PRISON—RELEASE ON LICENCE—PAROLE BOARD

Queen’s Bench Division (Divisional Court)
Hughes LJ and Treacy J
7 September 2007

The present arrangements for the Parole Board do not sufficiently demonstrate its objective independence of the secretary of state for the purposes of the common law and Art 5(4) of the European Convention on Human Rights (the Convention).

Sam Grodzinski (instructed Irwin Mitchell) for the claimants in the first application.
Phillippa Kaufmann (instructed by Bhatt Murphy) for the claimant in the second application.
Hugh Southey (instructed by Stephensons LLP) for the claimant in the third application.
Michael Fordham QC, Gemma White and Ben Jaffey (instructed by the treasury solicitor) for the Parole Board.
Monica Carss-Frisk QC and Mark Vinall (instructed by the treasury solicitor) for the lord chancellor and the secretary of state for justice.

The proceedings concerned the Parole Board. It was originally created in order to advise the home secretary when exercising his discretionary powers in relation to the release of prisoners on licence. Its status became that of an executive non-department public body operating under the “sponsorship” of the relevant Department of State (presently the Ministry of Justice). The current sponsorship unit within the ministry was the Sentencing Policy and Penalties Unit, a subdivision lying within the National Offender Management Service (NOMS), which in turn was a service within the ministry. The board’s decisions primarily fell into two categories: (i) whether or not to order initial release of prisoners on conditional licence; and (ii) in the event of recall from licence, whether or not to order re-release, either immediately or subsequently. In both cases the decision involved the assessment of what risk the prisoner presented and how that risk could best be managed in the public interest. The claimants applied for judicial review, contending that both the structure of the board and the way in which it was controlled by the secretary of state were such as to give it insufficient clear and real independence from the executive. They submitted that it did not have the necessary objective independence required of courts by the Convention, Art 5(4) and the common law. There was no dispute about the independence of mind and impartiality of the individual members of the board; the issue was whether or not the relationship with the sponsoring department made the board too close to both the executive and the principal party to all its decisions.

LORD JUSTICE HUGHES (giving the judgment of the court):

The routine arrangements for appointment to the board were quite consistent with objective independence. What was not consistent with it was the use which one recent secretary of state had made of the power of appointment when under public and political pressure to try to change the approach of the board to the performance of its duties.

That occurred as a consequence of the sponsorship arrangement which induced the impression that the board was in some respects an in-house departmental body, for which the secretary of state had direct responsibility.
Members of the board were appointed for an initial period of three years. Their terms provided that subject to satisfactory performance the appointment might be extended to a second three-year term.The evidence was that such renewal was routinely made where the member seeks it.
The terms of appointment provided that the secretary of state might terminate the appointment at any time if satisfied that he had: “ (a) failed satisfactorily to perform his/her duties…”

The period of appointment was near the low borderline of what was capable of providing the necessary guarantee of independence, but would if taken alone pass the test. However, when coupled with the power to remove under para (a) without any procedure for the determination of the merits, the provisions for tenure failed the test of independence.
Apart from the formal rule-making power in the Criminal Justice Act 2003 (CJA 2003), s 239(5), the secretary of state was empowered by s 239(6) to give directions as to the matters to be taken into account by the board in discharging its functions.

The power to give directions was not inconsistent with the board’s independence, but the particular use made of it which was addressed by the Court of Appeal in R (on the application of Girling) v Parole Board [2006] EWCA Civ 1779, [2007] 2 All ER 688 provided an illustration of the manner in which sponsorship and its application in practice did create the appearance of want of independence.

Funding

The evidence showed that in respect of decisions whether or not to interview a prisoner, budgetary control had been used to achieve influence on the board’s decision-making, and that that had arisen from the departmental perception created by the relationship of sponsorship.
Accordingly, the funding arrangements for the board were not in themselves inconsistent with independence, providing that they were not used to influence decision-making, but that in one respect they appeared to have been so used.

His lordship concluded that no sign of any attempt by the ministry to influence individual cases, as distinct from the general approach to release decisions, could be found. In some respects the structure of the board was consistent with the necessary objective independence. His lordship was satisfied, however, that the relationship of sponsorship was such as to create what objectively appeared to be a lack of independence, and to cause the sponsoring department sometimes to treat the board as part of its establishment. What was a perfectly appropriate, if not essential, relationship with the secretary of state when the board existed to advise him upon decision-making, which was his statutory responsibility, was no longer appropriate once the board had been entrusted by Parliament with the duty of making decisions itself, as a court, and those decisions were binding upon him.

The applications would therefore be allowed.