is a duty not a power” (§33). Rejecting the argument that section 12(1) of the 1978 Act provided a basis for re-referral “from time to time as occasion requires”, William Davis J said this: “Section 12 does not permit repeated exercise of a statutory duty where ‘contrary intention appears’. Such contrary intention is apparent from the terms of section 255C(5). Once the Board has directed a prisoner’s immediate release on licence, the SSJ is under a duty to give effect to that direction. That does not allow for any further exercise of the initial duty to refer the case to the Board. Section 12 of the 1978 Act does not assist the SSJ in relation to his duty under section 255C”. In relation to the ‘reconsideration’ jurisdiction under Rule 28 of the Rules, William Davis J described that scheme as one which “avoids any issue of functus or finality because it creates the concept of a provisional decision” so that “the scheme provides the [SSJ] with the means to challenge a decision to release in appropriate cases”.

Based on the SSJ case, it was common ground before me that any situation in which the 2003 Act describes the Board as making a decision “on a reference”, which decision “directs” the prisoner’s “immediate release on licence”, such that the SSJ “must give effect to the direction”, is a situation where the Board is functus once it has made such a decision. Irrespective of what new development takes place or what new information comes to light, including about the prisoner or about arrangements in conjunction with a licence condition, the Board has no statutory power to re-open and revisit that decision. The only mechanism for reconsideration by the Board of such a decision would be the situation where, in accordance the Rules, the decision is “eligible for consideration” and so is “provisional”, not yet being a “final” decision. Even there, although not functus, the Board’s function is circumscribed by the Rules: it can revisit the decision through reconsideration, but only in accordance with the narrow grounds of irrationality or procedural unfairness (Rule 28(1)).

In Dickins the claimant was serving a life sentence with an 18-year minimum term which had expired on 27 September 2019. On 11 May 2020 the Board emailed a decision with reasons (the ‘first decision’) to the BCM, directing the SSJ to release the claimant from custody in accordance with the conditions set out in the decision. Later that same day, new information came before the Board about events two days earlier involving the alleged receipt by the claimant of contraband into prison. On 12 June 2020 the Board decided (the ‘second decision’) that it was functus and had no power to reopen the first decision and take the further information into account. On 18 June 2020 the first decision was sent to the parties by the BCM. On 9 July 2020 the SSJ applied for “reconsideration” of the ‘second decision’ under Rule 28. On 11 August 2020 the Board upheld the application for reconsideration on the grounds of error of law (the ‘third decision’). The error of law, identified by the Board in the ‘third decision’, was that the ‘second decision’ had wrongly treated the Board as functus, the legally correct position being that the Board had been able (in the ‘second decision’) to take account of the new information, since the ‘first decision’ had not (at the time of the ‘second decision’) yet been communicated to the parties. The claimant (the prisoner) sought judicial review of the ‘third decision’ on two grounds. The prisoner’s first ground was that “error of law” is not a ground for reconsideration under Rule 28. The prisoner’s second ground was that there had been no “error of law” in the ‘second decision’ – meaning the ‘third decision’ could not stand – since the Board had been functus when it sent its ‘first decision’ and reasons to the BCM on 11 May 2020.

Stacey J allowed the claim for judicial review. She found in favour of the claimant on the first ground for judicial review. The Rule 28 power of reconsideration did not extend to “error of law” and so the ‘second decision’ (and so the ‘first decision’) should have stood undisturbed by the ‘third decision’. Although in those circumstances “academic”, invited and encouraged by the parties, Stacey J went on to consider the second ground for judicial review.

In analysing the second ground for judicial review, Stacey J found “that the Board had performed its relevant function at 08.51 on 11 May 2020 when the Panel Chair sent the decision and reasons to the [BCM]” (§63). Pursuant to the Rules (Rules 19(8), 21(12) and 25(6)), “the point at which the written reasons [were] agreed by the Panel members” was the point at which “the decision is made” (§55). The separate and distinct functions with regard to the administrative task of communication of the decision did not alter the plain and ordinary meaning of the Rules as to when the Board had performed its function and reached its decision (§57). Stacey J went on to say that the fact that the decision was “provisional” under the Rules could not assist, given that the only grounds for “reconsideration” could not apply, and given that the decision was “still a decision” (§62). The Board had no power to reconsider its decision to direct Section 28(5) Release, including by reference to a “supervening material change of circumstance” (§64). The decision could be revisited only to the extent that it could be reconsidered as a “provisional” decision on the limited grounds in Rule 28, or a correction under the “slip rule” in Rule 30 (§67).

Based on the Dickins case, it was common ground that any decision with reasons sent to the BCM directing a Section 28(5) Release would involve the Board being functus including as to (a) the prisoner’s suitability for release and (b) any relevant licence condition identified by the Board as suitable or necessary for that release. The Board would not have the statutory power to revisit those questions, in the light of further information or change of circumstances. Nor would section 12 of the 1978 Act justify the identification of such a power. The only revisions which the Board would have the power to make would be amendment under the “slip rule”, to “correct an accidental slip or omission in a decision” (Rule 30), or reconsideration of the decision as a “provisional” one, within the prescribed time-frame and on the prescribed grounds that the decision was “irrational” or “procedurally unfair” (Rule 28(1)). The fact that the decision concerned an indeterminate sentence and was therefore “eligible for reconsideration” (Rule 28(2)), making it “provisional” and not becoming “final” until no application for reconsideration was received (Rule 25(2)) or until such an application had been dismissed (Rule 28(8)), did not affect this analysis. All of this, it was common ground before me, is what Dickins correctly decided.

Mr Campbell for the Board advanced a clear and comprehensive argument in favour of the proposition that a decision pursuant to section 256(1)(a) of the 2003 Act, on a section 255B(4) or section 255C(4) reference, to “fix a date for the person’s release on licence” is one which the Board has statutory power to revisit so as to amend that date and ‘re-fix’ it, whether by substituting a later or an earlier fixed date. Mr Campbell submits that the Board has a ‘continuity’ of statutory power in this regard, which continues right up to the final moment of any fixed date which has been set. He submits that the Board may receive further information of any relevant kind in order to decide whether to ‘re-fix’ a different date for release, or for that matter to decide to vary one of the licence conditions which it has identified as appropriate for the release. His argument in support of that proposition involved, as I saw it, the following key points:

The Board’s argument, whose essence I have endeavoured to encapsulate, is clear, comprehensive and sustained. But I cannot accept that it is correct. In my judgment, Mr Withers is correct when he submits that, on the correct legal analysis, when the Board has made a reasoned decision which fixes a release date for the purposes of section 256(1)(a), it does not then have a ‘continuity of power’ to “re-fix” a different date for the person’s release on licence. I will explain why.

It is a clear feature of the 2003 Act that there are situations in which Parliament recognised the importance and appropriateness of a certain, defined future date for release, notwithstanding that release would be on licence.

Turning to the key provisions which are in issue, Parliament has required the Board to ‘deal’ – I will use a neutral word for now – with a “reference” made to it under section 255B(4) or 255C(4). There are three specified ways of ‘dealing’ with the reference, which need to be examined.

The phrase “determine the reference” (used by Parliament in s.256(1)(b)) is “conclusory language”. That is how it was described in Mr Campbell’s skeleton argument. I think he was right. It is true, as he points out, that the phrase “determine the reference” is used in section 256 in the context of making no direction (s.256(1)(b)), and that Parliament did not use that phrase in section 256(1)(a). It did not there say that acting to “fix a date for the person’s release on licence” was also action to “determine the reference”. But, in my judgment, it is plain that fixing a date is equally action to “determine the reference”. In my judgment, there are the three alternative ways in which the Board acts to “determine the reference”. This is put beyond any doubt by considering section 256A(4). There, Parliament speaks perfectly naturally of the Board being under a duty to “determine the reference by” and then each of three modes determining the reference. As was seen earlier, on a further reference, section 256(4)(5) provide as follows:

The point is further reinforced, in context, by the fact that the language used for identifying a date for the release on licence is “fixing”. The natural and ordinary meaning of that word means a definitive, clear, fixed release date to which everyone has to work. The Board is acting to “determining the reference” by identifying “a date” which is then “fixed”. The fixed date enables everybody including the prisoner to know exactly where they stand. It enables everybody, including those who need to make suitable arrangements, to know what date has been fixed. Once the Board has made its decision and has acted to “determine the reference” by making the decision – once it has “fixed a date” – it is then straightforwardly the duty of the SSJ to release the prisoner “on that date” (s.256(4)).

Then there are the Rules, and the provision for ‘finality’ and “reconsideration”. It is revealing that – ultimately – Mr Campbell’s analysis turned on the interpretation of Rule 25(1)-(3) and the scope of decisions which are “final”. As to this:

Next, it is significant that the Board can be functus – having ‘discharged its function’ – even though the release is not ‘immediate’ and there is no ‘immediacy’ duty.

So far as concerns the various arguments about the statutory purpose and public protection, and the arguments about the fact that the consequences of the Board lacking the power to reopen a decision ‘cut both ways’, those arguments lose much of their potency when it is recognised that there are many scenarios relating to release on licence in which the Board has no continuity of function, albeit that further information can come to light or difficulties can (foreseeably or unforeseeably) arise. In my judgment, when Parliament conferred the function on the Board of determining a reference by fixing a future date for release on licence, Parliament was giving primacy to the prisoner – and everybody else – knowing where they stood, by reference to a definitive, clear, fixed release date to which everyone has to work. That clarity and certainty, meaning that the date cannot then be deferred or delayed, is a virtue whose potency is not in my judgment materially undermined by the fact that nor can the date be brought forward.

In my judgment, in the light of the points I have made about the statutory scheme, “the contrary intention appears” for the purposes of section 12(1) of the 1978 Act. The Board has no continuity of power to re-fix a date for a person’s release on licence, in a case in which it has already dealt with a reference to it by making a decision to “fix a date for the person’s release on licence” pursuant to section 256(1)(a) of the 2003 Act. In the case of an extended sentence prisoner, the Board’s decision may be provisional and subject to reconsideration under the Rules, within the prescribed time and on the prescribed grounds. But, unless and to the extent “provisional” and subject to “reconsideration” under the Rules, the decision discharges the Board’s function, and the Board is functus.

Finally, I mention two sources to which my attention was invited. First, Mr Withers referred to the passage in Wade & Forsyth, Administrative Law which was cited in Dickins at §30 (and in R (Demetrio) v IPPC [2015] EWHC 593 (Admin) at §38), which says of section 12(1) of the 1978 Act:

Secondly, Mr Campbell referred to the Explanatory Notes to the Police Crime Sentencing and Courts Bill. The Bill, as it currently stands (at the time of the hearing before me) would amend the 2003 Act, removing the distinction between directions for immediate release and directions for future release, revoking section 256 of the 2003 Act, and replacing current powers with a general provision that a direction for release by the Board must be implemented by the SSJ “as soon as is reasonably practicable in all the circumstances”. The Explanatory Notes describe this as desirable because the Board’s directions for release on future specified dates create “an expectation of release on that date, which may not be possible if other conditions of release also need to be fulfilled”, in which circumstances “applications are required to the Parole Board to change the timing of its release direction”. That observation was relied on as supportive of the Board’s understanding of what the current law permits. I cannot accept that this is an aid to construction. Rather, the answer to that is the same one as William Davis J gave in the SSJ case at §39: it may be that there is a “supposed power”, which has been exercised and accepted, but if that is so it is nevertheless with “no basis in law”.