Hall & Anor v Parole Board of England & Wales [2015] EWHC 252 (Admin)

Neutral Citation Number: 2015 EWHC 252 (Admin)

Case No CO/3507/2014

Case No CO/13521/2013

IN THE HIGH COURT OF JUSTICE

QUEEN'S BENCH DIVISION

ADMINISTRATIVE COURT

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

Date Date: 13 February 2015

Before

MRS JUSTICE SIMLER DBE

Between

(1) HALL andClaimants

(2) KOSELKAClaimant

PAROLE BOARD OF ENGLAND & WALESDefendant

Mr Philip Rule (instructed by Kyles Legal Practice) for Claimant 1

And( EBR Attridge) for Claimant 2

Mr Colin Thomann (instructed by Treasury Solicitors) for Defendant

Hearing Hearing dates: 22 & 23 January 2015

Judgment

Introduction

[1]The claimants are both prisoners serving indeterminate sentences for public protection (or imprisonment for public protection and known as "IPP"). Their cases have been dealt with together because they raise similar challenges to decisions of the Parole Board that their continued detention remains “necessary for the protection of the public” and accordingly refusing to release them on licence.

[2]The common challenge to the Parole Board’s decision in each case is that there has been an unlawful failure to take account of material considerations in determining whether their confinement is no longer necessary because:(i) no consideration was had to the fact that with effect from 3 December 2012 the sentencing regime for prisoners changed as a consequence of the introduction of the Legal Aid Sentencing and Punishment of Offenders Act 2012 (‘LASPO’) which abolished for the future sentences of IPP; and/or

(ii) no consideration was had to the impact of continuing detention upon their private and family life and the proportionality of continued confinement in relation to such interference.

[3]Secondly, both claimants contend that the policy guidance available to the Parole Board is unlawful because of its failure sufficiently to respect Articles 5, 7 and 8 of the European Convention on Human Rights (“Convention”), with or without being read in conjunction with Article 14, and/or its failure to safeguard against the arbitrariness in detention and the need to ensure a consistent approach that has regard to all legally relevant considerations.

[4]In addition, in Mr Hall’s case only there is a challenge to the decision to maintain his detention. It is contended on his behalf that this decision is unlawful because it breaches Articles 3, 5, 8 and 14 of the Convention.

[5]It is important to record what is not challenged here. The claimants expressly maintain that the claims are not a challenge to the legislative scheme of IPP being applied to them, nor to the requirement to consider whether their continued confinement is necessary for the protection of the public. They contend that the essential question at issue concerns what factors must properly be considered as materially relevant in deciding whether detention remains necessary in an individual’s case.

[6]The claimants are represented by Mr Philip Rule. Mr Colin Thomann appears on behalf of the Parole Board. I am grateful to both Counsel for their submissions, both oral and in writing.

Essential facts

[7]It is unnecessary to set out the facts in any detail. They can be summarised as follows.

Case of Mr Hall

[8]Mr Hall is now 44 and had previous convictions including for sexual offences for which he was sentenced in 2003 and in respect of which he was under supervision on licence when he committed the index offences.

[9]On 13 June 2006 he was sentenced for the three index offences of unlawful consensual sexual activity with a girl under 16, to a sentence of IPP. He had engaged in a period of grooming girls aged 14 and 15, followed by sexual activity over a period of months. He conducted himself in a deceptive and manipulative manner whilst participating in a Sex Offender Treatment Programme giving the impression that he understood the seriousness of his earlier sexual offences and was developing victim empathy, whereas in fact he was committing the index offences and the risk he posed to young girls was escalating. A minimum term of 42 months was imposed by the Judge, subsequently reduced on appeal to 30 months.

[10]The minimum term expired on 13 December 2008. Whilst in prison he was given access to a number of programmes designed to address the risk he posed to the public and to assist him in demonstrating a reduction in risk. These included for example, the Enhanced Thinking Skills Programme, the core Sex Offender Treatment Programme, and the Better Lives Booster Programme.

[11]On 17 February 2012, the Parole Board considered his case and recommended continued detention in open conditions where it was envisaged he could be tested on “release on temporary licence” (ROTL). This recommendation was accepted and Mr Hall was transferred to open conditions in June 2012, ultimately at HMP Leyhill. There were reports of deceptive and manipulative behaviour during his period in open conditions and as a consequence of a number of incidents whilst on temporary licence, in early 2014 he was returned to closed conditions.

[12]On 10 March 2014 there was an oral hearing by the Parole Board to consider his release. In its oral hearing decision letter, the Parole Board referred to the OASys risk assessment which continued to measure the risk he posed to children and under-age girls as high. His Risk Matrix 2000 put him at medium risk of sexual reoffending, albeit at a low risk of violent offending but the Parole Board considered that this assessment underestimated the risk he posed of sexual reoffending against children and therefore under estimated his risk of serious harm to the public. Reports from his Offender Manager and Offender Supervisor were, the Parole Board concluded, “justifiably extremely sceptical about [his] ability to comply with supervision” which was considered “fundamental to the management of risk” not only to the prison community but also during ROTL.

[13]The Parole Board found that he had done a lot of work during his sentence to reduce the risk of sex offending and was entitled to credit for recent good behaviour on return to closed conditions. However, there were significant doubts about the extent to which he had addressed the risk factors underlying his thinking at the time of commission of the index offences, given in particular, his demonstrated propensity for deceptive, manipulative and untrustworthy behaviour. These were the core factors in the grooming of his victims, and the Parole Board concluded that these risk factors had not reduced. The Parole Board was accordingly not satisfied that the risk he posed to the public had reduced to a level where he met the criteria for release, nor could the panel be satisfied that his risk was manageable in open conditions.

Case of Mr Koselka

[14]Mr Koselka is now 33 and had previous convictions for 22 offences including offences of violence and a conviction for possession of offensive weapons.

[15]On 23 June 2010 he was sentenced to IPP for an offence of robbery (together with determinate terms for six counts of burglary) where elderly victims had been deliberately targeted as vulnerable, subjected to violence and to threats of violence.

The Judge concluded that he posed:

“a significant… risk to members of the public of serious harm; that is of death or serious personal injury, whether physical or psychological, caused by the commission by you of further “specified offences”.”

He would have passed, he said, a sentence of six years eight months’ imprisonment after reduction for his guilty plea, were it not for the sentence of IPP.

[16]The minimum term set by the sentencing Judge expired on 3 November 2012. While in prison he was given access to a number of programmes designed to address the risk he posed to the public and to assist him in demonstrating a reduction in risk, including a thinking skills programme. An OASys risk of harm assessment completed in April 2012 assessed the risk of serious harm he posed to the public as being as high as it had been at the time of his conviction.

[17]In September 2012 he was transferred to open conditions at HMP North Sea Camp, and in consequence, an oral hearing that had been directed by the Parole Board in June 2012 to consider his case was deferred for a period of 12 months to allow for testing before a further assessment of risk was undertaken. However, Mr Koselka was transferred back to closed conditions on 17 January 2013 following an incident which led to the conclusion that his risk was unmanageable in open conditions.

[18]Following his transfer back, the Parole Board revoked its deferral decision and notified him that an oral hearing would take place on 20 May 2013. The Secretary of State invited the Parole Board to consider his suitability for a return to open conditions at the same time. The Parole Board had available to it reports prepared by Dr Peter Pratt, an independent psychologist instructed on Mr Koselka’s behalf who assessed him suitable for release and did not accept that any benefit would be derived from a further period of transfer to open conditions.

[19]By a decision letter dated 28 May 2013, following the hearing the Parole Board found that he continued to minimise his involvement in the index offences and to blame others. He harboured animosity towards his former partner and mother of his young children and blamed his mother for the incident leading to his transfer back to closed conditions. It considered his risk to be such as to require significant testing in open conditions and concluded that there would be a significant benefit to him in strengthening his risk management skills and developing relapse prevention strategies by a transfer back to open conditions. Accordingly, the Parole Board made no direction for release but assessed his risk as manageable in conditions of lesser security and made a recommendation for a return to open conditions.

The legal framework

[20]Sentences of IPP were introduced by the Criminal Justice Act 2003 with effect from April 2005, until abolished by LASPO. As enacted at the date of sentence in these two cases, s.225(1) Criminal Justice Act 2003 required a court to pass a sentence of life imprisonment where an adult was convicted of a serious offence as defined, and where it was of the opinion that there was significant risk to members of the public of serious harm occasioned by the commission by him of further specified offences (i.e. the offender is ‘dangerous’), if the offence was one in respect of which the offender would be liable to imprisonment for life apart from this section and the seriousness of the offence justified a life sentence. If the offence was not one in respect of which the offender would be liable to imprisonment for life or its seriousness was not such as to justify the imposition of a life sentence, the court was required to impose a sentence of imprisonment for public protection: see s.225(3). Subsequent changes in 2008 removed the mandatory requirement to impose a sentence of IPP in these circumstances, introducing a discretion to do so instead.

[21]The structure of an IPP sentence comprised a minimum term of imprisonment fixed in accordance with the gravity of the offence and the circumstances of the offender, to be followed by an indefinite period of imprisonment with release on licence governed by s.28 Crime (Sentences) Act 1997 (“1997 Act”) (which was applied to sentences of IPP by s.34 1997 Act).

[22]Section 28, which is at the heart of this challenge, provides as follows: “Duty to release certain life prisoners (1A) This section applies to a life prisoner in respect of whom a minimum term order has been made; and any reference in this section to the relevant part of such a prisoner’s sentence is a reference to the part of the sentence specified in the order. (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 (emphasis added)”

it shall be the duty of the Secretary of State to release him on licence

[23]So the Secretary of State is under a duty to release a prisoner on licence as soon as he has served the minimum term of his sentence if the Parole Board directs his release under s.28 because satisfied that it is no longer necessary for the protection of the public that he should continue to be detained. A prisoner may require the Secretary of State to refer his or her case to the Parole Board under this section as soon as he has served his tariff, and after any reference, at any time after the end of the period of two years beginning with the disposal of that reference: s.28(7).

[24]There is in addition, a power provided by s.30 1997 Act, exercisable by the Secretary of State at any time in relation to prisoners serving IPP sentences, to release such a prisoner on licence if he is satisfied that “exceptional circumstances exist which justify the prisoner’s release on compassionate grounds”. The Secretary of State is required to consult the Parole Board before releasing a prisoner under this provision, unless the circumstances are such as to render consultation impracticable: s.30(2) 1997 Act.

[25]

Article 5(1) of the Convention

provides (so far as material):

"Everyone has the right to liberty and security of person. No one shall be deprived of his liberty save in the following cases and in accordance with a procedure prescribed by law: (a) the lawful detention of a person after conviction by a competent court…"

By Article 5(4) anyone deprived of his liberty by detention “shall be entitled to take proceedings by which the lawfulness of his detention shall be decided speedily by a court and his release ordered if the detention is not lawful.”

[26]The scheme of Parole Board reviews, of which s.28 of the 1997 Act forms part, as applied to a person serving a sentence of IPP, is the means by which the UK meets the requirements imposed by Article 5(4). The question of the continued lawfulness of the detention of an IPP prisoner arises as soon as the minimum term or tariff period expires. At that point and at reasonable intervals thereafter a review by a judicial body of the lawfulness of detention is required.

[27]In R (James) v SSJ (Parole Board intervening)

[2009] UKHL 22

[2010] 1 AC 553

the House of Lords considered the lawfulness of detention during the minimum term or tariff period, and afterwards once a prisoner has served the minimum term of a sentence of IPP. The following principles are established or confirmed by that case, and apply to these claimants: (i). Sentences of IPP are sentences for an indefinite period with no entitlement to release until release has been directed by the Parole Board and a prisoner sentenced to IPP remains lawfully detained for domestic law purposes throughout the whole sentence. (ii) Detention pursuant to such sentences is lawful under the Convention unless and until it becomes arbitrary. It will be arbitrary if there is no longer a causal link between the detention and the objectives of the sentence. (iii) The essence of an indeterminate sentence passed on the ground that there is a significant risk to members of the public of serious harm occasioned by the commission by an offender of further specified offences, is a need for the public to be protected against that risk. Continued detention post tariff expiry cannot be said to be arbitrary until the Parole Board has determined that detention is no longer necessary. Once it makes that assessment the causal connection with the objectives of the sentencing court is broken, and the detention becomes unlawful. (iv) Determination of when it is safe for an IPP prisoner to be released is likely to be a gradual process as the issue is so obviously fact sensitive. Delays are likely to be a feature even in the best resourced system. Absent extreme circumstances in which a breakdown of the system might render continued detention arbitrary because the Parole Board is unable to perform its function at all, continued detention will only become unlawful when the Board decides that it is no longer necessary for the protection of the public that the prisoner should be confined. Until that stage is reached each step that the Board takes in the review process confirms the lawfulness of the detention.

[28]Subsequently, in James v United Kingdom

(2013) 56 EHRR 12

involving the same litigants, having recognised that the decision to impose a sentence of detention and the length of that sentence are matters which generally fall within the discretion of national authorities ([204]), the European Court of Human Rights (ECHR) found a violation of Article 5(1). It held that continued detention was arbitrary and unlawful during the periods post tariff expiry because one of the purposes of IPP is rehabilitation, so that the provision of effective courses to address rehabilitation and the allocation of funds to secure them were required to prevent the post tariff detention from becoming arbitrary and these had not been provided: see [209].

[29]In R (Haney and others) v SSJ

[2014] UKSC 66

;

[2015] 2 WLR 76

faced with the conflict between the decisions of the House of Lords and the ECHR in James, the Supreme Court declined to follow the Fourth Chamber’s approach in James. Instead, while accepting that one of the purposes of IPP is rehabilitation, it confirmed the orthodox position that a failure to comply with the implied ancillary duty to provide rehabilitative courses and facilities in prison to enable an offender to demonstrate to the Parole Board that he no longer presents an unacceptable risk to the public, does not directly affect the lawfulness of the offender’s detention, but can sound in damages if breached. Such a prisoner’s detention remains the direct causal consequence of his indefinite sentence until his risk is judged by the Parole Board to be such as to permit his release on licence.

[30]The approach of the Supreme Court in Haney is plainly binding on this court.

Ground 1 (a): LASPO as a mandatory material consideration

(a) : LASPO as a mandatory material consideration

[31]Section 123 LASPO (in force with effect from 3 December 2012) abolished the sentence of IPP for those convicted on or after that date. A new regime of determinate and indeterminate sentences was introduced, including a new “Extended Determinate” sentence in the case of offenders found to be ‘dangerous’: see s.124 LASPO. Release of a prisoner serving an extended sentence is controlled by s.125 LASPO and in the case of most prisoners with custodial terms of less than 10 years, release on licence is now required as soon as the prisoner has served the requisite custodial period without reference to the Parole Board.

[32]Parliament chose not to give these changes retrospective effect: see LASPO (Commencement No.4 and Saving Provisions) Order 2012, Article 6, which provides among other things, that the coming into force of s.123 is of no effect in relation to a person convicted before 3 December 2012. Furthermore, although s.128 LASPO provides a power for the Secretary of State by order, to change the conditions that must be satisfied before the Parole Board can direct release on licence of an existing prisoner serving a sentence of IPP, the Secretary of State has not exercised that power to make any such change. The changes introduced with effect from 3 December 2012 have accordingly left unchanged the sentences of those already serving a sentence of IPP imposed before that date.

[33]Mr Rule relies on what he regards as the grossly unfair consequence of these changes: that these claimants might be detained alongside prisoners convicted after 3 December 2012 for precisely the same offences (perhaps even committed at the same time but where prosecution was delayed) and sentenced to an extended determinate sentence with the same custodial term as them, and have to endure their comparators’ automatic release at the end of the custodial term, whilst they remain unable to secure release absent a direction of the Parole Board. Whilst he accepts that he cannot seek to challenge as unlawful the change in the sentencing regime that left unaltered the sentences of IPP in the claimants’ cases, he submits as a minimum, that the Parole Board which is the public body administering the release process, must take account of the LASPO changes and the introduction of extended determinate sentences , when considering whether it is still necessary for the protection of the public that these claimants should continue to be detained in prison.

[34]Although I was referred to a significant number of authorities, I hope I do no disservice to Mr Rule if I reduce his argument on this ground to the following essential steps:(i) the test for release is set out in s.28(6) 1997 Act and is not in dispute. The Supreme Court’s judgment in Sturnham v SSJ and Parole Board

[2013] 2 AC 254

does not accordingly assist because it does not address the factors that are required to be considered when answering the question whether detention remains necessary;

(ii) the test of necessity in s.28(6) is sufficiently wide and flexible to enable consideration of all matters positive or negative that are material to the question whether continued detention remains necessary for the protection of the public;

(iii) in answering that question it is for the Parole Board to decide what weight to give to any material or relevant consideration;

(iv) since a prisoner in exactly the same position as either claimant and regarded as similarly ‘dangerous’, but convicted after 3 December 2012, would have received an EDS rather than IPP with automatic release at the end of his custodial term, and the only thing that has changed is the date of conviction, this must be a mandatorily relevant consideration to be weighed in the individual case.

(v) If on an ordinary reading of s.28(6) this is not a mandatorily relevant consideration, any decision to continue detention without regard to the LASPO changes renders the ongoing detention arbitrary given that the difference of treatment flows only from the chance date of conviction, itself an entirely arbitrary feature. This is incompatible with

Article 5 of the convention

and given the strong interpretive obligation imposed by s.3 Human Rights Act 1998, the provision must be interpreted as encompassing that consideration.

(vi) It is also incompatible with

Article 7 of the Convention

(read with or without Article 14) and the principle requiring retrospective application of a more lenient sanction in criminal law as applied by the Grand Chamber in Scoppola v Italy No.2

(2010) 51 EHRR 12

. There it was held that the principle embodied by Article 7 is that “where there are differences between the criminal law in force at the time of the commission of the offence and subsequent criminal laws enacted before a final judgement is rendered, the courts must apply the law whose provisions are most favourable to the defendant” (at [109]). This principle is engaged when the Parole Board conduct a review under s.28(6) and requires it to have regard to the LASPO changes accordingly.

(vii) So far as Article 14 is concerned, ‘being a prisoner convicted before 3 December 2012 and sentenced to IPP’ is an ‘other status’ by analogy with the approach adopted by the ECHR in Clift v United Kingdom Application No. 7205/07; such a person is in a materially analogous position to that of a person convicted of the same offence on or after that date and subsequently found to be ‘dangerous’; and the differential treatment cannot be objectively justified.

[35]For the reasons that follow, whilst I fully accept steps (i) to (iii) with the exception of what is said about Sturnham, I do not accept steps (iv) and following of this argument.

[36]I start by considering the statutory test set out in s.28(6) 1997 Act. It provides that the Parole Board must be satisfied, having assessed the risk posed by release, that continued detention is no longer necessary. This is a subjective test, the Parole Board being the independent, expert body with judicial procedures and safeguards that satisfy the requirements of Article 5 tasked with the responsibility for taking this decision. The test expressly defines the limit of the Parole Board’s enquiry, confining it to an assessment of the risk posed by the prisoner’s release. This is a fact sensitive enquiry. Any matter that bears on the assessment of that risk will be a relevant and material consideration. The Parole Board must consider all material considerations bearing on that assessment of risk, but the weight to be attached to any such consideration is a matter for the subjective assessment of the Parole Board.

[37]In Sturnham, at paragraphs 24 and 25, Lord Mance made the following observations which are consistent with a recognition of the limited function of the Parole Board under s.28(6):

“In Bradley the court was concerned with the extent of the risk relevant to sentencing and to release on licence. In rejecting Mr Edward Fitzgerald's submission that the two must equate, the court said (paragraphs 145F-H): "the sentencing court recognises that passing a life sentence may well cause the accused to serve longer, and sometimes substantially longer, than his just deserts. It must thus not expose him to that peril unless there is compelling justification for such a course. That compelling justification is the perception of grave future risk amounting to an actual likelihood of dangerousness. But of course the court's perception of that future risk is inevitably imprecise. It is having to project its assessment many years forward and without the benefit of a constant process of monitoring and reporting such as will be enjoyed by the Parole Board. When at the post-tariff stage the assessment comes to be made by that Board they are thus much better placed to evaluate the true extent of the risk which will be posed by the prisoner's release. And they are a more expert body, custom built by Parliament for the purpose. Given those considerations, and given too that their recommendation for release on licence, if accepted by the Secretary of State, will have immediate effect in terms of endangering public safety – quite unlike the decision of the Trial Judge whose sentence would in any event have protected society for an appreciable time – it seems to us perfectly appropriate for the Parole Board to apply some lower test of dangerousness, i.e. one less favourable to the prisoner”. “The court went on to say of the level of risk relevant at the release stage, that it "must indeed be 'substantial' …, but this can mean no more than that it is not merely perceptible or minimal", that it must be unacceptable in the subjective judgment of the Parole Board and that the Parole Board must have in mind all material considerations, scrutinising ever more anxiously whether the level of risk is unacceptable, the longer the time the offender has spent in prison post-tariff (paragraph 146D-F, and see R v ParoleBoard, Ex p Wilson[1992] QB 740, 747E-G).”

[38]The requirement of ever more anxious scrutiny as time goes on, is a requirement to look more carefully and more closely at the level of risk posed by the prisoner, the longer the detention lasts, and does not involve any lowering of the threshold for release the longer the detention lasts (as Mr Rule appeared to suggest). Nor, as a matter of construction, does this entail that the Parole Board is required to carry out a balancing exercise of factors that are not directly related to the risk posed by the prisoner’s release. What is required is an assessment of risk, not a balancing of various competing interests unrelated to risk. Nothing in any of the authorities relied on by Mr Rule supports the contrary proposition.

[39]Inevitably, before the Parole Board can conclude that the risk to the public posed by the prisoner’s release is unacceptable so that continued detention is necessary, it will as part of the assessment of risk, consider alternatives to continued confinement, such as release on licence and possible licence conditions, or a move to open conditions. These are matters that fall to be considered because they are materially relevant to the assessment of the risk which will be posed by the prisoner’s release. They are not matters that must be considered because the Parole Board is required to conduct some sort of comparison exercise with the way in which other prisoners are treated. There is no warrant for any assessment or comparison exercise to be conducted of the absence of preventative detention in the case of other prisoners serving different sentences (whether as a consequence of LASPO or otherwise). The focus is and must be on the assessment of risk posed by the particular prisoner’s release, and anything that is relevant to that assessment will be a matter for consideration by the Parole Board accordingly.

[40]Similarly, a prisoner’s subsisting relationships in the community which might provide stability and thereby contribute to the reduction of risk posed by him on release, will be relevant only to the extent that they bear on the nature and quality of the risk that he poses; and not because the Parole Board is required to conduct a balancing exercise weighing his interests in release against any different public interest.

[41]The strong interpretive obligation imposed by the Human Rights Act by reference to the Convention rights relied on by Mr Rule, does not require any different conclusion. The arguments based on Articles 5 and/or 14 depend for their success upon a comparison between prisoners currently serving sentences of IPP and those sentenced under the regime as amended by LASPO from and after 3 December 2012. Claims based on just such a comparison were considered in Massey v SSJ

[2013] EWHC 1950 (Admin)

at [19] but rejected in strong terms by the Divisional Court. Although in that case the underlying claim was characterised as based on discrimination rather than ‘arbitrariness’, those are merely labels and do not alter the underlying principles. At paragraph 25, Moses LJ said as follows:

“Whether the claimant is in an analogous situation to others convicted after 3 December 2012 must be judged in the context of his complaint that he is subject to an indeterminate period of imprisonment and cannot be released without satisfying the Parole Board that he is no longer a danger to the public. He maintains he is not challenging his original sentence. But however he cloaks his application, the real complaint he advances is a challenge to his original sentence, the essence of which is that he will not be released until it is safe to do so. The reality of his argument is that he was sentenced under a different regime. It is not coherent then to allege discrimination when compared to other offenders sentenced under a different regime. They are not in an analogous situation precisely because they were sentenced under a different regime. The claimant cannot complain because Parliament has now abolished IPPs and introduced a different type of sentence. The United Kingdom is not obliged, under the Convention, to re-open historical sentences and re-sentence merely because it has introduced a new sentencing regime. I would dismiss this application on both the two grounds before the court.”

[42]Just as in Massey, the real complaint here is that Parliament chose to amend the sentencing regime for the future without making any legislative changes for those already serving sentences of IPP; and the Secretary of State, who could have made changes to the test for release applied by the Parole Board, under the powers given in s.128 LASPO, has chosen not to do so. The proper target of these complaints is not accordingly the Parole Board which has a statutory test to apply to those prisoners currently serving sentences of IPP who complete their minimum term or tariff and require review to determine if and when they can be released.

[43]Even if ‘being a prisoner convicted before 3 December 2012 and sentenced to IPP’ is an ‘other status’ for the purposes of a comparison, by analogy with the approach adopted by the ECHR in Clift v United Kingdom, the claimants and those sentenced under the new regime are not in an analogous situation because they were sentenced under two different sentencing regimes, both lawfully enacted by Parliament. Moreover, even if they are in a materially analogous situation, the difference in their treatment is fully explained and justified by the fact that LASPO came into force for these purposes on 3 December 2012 introducing different sentences for those convicted on and after that date, but made no provision for reopening sentences of IPP passed before that, or otherwise for altering such sentences retrospectively. The Parole Board was at all times required to apply the sentencing regime retained by Parliament.

[44]As for

Article 7 of the Convention

, this provides so far as material:

“(1) No one shall be held guilty of any criminal offence on account of any act or omission which did not constitute a criminal offence under national or international law at the time when it was committed. Nor shall a heavier penalty be imposed than the one that was applicable at the time the criminal offence was committed.”

[45]It is common ground that the scope of Article 7(1) was extended by the Grand Chamber in Scoppola v Italy No.2

(2010) 51 EHRR 12

to require “a trial court to apply to each punishable act the penalty which the legislator considers proportionate” (at [108]) and consistently with that approach, the Grand Chamber reversed an earlier ruling of the court, determining that Article 7(1) requires a prisoner to be given the benefit of a favourable change of law between the commission of an offence and the imposition of any sentence or ‘penalty’, with the cut-off point identified as “before final judgment is rendered”: [109].

[46]I do not accept Mr Rule’s submission that the “final judgment” in the case of these claimants is the decision of the Parole Board when reviewing their continued detention, so that to give effect to this principle, s.28(6) must be read so as to enable the Parole Board to have regard to the new sentences passed under LASPO. He cites no authority for that proposition, and in my judgement, the discussion about the notion of ‘penalty’ at paragraphs 96 to 98 of Scoppola is against him on this point.

[47]That discussion makes clear that the notion of ‘penalty’ in Article 7(1) has an autonomous meaning. The starting point in determining whether something is a penalty is whether the measure in question is imposed following conviction for a criminal offence. Significantly, there is a distinction to be drawn between a measure that constitutes in substance a ‘penalty’ and a measure that concerns the ‘execution’ or ‘enforcement’ of the ‘penalty’. At paragraph 98 the Court concluded that where the nature and purpose of the measure relates to the remission of a sentence or a change in a regime for early release, this does not form part of the ‘penalty’ within the meaning of Article 7(1).

[48]The essence of a sentence of IPP is the identified need for public protection from the risk posed by the offender of serious harm occasioned by the commission by him of further serious offences. This indeterminate sentence is the penalty imposed by the Sentencing Judge following conviction of a serious offence. The sentence comprises two critical elements: a punitive element represented by the minimum term or tariff and a preventative element represented by the power to continue to detain the convicted person in prison unless and until the Parole Board considers it safe to release him. There is no objection in principle to preventative detention or to detention for public protection: see M v Germany

(2010) 51 EHRR 41

. Contrary to Mr Rule’s submissions, M v Germany does not assist him. In that case, as a result of a change in the law after sentencing, the applicant served a longer sentence than the Sentencing Court had contemplated. The causal connection between the original sentence and his detention was in consequence broken and his detention was therefore arbitrary and unlawful under Article 5(1). The case of these claimants is different.

[49]Review of an IPP prisoner’s detention by the Parole Board does not vary or alter the original sentence in any way, and there is no question of the Parole Board imposing a penalty of its own. The Parole Board’s role is to enforce or control the original sentence by considering whether release is appropriate or whether continued confinement is necessary because of the risk posed by the offender. As Mr Thomann suggested, that is why the Divisional Court in Massey described the challenge in that case as in substance a challenge to the original sentence. For these reasons, when reviewing a prisoner for the purposes of deciding whether or not to release that prisoner, the Parole Board is not imposing a ‘penalty’ for Article 7(1) purposes and is not rendering final judgment. The principle established by Article 7(1) does not accordingly apply to the circumstances of this case.

[50]For these reasons, the challenge under Ground 1(a) fails. The Parole Board was not required to consider as a mandatorily relevant factor in each claimant’s case, the changes introduced by LASPO abolishing sentences of IPP for the future, and introducing extended determinate sentences for those convicted on 3 December 2012 onwards.

Ground 1 (b): Article 8 as a mandatory material consideration

(b) : Article 8 as a mandatory material consideration

[51]Mr Rule contends that too restrictive a view has been taken of the assessment to be conducted under s.28 by the Parole Board and that as part of its assessment of risk, it is required to consider factors of private or family life that would favour release on licence. He submits that a proportionate decision interfering with the family’s private life interests ought to consider the impact of detention upon those individuals and upon family relationships, and upon the protective factor of family emotional support as a counteraction against risk. He submits that in just the same way that family life can balance against extradition or deportation of an individual on the grounds of risk, there can be no valid distinction between such a decision being taken where a relevant balance is to be drawn between the competing interests, and the decision to be taken by the Parole Board here faced with similarly competing factors. That it is accepted that Article 8 is a material consideration when imposing licence conditions, and Article 8 requires the least restrictive measure to achieve the objective, means that there is no reason why the same principle should not be applied to the question whether licensed release on conditions would not be sufficient in terms of addressing risk, in light of the proper consideration to be given to Article 8 considerations favouring release on licence.

[52]

Article 8 of the Convention

gives a qualified right to respect for private and family life, and provides at Article 8(2): “There shall be no interference by a public authority with the exercise of this right except such as in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others”.

[53]It is well-established (and a matter of common ground) that a prisoner does not forfeit his Convention rights in their entirety merely because of his status as a person detained following conviction. A sentence of imprisonment does however, necessarily interfere with Article 8 rights, restricting a prisoner’s liberty and freedom as part and parcel of the sentence, but will be justified under Article 8(2) as necessary in a democratic society, in the interests of public safety and for the prevention of disorder and crime. While this does not preclude a subsequent breach of Article 8 arising from decisions made during any term of imprisonment, it is an important feature in considering the Article 8 rights of these claimants that they are offenders serving prison sentences so that their enjoyment of Article 8 rights is inevitably curtailed by their original sentences.

[54]Mr Rule sought to avoid that result by arguing that indeterminate sentences are different from determinate sentences in this regard, and post tariff, the claimants have not been required to be detained by any court (in accordance with the requirements of

Article 5(1) of the Convention

) but their future and ongoing detention may be authorised if the assessment conducted by the Parole Board results in an adverse decision in their cases. I disagree. Following James and Haney (as set out above), there can be no argument but that detention for an indeterminate period in their cases is required by the original sentence, and that continued detention post tariff expiry cannot be said to be arbitrary (and therefore unlawful under Article 5(1)) unless and until the Parole Board has determined that detention is no longer necessary. Once it makes that assessment the causal connection with the objectives of the sentencing court is broken, and the detention becomes unlawful, but before that assessment is made the detention remains lawful for public protection and therefore causally connected with the objectives of the original sentence.

[55]In Mr Hall’s case, his continued detention is for the protection of young girls in the context of assessments that he continues to pose a high risk of serious harm to children in the community: see for example, the OASys Assessment of 28 August 2013. In Mr Koselka’s case, there remains a high risk of serious harm to the public generally, and a medium risk of serious harm to a known adult: see for example, the OASys Assessment of 27 April 2012. The inevitable curtailment of their Article 8 rights in the post tariff expiry period (as well as before that), accordingly results from the original lawful sentences imposed on them.

[56]The position may be different where the impugned decision does not form part and parcel of the original sentence. For example, in MP v SSJ

[2012] EWHC 214

, two prisoners challenged a refusal by their respective prison governors to allow them to take childcare resettlement leave. This was not a matter that formed any part of the original sentence nor could it have been contemplated by the Sentencing Judge so that the original sentence could not be said to be sufficient justification for the restriction. The same is true in relation to the challenge to restrictions that were separately imposed in Allen v SSJ

[2008] EWHC 3298 (Admin)

and did not form part and parcel of the sentence.

[57]Moreover as I have already concluded, the statutory test set out in s.28 1997 Act is directed at and confined to an assessment by the Parole Board of the real extent of the risk which will be posed by the prisoner's release. His family and other relationships are relevant only to the extent that they are relevant to the nature and quality of risk that he represents. The Parole Board is not required to balance the public protection needed against other interests, including the interests of the prisoner and/or his family in his release in order to enjoy family and private life rights.

[58]This conclusion is strongly supported by a decision of Forbes J in Buxton v Parole Board & Anr

[2004] EWHC (Admin) 1930

which concerned a short-term prisoner serving a determinate sentence for drug-related offences recalled to prison having been released on licence. There was then no statutory test for recall or release to be applied by the Parole Board. Instead directions to the Parole Board issued by the Secretary of State (under s.32(6) Criminal Justice Act 1991) concerning the recall of such offenders required the Parole Board to consider whether:

“the prisoner’s continued liberty or, as the case may be, immediate release, would present an unacceptable risk to the public of further offences being committed.”

[59]In addressing an argument that the Parole Board was required to consider all of the claimant’s personal circumstances in order to determine whether there was sufficient justification for the interference with his Article 8 rights in deciding to recall him, Forbes J held at [49 and 50] that the proper approach for the Parole Board was as follows: "…. e. That it is no part of the Parole Board's role to balance the protection of the public against the prisoner's interests; f. That there is no interference with the right to respect for family life in requiring the continuing detention of a serving prisoner who presents an unacceptable risk of reoffending. The extent to which private and family life can in practice be respected is constrained by the fact that the Claimant is a serving prisoner. It is the fact of the sentence which must be safely administered which determines the manner in which the Claimant's family and private life can be respected;… I therefore accept … that the Board is not required to balance the protection of the public against the interests of the individual prisoner in determining whether or not to recommend release on licence. The restriction upon private and family life complained of flowed necessarily from the fact of the claimant's imprisonment. In those circumstances, provided that, as here, the detention was lawful and justified under

Article 5(1) of the ECHR

, and provided that, as here, there is no flaw in the Board's assessment of risk, the Board's decision is unassailable. I reject Mr Southey's submissions to the contrary effect.”

[60]Although not binding on this court, those conclusions are both highly persuasive and not arguably incorrect, contrary to Mr Rule’s submissions. The test applied by the Parole Board in that case is strikingly similar to that prescribed by s.28(6) 1997 Act, and the fact that Mr Buxton was a short-term prisoner serving a determinate sentence makes no relevant difference for the reasons given above.

[61]Furthermore, the argument that the Parole Board is required to assess whether continued detention of a prisoner serving a sentence of IPP breaches his Article 8 (or other) Convention rights ignores the availability of s.30 1997 Act, which forms part of the same statutory scheme. This makes specific provision for the Secretary of State to release a life prisoner on licence at any time, if satisfied that “exceptional circumstances exist which justify the prisoner’s release on compassionate grounds.” Before deciding to do so, there is a mandatory obligation on the Secretary of State to consult the Parole Board, “unless the circumstances are such as to render such consultation impracticable.” The Parole Board accordingly has no power to consider the question of release on compassionate grounds absent such a referral. Compassionate grounds can however be taken into account in determining whether a prisoner should be released at any time. The fact that this is a power exercised by the Secretary of State rather than the Parole Board itself does not mean that this power can or should be ignored. As Mr Thomann submitted and I agree, there is always scope in domestic law to allocate responsibility for different decisions to different bodies. There is nothing unlawful or irrational in allocating the assessment of risk which does not give rise to any Article 8 considerations to the Parole Board under s.28, and the assessment of whether exceptional circumstances exist to justify release on compassionate grounds which may give rise to Article 8 considerations, to the Secretary of State under s.30. This creates a coherent scheme in which Article 8 rights are properly respected and can be appropriately considered.

[62]Mr Rule challenged the asserted absence of any safeguards to ensure compliance with s.30. However, if, in an appropriate case, the Secretary of State fails to consult with the Parole Board about releasing a life prisoner on compassionate grounds or fails to consider such release there is recourse to the Administrative Court. This is an independent tribunal, and provides a means of challenge and of ensuring compliance with Article 8. This provides an adequate safeguard in relation to s.30.

[63]For these reasons, there was no duty on the Parole Board to consider Article 8 rights as a discrete matter when considering whether to direct the release of the claimants under s.28 1997 Act. The Parole Board is not required to balance the protection of the public against the interests of the claimants in determining whether or not to direct release on licence. The restriction on the private and family life rights otherwise enjoyed by the claimants flowed necessarily from their sentences of indeterminate imprisonment. Their detention was both lawful and justified and, absent any flaw in the Parole Board’s assessment of risk in each of their cases, the Board’s decision cannot be impugned as having omitted to take account of Article 8 as a materially relevant consideration.

Ground 2: Guidance

[64]The claimants argue that the Parole Board has failed to fulfil an obligation to provide sufficient guidance to panel members who take decisions under s.28 (6). The March 2012 Guidance sets out the statutory test and whilst making reference to case law, makes clear that it is the statutory test that must be applied. The Revised Guidance December 2013 identifies the test as a “risk-only” assessment but this is said to be too limited an approach and excludes consideration of other potentially relevant factors. Accordingly, Mr Rule submits that these documents (referred to as “the Guidance”) should have identified expressly but did not, the following matters, in order to ensure that panels approach their risk assessment under s.28 (6) consistently and correctly:(i) the need for anxious scrutiny to be exercised in assessing the level of risk the longer the time the offender has spent in prison post tariff, and the fact that detention may become arbitrary or the causal link may be broken by that passage of time;

(ii) the need to consider the different risk management schemes employed by different sentencing regimes, recognising the application of the Human Rights Act 1998 and the principle of ‘lex mitior’;

(iii) the need for compliance with the provisions of Articles 5, 7, 8 and 14 of the Convention more generally.

[65]In light of my conclusions above I can deal shortly with this ground of challenge. The Guidance deals adequately with the approach to be adopted by panels of the Parole Board, and is properly directed at the issue Parole Board panels are required to determine, namely the assessment of risk on release. The statutory test set out in s.28 (6) is the test to be applied and is not to be paraphrased.

[66]It requires an evaluation of the extent of the risk to the public which the prisoner will present on release. This is fact sensitive. Any matter relevant to the assessment of that risk will as a matter of logic be a relevant consideration. This does not need to be spelt out and since the facts and circumstances of each case are infinitely variable it would be impossible to identify all potentially relevant factors in guidance. The assessment does not depend upon any comparison with prisoners sentenced under different sentencing regimes, whether LASPO or otherwise. Nor does it depend on any balancing of the interests of the protection of the public against the prisoner’s interests.

[67]The absence of any reference to the anxious scrutiny requirement identified in Sturnham does not render the Guidance unlawful. As a matter of logic, the assessment of risk will change with time, but no lowering of the threshold by reference only to time is contemplated. In any event, the availability of case law is well-known and is referred to in the Guidance. The judgment of Lord Mance deals with this requirement clearly. The statutory test itself provides a sufficient safeguard against the risk of detention becoming arbitrary or the causal link with the original sentence being broken, since both are avoided unless and until the Parole Board has determined that detention is no longer necessary for the protection of the public.

[68]For these reasons this ground of challenge fails.

Ground 3: Mr Hall’s substantive challenge to his ongoing detention as unlawful

[69]This ground is relevant only to Mr Hall’s case. It involves a challenge to the continuing detention itself, rather than a challenge to the decision-making process. It is submitted on Mr Hall’s behalf, that the Parole Board’s decision of 24 March 2014 refusing to order his release, resulted in his sentence of imprisonment becoming disproportionate and/or arbitrary and/or starkly and unjustifiably different from the treatment of comparable others contrary to Articles 3, 5 and/or 8 and/or 14 of the Convention.

[70]Mr Rule refers to the fact that the minimum term or tariff in Mr Hall’s case was one of 2 ½ years. The tariff expired on 13 December 2008, but he continues to be detained six years later. Since his remand on 16 February 2006, Mr Hall has served nine years in prison, the equivalent of a determinate sentence of 18 years, rather than the five-year determinate term notionally set by the Judge. The maximum sentence in his case would have been 14 years’ imprisonment and his guilty plea would have attracted the appropriate discount to sentence. In these circumstances he submits that Mr Hall’s continued detention albeit pursuant to a lawful sentence originally, has become arbitrary and/or grossly disproportionate in violation of his human rights.

[71]The Sentencing Judge in Mr Hall’s case imposed a sentence of IPP after careful consideration of the danger he posed, as is clear from his sentencing remarks. The Judge expressly envisaged Mr Hall’s release only when it was safe to do so. The requisite causal link between the original sentencing objectives and his current detention is therefore established unless and until the Parole Board is satisfied that it is safe to release him. Moreover the prospect of his detention period post tariff expiry exceeding the initial minimum term set by the Judge is an inevitable consequence of the IPP sentencing regime. The sentence imposed on Mr Hall was lawful at the date of sentence and remains lawful under domestic law. This conclusion is not altered by the fact that the detention in Mr Hall’s case is preventative detention. Absent any scope for challenging that original sentence, a comparison of the period spent in detention pre and post tariff expiry cannot take his claim any further.

[72]There remains scope for Article 3 and Article 5 to operate in the context of a domestically lawful sentence. Whether there is scope for the operation of either article in the context of Mr Hall’s particular case, requires an all-round assessment of all the circumstances.

[73]As to Article 3, length of sentence is generally a matter for national authorities. Further it is clear from Vinter v United Kingdom Application Nos. 6609/09, 130/10 and 3896/10, 9 July 2013, that the length of a sentence will only give rise to a breach of Article 3 if it is grossly disproportionate and that will only be in rare and unique circumstances. I am very far from satisfied that the length of time served by Mr Hall crosses the high threshold of Article 3 in the circumstances of this case. For the reasons I have already given, this conclusion is not altered by the LASPO changes that mean other offenders subject to a different sentencing regime are receiving extended determinate sentences rather than sentences of IPP. These changes are irrelevant to the lawfulness of the sentence passed in Mr Hall’s case and irrelevant to his ongoing detention in the circumstances described above.

[74]As to Article 5, whilst accepting that the categories of arbitrariness are neither closed nor circumscribed as Mr Rule submits, there is simply no basis for concluding that Mr Hall’s continued detention has been otherwise than in keeping with the statutory objective of protecting the public from an unacceptable risk of serious harm posed by his potential release. There have been regular and appropriate reviews by the Parole Board. No complaint is made on behalf of Mr Hall that there has been any failure to provide offence related or rehabilitative courses. When the Parole Board considered Mr Hall’s case on 17 February 2012 it recommended that he be given an opportunity to prove a relevant reduction of risk in open conditions notwithstanding the fact that he had shown a “flagrant disregard” for restrictions placed upon him previously: see letter of 1 March 2012. That recommendation was accepted by the Secretary of State and there was a move to open conditions. His transfer to open conditions despite ongoing concerns as to his compliance is itself evidence of the anxious scrutiny given by the Parole Board to these considerations.

[75]Further, the following summary of reasons for and conclusions found by the Parole Board in its decision letter dated 24 March 2014 are particularly relevant and support the conclusion that Mr Hall’s ongoing detention is neither arbitrary nor has it become disconnected from the objectives of his original sentence:(i) A considerable number of risk factors are identified including an obsession with sex, feeling inadequate, lack of intimate relationships, believing men have a right to sex, sexual interest in teenage girls, child abuse supportive beliefs, poor problem-solving skills, lack of consequential thinking and lack of self-management.

(ii) The panel was concerned to consider how aspects of Mr Hall’s behaviour in open conditions that did not directly link to harm to children, nevertheless related to his risk on release. For example, his propensity to be manipulative and to deceive had a bearing on the risk he posed and therefore raised concerns over his thinking and decision-making skills. He demonstrated on several occasions in open conditions that his capacity for deceptive, manipulative and untrustworthy behaviour and his feelings of entitlement, which were factors in the grooming of his sexual victims, had not reduced.

(iii) Mr Hall’s risk of serious harm to children as measured in the most recent OASys is assessed as high and remains particularly high in relation to under-age girls. In the panel’s view, the Risk Matrix 2000 under-estimated his risk of serious harm.

(iv) Both Mr Hall’s Offender Manager and Offender Supervisor are justifiably extremely sceptical about his ability to comply with supervision which the panel regarded as fundamental to the management of his risk, not only in the community but also when released on licence from open conditions. It was not therefore possible for the panel to be satisfied that his risk had reduced to the level where he met the criteria for release, nor was the panel satisfied that his risk is manageable in open conditions.

(v) The panel accordingly concluded that Mr Hall’s risk remains too high for it to direct his release. It noted in this context, that at the time of the commission of the index offences when the risk he posed was escalating, Mr Hall was achieving “glowing” reports whilst undertaking a sex offenders’ programme in the community.

(vi) The panel considered that his return to closed conditions had been fully justified in the circumstances and that until he satisfactorily completed such further work as was recommended to address the deficits in his thinking, behaviour and associated risk, he would remain unsuitable for open conditions “as the remaining areas of risk will outweigh the benefits of testing” in open conditions.

(vii) It recommended a full psychological risk assessment be completed before the next panel review, dealing among other things with the issues of entitlement and manipulation in Mr Hall’s day-to-day activities.

[76]So far as the rationality challenge is concerned, paragraph 80 of Mr Rule’s skeleton argument sets out a series of considerations said to have been material considerations in his case that the Parole Board failed properly to consider. These include a challenge to the weight given to and conclusions reached as to(i) problems which arose when the claimant was released to open conditions,

(ii) the availability of licence conditions and the fact that there is a SOPO in place,

(iii) the failure to recommend a further transfer to open conditions to allow for further testing and monitoring,

(iv) the availability of rehabilitative work in open conditions, and

(v) the proportionality of the decision to maintain detention in closed conditions at this stage.

[77]The Parole Board has a wide discretion when making the assessment of risk to the public required by s.28(6). It is for the Parole Board not the court to identify and weigh the various relevant considerations that bear on its assessment of the extent of the risk posed by an offender’s release. For the reasons it gave (as summarised above) the Parole Board was fully entitled to come to the conclusion that the high risk of serious harm to children posed by Mr Hall’s release could not, at this stage, be managed acceptably in open conditions or on release on licence. There was ample material to support that conclusion. The Parole Board did not adopt an overly restrictive approach to the assessment of risk on release. The recommendation that a full psychological risk assessment should be completed prior to the next panel review was justified by the previous unsuccessful trial in open conditions and was a reasonable and proportionate recommendation to make.

[78]For all these reasons and consistently with the decision of Elisabeth Laing J in Knights & O’Brien v Parole Board & Anr (which I was shown in draft by agreement of the parties and the Judge, and which raises similar issues) this ground of challenge fails. I do not consider that the matters complained of whether taken on their own or cumulatively, render Mr Hall’s continued detention arbitrary, disproportionate or excessive to a point which would engage any of the Convention articles he relies upon. Nor is there any basis for impugning as irrational the Parole Board’s decision in his case.

Conclusion

[79]For completeness I record that a large number of authorities were drawn to my attention both in writing and during oral submissions by Mr Rule, and he made a large number of additional points by reference to them, both in the skeleton argument and during the hearing. I have in this judgment sought to deal with what I consider to be the principal points raised. The claimants can however be assured that I have carefully considered all the other matters and authorities referred to on their behalves.

[80]For all these reasons, despite the comprehensive submissions made by Mr Rule on behalf of each of the claimants in this case, these applications for judicial review fail and are dismissed.