Brooke & Ors , R (on the application of) v The Parole Board & Anor [2008] EWCA Civ 29

[2008] EWCA Civ 29

Case No C1/2007/2229

IN THE SUPREME COURT OF JUDICATURE

COURT OF APPEAL (CIVIL DIVISION)

ON APPEAL FROM

Hughes LJ and Treacy J

Venue Royal Courts of Justice, Strand, London, WC2A 2LL

Date 01/02/2008

Before

THE LORD CHIEF JUSTICE OF ENGLAND AND WALES

THE RIGHT HONOURABLE LORD JUSTICE DYSON

THE RIGHT HONOURABLE LORD JUSTICE TOULSON

Between

The Queen on the application ofRespondents

(1) Michael Brooke and Gagik Ter-OgannisyanRespondent

(2) David O’ConnellRespondent

(3) Michael MurphyRespondent

The Parole Board1 st Appellant

The Lord Chancellor and Secretary of State for Justice2 nd Appellant

Philip Sales QC and Mark Vinall (instructed by the Treasury Solicitor) for Secretary of State

Michael Fordham QC and Gemma White (instructed by the Treasury Solicitor) for Parole Board

Sam Grodzinski (instructed by I rwin Mitchell, Bhatt Murphy and Stephensons LLP) for Respondents

Hearing Hearing dates : 19th and 20th November 2007

Judgment

Lord Phillips of Worth Matravers CJ:

[1]This is an appeal by the Lord Chancellor and Secretary of State for Justice against declarations made by Hughes LJ and Treacy J sitting in the Divisional Court on 7 September 2007. The Divisional Court itself gave permission to appeal. The Parole Board, which was the first defendant in the proceedings, has at all times adopted a neutral stance. This is one of two appeals heard by this Court over a period of three days that raise fundamental issues as to whether aspects of our system for dealing with offenders who are sentenced to imprisonment comply with the common law and with the European Convention on Human Rights (‘the Convention’).

[2]The purposes of sentencing include both the punishment and the reform and rehabilitation of offenders – see section 142 of the Criminal Justice Act 2003 (‘CJA 2003’). Where an offender is sentenced to imprisonment it has, for the past 40 years, been the practice that in most cases he should be released before completing his full term. In some cases release is dependent upon the prisoner demonstrating that his release will not involve risk to the public that he will commit further offences. It is the practice to provide prisoners with appropriate forms of rehabilitative treatment before they are considered for release. This affords them a better opportunity – often the only realistic opportunity- of demonstrating that they no longer pose a risk. The body that decides whether a prisoner is ready for release is the Parole Board.

[3]The appeal heard with this one, The Secretary of State for Justice v Walker and James, addresses the consequences of the fact that provisions of the CJA 2003 have resulted in more offenders in need of rehabilitation being imprisoned than existing resources can accommodate. This appeal is concerned with the standing of the Parole Board.

[4]Decisions taken by the Parole Board determine, in a variety of situations, whether offenders who have been convicted, have been sentenced to imprisonment and have served parts of their sentences are to remain in prison or be released on licence. It is well established that this role requires that the Parole Board shall be, and appear to be, independent and impartial, both under common law and by reason of the requirements of

Article 5(4) of the European Convention on Human Rights

as applied by the Human Rights Act 1998.

[5]The Divisional Court declared that “the Parole Board does not meet the requirements of the common law and of

Article 5(4) of the Convention

for a court to have demonstrated objective independence of the executive and of the parties”. The court reached this conclusion because it found that the relationship between the Parole Board and the Department of State that sponsored it placed the Secretary of State in a position of apparent influence over the approach of the Parole Board to its curial duties, a position from which on a number of particular occasions he had sought, inappropriately, to influence the manner in which the Board performed those duties. On those occasions the Secretary of State was the Home Secretary and the sponsorship functions of his Department were carried out through the National Offender Management Service (‘NOMS’). On the formation of the Ministry of Justice, and the transfer of NOMS to the Ministry, the sponsorship of the Board was transferred with it. These proceedings have been conducted on the premise that this transfer has made no difference to the independence, or lack of it, of the Board.

[6]The Secretary of State contends that the Divisional Court has erred in its approach. He contends that the Parole Board is an institution of long standing whose independence has been recognised by the European Court of Human Rights (‘ECtHR’). He further contends that, in so far as the Secretary of State may have acted inappropriately, judicial review provided the appropriate remedy to ensure the actual and apparent independence of the Parole Board.

[7]The respondents are three prisoners whose claims for judicial review were originally joined with the claim of a fourth claimant, David O’Connell. Each is in prison under a different type of sentence but each has depended or will depend for his release upon the decision of the Parole Board: i) Michael Brooke was sentenced on 6 July 2001 under the Criminal Justice Act 1991 (‘CJA 1991’) to a determinate sentence of 8 years for five burglary related offences. He was thus a long term prisoner for the purposes of that Act. He was released on licence on 5 May 2006. On 31 May 2006 he was arrested on suspicion of attempted burglary and recalled to prison. It fell to the Board to consider whether he should be re-released or that his recall should remain effective for the maximum duration of the licence. Since that date he has been convicted of the new offence and sentenced to a fresh determinate term of imprisonment. ii) Gagik Ter Ogannisyan is an Armenian national who is serving a mandatory life sentence for his involvement in two murders committed in 1993. The tariff fixed in his case was 15 years, which tariff is due to expire in August 2008. At that stage he will be eligible for a review by the Board, which will determine whether he can be released on licence. iii) Michael Murphy received an extended sentence under the Powers of Criminal Courts (Sentencing) Act 2000 (‘the 2000 Act’) on 20 October 2005, for a sexual assault on a child under 13. The custodial element was 9 months’ imprisonment and the extension period was 18 months. He was released on licence on 3 March 2006 but was recalled on 14 March 2006 for alleged breaches of his licence conditions. The Parole Board declined to release him on 27 September 2006, despite having adjourned an earlier hearing in order to receive reports from probation officers, who concluded that the risk to the public posed by Mr Murphy could be appropriately managed in the community. Subsequently, on 22 June 2007, the Board concluded that his recall should stand for the maximum period under the original sentence (the three quarter point).

[8]The Divisional Court restricted the relief granted to declarations. It concluded that there was no basis for finding that the Parole Board’s lack of independence had had any effect on the decisions reached in relation to Brooks and Murphy.

[9]The fourth claimant was David O’Connell. He was convicted of an offence of assault occasioning actual bodily harm on 20 May 2005. On 26 July 2005 he was sentenced to an extended sentence under the Criminal Justice Act 2003 (‘CJA 2003’) of 5 years, comprising a custodial term of 2 years and an extension period of 3 years. He fell to be considered for release half way through the custodial element of his sentence. The Board decided on 18 July 2006 that he was not suitable for release. There was an issue in his case as to whether

Article 5(4) of the Convention

applied. The Divisional Court had insufficient time to deal with that issue and, accordingly, adjourned the claim that he based on the Convention. It was heard by a Court consisting of Latham LJ, Vice-President and Simon J which, on 15 October 2007 delivered a judgment in which they held that Article 5(4) applied in his case also. The role of the Parole Board

[10]The Parole Board, since its creation, has existed to consider whether prisoners should be released before serving the full term of their sentences. Originally the Board provided advice on this matter to the Secretary of State, who took the decision whether or not prisoners should be released. He it was who also decided, in the case of life sentences, the minimum term to be served by prisoners before being considered for release (‘the tariff’). Progressively, under the influence of decisions of the European Court of Human Rights, decisions on release have been made the responsibility of the Parole Board and decisions on tariffs the responsibility of the judiciary.

[11]Prior to 1967 prisoners might be released by the Secretary of State before serving the full term of their sentences under a system of remission. Such release depended upon the conduct of the prisoner while serving his sentence. The Criminal Justice Act 1967 introduced a new regime under which the Secretary of State was given power to release prisoners on licence and to recall prisoners so released. Section 59 of that Act created the Parole Board. The primary function of the Board was to advise the Secretary of State in relation to the exercise of his powers under the Act and the Home Secretary was under no obligation to comply with the advice given.

[12]Today the Board is established under section 239 and Schedule 19 of the CJA 2003. It was constituted a body corporate under section 149 of the Criminal Justice and Public Order Act 1994 and, as such, has the status of an Executive Non-Departmental Public Body (‘ENDPB’). The object of such status is to enable the body to perform administrative activities free from direct governmental control. An ENDPB must, however, have a sponsoring Department, which provides its funding and is concerned to ensure that there is justification for the funding provided and that this is used appropriately by the ENDPB.

[13]Although the original function of the Board was to advise the Secretary of State in relation to his exercise of the power to release prisoners on licence, the tables are now turned. The Secretary of State is required to give effect to decisions of the Board in relation to the release of prisoners and the Secretary of State commonly gives the Board his own view as to the individual decisions that they ought to reach.

[14]No challenge was made of the following summary by the court of the Board’s decision making process on an application for release:

“16. All the decisions are made by a panel of either one, or more often two or three members. In some cases there is an oral hearing; in others the decision is made upon written submissions. It is not necessary for the purposes of this judgment to trace the history of court decisions on when an oral hearing is and is not mandatory. The Board further has a statutory discretion under s239(3) CJA 2003 to conduct an interview with the applicant prisoner ‘if in any particular case the Board thinks it necessary…before reaching a decision’. 17. Whichever may be the means of considering the case, the Secretary of State, via NOMS, is a party to each one. He fulfils the essential function of preparing a dossier of documents relating to the prisoner, designed to provide the necessary background evidence and risk assessments according to various models. His paperwork will often, but not invariably, include his ‘view’ as to the correct outcome; on other occasions he will simply present the facts. If there is an oral hearing he will have present a representative and may instruct counsel. The prisoner is present at an oral hearing and might be represented. Witnesses may be called and examined. No doubt the procedure is relatively flexible and may proceed in some, perhaps many, cases by way of agreement or by inquiry made by the panel of its own motion. The correct analogy is neither an appeal against an administrative decision nor a prosecution for an alleged offence but rather an application or referral for original decision. Nevertheless, there are clearly two parties to each case, the Secretary of State and the prisoner, and liberty is what is at stake.”

[15]Decisions of the Board that bind the Secretary of State include the following: i) By virtue of section 28 of the Crime (Sentences) Act 1997 (‘CSA 1997’)whether a prisoner who has been sentenced to life imprisonment (or, if under 21, to custody for life or during Her Majesty’s Pleasure) should be released conditionally upon licence once the minimum term fixed by the trial judge as commensurate with the offence has been served; ii) By virtue of sections 28 and 34 of the CSA 1997 whether a prisoner who has been sentenced to imprisonment or detention for public protection under s225/226 CJA 2003 should be released conditionally upon licence once the minimum term fixed by the trial judge as commensurate with the offence has been served; iii) By virtue of section 39 of the Criminal Justice Act 1991 (‘CJA 1991’) and section 254 of the CJA 2003 whether any fixed term prisoner who had been released conditionally on licence but recalled by the Secretary of State should be re-released on licence. iv) By virtue of sections 32 and 34 of the CSA 1997 whether any life or IPP prisoner who has been released conditionally on licence should be recalled, or, if recalled should be re-released on licence. The Secretary of State accepts that

Article 5(4) of the Convention

applies to the Board’s task of resolving these questions.

[16]O’Connell’s application related to a further issue that the Board has to decide, namely, by virtue of section 247 of the CJA 2003, whether a prisoner who has been sentenced to an extended sentence under s227/228 CJA 2003 should be released conditionally upon licence during the latter half of the custodial element of his sentence. As we have said, the Divisional Court has held, when dealing with O’Connell’s application, that Article 5(4) applies in this case also.

[17]The Divisional Court in paragraph 6 of Hughes LJ’s judgment sets out further categories of decisions that the Board makes in relation to early release in respect of which there is an issue as to whether

Article 5(4) of the Convention

applies. These are decisions in relation to prisoners who have served a part of a determinate term.

[18]The reason why Article 5(4) applies in, at least, the former cases, is that the sentencing court is considered to have two objectives when imposing the initial sentence. The first objective is punishment, and the first part of the sentence satisfies the requirements of Article 5(1)(a) in that it fulfils this objective. Once, however, a prisoner has served the penal part of the sentence and is entitled to be considered for release under licence, his continued imprisonment can only be justified in so far as it is necessary to satisfy the second objective, namely the protection of the public. The answer to that question may change with the passage of time. Article 5(4) entitles the prisoner to challenge the lawfulness of his detention on the ground that imprisonment is no longer necessary to satisfy this objective.

[19]This reasoning was first advanced by the European Court of Human Rights in the context of a discretionary life sentence, see Weeks v United Kingdom

(1987) 10 EHRR 293

; Thynne, Wilson and Gunnell v United Kingdom

(1991) 13 EHRR 666

. Initially the ECtHR did not apply the same reasoning to mandatory life sentences. Subsequently it extended the reasoning to these sentences, see Stafford v United Kingdom

(2002) 35 EHRR 32

. The need for independence and impartiality

[20]

Article 5(4) ECHR

provides:

“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.”

It is common ground that it is the function of the Parole Board to act as the ‘court’, whose speedy determination of the lawfulness of a prisoner’s detention is required by Article 5(4). The issue raised by this appeal is whether the Parole Board has the essential attributes of a court for this purpose. A court must be and be seen to be both independent and impartial and the question is whether the Parole Board demonstrates these qualities. It has been common ground that the Board is required to do so not merely be reason of Article 5(4) but under common law principles.

[21]The ECtHR, at paragraph 61 of its judgment in Weeks, said thisabout the requirements of Article 5(4) in the context of the Parole Board:

“The ‘court’ referred to in Article 5(4) does not necessarily have to be a court of law of the classic kind integrated within the standard judicial machinery of the country. The term ‘court’ serves to denote ‘bodies which exhibit not only common fundamental features, of which the most important is independence of the executive and of the parties to the case…but also the guarantees’-‘appropriate to the kind of deprivation of liberty in question’- ‘of [a] judicial procedure’, the forms of which may vary from one domain to another. In addition, as the text of the Article 5(4) makes clear, the body in question must not have merely advisory functions but must have the competence to ‘decide’ the ‘lawfulness’ of the detention and to order release if the detention is unlawful.”

[22]The ECtHR observed that there was nothing to preclude a specialised body such as the Parole Board being considered as a ‘court’ within the meaning of Article 5(4) provided that it fulfilled those conditions. It then went on to hold that the Parole Board satisfied the conditions of independence and impartiality:

“62. The applicant maintained that the Parole Board is not independent of the Home Secretary, primarily because he appoints the members of the Board, provides its staff and makes the rules under which it conducts its procedures. The Parole Board sits in small panels, each of which in the case of life prisoners includes a High Court Judge and a psychiatrist. The manner of appointment of the Board’s members does not, in the Court’s opinion establish a lack of independence on the part of the members. Furthermore, the Court is satisfied that the judge member and other members of the Board remain wholly independent of the executive and impartial in the performance of their duties. There remains the question whether the Board presents an appearance of independence, notably to persons whose liberty it considers. On this point, as the Government stated, the functions of the Board do not bring it into contact with officials of the prisons or of the Home Office in such a way as to identify it with the administration of the prison or of the Home Office. The Court therefore sees no reason to conclude that the Parole Board and its members are not independent and impartial.”

[23]The ECtHR went on to hold, however, that the Parole Board did not satisfy the requirements of Article 5(4) because, among other reasons, its function in relation to release on licence was purely advisory. It lacked the competence to decide whether detention was unlawful and, if it was, to order the release of the prisoner. That shortcoming was remedied by section 34 of the Criminal Justice Act 1991.

[24]The independence and impartiality of the Parole Board was again challenged, in the context of the regime introduced by the CJA 1991, in Hirst v United Kingdom 2000 (App. No. 407 86/98). The applicant contended that the Parole Board was not independent because its members included former employees of the Prison Service or members of Boards of Visitors and because there were structural links between the Board’s secretariat and financing and the Prison Service. The ECtHR declared the relevant part of the application inadmissible, observing:

“The Court is not persuaded that the presence on DLPs, which are presided over by a judge, of doctors or other qualified persons who have previous, relevant experience of work within prisons, for or in contact with the prison service, is sufficient to cast doubt on their independence or impartiality in their functions for the Parole Board. Nor does it perceive that their independence is undermined by the staffing or budgetary arrangements as described. The Court observes that the applicant has not provided any information which would indicate that the DLP members in his reviews, who had previously been prison medical staff or members of a Board of Visitors, risked showing bias against him for personal or subjective reasons.”

THE DECISION OF THE DIVISIONAL COURT

[25]Before the Divisional Court the Secretary of State relied upon Weeks and Hirst as providing the answer to the contention that the Parole Board lacked independence and impartiality. Giving the judgment of the court, Hughes LJ observed that the ECtHR was not provided with anything like the range of evidence that was before the Divisional Court. It was not acquainted with the level of contact between the Board and its sponsoring department and the latter’s approach to sponsorship. Hughes LJ went on to examine these matters in depth.

[26]The Divisional Court considered seven different aspects of the relationship between the Secretary of State and the Parole Board. We shall refer to each in turn. Appointment

[27]Schedule 19 of the CJA 2003 reproduces the provisions of the 1967 Act in relation to the appointment of the Parole Board:

“Membership 2 (1) The Board is to consist of a chairman and not less than four other members appointed by the Secretary of State. (2) The Board must include among its members – (a) a person who holds or has held judicial office; (b) a registered medical practitioner who is a psychiatrist; (c) a person appearing to the Secretary of State to have knowledge and experience of the supervision or after-care of discharged prisoners; and (d) a person appearing to the Secretary of State to have made a study of the causes of delinquency or the treatment of offenders.”

[28]Hughes LJ summarised the evidence in relation to the manner in which members of the Board, other than Chief or Assistant Chief Probation Officers, are appointed as follows:

“In practice the method of appointment is not normally in his personal hands. The Board notifies the Department annually of the numbers of lay members needed. An external recruitment consultant is instructed to conduct the advertisement process by reference to specifications and job descriptions agreed between the Board and the Department. Shortlisted candidates attend a half day assessment course and are interviewed by a panel of three, one from the Department, one from the Board and one from the Office of the Commissioner for public Appointments (OCPA). Appointment is governed by OCPA principles, which include the requirements for appointment to be made on merit and for independent scrutiny – hence the OCPA member of the interviewing panel. Similar but modified arrangements exist for the appointment of criminologist, medical, psychologist or judge members. The High Court Judge members are nominated by the Lord Chief Justice. ”

[29]Hughes LJ observed that it was significant that the Minister was not only responsible for the Board, but was a party to every case that it decided. This called for clear evidence that the appointing Minister demonstrably abjured any significant input into the selection of members. If the arrangements described above were rigorously followed, the power of appointment did not alone create any objective absence of independence. While this was usually the case, there was one occasion when the Secretary of State, when under public and political pressure used his power of appointment to try to change the approach of the Board to the performance of its duties. Hughes LJ commented:

“We think that that occurred as a consequence of the sponsorship arrangement which induces the impression that the Board is in some respects an in-house body for which the Secretary of State has direct responsibility.”

Chief Probation Officers

[30]Turning to Chief and Assistant Probation Officer members of the Board, Hughes LJ observed that these were appointed by a system of ministerial interviews and remained employed within the National Offender Management Service, a service constituted within the Department. He commented that practical realities were relevant. Specialist experience of members was one of the strengths of specialist tribunals. Sitting alongside judges, lay members and members with other expertise there was no actual or appearance of want of independence. Tenure

[31]Both full time and part time members of the Parole Board are appointed on the following identical conditions as to extension and termination of appointment:

“Members are appointed by the Home Secretary for an initial term of three years, and subject to satisfactory performance the Home Secretary may also re-appoint members for a further three-year period. The Home Secretary may terminate the appointment of a member at any time if he/she is satisfied that the member in question has, since his/her initial appointment has: a. Failed satisfactorily to perform his/her duties; b. Become, for any reason, incapable of carrying out his/her duties; c. Been convicted of any criminal offence; d. Conducted himself/herself in such a way that it is not fitting that he/she should remain a member; or e. Acted in contravention of the Board’s Code of Conduct.”

[32]The Divisional Court held that security of tenure was an important aspect of the independence of members of the Parole Board for the following particular reasons:

“the Parole Board, makes large numbers of decisions on, frequently, highly sensitive issues. It makes them, necessarily, on information much of which cannot be made public, nor are the detailed reasons for its decisions made public. It sits in prisons; the public cannot have free access to its hearings. In the rare, but foreseeable, case its decision may well attract a great deal of public attention, much of it necessarily less than fully informed. Under the present sponsorship arrangements, the Secretary of State may well come under public or political pressure in relation to such a decision. When members of the Board are making a decision (whether to release or to refuse to release) which may prove to be unpopular, either immediately or more often with hindsight later, their ability to make it strictly on the merits is considerably enhanced if they know that they have security in their position. It is thus essential in the public interest that they should have that confidence.”

[33]The court concluded that the period of appointment was a little above the borderline of what was capable of providing the necessary guarantee of independence when taken alone but that, when coupled with the power of removal in (a), it failed the test of independence. This was a further consequence of the sponsorship of the Parole Board by the Secretary of State. Rule making

[34]The Secretary of State is given the power to make Rules of Procedure for the Board, currently by section 239 of the CJA 2003. As a result of an amendment to section 330 of that Act, Rules will, in future, be subject to the negative resolution procedure. The Divisional Court held that it was not ideal that Rules should be made by one of the parties to disputes before the Board but that, taken by itself the rule-making power did not create an appearance of lack of independence. Directions

[35]Section 239(6) of the CJA 2003 gives the Secretary of State the power to give directions to the Board as to the matters to be taken into account by it in discharging any functions and directs that, when giving such directions, the Secretary of State must have regard to: a) The need to protect the public from serious harm from offenders, and b) The desirability of preventing the commission by them of further offences and of securing their rehabilitation.

[36]The Divisional Court noted the recent decision of this court in R (Girling) v Parole Board

[2006] EWCA Civ 1779

;

[2007] 2 WLR 782

in which it was held that there was no objection in principle to this power since it was to be construed as a power to give guidance only on matters to be taken into account that were legally relevant. The court remarked that Girling had identified one direction that had not been appropriate and commented that such use of the power to give directions created the clear appearance, and indeed the fact, of lack of independence on the part of the Board. This was an illustration of the manner in which sponsorship and its application in practice created the appearance of want of independence. Funding

[37]Funding is allocated to the Board by the Ministry and is reflected in the Departmental bid put in to the Treasury. The Divisional Court identified one occasion on which the Secretary of State had used his control over the Board’s function to influence the Board’s decision making and commented that this arose from the Departmental perception created by the relationship of sponsorship. The court concluded that the funding arrangements for the Board were not inconsistent with its independence provided that they were not used in this way. Sponsorship general

[38]While none of the matters considered would individually have led the Divisional Court to conclude that the Parole Board did not demonstrate the independence and impartiality necessary to satisfy Article 5(4) and the common law, the court concluded that they were symptomatic of the general effect of the sponsorship of the Parole Board by the Department (now the Ministry), which did give rise to a perception that the Board lacked independence. The closeness of the relationship had given rise to the perception that the Parole Board was part of the Prison Service or the Home Office. The Chairman, the Chief Executive and one judicial member of the Board had publicly voiced their concerns about this. The court singled out as a matters of particular concern(i) a finding that the Secretary of State had reduced the Board’s funding with the deliberate intention of thereby preventing the Board from routinely interviewing applicants for parole and

(ii) intervention by the Secretary of State in the appointments process with a view to influencing the outcomes of cases before the Board.

[39]There were other matters that the court considered gave rise to the perception at least that the Board was not independent of the Department that sponsored it. These included the fact that the Board was housed in a Departmental building, that many of its staff were seconded from the Department, that its information technology was shared with the Department and that there were frequent and confidential meetings between representatives of the Board and officers of the Department, some of which were designed to monitor the work of the Board. GENERAL SUBMISSION

[40]For the Secretary of State Mr Philip Sales QC challenged the individual findings of the Divisional Court in so far as these suggested that the conduct of the Secretary of State was not consistent with the independence of the Board. More fundamentally, however, he criticised the approach of the Divisional Court for concluding, on the basis of individual historic incidents that could have been challenged in judicial review proceedings and was so challenged in one, that the existing sponsorship of the Parole Board was not compatible with its independence. Alternatively, the terms of the declaration were inappropriate in that they were too vague and imprecise, leaving the Secretary of State in doubt as to how to respond to them.

[41]For the three individual respondents Mr Grodzinski, in a particularly lucid argument, submitted that the system of appointments of members of the Board and the limited security of tenure were both incompatible with the requirements of independence on the part of the Board. So was the fact that the current Rules had been made by the Secretary of State without being subject to the negative resolution procedure, which in any event affords only a low level of Parliamentary scrutiny. Girling demonstrated the potential for directions to encroach on the Board’s independence. The Divisional Court’s conclusions in relation to the misuse by the Secretary of State of his control of funding were correct. The relief granted was appropriate.

[42]The Parole Board took a neutral stance, but even this neutrality was significant, having regard to the fact that an attack was being made on the independence of the Board. In a skeleton argument the Board suggested that “it might be helpful to distinguish between those cases in which the issue is simply independence from the executive and those in which the issue is (also) independence from the parties”. It is helpful at this stage to give consideration to the activities of the Board and to the nature of the participation of the Secretary of State in its proceedings as a ‘party’. THE ROLE OF THE PAROLE BOARD AND THE POSITION OF THE SECRETARY OF STATE.

[43]The role of the Parole Board cannot be compared too closely with that of a court. In this country it is the function of a court exercising a civil jurisdiction to resolve disputes between opposing parties and of a court exercising a criminal jurisdiction to preside over an adversarial contest between prosecution and defence and to determine the appropriate sentences for those convicted. The function of the Parole Board must be considered in its historical context. The original function of the Parole Board was to assist the Secretary of State in the performance of his executive duties of offender management. The Secretary of State was responsible for the prison service and thus for the placing of prisoners in different categories of prison and for the planning and provision of rehabilitation in prison. He was also responsible for deciding whether to release prisoners on licence and for determining the conditions of such licences.

[44]The primary consideration of the Secretary of State when deciding whether a prisoner should be released on licence was no doubt the degree of likelihood that, if released, the prisoner would re-offend. He was undertaking, essentially, an exercise in risk assessment. It was in relation to this question that he sought the advice of the Parole Board. The rehabilitation provided to the prisoner and the prisoner’s response to this were very material to the risk assessment. For this reason it was plainly sensible that experience of prisons and offender management should be represented on the Parole Board, and the legislation has always so required.

[45]The precise criteria that determined whether a prisoner should be released were a matter for the discretion of the Secretary of State. It was open to him to direct the Parole Board to apply the chosen criteria when advising whether or not a prisoner should be released. Nor has the role of the Parole Board been restricted to advising on whether prisoners should be released. For instance, it also advises in relation to the conditions of the licences under which the Secretary of State granted release.

[46]Statutory provisions as to the appointment of Board Members, terms of service and the power of the Secretary of State to make rules with respect to the proceedings of the Board date back to 1967, when the role of the Board was purely advisory. The power to give directions was introduced by section 32(6) of the CJA 1991.

[47]The role of the Parole Board has progressively changed, under the influence of decisions of the ECtHR and consequent domestic legislation, from that of an advisory board to that of a court. The extent of the advisory functions retained by the Board is not clear. Section 239 (2) of the CJA 2003 requires the Board “to advise the Secretary of State with respect to any matters referred to it by him which is to do with the early release or recall of prisoners”. This certainly covers advising on licence conditions. The Divisional Court referred to a debate as to whether Rule 20 of the current Rules “permits the Board to make recommendations as to categorisation of prisoners and otherwise”. Whatever uncertainty there may be as to the scope of the Board’s advisory functions, there is no doubt that the major part of the Board’s duties is judicial in nature. The Board has to adjudicate, in respect of different types of sentence, on whether the continued detention of prisoners is lawful or whether they are entitled to be released under licence.

[48]The criteria that govern this question are, in most cases, laid down by statute. The test for those who have been sentenced to life imprisonment, to imprisonment for public protection or to an extended sentence under the CJA 2003 is the same:

“[whether]…it is no longer necessary for the protection of the public that the prisoner should be confined.”

[49]Where a prisoner has been recalled after being released under such a sentence no statutory test is laid down in relation to his re-release, but it is implicit that the same test is applicable – see the comment of Lord Bingham MR in R v Parole Board ex parte Watson

[1996] 1 WLR 906

at 917.

[50]This test will not necessarily be appropriate in the case of fixed term prisoners who have been released conditionally on licence but recalled by the Secretary of State. Sections 254 and 256 place on the Parole Board the duty to decide if and when such prisoners should be released after recall, but does not lay down the test for determining this question. When recognising this fact the Divisional Court remarked that plainly, in all the decisions which the Board has to reach, the assessment of risk and its management lies at the heart of the process. It is in relation to this exercise of risk assessment that both actual and perceived independence is required on the part of the Board.

[51]The Secretary of State is a party to each application for release, but it does not follow that in each case he is in adversarial contest with the prisoner who is seeking release. The exercise that the Board is performing is the same exercise that he previously performed on the advice of the Board. His concern should be that the statutory test is satisfied before a prisoner is released. He will oppose release when he does not believe that the test is satisfied but would not normally be expected to do so where satisfied that it is no longer necessary for the protection of the public that the prisoner should be confined. As Mr A’Court, the head of the Release and Recall Section and the Public Protection Policy Section of NOMS remarked in his witness statement:

“the Board is not concerned with a classic adversarial dispute between two parties, but reaches a risk based assessment of the suitability of individual prisoners for release”

For this reason it is not correct to equate the position of the Secretary of State to that of a party in an adversarial process.

[52]None the less, a court must be independent not only of the parties but of the executive. This is not merely because this is a requirement of the separation of powers but because the executive sometimes has an interest in the result of the proceedings. So far as the Parole Board is concerned the possibility exists that the Secretary of State may be anxious for the Board to apply a stricter, or alternatively a more lenient, test to releasing prisoners than that required by the law.

[53]Judging whether it is necessary for the protection of the public that a prisoner be confined is often no easy matter. The test is not black and white. It does not require that a prisoner be detained until the Board is satisfied that there is no risk that he will re-offend. What is necessary for the protection of the public is that the risk of re-offending is at a level that does not outweigh the hardship of keeping a prisoner detained after he has served the term commensurate with his fault. Deciding whether this is the case is the Board’s judicial function. We turn to consider the extent to which the independence of the Board in performing this function has been put in doubt. ENCROACHMENTS ON THE INDEPENDENCE OF THE BOARD Directions

[54]In Girling the Court of Appeal made it clear that it is an improper encroachment on the Board’s independence for the Secretary of State to take advantage of his position to attempt to influence the way in which the Board reaches its decisions. In that case Walker J had held that the statutory power to give directions could not extend to directions in respect of the judicial functions of the Board. The Secretary of State had given very detailed directions as to the matters to which they should have regard when considering the release and recall of life sentence prisoners.

[55]On appeal the Master of the Rolls, when giving the judgment of the court, reversed the decision of the trial judge. He held that it was not objectionable for the Secretary of State to give directions to the Board by way of guidance of the matters to be taken into account in performing its judicial functions, so long as these were legally relevant. In one respect, however, the court held that the directions given by the Secretary of State were not legitimate. The direction in question was as follows:

“4. The test to be applied by the Parole Board in satisfying itself that it is no longer necessary for the protection of the public that the prisoner should be confined, is whether the lifer’s level of risk to the life and limb of others is considered to be more than minimal”

[56]The court held at paragraph 31:

“…it is not appropriate for the Secretary of State to restate the statutory test. The board should indeed be left to decide what principles to apply by reference to the case law in the light of the appropriate submissions on behalf of the prisoner and the Secretary of State.”

[57]Mr Sales sought to dismiss this inappropriate direction as a single incident, susceptible to correction by judicial review. We consider that it reflected an approach on the part of the executive that viewed the Parole Board as part of the machinery of managing offenders in accordance with Government policy. In 2001 a report (‘the 2001 Review’) was published which was the work of a Home Office team headed by Mr Alistair McMurdo, who was then head of casework in the Lifer Release and Recall Section. This was a Comprehensive Review of the Parole and Lifer Process that incorporated the first Quinquennial Review of the Parole Board since it became an ENDPB. This had a section dealing with Secretary of State’s Directions. This opened with the comment:

“The main feature of the Directions is that they require the Board to have regard to risk in deciding on issues of release and recall. This report does not suggest any change to this basic approach”

[58]The 2001 Review then referred to a review that had found the Board’s approach in one area to be “risk averse” and “over cautious”. It went on to comment:

“4.3.4 There is a difference between deciding that on balance a risk, even if low, ought not to be taken, and withholding parole having overestimated risk on the basis of available evidence. ‘Clinical’ risk assessments of the type that the Board takes are notoriously less accurate than statistical ones. Were the Board to be under a duty to consider an actuarial risk score, this might counter members’ apparent tendency to ‘overestimate’ risk. One consequence, of course, might be an increase in the parole rate. 4.3.5 In the light of this, consideration has been given as to whether there is scope to revise the Directions by examining their purpose, balance and their risk specific elements. The purpose of the Directions is to structure the Board’s discretion and require it to have regard to risk. Each of these purposes remains relevant and appropriate. The balance of the Directions is between public protection and the rehabilitative benefits of early release. There is no reason to recommend any change to this balance.”

[59]The 2001 Review went on to propose draft Directions in relation to the release of determinate sentence prisoners, mandatory life sentence prisoners and the recall of determinate sentence prisoners subject to licence. In relation to discretionary lifer and extended sentence cases the report commented:

“4.3.9 In taking decisions in DLPs and extended sentence cases, the Parole Board is guided by case law. As previously indicated, there has been uncertainty in the past over whether the Secretary of State has the legal authority to issue the Board with Directions in relation to discretionary lifers. Legal Advisers Branch have considered this issue and concluded that, in their view, Directions could be made in relation to the release and transfer to open conditions of discretionary lifers. Similarly, Directions could be made in respect of the conduct of oral hearings for extended sentence prisoners. In all these cases, statute makes clear that the primary test is whether ‘it is no longer necessary for the protection of the public that the prisoner should be confined’. Legal Advisers Branch advise that while this limits the matters to be covered by Directions, it does not exclude completely the power to make Directions. 4.3.10 Although it appears that Directions could be issued, there is clearly no requirement on the Secretary of State to do so. The Board sits in a judicial capacity in oral hearings, and the need to preserve its independence is an important consideration. This suggests that the Secretary of State should issue Directions only where he sees a specific need to direct the Board, rather than in order to provide general guidance. The Home Secretary has, in fact, already indicated his intention to issue Directions to the Board in relation to the use of electronic monitoring, including in lifer cases. The recall rate for discretionary lifers since 1992 might also point to a need for more general Directions on the factors to take into account in deciding on release. However, the Board has taken steps in recent years to address concerns over the recall rate, and it would be appropriate to see the impact of these changes before moving to the formal issue of Directions as to general risk assessment.”

[60]The evidence shows that, before the decision in Girling, it was accepted that the Secretary of State could give Directions as to how the Board should carry out its task of risk assessment. The Memorandum to the Home Affairs Committee to which we have already referred stated:

“Our risk assessments are based on Directions from the Secretary of State.”

The Directions given by the Secretary of State were intended to go beyond mere guidance as to relevant matters to which the Board should have regard and to direct the Board as to how it should carry out its judicial function of determining applications for release. Appointment

[61]The Divisional Court was satisfied that the system of appointment to the Board satisfactorily distanced the Secretary of State from individual appointments. There was, however, a particularly significant example of encroachment on the independence of the Board when the Secretary of State sought to use his power of appointment of members of the Board in such a way as to affect the outcome of the Board’s decisions. The relevant facts were summarised by the Divisional Court as follows:

“In Spring 2006 the annual round of that process was well advanced, and the shortlisting had been finished, when it was overtaken by a ministerial initiative. This had been signalled in advance to the Board by the Department and was announced publicly when on 22 May 2006 the then Home Secretary delivered the Board’s annual lecture. It came at a time when there was public anxiety about re-offending by released prisoners, particularly because of two very high-profile murders committed by such persons. The import of the lecture was that there could be no excuses for a system which did not prevent such events, that the safety of the public must outweigh the rights of the offender, and that anyone serving an indeterminate sentence could be released only if the panel members were ‘absolutely satisfied’ that it was safe to do so. The Secretary of State went on to announce that by June he intended to appoint new members of the Board with experience either of being a victim of crime or of involvement with a victim support organisation. The purpose of these appointments, he said, was to ‘re-balance the whole system in favour of victims’. In order to accommodate this new initiative, there had had to be put in train a separate and parallel selection process, involving the targeting of suitable persons, superimposed on the existing appointment round and after the shortlisting had already been done.”

[62]The court commented that this was an explicit exercise by the Minister of his power of appointment with a view to changing what was perceived to be an over-readiness to release. It was designed to alter, to some extent at least, the outcome of cases before the Board. Mr Sales sought to persuade us that this construction of events was not correct. He submitted that what the Minister was seeking to do, with perfect propriety, was to ensure that the Board had expertise that would be of assistance in the performance of their duties. In support of the suggestion that victims would fall into this category he drew attention to the following statement in a Memorandum submitted by the Board to the Home Affairs Committee of the House of Commons:

“The lack of victim impact statements in our dossiers now is a real concern for us. We view the victim as being at the heart of the parole process in 2003”

Why, asked Mr Sales, if victim awareness was a real concern, should not the Secretary of State give directions that this was a factor to consider when making appointments?

[63]The evidence given to the Committee by Mrs Glenn, the Chief Executive of the Parole Board explained the significance of victim impact statements. The Board considers a victim impact statement in the individual case when considering what conditions it will be appropriate to insert into the licence. The Board deliberately does not permit the victim impact statement to affect the parole decision itself. We are in no doubt that the Divisional Court was correct to identify the Minister’s decision to procure the appointment of victims or those involved with victim support as members of the Board as intended to affect the decisions taken by the Board and that it was not appropriate for him to act in this way.

[64]We also note that at a quarterly meeting of the Parole Board in March 2004 reference was made to Ministers wanting to have more input into the selection of judges to serve on the Board rather than being presented with a list as a fait accompli. Funding

[65]Section 239(3) of the CJA 2003 provides, as did its predecessor, section 32(3) of the CJA 1991:

“…if in any particular case the Board thinks it necessary to interview the person to whom the case relates before reaching a decision, the Board may authorise one of its members to interview him and must consider the report of the interview made by that member.”

[66]The Board adopted a practice of interviewing all applicants for release who were not granted an oral hearing. It did so because it considered interviews of value when making its decisions. When giving evidence to the Home Affairs Committee in 2003 Mr Hatch said:

“The members – 120 of them – are absolutely convinced that the interview is very, very important in the process they have to judge”

. Ministers did not agree and, when the budget for 2004 was fixed, this allowed for interviews in only 10% of cases. The Secretary of State sought to persuade the Divisional Court that this did not reflect any intention on the part of Ministers to fetter the statutory discretion conferred on the Board to conduct interviews, but the court did not accept this. The court was not persuaded of this, but held:

“However, it does not in the event matter whether the Department’s wish was to remove interviews altogether or considerably to limit them. The objective perception is as follows. The decision was by statute for the Board; the Board felt that interviews should routinely take place and were valuable; the Department disagreed; the Department used its control of the budget to ensure that its view prevailed; the Board felt that it had no option but severely to limit interviews notwithstanding its judgment of what was right. Applying the law as we have set it out, the question is: is this exercise of power of budgetary control consistent with the objective appearance of the independence of the Board from the Executive and from a party? The answer can only be that it is not.”

We endorse this conclusion. Sponsorship

[67]The Divisional Court attributed the want of independence on the part of the Board to the sponsorship relationship between the Board and the Department, now the Ministry. Sponsorship is a necessary concomitant of the status of an ENDPB. The nature of such a body is explained by a Cabinet Office Guide for Departments on Public Bodies. In this a ENDPB is described as:

“A body which has a role in the processes of national government, but is not a government department, or part of one, and which accordingly operates to a greater or lesser extent at arms length from ministers”

(emphasis ours).

[68]The Guide comments of ENDPB’s:

“Their distance from government means that the day-to-day decisions they make are independent as they are removed from ministers and civil servants. Ministers are however ultimately responsible to Parliament for a ENDPB’s independence, its effectiveness and efficiency.”

[69]There are different varieties of NDPB. The Guide identifies the main features of EDPBs, which include the following: i) They are set up by Ministers to carry out administrative, commercial, executive or regulatory functions on behalf of Government. ii) They are legally incorporated and have their own legal identity. iii) They employ their own staff. iv) They are allocated their own budgets Ministers remain accountable to Parliament for public money spent by a NDPB.

[70]The requirement for a sponsoring Ministry, ultimately accountable to Parliament for efficient functioning of the Parole Board and for the monies spent by it, was not incompatible with permitting the Board to have and be seen to have the independence required by its judicial role. That course was not, however, adopted. Sponsorship was considered by the 2001 Review. At that time the Home Office’s sponsorship functions in respect of the Board were performed by the Division of the Prison Service that had responsibility for lifer review and management. The 2001 Review commented that the primary purposes of sponsorship were considered to be, inter alia:

“ providing Ministers with advice on the overall efficiency and effectiveness of the Parole Board and its usefulness as an instrument of Government Policy” and “monitoring the Board’s performance and providing support and advice and, if necessary, imposing sanctions to ensure efficient and effective delivery of required services.”

The 2001 Review called for: “greater engagement of the Board in wider criminal justice policy development”

and

[71]The Divisional Court commented:

“The references to the Board being an instrument of Government policy, to the need for it to engage with wider criminal justice policy development, and to the imposition of sanctions no doubt came naturally enough to a departmental examination of what was seen as in-house body. They are, however, quite inappropriate to discussion of an independent court making decisions which bind the departmental Head. ”

We endorse those comments. The 2001 Review recommended that the current sponsorship arrangement should continue because of, inter alia:

“-established close operational links -links between Parole Board casework and Sentence Enforcement Unit policy issues and overall management of parole process -effective and well understood processes for translating policy into operational changes ”

[72]These factors would have provided cogent justification for the sponsorship arrangements had the Board remained an advisory body assisting the Secretary of State with executive decisions in relation to offender management. They are, however, factors that blur the distinction between the Board’s judicial function of deciding whether prisoners qualify for release on licence and the administrative activities of offender management.

[73]The task of ensuring the actual and apparent independence of the Board from the executive is made more difficult by the extent to which the Board has to work with those administratively responsible for offender management. The Prison Service and the Probation Service, now brought together as parts of NOMS, provide the Parole Board with a dossier that contains the material upon which the Parole Board’s decision will largely be founded. This, inter alia, records the prisoner’s progress in the prison system, the rehabilitation courses undertaken and their results, and includes expert views on the likelihood of the prisoner re-offending. The preparation of the dossier is the first, and arguably the most critical stage, of the risk assessment that will determine whether or not the prisoner is released. The Review referred to research that indicated that nine out of ten parole refusals could be predicted from the dossier. It has accurately been said that the procedure before the Board is more inquisitorial rather than adversarial, but the relevant enquiry is largely carried out by NOMS in the preparation of the dossier.

[74]Other areas where the Board works closely with NOMS are in relation to the preparation of release plans and advising the Secretary of State on licence conditions.

[75]When adjudicating on whether a lifer should be released on licence, the Board is also required to advise the Secretary of State on whether the prisoner should be moved to open conditions. Thus at one and the same time the Board is concerned in exercising a judicial function and providing advice to the Secretary of State in relation to what is still considered to be a matter for executive decision.

[76]In these circumstances it is perhaps not surprising that the sponsor’s view of its role has been very much of hands-on involvement that has not clearly distinguished between the administrative efficiency of the Board and the performance of its judicial role of risk assessment. The intervention that the Secretary of State considered appropriate in relation to the latter role was illustrated by an agreement he reached with Mr Hatch, when he was Chairman of the Board, that an appropriate target for re-offending by prisoners released on licence should be about 4%. CONCLUSIONS Independence

[77]The Divisional Court’s principal conclusions in relation to independence were as follows:

“The question for us is whether the Parole Board has the necessary objective independence which a court must have in order to satisfy both the common law of England and Wales and the requirements of Article 5(4) ECHR. There is no question about the independence of mind and impartiality of the individual members of the Board. The issue is whether the relationship with the sponsoring Department of State, formerly the Home Office and now the Ministry of Justice, makes the Board too close to both the Executive and the principal party to all its decisions. We have found no sign of any attempt by the Department to influence individual cases, as distinct from the general approach to release decisions; that is so whether the individual cases are those of the claimants before us or any others. In some respects we have found that the structure of the Board is consistent with the necessary objective independence. But we are satisfied that the relationship of sponsorship is such as to create what objectively appears to be a lack of independence, and to cause the sponsoring Department sometimes to treat the Board as part of its establishment. That has led to inadequate protection for the security of tenure of members. It has also led to documented examples of the use of the powers of the Department which have not been consistent with the need to maintain the Board’s objective independence; those have been powers of funding of appointment and to give directions. … 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 is no longer appropriate once the Board has been entrusted by Parliament with the duty of making the decisions itself, as a court, and those decisions are binding upon him.”

[78]We do not accept Mr Sales’ submission that the findings of lack of independence, both actual and apparent, were unjustified. They are fully supported by the evidence. The cause of the problem has been the change of function of the Parole Board from that of a body advising the Secretary of State in relation to an executive discretion to release prisoners whose penal sentences were part served to that of a judicial body assessing whether continued deprivation of a prisoner’s liberty is justified because of the risk that he will re-offend if released. The recognition of the difference between these two functions has been gradual both in this jurisdiction and at Strasbourg and there is still uncertainty as to which role the Parole Board is performing in the case of a diminishing number of prisoners sentenced under previous regimes.

[79]Neither the Secretary of State nor his Department has adequately addressed the need for the Parole Board to be and to be seen to be free of influence in relation to the performance of its judicial functions. Both by Directions and by the use of his control over the appointment of members of the Board the Secretary of State has sought to influence the manner in which the Board carries out its risk assessment. The close working relationship between the Board and the unit acting as its sponsor has tended to blur the distinction between the executive role of the former and the judicial role of the latter.

[80]The restriction of funding, intended to dissuade the Board from interviewing prisoners fell into a different category of interference with the manner in which the Board performed its functions. It was not aimed at influencing the results reached by the Board but at procuring that the Board, contrary to its wishes, refrained from, or reduced, an aspect of its procedure that the Department did not consider warranted the expense that it involved. While this did not threaten the Board’s impartiality it was interference that exceeded what could properly be justified by the role of sponsor. REMEDIES

[81]Mr Sales complained that the declaration made by the Divisional Court was too uncertain to indicate to the Secretary of State what action he ought to take to ensure that the Board acquired, and was seen to have acquired the necessary independence. The Divisional Court observed that it was not appropriate for the Court to tell the Secretary of State what action he ought to take. That is plainly correct, but we are in a position to comment on the areas where action is required. Directions

[82]The decision of this court in Girling has demonstrated that the statutory power of the Secretary of State to give directions to the Board is severely limited when these relate to decisions in relation to release on licence. The directions can do no more than provide guidance on the matters to which, as a matter of law, the Board is in any event required to have regard. Provided that due regard is had to this decision, no further action is necessary in relation to directions. Appointment

[83]The Secretary of State is responsible under Schedule 19 of the CJA 2003, as he always has been, for the appointment of members of the Board. The Act requires that he appoint a Chairman and at least four members, whose qualifications are specified. The membership of the Board has grown over time. It currently comprises some 162 members, including Sir Duncan Nichol its Chairman, 3 High Court judges, 38 Circuit Judges, 9 retired judges, 21 psychiatrists, 8 psychologists, 4 criminologists, 10 probation officers. The balance consists of lay members. Almost all these members serve on a part time basis.

[84]The Divisional Court considered that the Minister’s responsibility for these appointments was not incompatible with the Board’s independence provided that the appointing Minister ‘demonstrably abjured any significant input into the selection of members’. The court considered that the method of appointment of the lay and judicial members, as described in paragraph 28 above, satisfied this requirement. We agree, provided that the Minister does not require that lay members should demonstrate qualities that are not relevant to the Board’s functions but which are likely to affect the Board’s decisions. There must be transparency not only in the appointment process, but in any stipulation of the qualities to be looked for in candidates. Tenure

[85]There was lengthy argument before us as to whether the Divisional Court was correct to conclude that a term of appointment for only three years, with the possibility of renewal for a further three years, when coupled with an untrammelled power of removal, failed to satisfy the requirements for independence. Mr Sales argued that the test to be applied was whether apprehension about the risk of removal, or the desire for reappointment for a second term, might influence Board members when making their decisions. This was an objective test, to be applied having regard to how the Secretary of State acted in practice. In practice the Board itself made recommendations in respect of re-appointments and the Minister had never been known to reject such a recommendation. Nor was there any known instance of the Minister exercising his power to terminate an appointment on the ground of failure on the part of a member to perform his or her duties satisfactorily. The Strasbourg Court adopted a pragmatic approach to the risk of bias and would not find such a risk arose out of the provisions as to tenure – see Clarke v United Kingdom (Application no. 23695/02 ). The reality was that appointments were for a six year term, which was satisfactory.

[86]Mr Grodzinki argued that the lack of security of tenure on the part of Board members was in marked contrast to the position of the judiciary and of members of Tribunals. The Secretary of State had shown an inclination to intervene in relation to the qualifications of Tribunal members and there could be no certainty that he would not exercise his powers to terminate or to decline to renew appointments in the future. The position of Board members in relation to tenure was closely analogous to that of temporary sheriffs in Starrs v Ruxton

(1999) 8 BHRC 1

. In that case Lord Reed had rightly observed at p. 44 that independence cannot appropriately be tested on the assumption that the executive will always behave with appropriate restraint. There must be ‘guarantees’ against outside pressures. Such guarantees were absent from the conditions of tenure of members of the Board.

[87]Membership of the Parole Board involves, for almost all members, only part time employment and this will last a maximum of six years. In this the position of members of the Board differs significantly from that of the temporary sheriffs in Starrs. Many of them aspired to serve for life, but were subject to re-appointment at yearly intervals. In the circumstances of this case we can see nothing objectionable in the fact that the tenure of members of the Board is relatively short. The only relevant issue is whether the desire to be reappointed for a second term of three years might incline, or appear to incline, Board members to have regard to the perceived wishes of the Secretary of State when making decisions. This danger will not arise provided that the Minister continues to respect the recommendations of the Board with regard to re-appointments.

[88]We turn to the power of the Secretary of State to terminate a member’s appointment if satisfied that the member has failed satisfactorily to perform his or her duties. This general power contrasts with the other specified grounds upon which the Minister can terminate an appointment. We share the view of the Divisional Court that this power is not compatible with the independence of members of the Board. At the least it requires to be restricted by the establishment of a procedure that ensures that a member’s appointment is not terminated without good cause and subject to fair process. Sponsorship

[89]The concern expressed by the Divisional Court in relation to Departmental sponsorship stems from the fact that the influence that the Department has sought to bring to bear on the operation of the Board has extended beyond that which is necessarily inherent in such sponsorship.

[90]As we have shown, since at least 1967 when the Parole Board was created, it has been legislative and governmental policy that, save in the most serious cases, prisoners should be released on licence before serving the full term of imprisonment to which they were sentenced. Sometimes Parliament has laid down the minimum term to be served and sometimes required release after the serving of such term. Sometimes Parliament has left the determination of the minimum term and the question of whether a prisoner should thereafter be released to be determined as a matter of discretion. In 1967 it was considered that in such circumstances both the determination of the minimum term and the decision whether to release were matters for the executive. It is now recognised that they are matters for the exercise of judicial discretion, in the first place by the sentencer and in the second case by the Parole Board.

[91]In exercising this judicial function the Parole Board must both be and be seen to be free of executive interference or influence. The Divisional Court decided that it has been neither. The executive has sought to alter the criteria applied in selecting members of the Board with a view to affecting the decisions reached by the Board. It has given Directions as to the test to be applied by the Board when deciding whether a prisoner should be released that have been in conflict with the test laid down by statute. It has, by its control of the Board’s funding, prevented the Board from carrying out its wish to interview prisoners, as authorised by statute. We have upheld these findings by the Divisional Court.

[92]The Divisional Court has attributed this inappropriate interference to the fact of Departmental sponsorship and to the arrangements made to give effect to this sponsorship. It has concluded that the consequence of sponsorship has been that the Board has neither been nor been seen to be independent. We do not consider that the fact that the Board, as an ENDPB, is subject to sponsorship, is incompatible with its actual or perceived independence. We consider, however, that the intervention of the sponsoring Minister and his Department in relation to the exercise of the functions of the Parole Board has gone beyond those necessary or appropriate to the sponsoring relationship and that the sponsoring arrangements have contributed to the perception that the Board is not independent.

[93]Both the inappropriate use of the sponsorship relationship and the sponsorship arrangements have their origin in the time when the role of the Parole Board was seen as being to advise the Secretary of State in relation to the exercise of his executive discretion as to the release of prisoners. It was the policy of the Secretary of State that while in prison prisoners should receive treatment designed to result in their rehabilitation. The treatment received and the prisoner’s response to that treatment were highly material to the decision whether the risk of re-offending had been reduced to the point where the prisoner could be released. Where that point lay was a matter for the Secretary of State. He sought advice from the Parole Board as to whether that point had been reached. He could properly give directions to the Board in relation to how they should carry out their assessment and the test that they should apply.

[94]In these circumstances it was natural to treat the Parole Board as part of the team concerned with offender management and that the role of sponsor of the Board should be carried out by the unit concerned with the preparation of prisoners for early release within the Prison Service. The historical position was set out in the 2001 Review:

“From 1967 to 1983, C7 Division in the Home Office was the Parole Board’s sponsor unit. It had responsibility for early release policy and procedures. C5 Division had the policy lead on lifer review, P3 Division in Prison Department led on lifer management. In 1982, this range of work was brought together in P2 Division of the Prison Service, which also took over the sponsor role. It has remained in this area of Prison Service HQ since then, although there have been several HQ reorganisations and name changes. Currently, SEU (the ‘Sentence Enforcement Unit’) acts as a sponsor unit.”

[95]The Board is currently under the oversight of the Sentencing Policy and Penalties Unit that is a sub-division of NOMS.

[96]We have outlined at paragraph 73 above the role played by NOMS in attempting to prepare prisoners for release by rehabilitation and the assessment of the effect of this on the prisoner. More details of this are to be found in our judgment in The Secretary of State v David Walker and Brett James, the appeal heard with this one. NOMS assessment of the risk of re-offending is often reflected by a view expressed by or on behalf of the Secretary of State as to whether the prisoner should be released. The position is no longer that the Parole Board advises the Secretary of State as to its own conclusions on this matter. The Board has to evaluate the material placed before it by NOMS and the view expressed on behalf of the Secretary of State and reach its own objective judicial decision as to whether the prisoner satisfies the appropriate test for release.

[97]It is not appropriate the function of supervising the Parole Board as sponsor should be performed by the body responsible for preparing prisoners for release, whose conclusions in relation to the suitability of prisoners for release are subject to the Board’s judicial appraisal. The 2001 Review considered the question of whether it was appropriate that SEU should remain the Board’s sponsoring unit. It set out a number of reasons why continued Prison Board sponsorship had been called into question, including:

“the need for the Board to have – and be seen to have an appropriate degree of independence from the Executive and in particular those responsible for custodial sentences. (It is, however, unclear how far public concerns about the Board’s independence are a problem in practice, rather than in theory ”

The review concluded that there was no justification for altering the sponsorship arrangements.

[98]The judgment of the Divisional Court has shown that concerns about the independence of the Board have not merely been ‘theoretical’. The 2001 Review itself recognised that the sponsorship arrangements were capable of giving rise to the perception that the Board was not independent. The evidence in this case shows that this is a concern shared by some of the members of the Board.

[99]Before the Ministry of Justice was formed some members of the Board favoured that the Board should be transferred to the Department of Constitutional Affairs, there to be incorporated in the Court system or the Tribunal Service. The Board is now sponsored by the Ministry of Justice, but the sponsorship lead is taken by Mr Russell A’Court, who is Head of the Release and Recall Section and of the Parole and Public Protection Policy Section of NOMS. For the reasons that we have given, we agree with the Divisional Court that the relationship between the Board and its sponsoring units has been and is one that is liable to create the perception that the Board is not independent.The fact that the Board has to work closely with NOMS requires that it should be manifestly independent of NOMS. The current sponsorship arrangements defeat that requirement. The Ministry of Justice has responsibility for both the Tribunal Service and the Court Service. We have no doubt that the Secretary of State is in a position to ensure that the Board is so placed within the sponsorship responsibility of his Ministry that its independence is not open to question. We note that the second quinquennial review of the Parole Board is overdue and we would expect this to focus upon the need for independence of the Board that has become much more apparent over the years that have passed since the first Review.

[100]We have tried to give guidance in relation to those areas that require attention in order to ensure that the Parole Board enjoys and is seen to enjoy the independence from the executive that its judicial role requires. That guidance does not render inappropriate the terms of the declaration made by the Divisional Court and accordingly this appeal is dismissed.

Cited in 20 later judgments

and 11 more of the most senior