King, R (on the application of) v The Parole Board [2014] EWHC 564 (Admin)

Case No CO/12279/2012[2014] EWHC 564 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate 04/03/2014
Before
LORD JUSTICE AIKENSMR JUSTICE MITTING
Between
The Queen on the application of Benjamin KingClaimantThe Parole BoardDefendantThe Secretary of State for Justice Interested Party
Hugh Southey QC (instructed by Irwin Mitchell) for ClaimantSam Grodzinski QC & Tim Buley (instructed by TSOL) for DefendantHearing Hearing date: 15/01/2014
JudgmentLord Justice Aikens:I.The Issue
[1]The Legal Aid, Sentencing and Punishment of Offenders Act 2012 (“LASPO 2012”) has made major changes to the law on sentencing and the release of prisoners. The issue raised in this claim for judicial review Permission was granted by Nicol J on 1 May 2013. concerns the lawfulness of guidance issued by the Parole Board (PB) to its panels in December 2013, The guidance was first issued in December 2012 and that is what was originally challenged but the guidance was updated in December 2013 to take account of the Supreme Court’s decision in R(Sturnham) v Parole Board [2013] 3 WLR 281. (“the December 2013 Guidance”), a year after the relevant parts of LASPO 2012 dealing with release of prisoners came into force. The part of the December 2013 Guidance under challenge concerns the test to be applied by PB panels when considering the re-release after recall to custody of a prisoner who is serving a determinate sentence of imprisonment. The relevant part of the December 2013 Guidance states: “In order to direct release, the Board should be satisfied that it is no longer necessary for the prisoner to be detained in order to protect the public from serious harm (to life and limb). It is not a requirement to balance the risk against the benefits to the public or the prisoner of release”.[2]The challenge is to the lawfulness of the second sentence of this extract. It is said on behalf of the claimant that the balancing exercise of “risk” against “benefits” had always correctly been adopted previously by PB panels when considering the release of prisoners who have been serving a determinate sentence of imprisonment. It is argued that this balancing test is consistent both with the current statutory framework contained in LASPO 2012 and the history of the previous statutory framework, as interpreted by the courts. II. The History of relevant events.[3]In 2008 the claimant, (“Mr King”) who was then aged 19, pleaded guilty in the Crown Court to an offence of causing death by dangerous driving which he had committed on 9 October 2007. On 20 May 2008 Mr King was sentenced to a determinate sentence of seven years detention in a Young Offender Institution. The maximum sentence for this offence is 14 years imprisonment: section 33 of the Road Traffic Act 1988. At the time of conviction Mr King had 13 previous convictions for 28 offences committed between December 2004 and October 2007. On 23 September 2011 Mr King was released on licence after he had served (net of time spent on remand) half the seven year period of detention. That obligatory “half-time” release was made pursuant to section 244(1) and (3) of the Criminal Justice Act 2003, (“the CJA 2003”). The sentence expiry date (that is the date by which Mr King would have served the full seven year term) is calculated to be 1 June 2015. After Mr King’s release on licence, he went to live with an uncle in south Yorkshire in accordance with the terms of his licence. However, he then moved to Brighton.[4]On 20 December 2011 Mr King was charged with two offences of common assault against two of his associates. It was alleged that he had threatened them with broken glass whilst he was under the influence of alcohol. Mr King’s licence was revoked on 29 December 2011 and he was recalled to custody, pursuant to section 254 of the CJA 2003. However, Mr King did not return to custody immediately. He remained unlawfully at large for about nine weeks after the date of his recall.[5]Under the statutory regime in force prior to LASPO 2012, the Secretary of State had the power, first under section 32(6) of the Criminal Justice Act 1991 and then by its replacement, section 239(6) of the CJA 2003, to give the PB directions as to the matters to be taken into account by it in discharging any of its functions concerning (amongst other things) the release of a prisoner on licence under what became the terms of Chapter 6 of Part 12 of the CJA 2003. Pursuant to that power, the Secretary of State had (under the 1991 Act provision) issued directions in May 2004 relating to the early release of determinate sentence prisoners (“the May 2004 Directions”). These directions had stated: “In deciding whether or not to recommend release on licence, the Parole Board shall consider primarily the risk to the public of a further offence being committed at a time when the prisoner would otherwise be in prison and whether any such risk is acceptable. This must be balanced against the benefit, both to the public and the offender, of early release back into the community under the degree of supervision which might help rehabilitation and so lessen the risk of re-offending in the future. The Board shall take into account that safeguarding the public may often outweigh the benefits to the offender of early release”.[6]Pursuant to the terms of the CJA 2003 then in force and operating under the May 2004 Directions, in April 2012 a PB panel considered the question of Mr King’s possible re-release. The panel’s recommendation dated 5 April 2012 was that he should not be re-released. It gave reasons. In paragraph 1 the PB panel stated that “in deciding whether to recommend release the panel weighed the possible benefits of further supervision against the risks of re-offending during the licence period”. Paragraph 2 of the reasons referred to the evidence considered by the panel. Paragraph 3 was an analysis of the original offending and paragraph 4 recounted the circumstances of Mr King’s recall. Paragraph 5 is headed “Risk Assessment”. It stated: “You are now assessed as position a high risk of causing serious harm to the public based on the new alleged offences. Your risk of violent reconviction (sic) is assessed as medium and your risk of non-violent reconviction (sic) is assessed as high. The panel agreed with this assessment based on your offending history to date. Risk factors include thinking skill deficits and alcohol, which acts as a disinhibitor and fuels your violent behaviour”.[7]The conclusions and recommendations of the PB panel are set out in paragraph 7 of its reasons. This stated:
“The panel noted all information. You have been charged with further offences of violence and your risk of causing serious harm has increased to high as a result. Rather than handing yourself in, you compounded matters by remaining unlawfully at large for a long period which dos not give confidence that you would comply in future. Furthermore, accommodation remains outstanding and this will be an important part of the risk management plan. For these reasons the panel made no recommendation regarding release.”
The reasons also stated that if Mr King’s case was referred back to the PB in future, then it would require, amongst other things, an assessment of his motivation to “comply in the community in future and an updated risk management plan with accommodation identified and a date when it will be made available”.[8]Mr King issued a claim for judicial review on 16 November 2012. There were reasons for the delay in making the claim which it is not now necessary to explore. Originally the claim alleged that the PB had violated Article 14 of the European Convention on Human Rights (“ECHR”) by applying a “release test” that was said to be more onerous for prisoners serving a determinate sentence by comparison with the release test applied to those serving indeterminate sentences. The claim also challenged generally the decision of the PB panel dated 5 April 2012.[9]On 3 December 2012 the parts of LASPO 2012 making amendments to the statutory regime on the release of prisoners on licence, their recall and their re-release after recall all came into force. These provisions made amendments and additions to sections in the CJA 2003 dealing with these topics. In relation to the early release of offenders serving a determinate sentence imposed after 4 April 2005 and the re-release of such prisoners after recall, the new regime was put in place by making amendments and additions to section 255 of the CJA 2003. Insofar as the decision to direct the re-release such prisoners after recall was to be made by the Secretary of State, the provisions in the new sections 255A and 255B of the CJA 2003 propounded two new statutory tests, depending on the particular situation concerned. I will analyse these below, but they can broadly be called “public protection” tests. No “balancing exercise” is mentioned in these revised statutory provisions. It is vital to note, however, that no statutory test was laid down for use in circumstances (set out in the new sections 255C) in which a PB panel, rather than the Secretary of State, would have to make the decision on whether or not to direct the re-release of a recalled prisoner who had been sentenced since the CJA 2003 came into force.[10]Schedule 17 of LASPO 2012 introduced a new Schedule 20B into the CJA 2003. This set out new transitional provisions dealing with the possible re-release of prisoners who had been sentenced under pre-CJA 2003 Act sentencing regimes and one CJA 2003 sentencing regime which remained in force until 14 July 2008. In all cases under these new transitional provisions where a PB panel is entitled to give a direction that the prisoner be released, the statutory test that the PB panel had to apply is stated to be that it is satisfied “that it is no longer necessary for the protection of the public that the person should be confined”. See Sch 20B Part 2 paras 6(2), 15(4), 25(3) and 28(3).[11]On 16 November 2012, that is just before the provisions of LASPO 2012 on the release of prisoners were about to come into force, the PB itself issued a letter to members summarising some of the main provisions of LASPO 2012 as it would affect the work of the PB. At paragraph 3 of the letter there is a heading “New Test for release of all determinate prisoners”. This stated that LASPO 2012 imposed the same test “for the release of all determinate prisoners” and it quoted the test as being as follows:
“The Parole Board must not give a direction [for release]…unless the Board is satisfied that it is no longer necessary for the protection of the public that the person should be confined”
. This quotation is, in fact, from Schedule 17, Part 2, paragraph 6 of LASPO 2012, which is part of the new transitional provisions to be inserted as Schedule 20B of the CJA 2003. That particular paragraph relates (amongst other situations) to offenders given determinate sentences under the 1991 Act. The provision quoted does not relate to the release of offenders sentenced to determinate sentence prisoners who had been sentenced after the relevant parts of the CJA 2003 came into force.[12]The letter continued:
“This test comes into force on 3 December 2012 and applies to all determinate prisoners at first release (EDS, DCR 1967 and extended sentences). “EDS” is short for “extended determinate sentences” a new type of sentence introduced by section 124 of LASPO 2012, inserting new sections 226A and 226B into the CJA 2003. “DCR” means “discretionary conditional release” ie. release on licence of offenders serving a determinate sentence under the regime originally set up by the Criminal Justice Act 1991 and still in force. This is a new test and the test in the Secretary of State’s Directions will no longer apply to any DCR panel sitting on or after 3 December. Where there is a statutory test, it is for the Board to interpret it in light of any existing case law. Parliament has ruled that the test shall be one of public protection rather than a balancing act between the risk of any type of offending against the benefits of early release; in other words, it will be a ‘risk-only’ test. The courts have confirmed this in respect of lifers, and the same statutory wording is employed. It is the Board’s view that the same interpretation must, therefore, be applied to determinate cases from 3 December 2012.”
[13]At paragraph 5 of the same letter, under the heading “Arrangements for Determinate Recall”, it stated that the changes brought about by LASPO 2012 would mean a “significant change in the way we approach the risk of re-offending in recall cases”. The letter then asked what test the PB would have to apply when considering whether to direct the re-release of a prisoner serving a determinate sentence who has been recalled from his licence. The letter pointed out, under the heading “Guidance to panels” that LASPO 2012 is silent on the test that the PB should apply when giving a direction on whether or not to re-release such a prisoner after recall. The letter suggested that this lack of statutory guidance could be interpreted in either of two ways. The first was that when the PB had to give a direction on re-release after recall it had to apply the “public protection” test which was the the Secretary of State had to apply when he made decisions on release under section 255A and 255B. The alternative interpretation was that Parliament was content that the PB, “as a judicial decision maker”, should interpret the matter for itself “in the light of the case law”.[14]The letter stated that the PB had concluded that there were two good reasons for concluding that the “public protection” test “must now be applied to [the re-release of determinate sentence prisoners who have been subject to] recalls”. The reasons were based on the structure of the LASPO provisions by which the Secretary of State was to make decisions about releases of prisoners and the previous case history concerning the test to be applied to the re- release after recall of offenders serving life sentences. The letter summarised the position as follows:
“This is the second difficult and new area, as yet untested in the courts. In summary, panels considering any determinate sentence recalls on or after 3 December 2012: • will direct release (rather than recommend as they did before) • are advised to apply a test of the risk of violent or sexual offending • are advised that the risk need not be of serious violent or sexual offending • need not balance risk against benefits • may decline to re-release where the breaches indicate that licence has broken down to the point where effective supervision can no longer be maintained. Panels are reminded that when considering a case, public protection must be the over-riding consideration. The identification and management of risk remains the focal point for panel’s consideration.”
[15]On 22 January 2013 the claimant served an amended claim form. In it he took the point that the November 2012 guidance letter of the PB had set out a new test to be applied when considering the re-release of recalled determinate sentence prisoner which would abolish the requirement to consider a “balancing test”. The amended claim noted that there was no statutory provision in LASPO 2012 setting out the test that the PB itself had to apply when considering the re-release of determinate sentence prisoners after recall. The amended claim form asserted that the absence of a statutory test to be applied by the PB meant that Parliament had not intended to abolish the test previously used, so that the November 2012 PB guidance was “flawed because it purports to amend the release test”. Para 4.1 of the amended Grounds of Claim. The amended Grounds of Claim also referred to other arguments but those are not now relevant to the claim.[16]On 5 May 2013 Nicol J granted permission to amend the Grounds of Claim and he granted permission to apply for judicial review.[17]11 July 2013, the Lord Chancellor and Secretary of State for Justice issued a written ministerial statement concerning the Secretary of State’s Directions to the PB on the release of prisoners serving indeterminate and determinate sentences and also the release of recalled prisoners. The statement said that the Lord Chancellor and Secretary of State had informed the chairman of the PB that it was his intention to withdraw the Secretary of State’s Directions to the PB “in respect of the release of determinate sentence, indeterminate sentence and recalled prisoners”. That therefore included the May 2004 Direction. The statement continued:
“[LASPO 2012] …contains a clear and consistent statutory release test that the Board must apply in making these decisions [about release] – that is the Board must not direct a prisoner’s release unless their detention is no longer necessary for the protection of the public. [LASPO 2012] applies this ‘public protection’ test to all cases which come before the [PB] and also provides a power for the Secretary of State to amend the test by Order. In view of this, I consider that it is no longer necessary or appropriate for the Directions to remain in place”
[18]The written statement referred to the PB’s own guidance letter of November 2012 “which sets out how the statutory release test in [LASPO 2012] is to be applied” and the fact that the PB had produced guidance which listed factors to be taken into account by PB panels when considering whether to release different categories of prisoner. As the list of factors largely reflected the same factors that had been set out in the Secretary of State’s own Directions, the withdrawal of the Directions would “not materially change how the [PB] approaches its release decisions”. Protection of the public would remain “at the heart of every release decision made by the [PB]”.[19]On 17 October 2013 the PB issued a decision directing Mr King’s re-release on licence. However, it is accepted that he still has locus standi to make the present claim for declaratory relief because he is at risk of being recalled until his sentence expiry date of 1 July 2015.[20]In December 2013 the PB issued a new “Guidance to members on LASPO Act 2012 – test for release” which replaced the PB’s own November 2012 guidance – the December 2013 Guidance. Much of the content of the new guidance was identical to that set out in the earlier version. Heading 3 (“New Test for Release for all Determinate Prisoners”) and Heading 5 (“Arrangements for Determinate Recalls”) are relevant to the present claim. I have set them out in full in Annex Two to this judgment. However, the key provision in this guidance of which Mr King complains is set out in Section 5, under a sub-heading “Guidance to Panels”. It is central to this claim so I set it out here. It states: “Panels may interpret the test for determinate sentenced prisoners as follows: In order to direct release, the Board should be satisfied that it is no longer necessary for the prisoner to be detained in order to protect the public from serious harm (to life and limb). It is not a requirement to balance the risk against the benefits to the public or the prisoner of release. Panels are reminded that when considering a case, public protection must be the over-riding consideration. The identification and management of risk remains the focal point of panels’ consideration”.[21]The claimant’s case is that this passage, in particular the sentence stating “it is not a requirement to balance the risk against the benefits to the public or the prisoner of release” is wrong as a matter of law and must be declared to be so.

III. The Legislative and case history in relation to the release of prisoners

[22]The PB was originally set up under section 59 of the Criminal Justice Act 1967 to advise the Secretary of State with respect to the release on licence of those serving a determinate sentence of imprisonment (section 60), those serving life sentences (section 61) and those prisoners who had been recalled after release on licence (section 62). I will try and summarise the evolution of the tests used by the PB in giving such advice, which under later statutes turned into making “recommendations” for release and then giving “directions” for release.[23]The system of “early release” of prisoners on licence had existed long before LASPO 2012. For example a prisoner serving a sentence of less than 4 years under the Criminal Justice Act 1991 (a “short term prisoner”) could be eligible for “early release” by the Sec of State before serving half his sentence, under section 34A of the 1991 Act. A prisoner serving 4 years or more under the Criminal Justice Act 1991 (a “long term prisoner”) who had committed a violent or sexual offence was eligible to be released by the Sec of State on parole after serving half his sentence, but only if the PB recommended such release. If he was not released then, the Sec of State was bound to release him on licence after he had served two-thirds: see section 33(2) and 35(1) of the 1991 Act. But prior to LASPO 2012 there was no statutory test for determining the basis on which a prisoner serving a determinate sentence would be given “early release”. Nor was there a statutory test for determining the basis for the re-release of a prisoner serving a determinate sentence who had been released on licence and then recalled to prison and was then being considered for re-release on licence. See section 39(2) and (5) of the 1991 Act. That section was thereafter amended by the Crime (Sentences) Act 1997 and the Crime and Disorder Act 1998.[24]In relation to the re-release of prisoners who had been given a determinate sentence, had been released and then recalled and who were being considered for re-release, I will not go further back in the legislative history than the 1991 Act. Under that regime the PB had to make “recommendations” to the Secretary of State on (amongst other things) the question of the re-release of prisoners who were subject to a determinate sentence and who had been recalled. As already noted, by section 32(6) of the 1991 Act the Secretary of State could give the PB directions as to the matters that it was to take into account in discharging its function and in doing so, the Secretary of State had to have particular regard to “…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 securing their rehabilitation”. Section 32(6) of the 1991 Act. It was pursuant to section 32(6) (as amended) that the May 2004 Directions on the question of the release on licence of prisoners serving determinate sentence had been issued by the Secretary of State.[25]The Secretary of State’s power to give general directions to the PB pursuant to section 32(6) was upheld by the Court of Appeal in R(Girling) v Parole Board. [2007] QB 783, although that case concerned a prisoner who had been sentenced to life imprisonment with a “tariff” under the pre-CJA 2003 regime and the Sec of State had given directions under s.32(6) as to the factors that the PB should take into account when deciding whether to direct the offender’s release under s. 28(5) of the Crime (Sentences) Act 1997. However, the court noted that this power was limited to giving general directions to the PB to assist it to exercise its powers within the law. The court said that the Secretary of State could not give directions to the PB as to how it decided individual cases. See particularly [19] and [20] of the judgment of the court given by Sir Anthony Clarke MR.[26]With regard to a prisoner who had been sentenced to a discretionary life sentence under the Criminal Justice Act 1967, his release on licence could be considered by the PB once he had served the minimum term or “tariff” set by the sentencing judge. But originally there was no statutory test that the PB had to apply when giving its advice or making its recommendation. In R v Parole Board, ex parte Bradley [1991] 1 WLR 134 the Court of Appeal held that the PB had to carry out a “balancing exercise” between two interests, that of the prisoner and that of the public. The PB had to decide whether there was more than a perceptible or minimal risk that the prisoner might commit further serious offences of violence. The court said that the PB panel also had to have in mind all material considerations, which would include the “intrinsic and increasing unfairness of leaving the prisoner languishing in gaol, ex hypothesi for longer than punishment requires, unless there is sufficient public risk to justify this”. See page 146 of the report of the judgment of the court (Stuart-Smith LJ and Simon Brown J) given by Stuart-Smith LJ.[27]Subsequently, in R v Parole Board ex parte Wilson, [1992] 1 QB 740. the Court of Appeal clarified this latter remark by emphasising that it did not mean that there was some “sliding scale” whereby the importance of the protection to the public would diminish and taper off in proportion to the length of the prisoner’s detention. “The level of risk to the public which the Parole Board regards as unacceptable cannot properly be varied to accommodate the release of the prisoner even if he was jailed in his twenties and has been detained for many years”. See the judgment of Taylor LJ (later Lord Taylor of Gosforth CJ) at page 747E-G. Scott and Nourse LJJ agreed. In R(Sturnham) v Parole Board (No 2) [2013] 3 WLR 281. Lord Mance (with whom the other four Justices agreed) rejected a submission that Bradley was wrongly decided and (at least tacitly) approved the reasoning in Wilson. See [40] and [42].[28]The position with regard to prisoners sentenced to a discretionary life sentence changed under the 1991 Act. Under section 34(4), once an offender who had been sentenced to a discretionary life sentence and he had served the minimum term or “tariff” part of his sentence, the Secretary of State could refer an offender’s case to the PB to consider whether it would direct that he be released on licence and if the Secretary of State did not refer his case then he could be required to do so. When the panel of the PB considered the question of possible release after serving the “tariff”, section 34(4)(b) required that it should not give a direction for release on licence unless “satisfied that it is no longer necessary for the protection of the public that the prisoner should be confined”. Thus, for the first time, a statutory test was created. Subsequently, in section 28(6)(b) of the Crime (Sentences) Act 1997, (“the 1997 Act”) the language of section 34(4)(b) of the 1991 Act was reproduced. In R v Parole Board, ex parte Lodomez, (1994) 26 BMLR 162. the Divisional Court held that the approach established at common law in cases of Bradley and Wilson applied also to the statutory test set out in section 28(6)(b) of the 1997 Act.[29]Section 28 of the 1997 Act has been amended. By para 183(2) of Sch 9 to the Powers of the Criminal Courts (Sentencing) Act 2000 and section 275(2) and (4) and para 3 of Sch 18 to the CJA 2003. In its current form, section 28(5) and (6) provide: “(5) As soon as –(a) a life prisoner to whom this section applies has served the relevant part of his sentence,(b) the Parole Board has directed his release under this section, it shall be the duty of the Secretary of State to release him on licence. (6) The Parole Board shall not give a direction under subsection (5) above with respect to a life prisoner to whom this section applies unless - (a) the Secretary of State has referred the prisoner’s case to the board; and (b) the board is satisfied that it is no longer necessary for the protection of the public that the prisoner should be confined”.[30]In R v Parole Board ex parte Watson, [1996] 1 WLR 906. the Court of Appeal had to decide whether the PB must apply the equivalent of the section 28(6)(b) test to circumstances where an offender who had been given a discretionary life sentence had been released on licence under section 34 of the 1997 Act, but then recalled to prison and his case was then being considered by the PB for his possible re-release on licence under section 39(4) of the 1991 Act. Whereas section 34 of the 1991 Act set out the test to be applied when the PB considered the initial release on licence of a discretionary life prisoner, section 39 did not set out any statutory test to be applied when the PB was considering whether to direct that the discretionary life prisoner be re-released after being recalled.[31]The Court of Appeal decided that the same test should be applied for re-release as for the initial release. Sir Thomas Bingham MR said that the PB’s function under section 39(4) was almost exactly the same as that under section 34(4), viz. to direct (or not) the prisoner’s release. Thus “in the absence of express statutory provisions, it is to be assumed that the same test is applicable”. Page 916G-H of the report. Rose and Roch LJJ agreed with that approach. See page918A-B and page 919F-H respectively. Thus if a PB panel was considering the re-release of a discretionary life prisoner who had been recalled, the test to be applied was whether the panel was satisfied that it is no longer necessary for the protection of the public that the prisoner should be confined.[32]In August 2004 the Secretary of State issued directions to the PB pursuant to section 32(6) of the 1991 Act in relation to the test to be applied to the release of prisoners serving discretionary life sentences (“the August 2004 Directions”). These directions thus provided a gloss on the statutory test and stated:
“The test to be applied by the [PB] 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”
. This test has sometimes been called “the life and limb test”.[33]In R(Foley) v The Parole Board of England and Wales, [2013] EWHC 2184 (Admin) Treacy J (as he then was) commented on the difference between the test set out in the May 2004 Directions relating to the early release of determinate sentence prisoners and the August 2004 Directions relating to the release of prisoners after serving the “tariff” of an indeterminate sentence imposed under the pre-CJA 2003 regime. Treacy J said at [10] and [11]:
“[10]. It will be appreciated that there is a difference between the two tests. In relation to determinate sentence prisoners the focus is on the risk to the public from any further offending (violent or otherwise) being committed at a time when the prisoner would otherwise be in prison. Moreover, the consideration is as to whether the risk is “acceptable”
. This latter aspect involves a balancing of benefits to public and offender of early release into the community under supervision which might help rehabilitation and thus lessen the risk of reoffending in the future against the benefits of safe-guarding the public by continuing to detain the offender. [11]. In the case of indeterminate sentence prisoners the focus relates specifically to risk to the life and limb of others rather than from the commission of offense generally, in addition a different threshold is in place, namely whether the risk is considered to be “more than minimal” as opposed to “acceptable”.[34]The test to be adopted by the PB in the case of determinate sentence prisoners, when compared to that to be adopted when applied to “lifers” and other indeterminate sentence prisoners pre-LASPO was, in one respect, more generous to the former. That is because in the case of determinate sentence prisoners, the risk of re-offending had to be balanced against the benefits from early release. However, in another respect the test to be applied to determinate sentence prisoners was more onerous, because the PB was entitled to take account of the risk of non-violent offending, or offending which might not cause serious harm. In Foley the claimant argued that this different approach was contrary to Art 14 of the ECHR and so unlawful because it constituted “unjustified discrimination” on the grounds of the prisoner’s status. The Divisional Court dismissed the claim because it held that it was bound by R (Clift) v Secretary of State [2007] 1 AC 484 to hold that there was no relevant “status” for the purposes of Art 14. But the court indicated that, but for that, it would have held that there was no “objective justification” for the different approach between test for release of the two types of prisoner.[35]The last two groups to mention in this review of the statutory provisions and case law concerning the test to be used by the PB when considering the release of prisoners either initially or after recall are, first, prisoners given mandatory life sentences under the regime established by the CJA 2003 and, secondly, those prisoners who were sentenced to imprisonment for public protection (“IPP”) under the provisions of Part 12, Chapter 5 of the CJA 2003, which relates to “dangerous offenders”. In relation to prisoners given mandatory life sentences under the regime established by section 269 and Schedule 21 of the CJA 2003, the sentencing court is obliged by section 269(2) to order (except in rare cases defined in section 269(4)), that the “early release provisions” of section 28(5) to (8) of the 1997 Act will apply to the offender as soon has he had served his “minimum term”, as ordered by the sentencing judge under section 269. Thus, the PB will have to apply the statutory test set out in section 28(6)(b) quoted above when deciding whether to direct the release on licence of an offender given mandatory life sentence under section 269 of the CJA 2003 who has served his “minimum term”.[36]The provisions of the CJA 2003 relating to IPP remained in force, in one form or another, until replaced by a new form of imprisonment – extended determinate sentences – which was created by LASPO 2012. If a court sentenced an offender to a sentence of IPP under the CJA 2003, it had to set the “minimum term” to be served by him pursuant to section 82A(2) of the Powers of the Criminal Courts (Sentencing) Act 2000. See the definition of a “minimum term order” in section 28(8A) of the 1997 Act as amended and the definition of “life sentence” in section 34(2)(d) of the same Act, as amended. Once the prisoner had served that “minimum term” he could be considered for release on licence. By virtue of section 28(5) and (6) and section 34(1) and (2)(d) of the 1997 Act as amended, the statutory test to be applied by the PB when considering whether or not to release an IPP prisoner who had served his minimum term was that set out in sections 28(5) and (6)of the 1997 Act (as amended). Thus the panel of the PB had to be satisfied that it was “satisfied that it is no longer necessary for the protection of the public that the prisoner should be confined”.[37]In R(Sturnham) v Parole Board (No 2) [2013] 2 AC 254 the issue was whether the PB panel had simply to apply this statutory test or whether the test had to be modified to accommodate the statutory test that had to be applied before a sentence of IPP could be imposed in the first place. If a modification had to be made then, the appellant’s argument ran, once the PB was satisfied that the IPP offender was no longer “dangerous” he should be released on licence. The Supreme Court rejected this submission. Lord Mance With whom all the other Justices agreed. gave several reasons for doing so. The first was that the test for release to be applied to such prisoners was the same as that applied for the release of discretionary life sentences as first set out in section 34(4)(b) if the 1991 Act and then re-enacted in section 28(6)(b) of the Crime (Sentences) Act 1997. Lord Mance noted that this statutory test had since been applied also to mandatory life sentences. He said that those who drafted the provisions of the CJA 2003 must have been aware of the decisions of Bradley and Wilson, which were followed in Lodomez. Therefore, in introducing the sentence of IPP into the same framework for release as had been applied both at common law and under the statutory provisions to discretionary life sentences, Parliament must, on the face of it, have intended to apply to sentences of IPP the same test for release as for those life sentences. Therefore the test, to be applied by the PB was simply whether it was satisfied that it was no longer necessary for the protection of the public that the prisoner should be confined. See the judgment of Lord Mance at [41]-[42].[38]I note, in passing, that in the case of a person sentenced to an extended sentence under sections 227 and 228 of the CJA 2003 (unamended), a PB panel is to consider the possible release of the offender as soon as he has served half of the custodial element of the sentence imposed: section 247(2). But, under section 247(3), the PB may not give a direction for his release unless it is satisfied “that it is no longer necessary for the protection of the public that the prisoner should be confined”.[39]The final point to note in this long, but I think necessary survey of the statutory history, is that section 29(2) of the Criminal Justice and Immigration Act 2008 introduced extensive additions to the provisions in Chapter 6 of Part 12 of the CJA 2003 relating to the recall of prisoners serving determinate sentences after they had been released on licence. It was this provision which first introduced sections 255A, 255B and 255C of the CJA 2003. The structure of those provisions is as I have described them below under the heading “The LASPO release provisions as inserted in the CJA 2003”. The numbering of the sub-sections in section 255A as first introduced is different from that as it was amended by LASPO 2012, but the test to be applied by the Secretary of State for deciding whether an eligible person is “suitable for automatic release” is the same. The wording of section 255B(3) and section 255C(3) as introduced into the CJA 2003 by the 2008 Act remained unchanged even after LASPO 2012 came into force, although that Act amended other provisions of those sections. As Mr Southey emphasised in his submissions, the May 2004 Directions of the Secretary of State were not altered despite the introduction of the statutory tests for release which had to be operated by the Secretary of State under the new provisions of section 255C(3) in the amended CJA 2003.[40]In summary therefore, before the parts of the LASPO 2012 relating to the release of prisoners came into force, the tests to be applied by panels of the PB considering the release of prisoners were not uniform. In some cases, eg discretionary life sentence prisoners and those on whom other indeterminate sentences had been imposed, such as IPP prisoners, there was a statutory test, which was amplified by the August 2004 Directions. In the case of determinate sentence prisoners, there was no statutory test. Instead the test was that set out in the May 2004 Directions, part of which are quoted in [5] above. The May 2004 Direction remained unaltered despite the statutory tests that the Secretary of State became obliged to apply under section 255C(3) of the CJA 2003 by virtue of the amendments introduced to that Act by the 2008 Act.

IV. The LASPO 2012 release provisions as inserted in the CJA 2003

[41]The relevant provisions of the CJA 2003 as amended by LASPO 2012 are all within Chapter 6 of Part 12 of the CJA 2003, which now has the heading “Release, licences and recall”, which was amended by LASPO 2012 from the previous heading “Release on Licence”. The first relevant amendments were to section 246 which deals with the Secretary of State’s power to release on licence prisoners serving a “fixed-term” sentence A “fixed-term prisoner” is defined in section 237 of the CJA 2003 and includes a person serving a sentence of imprisonment for a determinate term. before he is obliged to do so under section 244, ie. so-called “early release”. Secondly, section 254 which deals generally with the recall of prisoners who have been released on licence by the Secretary of State. Thirdly, section 255 deals with the recall, by the Secretary of State, of determinate sentence prisoners who have been released on licence early under section 246. Fourthly, LASPO 2012 inserted revised provisions at sections 255A, 255B and 255C which deal with the further release of determinate sentence prisoners who have been the subject of recall under section 254. Lastly, section 256 was re-amended nd the new 256A was inserted. These two sections set out the procedure for possible future release when a determinate sentence prisoner has not been re-released after recall under the terms of section 255B or 255C. I have set out all these provisions in Annexe I to this judgment and I will therefore only summarise them here so far as is necessary for the purposes of this claim.[42]I do not need to comment on either section 246 or 255. Mr King was recalled under the terms of section 254 as they were before the LASPO 2012 amendments but the differences are not material to this claim. Section 255A sets out the basis for deciding which of sections 255B or 255C will apply to a person who has been recalled to prison under section 254. The Secretary of State first has to enquire whether the prisoner is one serving an “extended sentence” (newly created by LASPO 2012). If he is then he cannot be considered by the Secretary of State for possible “automatic release”, viz after he has been recalled to custody for 28 days. If the prisoner is not serving an “extended sentence” then, under section 255A(4) a person is “suitable for automatic release” if the Secretary of State is satisfied that the person “will not present a risk of serious harm to members of the public” if released at the end of the 28 day period.[43]Three things are of note. First, this is a task the Secretary of State has to undertake. Secondly, the decision that the Secretary of State has to make is whether or not the person is “suitable for automatic release”, not whether he is to be automatically released. Thirdly, the statutory test that the Secretary of State has to apply to decide whether a person is “suitable for automatic release” is whether or not the person will present a risk of serious harm to members of the public; that is obviously not the same test as a general “public protection” test. If the Secretary of State decides that the person will not present a risk of serious harm to members of the public and so is “suitable for automatic release”, then section 255B applies. If he decides the person does represent such a risk, then section 255C applies. Section 255C also applies to “extended sentence” prisoners, who by definition cannot be eligible for “automatic release”.[44]Under section 255B, a person whom the Secretary of State has decided is “suitable for automatic release” will be automatically re-released on licence again at the end of the 28 day period of custody: section 255B(1)(b). Moreover, under section 255B(2) the Secretary of State has the power to release a person who is “suitable for automatic release” at any time during the 28 days after he has been returned to custody. But the Secretary of State must not release the person before the expiry of the 28 days unless he is satisfied that the test imposed by section 255B(3) is satisfied. That statutory test is that the Secretary of State is satisfied that “it is not necessary for the protection of the public that [the person] should remain in prison until the end of the [28 day period]”. The recalled prisoner can make representations that he should be released before the end of the 28 day period, in which case the Secretary of State has to refer the matter to the PB. If the PB directs the person’s immediate release, the Secretary of State must release him: section 255B(4) and (5).[45]There are two things to note about section 255B. The first is that the test that the Secretary of State has to apply when deciding whether or not to release before the expiry of the 28 day period the person “suitable for automatic release” is different from the test that the Secretary of State has to apply in deciding whether a recalled prisoner is “suitable for automatic release”. To repeat, under section 255A(4) the test is one of “serious harm to members of the public”, whereas in section 255B(3) the test is whether “it is necessary for the protection of the public that [the person] should remain in prison”. The second thing to note is that if a person’s case is referred to the PB under section 255B(4), there is no statutory test laid down for the PB to use when deciding whether or not to direct that the prisoner should be immediately released on licence pursuant to section 255B(5).[46]Section 255C applies to both recalled “extended sentence” prisoners, who, by definition, are not eligible to be found “suitable for automatic release” and all other recalled prisoners whom the Secretary of State has decided (under section 255A) are not “suitable for automatic release”. In the case of these recalled prisoners, the Secretary of State may release the prisoner on licence at any time: section 255C(2). But he cannot do so unless he is satisfied that “it is not necessary for the protection of the public that [the person] should remain in prison”: section 255(3). If the person makes representations before the end of the first 28 days of custody following recall or, if Secretary of State has not exercised his powers under section 255C(2), then the person’s case must be referred to the PB: section 255C(4). If, upon such a reference to the PB, it directs the person’s immediate release, then the Secretary of State must release him.[47]Two things will be noted about sections 255B and 255C. First, in both sections the statutory test that the Secretary of State has to apply when deciding whether to re-release a recalled prisoner on licence is in the same words. Secondly, in section 255C and in 255B, there is no statutory test laid down for the PB to apply when a case is referred to it by the Secretary of State under either of those two sections.[48]Lastly, where the PB has not directed the immediate re-release of a recalled prisoner under the provisions of section 255B(4) or 255C(3), then, pursuant to section 256 it has either to set a date for re-release within one year or determine that there will be no direction as to his release. Under section 256A(1) the Secretary of State must, within a year of a decision of the PB not to direct release, refer the case to it to review the matter. Once again there is no statutory test that the PB is to apply in deciding whether or not to direct re-release upon such a review.[49]I should also refer to terms of Schedule 17 of LAPSO 2012, which, by paragraph 10 creates a new Schedule 20B to the CJA 2003. This modifies the provisions in Chapter 6 of Part 12 of that Act in defining when and under what conditions, prisoners who have been sentenced under sentencing regimes prior to the CJA 2003 came into force and in relation to one regime under the CJA 2003 in force until 2008, may be released on licence or re-released on licence after recall. In each case referred to in Schedule 20B of the CJA 2003 it is the PB that has to make the decision on whether the prisoner is to be released, by giving a direction to the Secretary of State to do so. But in each case there is a statutory test that the PB must apply before it can give a direction for release on licence or re-release on licence. The test in each case is the same. It is that the PB must not give a direction unless it is “satisfied that it is no longer necessary for the protection of the public that the person should be confined”. Set out in paras 6(2), 15(4), 25(3), and 28(3). That, of course, is precisely the same wording used in section 28(6)(b) of the 1997 Act. V. The arguments of the parties.[50]Mr Hugh Southey QC, for Mr King, submitted, first, that it was of prime significance that LASPO 2012 had deliberately not set out any statutory test that the PB was to apply when considering whether to direct the release of a prisoner under section 255C(4) and (5). There was also no statutory test when the PB had to consider the release of a prisoner under section 255B and where there was a review or a further review by the PB under sections 256 and 256A. This was in contrast to the three different statutory tests that the Secretary of State had to apply when making decisions under, respectively, section 254(2B) (cancellation of recall), section 255A(4) (suitability for “automatic release”) and sections 255B(3) and 255C(4) (early “automatic release” and re-release of prisoners not suitable for “automatic release). Secondly, he submitted that when Parliament passed LASPO 2012, it must be assumed to have known the legislative history and the case law Such as Bradley; Watson and Lodomez. relating to the test to be applied when the PB had to consider the early release of prisoners and the release of recalled prisoners. Mr Southey relied on the remark of Lord Steyn at [42] in R (European Roma Rights) v PragueAirport Immigration Officer [2005] 2 AC 1. In this regard, Parliament must be taken to be aware of the statements of Lord Bingham in both R(West) v Parole Board, R(Smith) v Parole Board [2005] 1 WLR 350 at [25]. and R(Clift) v Secretary of State for the Home Department [2007] 1 AC 484 at [18]. on the benefits to society of the early release of prisoners in appropriate cases. Thirdly, it must have known the previous guidance that was given by the Secretary of State in relation to determinate sentence prisoners in the May 2004 Directions. In this regard, he emphasised that the Secretary of State had not withdrawn or modified the May 2004 Directions after sections 255A, 255B and 255C were first introduced by section 29(2) of the Criminal Justice and Immigration Act 2008. Fourthly, the fact that the Secretary of State has subsequently withdrawn the May 2004 Directions does not itself mean that the test must have changed. Fifthly, therefore, in the absence of any statutory provision in LASPO 2012 expressly amending the release test to be applied by the PB when it considers whether to release determinate sentence prisoners who have been recalled, Parliament must have intended that the test should remain as it was. The test should therefore continue to be one that balanced the risks posed by a prisoner with the advantages to society of early release.[51]Mr Southey advanced an alternative line of argument on the assumption that the PB had to apply the equivalent of the statutory test that the Secretary of State had to apply under section 255B(3) and 255C(4), viz. whether it is not necessary “for the protection of the public that [the prisoner] should remain in prison”. He submitted that this language permitted a balancing test, at least with regard to determinate sentence prisoners. If not, then the May 2004 Directions could not have been continued once the new sections 255A, 255B and 255C had been introduced by the 2008 Act. In this regard Mr Southey relied on the statements of Lord Bingham in West and Smith and Clift At [25] and [18] of the respective reports: [2005] 1 WLR 350 and [2007] 1 AC 484. to the effect that it is in the interests of society that a prisoner should become a lawful member of society again and that the interests of the public and the prisoner will, in appropriate circumstances, be served by early release because there is judged to be no continuing interest in depriving the prisoner of his liberty. Mr Southey submitted that, in the absence of any specific wording, Parliament would not have intended to prevent the PB from considering public interest factors when deciding on whether to direct the re-release of recalled prisoners.[52]Mr Sam Grodzinski QC for the Parole Board submitted that the court had to consider two main questions and one subsidiary one. First, is the test which the PB should apply when considering whether to direct the re-release of a recalled prisoner pursuant to a referral to it by the Secretary of State under section 255C(4) the same test as the statutory test that the Secretary of State had to apply when he was considering release under section 255C(3)? In Mr Grodzinski’s submission the answer to this question was “yes”. The second question was, if that was the correct test, what was comprised within it? In particular did the test permit the PB to consider the possible benefit of early release to the public in general, as in the May 2004 Directions? In his submission the answer to that question was “no”; the test was exclusively a “risk based” test. The third, subsidiary question supposed that Mr Grodzinski’s first submission was not accepted. The question then was: what test should be applied? Mr Grodzinski submitted that the tests should be as set out by Treacy J in [10] of Foley (quoted above).[53]In support of his first proposition, Mr Grodzinski relied upon the structure and content of the CJA 2003 provisions, including those in the new Schedule 20B. In his submission this structure, together with the provisions in section 28(6)(b) of the 1997 Act and Watson, all demonstrated an intention by Parliament to introduce one single test for actual release (as opposed to suitability for “automatic release”) after recall. The test was the “public protection” test. It was implicit that Parliament intended the same test should be applied by the PB in exercising its power to direct release under section 255C(4) and 256 and 256A. It was important that Schedule 17 of LASPO 2012 brought the test for the release of determinate sentence prisoners sentenced prior to the CJA 2005 into line with all other indeterminate sentence prisoners, whether “lifers” or others, where the statutory test was that set out in section 28(6)(b) of the 1997 Act on which no gloss should be placed. Mr Grodzinski relied upon the statements of Lord Mance at [29] and [52] of Sturnham that it is preferable to concentrate on the statutory language, not to paraphrase it. It could not be Parliament’s intention that the test for the release of recalled prisoners (who were not suitable for automatic release) should be different depending on whether the decision was taken by the Secretary of State or the PB.[54]On his second question, Mr Grodzinski relied upon the analysis of Lord Mance in Sturnham. Assuming that the test that the PB had to apply was in the same terms as those set out in section 255C(3), then the statutory language is the same as that used in section 28(6)(b) of the 1997 Act. There should be no gloss on that wording. The test does not incorporate any balancing exercise, as is clear from the analysis of Treacy J at [10] and [11] of Foley, where he contrasts the test then applicable for the release of determinate sentence prisoners with that of indeterminate sentence prisoners. The latter is concerned with risk only.[55]If, contrary, to his main submission, the PB should not use the “necessary for the protection of the public” test, but one based on the May 2004 Directions, then Mr Grodzinski submitted that the correct approach would have to be that set out in [10] in Foley. Thus the primary focus would still be on risk to the public from any further offending, whether violent or otherwise. The balancing exercise is between that risk and the possible benefits to the public and the offender of early release into the community. The ultimate question is whether the risk (of further offending) is “acceptable”. However, the fact that this might be different from the statutory test set out in section 255C(3) demonstrated that Parliament must have intended the same test to be used both by the Secretary of State and the PB.

VI. Analysis and Conclusion

[56]Ultimately there are two issues in this case. They are: what test does the PB have to apply when considering whether to direct the re-release pursuant to section 255C(4) of a prisoner serving a determinate sentence who has been recalled, and, in the light of the answer to that question, is the December 2013 Guidance lawful or not? The questions to be answered on the way are:(1) when the PB is exercising this power, does it have to apply the equivalent of a statutory test in deciding whether to direct that prisoner’s re-release;(2) if so, what equivalent statutory test is it and what is its ambit;(3) if a statutory test is not to be applied, what test should be applied; and(4) in the light of the answers to (1)-(3) is the December 2013 Guidance lawful or not?[57]Question one: when the Parole Board is exercising its power under section 255C(4), does it have to apply a statutory test in deciding whether to direct the determinate sentence prisoner’s re-release? It was accepted by both sides, in my view correctly, that when the PB is exercising its powers under section 255B(4), 255C(5), 256 and 256A, it has to apply some uniform test to decide whether to direct that the prisoner be released. The PB does not have carte blanche to act is it wants. I obviously have to agree that in the case of a determinate sentence prisoner there is no explicit statutory test to be applied by the PB when considering whether to direct the re-release of such a prisoner who has been recalled. This is in contrast to the case where the PB considers the initial release of a prisoner serving a mandatory life sentence, or a discretionary life sentence or an IPP (under the CJA 2003 regime). But, in my view, the present structure of the legislation strongly indicates that Parliament intended that the PB should apply the equivalent of an existing statutory test when making its decision on the possible re-release of a determinate sentence prisoner who has been recalled. I will explain why.[58]First, Schedule 17 of LASPO 2012 (creating the new Schedule 20B to the CJA 2003) has imposed a new explicit statutory test on the PB when exercising its duty to consider the release of prisoners serving an 1991 Act sentence, an extended sentence under the former sections 227 and 228 of the CJA 2003 and certain persons serving a determinate sentence under the Criminal Justice Act 1967 imposed prior to 1 October 1992: see paragraphs 6(2), 15(4), 25(3) and 28(3) of Schedule 17. I appreciate that para 23 in Part 3 of Sch 17, dealing with “Prisoners serving 1967 Act sentences” stipulates expressly that Part 3 does not apply to a person who has been released on licence and then recalled. The obvious intention of this exercise was to standardise the test to be used in all those cases.[59]Secondly, in the case of mandatory life prisoners, discretionary life prisoners and IPP prisoners under the previous CJA 2003 regime, when the PB has to decide whether or not an offender is to be released on licence following the completion of the “minimum term” or “tariff”, the PB must apply the statutory test set out in section 28(6)(b) of the 1997 Act. Thirdly, this statutory test has been extended, by the decision of the Court of Appeal in Watson [1996] 1 WLR 906 to the case when the PB has to decide whether to direct the re-release of a discretionary life prisoner following his recall. It held that the test the PB had to apply was the same as that set out in what was section 34(4)(b) of the 1991 Act and is now section 28(6)(b) of the 1997 Act. In reaching this decision, Sir Thomas Bingham MR emphasised as one of his reasons the fact that the function of the PB in considering whether or not to direct the re-release of the offender was “almost exactly the same as that” it performed when deciding whether or not to direct his release after he had served his “minimum term”, so that, “in the absence of express statutory provision, it is to be assumed that the same test is applicable”. See page 916G-H. Rose and Roch LJJ agreed. I accept that Sir Thomas Bingham then went on to deal with how the PB should approach its task and that he talked about a “balancing” exercise, but that is relevant to the second issue to be discussed below.[60]Fourthly, the 2008 Act, as modified by LASPO 2012 introduced new statutory tests that the Secretary of State has to apply when he exercises his duties in considering whether a recalled prisoner should be treated as “suitable for automatic release” (section 255A(4)), or, if the prisoner is suitable, whether he should be released before the expiry of the 28 days following recall (section 255B(3)) or, if he is not suitable, whether the prisoner should be released on licence (section 255C(3)). The latter two of these statutory tests are the same. I accept that the test under section 255A(4) is different, but the reason for that is clear. Parliament has decided that two groups of prisoners should not be eligible for automatic re-release within 28 days after recall and so it set the test for being eligible for automatic re-release higher. The first group consists of prisoners subject to an extended sentence (under the new sections 226A and 226B of the CJA 2003 introduced by LASPO 2012) and the second consists of those who present a “risk of serious harm to members of the public”.[61]Fifthly, like Sir Thomas Bingham MR in Watson, it seems to me that the function of the PB in deciding whether or not to direct the re-release of a recalled prisoner is going to be very similar, if not exactly the same, as that exercised by the PB under the various provisions of Schedule 20B of the CJA 2003 (as inserted by Schedule 17 of LASPO 2012) and the exercise performed by the Secretary of State under sections 225B(3) and 225C(4) of the CJA 2003. Therefore, I think it follows that, in the absence of an express statutory provision, the presumption must be that an equivalent test should apply to the exercise that the PB is to carry out unless there is some clear contra-indication that it should be some other test. I do not accept the proposition that the fact that there is no express statutory test to be applied by the PB when it is deciding whether or not to direct the re-release of a recalled determinate sentence prisoner is indicative that some other test should be used. To my mind if Parliament wished the PB to apply a different test in that one situation only, then the obvious solution would have been for it to set out an express statutory test in the different terms required.[62]I also cannot accept Mr Southey’s argument that Parliament must have intended the old test as set out in the May 2004 Direction to continue to be applicable to the PB in the absence of any express statutory wording. In my view the fact that LASPO 2012 stipulates a specific statutory test in so many cases where a prisoner’s release has to be considered, whether the exercise is to be carried out by the Secretary of State or the PB, demonstrates that Parliament intended that there should be a new start in this whole area. Moreover, the fact that the statutory test applicable is made the same in all situations apart from the special one considered in section 255A(3), in particular in relation to determinate sentence prisoners under both the 1967 and 1991 Acts, thus sweeping away the old test for them set out in the May 2004 Directions, is a powerful pointer towards this new start. I take Mr Southey’s point that the May 2004 Directions remained in force after the introduction of the statutory tests to be applied by the Secretary of State under sections 255B(3) and 255C(3). But there is no force in the argument. Those Directions were issued before sections 255B and 255C were enacted and there is no document to show that a considered decision was taken to leave them unaltered despite the terms of the new provisions. It is clearly arguable that a PB panel would have been obliged to take them into account when exercising its powers in relation to the release of determinate sentence prisoners whilst those Directions were still in force, despite the terms of the new statutory provisions after 2008. However, once the May 2004 Directions were withdrawn by the Secretary of State in July 2013 they cease to exist. They cannot retain some kind of ghostly existence from “beyond the grave” in deciding on the correct test that the PB has to adopt.[63]Question Two: what equivalent statutory test has to be applied by the PB in deciding whether to direct the determinate sentence prisoner’s re-release after recall and what is its ambit? If I am right on the first question, then I think that there can be no doubt that the test that the PB must apply when deciding whether to direct the determinate sentence prisoner’s re-release after recall must be the equivalent to the statutory test, viz. that the PB is satisfied that it is not necessary for the protection of the public that the prisoner should remain in prison; in other words, the same test as that set out in section 255C(4). There is no other possible candidate and neither Mr Southey or Mr Grodzinski argued for any other, assuming the equivalent of a statutory test had to be applied.[64]That leaves the question of the ambit of the statutory test of “not necessary for the protection of the public that the person should remain in prison”. There was no detailed argument on the precise ambit of this test other than Mr Southey’s submission that the wording was sufficiently broad to include a consideration of the possible benefit to both the prisoner and the public of an early release. In my view those words do not permit such an exercise. It would involve too great a gloss on the words.[65]In this context I should return to the statement of Sir Thomas Bingham MR in Watson, at page 916H of the report, where one of his reasons for holding that the PB should use the equivalent of the statutory test laid down on what is now section 28(6)(b) when deciding whether to direct the re-release of a prisoner given a discretionary life sentence who had been recalled was:
“(4) In exercising its practical judgment the board is bound to approach its task under the two sections That is sections 34(4) and 39(5) of the 1991 Act. The first dealt with possible release after the prisoner had served the “tariff” part of his discretionary life sentence; the second dealt with possible re-release after recall. in the same way, balancing the hardship and injustice of continuing to imprison a man who is unlikely to cause serious injury to the public against the need to protect the public against a man who is not unlikely to cause such injury. In other than a clear case this is bound to be a difficult and very anxious judgment. But in the final balance the board is bound to give preponderant weight to the need to protect the innocent public against any significant risk of serious injury. That is the test which section 34(4)(b) prescribes and I think it is equally appropriate under section 39(4)”
. In giving his separate judgment, Rose LJ said, at 918A that in the case of both section 34(4) and 39(4) “the need to protect the public is paramount”. He repeated the fact that the only test set out in the statute was that at section 34((4)(b).

(b) He continued:

“The test is justified if the protection of innocent people is to be placed above the personal liberty of one who has been guilty of grave offending and who may still represent a danger to others. In my opinion, it is incontrovertible that Parliament in the Act has manifested an intention to put the protection of the public as the overriding consideration.”
[66]I accept, of course, that the comments of all three judges were made in the context of statutory provisions that applied to offenders who have been given a pre-CJA 2003 discretionary life sentence, which sentences will be imposed because the offence is very serious and the offender is judged to be a serious danger to the public and likely to be so for an indeterminate period. See the summary on the imposition of pre-CJA 2003 discretionary life sentences by Lord Mance in Sturnham at [15]-[18]. Nevertheless, it seems to me that once it is accepted that the test that the PB is to apply when considering the re-release of a recalled determinate sentence prisoner is the “public protection” test, then the overriding consideration must be that expressed by Roch LJ and quoted above. Rose LJ stated the same thing, more shortly. Neither of them referred to a balancing exercise of the type indicated by the Master of the Rolls. Nor did they put the gloss on the statutory words that he applied by characterising the test as being “the need to protect the innocent members of the public against any significant risk of serious injury”. My emphasis. Whilst any remark of Lord Bingham of Cornhill has to be carefully considered and accepting that this is not an express statutory test, I must apply the principle stated by Lord Mance in the Sturnham case at [29] and [52] and so concentrate on the “statutory” rather than paraphrase them. Therefore, in my judgment, the remarks of Sir Thomas Bingham MR in Watson do not warrant the introduction of a “balancing” exercise to the “public protection” test.[67]There will be, nonetheless, many factors that the PB panel will have to take into account when considering whether to direct the re-release of a recalled determinate prisoner. The factors to be considered will depend on the circumstances of each individual case. Ultimately, however, the PB panel in each case will have to ask itself whether it is satisfied that it is not necessary for the protection of the public that the prisoner in question should remain in prison.[68]Question Three: If the statutory test is not to be applied, what test should be? In the light of my answers to questions (1) and (2), this question does not arise.[69]Question Four: Is the December 2013 Guidance lawful? Mr Southey’s only specific challenge to the lawfulness of the December 2013 Guidance was in relation to the statements in sections 3 and 5 that “it is not a requirement to balance the risk against the benefits to the public or the prisoner of release”. It follows from my answers to questions(1) and(2) that this challenge cannot be sustained. The “balancing exercise” is not a relevant component to be considered by a PB panel if it applies the correct test when considering whether to direct the re-release of a recalled determinate sentence prisoner. Other issues on other statements in the December 2013 Guidance may arise in the future but are not the subject of the present claim and so I will not comment on them.

Disposal

[70]For these reasons, the claim must be dismissed. Mr

Justice Mitting:

[71]I agree. Annex 1 Criminal Justice Act 2003 as amended by the Legal Aid Sentencing and Punishment of Offenders Act 2012 246 Power to release prisoners on licence before required to do so(1) Subject to subsections (2) to (4), the Secretary of State may— (a) release on licence under this section a fixed-term prisoner. . . at any time during the period of 135 days ending with the day on which the prisoner will have served the requisite custodial period, . . . (b) . . ..(2) Subsection (1)(a) does not apply in relation to a prisoner unless— (a) the length of the requisite custodial period is at least 6 weeks, and (b) he has served— (i) at least 4 weeks of that period, and (ii) at least one-half of that period.(3) . . .(4) Subsection (1) does not apply where— (a) the sentence is imposed under section 226A, 227 or 228, (aa) the sentence is for a term of 4 years or more (b) the sentence is for an offence under section 1 of the Prisoners (Return to Custody) Act 1995 (c 16), (c) the prisoner is subject to a hospital order, hospital direction or transfer direction under section 37, 45A or 47 of the Mental Health Act 1983 (c 20), (d) the sentence was imposed by virtue of paragraph 9(1)(b) or (c) or 10(1)(b) or (c) of Schedule 8 in a case where the prisoner has failed to comply with a curfew requirement of a community order, (e) the prisoner is subject to the notification requirements of Part 2 of the Sexual Offences Act 2003 (c 42), (f) the prisoner is liable to removal from the United Kingdom, (g) the prisoner has been released on licence under this section at any time, and has been recalled to prison under section 255(1)(a) (and the revocation has not been cancelled under section 255(3)), (h) the prisoner has been released on licence under section 248 during the currency of the sentence, and has been recalled to prison under section 254, . . . (ha) the prisoner has at any time been returned to prison under section 40 of the Criminal Justice Act 1991 or section 116 of the Sentencing Act, or (i) in the case of a prisoner to whom section 240ZA applies or a direction under section 240A relates, the interval between the date on which the sentence was passed and the date on which the prisoner will have served the requisite custodial period is less than 14 days . . .. (4ZA) Where subsection (4)(aa) applies to a prisoner who is serving two or more terms of imprisonment, the reference to the term of the sentence is-- (a) if the terms are partly concurrent, a reference to the period which begins when the first term begins and ends when the last term ends; (b) if the terms are to be served consecutively, a reference to the aggregate of the terms. (4A) In subsection (4)-- (a) the reference in paragraph (d) to a community order includes a service community order or overseas community order under the Armed Forces Act 2006; and (b) the reference in paragraph (i) to section 240ZA includes section 246 of that Act.(5) The Secretary of State may by order— (a) amend the number of days for the time being specified in subsection (1) (a) . . . or (4)(i), (b) amend the number of weeks for the time being specified in subsection (2)(a) or (b)(i), and (c) amend the fraction for the time being specified in subsection (2)(b)(ii) . . ..(6) In this section-- . . . "the requisite custodial period" in relation to a person serving any sentence . . ., has the meaning given by paragraph (a) or (b) of section 243A(3) or (as the case may be) paragraph (a). . . or (d) of section 244(3); . . . "term of imprisonment" includes a determinate sentence of detention under section 91 or 96 of the Sentencing Act or under section 226A, 226B, 227 or 228 of this Act. (1). The Secretary of State may, in the case of any prisoner who has been released on licence under this Chapter, revoke his licence and recall him to prison. (2). A person recalled to prison under subsection (1)— (a) may make representations in writing with respect to his recall, and (b) on his return to prison, must be informed of the reasons for his recall and of his right to make representations. 74. (2A) The Secretary of State, after considering any representations under subsection (2)(a) or any other matters, may cancel a revocation under this section. 75. (2B) The Secretary of State may cancel a revocation under subsection (2A) only if satisfied that the person recalled has complied with all the conditions specified in the licence. 76. (2C) Where the revocation of a person's licence is cancelled under subsection (2A), the person is to be treated as if the recall under subsection (1) had not happened. (3). . . . (4). . . . (5). . . . (6). On the revocation of the licence of any person under this section, he shall be liable to be detained in pursuance of his sentence and, if at large, is to be treated as being unlawfully at large. (7). Nothing in this section applies in relation to a person recalled under section 255. (1). If it appears to the Secretary of State, as regards a person released on licence under section 246— (a) that he has failed to comply with any condition included in his licence, or (b) that his whereabouts can no longer be electronically monitored at the place for the time being specified in the curfew condition included in his licence, the Secretary of State may, if the curfew condition is still in force, revoke the licence and recall the person to prison under this section. (2). A person whose licence under section 246 is revoked under this section— (a) may make representations in writing with respect to the revocation, and (b) on his return to prison, must be informed of the reasons for the revocation and of his right to make representations. (3). The Secretary of State, after considering any representations under subsection (2)(a) or any other matters, may cancel a revocation under this section. (4). Where the revocation of a person's licence is cancelled under subsection (3), the person is to be treated for the purposes of section 246 as if he had not been recalled to prison under this section. (5). On the revocation of a person's licence under section 246, he is liable to be detained in pursuance of his sentence and, if at large, is to be treated as being unlawfully at large. Further release after recall (1). This section applies for the purpose of identifying which of sections 255B and 255C governs the further release of a person who has been recalled under section 254. (2). The Secretary of State must, on recalling a person other than an extended sentence prisoner, consider whether the person is suitable for automatic release. (3). For this purpose “automatic release” means release at the end of the period of 28 days beginning with the date on which the person returns to custody. (4). A person is suitable for automatic release only if the Secretary of State is satisfied that the person will not present a risk of serious harm to members of the public if released at the end of that period. (5). The person must be dealt with— (a) in accordance with section 255B if suitable for automatic release; (b) in accordance with section 255C otherwise. (c) For the purposes of this section, a person returns to custody when that person, having been recalled, is detained (whether or not in prison) in pursuance of the sentence. (6). An “extended sentence prisoner” is a prisoner serving an extended sentence imposed under— (a) section 227 or 228 of this Act, or (b) section 85 of the Sentencing Act; and paragraph (b) includes (in accordance with paragraph 1(3) of Schedule 11 to the Sentencing Act) a reference to section 58 of the Crime and Disorder Act 1998. (1). A prisoner who is suitable for automatic release (“P”) must— (a) on return to prison, be informed that he or she will be released under this section (subject to subsections (8) and (9)), and (b) at the end of the 28 day period mentioned in section 255A(3), be released by the Secretary of State on licence under this Chapter (unless P is released before that date under subsection (2) or (5)). (2). The Secretary of State may, at any time after P is returned to prison, release P again on licence under this Chapter. (3). The Secretary of State must not release P under subsection (2) unless the Secretary of State is satisfied that it is not necessary for the protection of the public that P should remain in prison until the end of the period mentioned in subsection (1)(b). (4). If P makes representations under section 254(2) before the end of that period, the Secretary of State must refer P's case to the Board on the making of those representations. (5). Where on a reference under subsection (4) the Board directs P's immediate release on licence under this Chapter, the Secretary of State must give effect to the direction. (6). Subsection (7) applies if P is recalled before the date on which P would (but for the earlier release) have served the requisite custodial period for the purposes of section 243A or (as the case may be) section 244. (7). Where this subsection applies— (a) if P is released under this section before that date, P's licence must include a curfew condition complying with section 253, and (b) P is not to be so released (despite subsections (1)(b) and (5)) unless the Secretary of State is satisfied that arrangements are in place to enable that condition to be complied with. (8). Subsection (9) applies if, after P has been informed that he or she will be released under this section, the Secretary of State receives further information about P (whether or not relating to any time before P was recalled). (9). If the Secretary of State determines, having regard to that and any other relevant information, that P is not suitable for automatic release— (a) the Secretary of State must inform P that he or she will not be released under this section, and (b) section 255C applies to P as if the Secretary of State had determined, on P's recall, that P was not suitable for automatic release. (1). This section applies to a prisoner (“P”) who— (a) is an extended sentence prisoner, or (b) is not considered to be suitable for automatic release. (2). The Secretary of State may, at any time after P is returned to prison, release P again on licence under this Chapter. (3). The Secretary of State must not release P under subsection (2) unless the Secretary of State is satisfied that it is not necessary for the protection of the public that P should remain in prison. (4). The Secretary of State must refer P's case to the Board— (a) if P makes representations under section 254(2) before the end of the period of 28 days beginning with the date on which P returns to custody, on the making of those representations, or (b) if, at the end of that period, P has not been released under subsection (2) and has not made such representations, at that time. (5). Where on a reference under subsection (4) the Board directs P's immediate release on licence under this Chapter, the Secretary of State must give effect to the direction. (6). Subsection (7) applies if P is recalled before the date on which P would (but for the earlier release) have served the requisite custodial period for the purposes of section 243A or (as the case may be) section 244. (7). Where this subsection applies— (a) if P is released under this section before that date, P's licence must include a curfew condition complying with section 253, and (b) P is not to be so released (despite subsection (5)) unless the Secretary of State is satisfied that arrangements are in place to enable that condition to be complied with. (8). For the purposes of this section, P returns to custody when P, having been recalled, is detained (whether or not in prison) in pursuance of the sentence.” (1). Where on a reference under section 255B(4) or 255C(4) in relation to any person, the Board does not direct his immediate release on licence under this Chapter, the Board must either— (a) fix a date for the person's release on licence, or (b) determine the reference by making no direction as to his release. (2). Any date fixed under subsection (1)(a) . . . must not be later than the first anniversary of the date on which the decision is taken. (3). . . . (4). Where the Board has fixed a date under subsection (1)(a), it is the duty of the Secretary of State to release him on licence on that date. (5). . . . (1). The Secretary of State must, not later than the first anniversary of a determination by the Board under section 256(1) or subsection (4) below, refer the person's case to the Board. (2). The Secretary of State may, at any time before that anniversary, refer the person's case to the Board. (3). The Board may at any time recommend to the Secretary of State that a person's case be referred under subsection (2). (4). On a reference under subsection (1) or (2), the Board must determine the reference by— (a) directing the person's immediate release on licence under this Chapter, (b) fixing a date for his release on licence, or (c) making no direction as to his release. (5). The Secretary of State— (a) where the Board makes a direction under subsection (4)(a) for the person's immediate release on licence, must give effect to the direction; and (b) where the Board fixes a release date under subsection (4)(b), must release the person on licence on that date.

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