R (on the application of Wells) v Parole Board
R (on the application of Walker) v Secretary of State for the Home Department [2007] EWHC 1835 (Admin), [2007] All ER (D) 479 (Jul)
Queen’s Bench Division (Divisional Court)
Laws LJ and Mitting J
31 July 2007
The existence of measures to allow and encourage a person servicing a sentence of imprisonment for public protection imposed under the Criminal Justice Act 2003 (CJA 2003), s 225 to progress is as inherent in the justification for his continued detention as the Parole Board reviews themselves; without them detention falls to be condemned as unlawful as if there were no such reviews at all.
Michael Burke (instructed by Russell & Russell) for the Wells.
James Eadie (instructed by the treasury solicitor) for the Parole Board.
Jeremy Johnson (instructed by the treasury solicitor) for the secretary of state for justice in the case of Wells.
Tim Owen QC and Hugh Southey (instructed by Irwin Mitchell) for Walker.
Robert Jay QC and Nicola Greaney (instructed by the treasury solicitor) for the secretary of state in the case of Walker.
Two conjoined applications for judicial review concerned prisoners sentenced under CJA 2003, s 225 to imprisonment for public protection (IPP). Under that regime, prisoners were required to serve a minimum term—known as the tariff—before becoming eligible for parole. The secretary of state had directed the Parole Board that in assessing the level of risk, they should consider whether or not the prisoner (the lifer) had made positive and successful efforts to address the attitudes and behavioural problems which had led to the commission of the relevant offence.
The applicant in this case contended that he had not been afforded proper opportunity to undertake offending behaviour work or courses in the prison, and for that reason his ability to demonstrate to the Parole Board that he was safe to be released on licence into the community at the expiry of the tariff element of his sentence had been reduced or eliminated. In those circumstances it was said that he had been treated unreasonably or irrationally at the hands of the secretary of state.
LORD JUSTICE LAWS:
His lordship considered, inter alia, R (on the application of Cawser) v Secretary of State for the Home Department [2003] EWCA Civ 1522, [2003] All ER (D) 56 (Nov).
The point was one of principle. It had nothing to do with the wisdom or practicality of some use of scarce resources. It had nothing to do with the secretary of state’s recent actions to ameliorate the position relating to IPP prisoners—unless those actions provided current and effective assessments of danger, which they did not. It did not touch the court’s proper reluctance to tread ground which was the constitutional territory of the executive. It was a straightforward point of law.
The Crown had obtained from Parliament legislation to allow—rather, require: the court had no discretion—the indefinite detention of prisoners beyond the date when the imperatives of retributive punishment were satisfied. But that further detention was not arbitrary. It was imposed to protect the public. As soon as it was shown to be unnecessary for that purpose, the prisoner had to be released. Accordingly there had to be material at hand to show whether the prisoner’s further detention was necessary or not. Without current and periodic means of assessing the prisoner’s risk, the regime could not work as Parliament intended, and the only possible justification for the prisoner’s further detention was altogether absent. In that case the detention was arbitrary and unreasonable on first principles, and therefore unlawful.
Measures to allow and encourage prisoner progress
Such a consequence would not be averted merely by prompt and regular sittings of the Parole Board. The law had already insisted on those. Periodic reviews by the Parole Board—or any person or institution—only had value to the extent that they were informed by up-to-date information about the prisoner’s progress. So much was at least required.
However, so were measures to allow and encourage the prisoner to progress, for without them the process of review was a meaningless one. It was like asking how many miles an army had marched through the night when there were no orders for it to march at all.
Reducing the risk posed by lifers had to be inherent in the legislation’s purpose, since otherwise the statutes would be indifferent to the imperative that treated imprisonment strictly and always as a last resort. Whether or not the prisoner ceased to present a danger could not be a neutral consideration, in statute or policy. Thus the existence of measures to allow and encourage the IPP prisoner to progress was as inherent in the justification for his continued detention as are the Parole Board reviews themselves; and without them that detention fell to be condemned as unlawful as sure as if there were no such reviews.
All of the above marched with the terms of the legislation. It informed the legislation’s underlying premise—that procedures would be put in place to ensure that initiatives would be available to maximise the opportunity for lifers to demonstrate they were no longer a danger to the public by the time their tariff expired or as soon as possible thereafter.
It also marched with, inter alia, the United Nations Report on Life Imprisonment of 1994 and with the secretary of state’s policy and directions under CJA 2003. It required only that the secretary of state follow the necessary logic of CJA 2003 and associated statutes. That was not a florid, but a minimum requirement of the law. The application would therefore be allowed.
Mitting J agreed.
