Bayliss v The Parole Board of England & Wales [2014] EWCA Civ 1268

Case No C1/2013/0966[2014] EWCA Civ 1268
IN THE SUPREME COURT OF JUDICATURE
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
(GERALDINE ANDREWS QC)
Venue 7 Rolls Buildings, Fetter LaneDate Tuesday, 10th June 2014
London
EC4A 1NL
B E F O R E:
THE CHANCELLOR OF THE HIGH COURT
(LORD JUSTICE ETHERTON)
LORD JUSTICE FULFORD
Between
LEE BAYLISSApplicant-v-
Between
THE PAROLE BOARD OF ENGLAND & WALESRespondent
(Digital Audio Transcript ofWordWave International LimitedA Merrill Communications Company165 Fleet Street, London EC4A 2DYTel No: 020 7404 1400 Fax No: 020 7831 8838Official Shorthand Writers to the Court)
Mr P Rule (instructed by Carrington Solicitors) appeared for Applicant
J U D G M E N T

LORD JUSTICE FULFORD: History

[2]On 29th June 2006 the applicant pleaded guilty to an offence of causing death by dangerous driving, together with offences of aggravated vehicle taking and driving whilst disqualified. The applicant had taken a motor vehicle without the consent of its owner on 20th April 2006, and on 22nd April 2006 he drove dangerously and at high speed over a bridge in Oxfordshire. He lost control of the car and killed his passenger, a young woman called Susan Fenton. He was sentenced to an indeterminate sentence for public protection under section 225 of the Criminal Justice Act 2003, with a specified minimum term of 2 years.[3]The judge's calculation of the minimum term was based on a sentence of 6 years' imprisonment following a contested trial, from which one-third was deducted to reflect the applicant's guilty plea. The resultant term of 4 years' imprisonment was then halved on account of the early release provisions. 62 days that he had spent on remand were also deducted. This "tariff" period expired on 28th April 2008. He remained in custody after that date.[4]Whilst in prison he used drugs whilst on the Rehabilitation for Addicted Prisoners Trust Programme and he was the subject of a number of adjudications for unauthorised use of controlled drugs. His case was reviewed by the Parole Board and on 5th October 2010 and in a lengthy decision, in which it was decided not to release the applicant or to move him from closed conditions, the Board expressly referred to the continued support of the applicant's parents and the visits he was receiving from his then 15-year-old daughter. This is relevant to the applicant's sixth ground of appeal, to which I turn to later in this judgment. The Board questioned whether the influence of the applicant's family was likely to improve his behaviour.[5]On 21st December 2011 the Parole Board again rejected his application for release. They considered his suitability for transfer to open conditions at an oral hearing, observing that he had been assessed as:
"... posing a significant risk. He had long- standing problems with drugs misuse and it was considered that the risk factors could only be addressed whilst he was in the security of those conditions."
[6]The Board had before it, inter alia, the earlier decisions together with a document entitled "Written representations in support of release on behalf of Lee Bayliss" dated 16th August 2011. This included a considerable amount of material about his personal circumstances and his hopes for the future, and he mentioned his daughter and the fact that he had missed a considerable part of her childhood. He set out his determination to be a good father in the future and he suggested his relationship with her had improved since the fatal accident. This was said to have given him considerable motivation.[7]He appealed against that sentence, very significantly out of time, to the Court of Appeal (Criminal Division). On the 15th November 2012 the court allowed his appeal, the indefinite sentence was quashed and the court substituted a determinate sentence of 4 years' imprisonment.[8]Before the Court of Appeal (Criminal Division) he advanced a number of submissions but the sole ground on which he succeeded was that the test of dangerousness was not met. The relevant statutory provision was section 225 of the Criminal

Justice Act 2003, which provided:

"(1)This section applies where— (a)a person aged 18 or over is convicted of a serious offence committed after the commencement of this section, and (b)the court is of the opinion that there is a significant risk to members of the public of serious harm occasioned by the commission by him of further specified offences. (2)If— (a)the offence is one in respect of which the offender would apart from this section be liable to imprisonment for life, and (b)the court considers that the seriousness of the offence, or of the offence and one or more offences associated with it, is such as to justify the imposition of a sentence of imprisonment for life, . the court must impose a sentence of imprisonment for life. (3)In a case not falling within subsection (2), the court may impose a sentence of imprisonment for public protection ..."
[9]The key requirement, therefore, was that the court had a sustainable basis for concluding that there was "a significant risk to members of the public of serious harm occasioned by the commission by him of further specified offences". Of the charges the applicant faced only the offence of causing death by dangerous driving was a specified offence.[10]The applicant had an extremely bad antecedent history for driving offences; indeed since 1992 he had been before the courts on at least 19 occasions for offences relating to motor vehicles. He had been convicted of driving whilst disqualified, driving with no insurance, taking vehicles without the consent of owners and stealing from motor vehicles. His most significant previous conviction was an offence in June 1997 for dangerous driving for which he was sentenced to a term of imprisonment. However, he had no previous convictions for violent or sexual offences and the majority of his earlier offences did not evidence any kind of risk of serious harm to members of the public.[11]The sole earlier offence of dangerous driving occurred 9 years before the instant offence. The Court of Appeal (Criminal Division) concluded that although there was a significant risk that the applicant would commit further vehicle related offences, there was no proper basis for concluding that he posed a significant risk of causing serious harm to members of the public by committing further specified offences. He was released forthwith.[12]Prior to the hearing in the Court of Appeal (Criminal Division), in a claim for judicial review which was brought on 20th March 2012 against the Parole Board's decision of 21st December 2011, the applicant challenged the lawfulness of his detention on the basis that it was incompatible with Article 5 of the European Convention on Human Rights. Additionally, the applicant argued that he was being held pursuant to a secret policy that meant he would never be released and it was suggested that his sentence was disproportionate and unreasonable. However, following his release his claim was restricted to a claim for damages for a period of suggested unlawful or arbitrary detention. The Decision[13]The judge (Miss Andrews QC, sitting as a Deputy High Court Judge) dismissed the renewed application for permission to apply for judicial review on the basis, first, that the Parole Board cannot be said to be responsible for the suggested unlawfulness of the original sentence. The proper defendant to a claim of that kind, she decided, is the Secretary of State. Second, the judge rejected the contention that the Board followed an unpublished policy on the basis there was no evidence to support this contention. Third, although the judge had some concerns the Board did not expressly take into account the applicant's Article 8 rights and most especially, the position of his teenage daughter, she concluded the Board did not have to refer to every argument that had been raised and that it would be wrong to conclude that the Parole Board had arguably failed to take this factor into consideration. This Appeal[14]The arguments taken by the applicant are follows. Ground 1. First, it is contended under this ground that the applicant's detention was unlawful abinitio because the criteria for the term of imprisonment for public protection were not met. Second, it is suggested that even if the original sentence is to be treated as "lawful", the period of post tariff detention may violate Article 5. In my view, there is in all likelihood, a proper basis for suggesting that simply because the term of imprisonment for public protection was quashed on appeal does not mean that it was unlawful. An excessive sentence may well be an "lawful sentence". I remind myself that in this case the Court of Appeal (Criminal Division) quashed the sentence because it took the view that the criteria for a term of imprisonment for public protection were not satisfied, and it may well be the position that that decision does not have the effect, as contended by the applicant, that the term of imprisonment for public protection "has never existed for any legal purposes". In R (on the application of Daniel Modhej and Scott Smith v Secretary of State for Justice [2012] EWCA Civ 957, this court was dealing with an appeal from judicial review proceedings relating to sentences of terms of imprisonment for public protection which had been quashed in the Court of Appeal (Criminal Division) and for which extended sentences were substituted. Lord Judge CJ observed that the successful appeal against sentence had not nullified the original sentences - instead it simply replaced them. It is of note this is not one of the situations where the sentence was clearly a nullity, for instance because the court had no power to impose the sentence.[15]However the determination of the issue of lawfulness is not necessarily the end of the matter. In James v United Kingdom [2013] 56 EHRR 12 the European Court of Human Rights stated that:
"191. However, having regard to object and purpose of art 5(1), it is clear that compliance with national law is not sufficient in order for a deprivation to be considered 'lawful'. Article 5(1) also requires that any deprivation of liberty should be in keeping with the purpose of protecting the individual from arbitrariness ..."
The court went on to observe that in order for the detention not to be arbitrary it was critical that the indeterminate sentence was imposed because the prisoner was considered by operation of the relevant statutory assumption to pose a risk to the public (see paragraph 198). The court stressed that the circumstances in which arbitrariness may exist have not been set out in an exhaustive list and the relevant principles are to be considered in a flexible manner.[16]Against that background I am just persuaded that it is arguable that if the Court of Appeal (Criminal Division) decides that an indefinite prison sentence should not have been imposed in the first place, because, for instance, the criteria were not satisfied, then any period of post-tariff detention may have been "arbitrary" in nature, thereby offending Article 5. Given the indefinite detention was dependent on the court passing a particular kind of sentence, if that sentence was unjustified, it is arguable that the proper causal link between the order of the court and the detention was broken. Put otherwise, because the foundation for the IPP did not exist, it is open to the applicant to suggest on appeal that his post-tariff detention was arbitrary.[17]We are told by Mr Rule, counsel for the applicant, that this point has not been argued previously and moreover the Supreme Court in R (on the application of) Faisal Kaiyam and Anr [2013] EWCA Civ 1587 may give consideration to the way in which "arbitrariness" is to be understood and approached in this context. For these reasons I am prepared to grant permission under ground 1. Ground 2[18]In ground 2 the appellant (as he now is) argues the judge was wrong to conclude that if there was a valid claim to be brought on the basis of Article 5 (namely he had been deprived of his liberty otherwise than by a procedure prescribed by law) the correct defendant was the Secretary of State for the Home Department.[19]Underhill LJ, in refusing permission on the papers observed:
"The Deputy Judge was plainly right that the only proper Defendant in a claim based on the alleged unlawfulness of the detention was the Secretary of State. It is the Secretary of State who was responsible in law for the Applicant's detention at all times, even though he was obliged to follow the directions of the Parole Board as regards release. Buxton LJ's judgment in Noorkov is in fact contrary to the Applicant's submission. No doubt the Board is a co-defendant in some of the cases, but that will only properly be so when there is a discrete challenge to its decision(s): although this case is indeed pleaded as a challenge to such decision, this ground is concerned with the detention as such."
[20]Without seeking to resolve those issues it seems right to order that the Secretary of State is joined as a defendant to this appeal, given that I would be minded to grant permission on ground 1. Ground 3[21]Third, it is submitted the judge failed to address whether the length of the appellant's detention was disproportionate. Although proportionality may form a part of these decisions (see James v United Kingdom at paragraph 195) on these facts this suggested ground of appeal is unarguable. Once the term of imprisonment for public protection had been imposed the Parole Board's role was limited to considering whether the criteria in section 28(6) of the Crime Sentences Act 1997 were satisfied, and the critical decision for the Board was whether it was satisfied that it was no longer necessary to confine the appellant in order to protect the public.[22]In this case, for the reasons given by the Board, the necessary link between the death of the appellant's passenger and his continued incarceration clearly still existed. I consider it unarguable that he was being detained for reasons other than the suggested danger he posed to the public arising out of the index offence. Ground 4[23]The applicant advances an argument that is essentially a repetition of ground 3, namely that there was no sufficient causal link between the original conviction and the subsequent detention. It is suggested that there was insufficient evidence of any future risk.[24]Again, in my judgment, this is unarguable. In the Parole Board's decisions to which I have already referred, it set out cogent reasons why for a variety of reasons the appellant posed a significant risk to the public given, in particular, his relentless driving-related offending and his significant potential for causing harm, as evidenced by the fatal accident. The Panel was of the view, for a number of reasons, that the appellant would return to his previous life-style, thereby putting the public at risk of serious harm. Ground 5.[25]The appellant contends that he was dealt with pursuant to an unpublished policy. Analysis of the Parole Board's decisions reveals that there is simply no evidence that the Board followed any relevant guidance that has been withheld. No complaint on this basis was apparently raised before the Parole Board by the appellant's representative. In my judgment there is no basis for this suggested ground of appeal. Ground 6[26]This ground relates to the suggested Article 8 considerations which it is said the Board failed to take into account. The applicant's relationship with his daughter would only have been relevant to the statutory criteria that the Board was obliged to apply when assessing the risk to the public. As set out above, reference to visits by his daughter were included in the papers before the Board (eg the previous Board decision and the applicant's written representations) and it is unarguable that it is to be inferred that the Board failed to take this element of the history into consideration. It was plainly described and the Board in formulating its decision did not have to set out each and every factor that it had taken into account. This was one of many factors that related to the likely behaviour of the appellant if the decision was taken to release him.[27]For these reasons I, speaking for myself, would grant permission to appeal limited to ground 1.[28]THE CHANCELLOR: I agree. I have nothing further to add.