Case No: C3/2003/0046
Neutral Citation Number: [2003] EWCA Civ 732
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM QUEEN’S BENCH DIVISION
ADMINISTRATIVE COURT
Newman J
Royal Courts of Justice
Strand, 
London, WC2A 2LL

Friday 23rd May 2003
Before :

LORD JUSTICE BROOKE
LORD JUSTICE CLARKE
and 
LADY JUSTICE ARDEN

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Between :

The QUEEN
	On the application of 
JOHN PATRICK SPENCE	
Appellant	
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	SECRETARY OF STATE FOR THE HOME DEPARTMENT	Respondent	

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(Transcript of the Handed Down Judgment of
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Jonathan Lennon (instructed by Bassra, Solicitors) for the Appellant
Steven Kovats (instructed by The Treasury Solicitor) for the Respondent

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Judgment
As Approved by the Court

Crown Copyright ©

Lord Justice Brooke :  This is the judgment of the court.
1.	This is an appeal by John Patrick Spence against a judgment by Newman J on 17th December 2002 whereby he refused his application for judicial review of a decision by the Secretary of State made on 17th January 2002.  The Secretary of State had decided to accept a recommendation by the Parole Board that he be transferred to open prison conditions but to substitute a period of 18 months for the nine months recommended by the Parole Board which should be passed in open prison conditions before the next review of the appropriateness of his release on licence would begin.
2.	The facts of the matter appear for the most part from the January 2002 decision letter.  Mr Spence was convicted of murder in the High Court in Glasgow 1976 and sentenced to a mandatory term of life imprisonment.  This offence took place some hours after he had been drinking alcohol.  He had a substantial number of previous convictions, including breach of the peace, assault and acquisitive offending.  He served the tariff period of his sentence in prisons in Scotland.
3.	He was first released on licence in about 1990.  He was then involved in an incident in which he was stabbed, and his life was subsequently threatened.  This led him to move from Scotland to England.  He was assessed as suffering from post-traumatic stress disorder, and he repeatedly drank to excess.  He received a warning, as opposed to being recalled on licence, after he had caused criminal damage while under the influence of alcohol.
4.	He was recalled to prison for the first time in September 1994 following his arrest for offences of assault occasioning actual bodily harm and affray, for which he was later convicted.  His drinking was said to be out of control.  He was now received into the English prison system.
5.	In August 1997 he was released on licence for the second time.  He received a warning two days after his release because he had left his hostel in breach of the conditions of his licence.  In January 1999 he was recalled to prison following alleged offences involving a hostel resident.
6.	When these charges were dropped, he was released for the third time in June 1999.  On this occasion he remained at liberty for only four months before being recalled to prison again.  He had repeatedly failed to comply with the requirements of his licence, despite a warning, and his conduct included unauthorised absence from his hostel and further alcohol abuse.  On 31st March 2000 a panel of the Parole Board recommended that he should remain in prison and recommended a review in 12 months time.
7.	Another panel of the Parole Board conducted this review in October 2001.  It concluded that there was evidence suggestive of a pattern of difficulty in coping with social stress, and difficulty in complying with supervision requirements, together with alcohol abuse which had significance in the light of the circumstances of the index offence.  Supervision was necessary both to support him and to manage risk.  The panel was concerned because he had difficulty in accepting that this was necessary, since this reduced his capacity to manage risk, itself heightened by the possibility of inhibition and poor judgment if he had recourse to alcohol.
8.	There was a general view that the risk of violent re-offending was low.  However, after setting out a number of competing considerations, the panel considered that his ability to comply with supervisory requirements needed further testing within an open establishment.  In the absence of such testing it could not be satisfied that the risk he posed was yet compatible with release.  In an open environment he would have the opportunity to demonstrate his taking of personal responsibility while complying with imposed requirements.  The panel recommended that a firm detailed release plan should be drawn up prior to his next review, which should begin nine months after his transfer to open conditions.
9.	In the January 2002 decision letter Mr D’Cruz, who is a manager in the Prison Service’s Lifer Unit, said that the Secretary of State had accepted the panel’s recommendation for transfer to open prison conditions.  He considered that for the reasons given by the panel a period of at least two years in an open prison was needed to enable Mr Spence to be fully tested, assessed and prepared for release.  Mr D’Cruz told Mr Spence that the process leading to the next review of his case by the Parole Board would begin 18 months after his arrival at the open prison in accordance with the revised review procedures for lifers announced by the Home Secretary on 9th July 1998.
10.	This is a reference to a statement made by the Home Secretary in Parliament about the procedures for reviewing both mandatory and discretionary life sentences.  After describing new arrangements for the initial Parole Board review, the Home Secretary went on to say that reviews for all mandatory life sentenced prisoners in open conditions would begin 18 months, and not two years, after their arrival there.  The adoption of this policy would allow ample time – at least two years – in open conditions for these prisoners to be fully tested, assessed and prepared for release.  This change would bring the timetable for review of mandatory life sentence prisoners into line with discretionary cases, where there was a statutory entitlement to a further review on the second anniversary of the previous review (see section 28(7) of the Crime (Sentences) Act 1997 (“the 1997 Act”)).
11.	Mr D’Cruz’s letter can only sensibly be understood to mean that the Home Secretary’s 1998 policy was being applied in Mr Spence’s case notwithstanding the Parole Board’s recommendation that his next review should start nine months, and not 18 months, after his transfer to open conditions.  On 21st March 2002 Mr Spence’s solicitors wrote a letter before action, threatening judicial review proceedings if the decision was not altered.  Because of an administrative mishap the Home Secretary’s reply referred to a quite different prisoner of the same name, and the substantive reply to the letter before action post-dated the commencement of the proceedings.
12.	In this reply, dated 15th May 2002, a different official in the lifer unit said that Mr Spence was likely to transfer to open conditions before the end of that month (seven months after the Parole Board made its recommendation).  A more detailed explanation was now given of the reasons why the Parole Board’s recommendation had not been accepted.  Mr Spence’s history was summarised, culminating in his return to custody in October 1999.  The letter continued:
“In light of the above history, the Secretary of State considers that Mr Spence has presented a risk to the public on numerous occasions, has failed to learn from his mistakes on life licence and as a result needs a longer period than 9 months in open conditions to demonstrate that he can abide by licence conditions.  Mr Spence needs to spend a significant period of time on facility licence and resettlement licence in order to develop and test out his release plan and, in particular, test out his attitude towards alcohol and his ability to avoid relapse.  In view of this the Secretary of State looks to Mr Spence undertaking a significant number of successful releases on temporary licence to prove that he would be suitable for release and comply with licence requirements.”
13.	The writer then explained the nature of the work still required to be done in order to address his offending behaviour.  After identifying six specific categories of programme, she said that it was felt that Mr Spence must also show that he could put into practice skills in the areas of emotional and behavioural control and cognitive skills.  Time would also be needed to monitor his response to this work and the benefit he derived from it.  It was for these reasons that it was considered that a review beginning nine months after transfer would simply not be long enough to enable Mr Spence to address the concerns that had been raised, and would not allow a sufficient period for monitoring his risk factors.  The letter ended with a reference to the policy of 9th July 1998.  After referring to the January letter the writer confirmed that the policy applied to all mandatory lifers in open conditions.
14.	On 28th May 2002 the European Court of Human Rights (“ECtHR”) delivered its judgment in Stafford v United Kingdom (App No 46295/99).  The effect of this judgment was that there would be a violation of the Convention rights of a prisoner serving a mandatory life sentence if the decision about his release following the expiration of the “tariff period” was taken by the Home Secretary and not by a body satisfying the requirements of article 5(4) of the European Convention on Human Rights (“ECHR”).  This article provides that:
“Everyone who is deprived of his liberty by arrest or detention shall be entitled to take proceedings by which the lawfulness of his detention shall be decided speedily by  court and his release ordered if the detention is not lawful.”
15.	It followed that in future the Parole Board, which is regarded as a “court” for this purpose, would have to be responsible for taking final decisions on release if this country was not to be in breach of its Convention obligations.  The effect of the ECtHR’s decision in Stafford was reinforced by its decision four months later in Benjamin and Wilson v UK (App No 28212/95) in which it asserted the primary role of a Mental Health Review Tribunal in taking decisions about the release of discretionary life sentence patients who had been transferred to a hospital subject to a restriction order made without limit of time by a criminal court.
16.	The evidence filed by the Home Office in the present proceedings recognised the effect of the decision in Stafford.  Mr Watts, who is a member of the policy and planning team at the Prison Service’s Lifer Unit, told the court that since that decision it had been accepted that the timings of reviews for mandatory lifers were to be determined in accordance with the principles set out by the ECtHR in Oldham v UK (App No 3627/97), taking into account the circumstances of each individual case and any recommendation of the Parole Board.  The period of two years between Parole Board reviews was now considered to be a maximum period and not a standard period.  Although the decision in Mr Spence’s case had been made before the decision in Stafford, Mr Watts said that the relevant case-worker had told him that it was in fact made in accordance with Oldham principles.
17.	Mr Watts then gave an even more detailed justification of the decision relating to Mr Spence.  He said that in the last five months the Home Secretary had usually accepted the Parole Board’s recommendation about the timing of a review.  He would, however, depart from such a recommendation if the prisoner would be unlikely to benefit from having a review until a later point in time.  He explained why it was thought that the Home Secretary was in a better position accurately to determine the optimum timing of reviews.  He sought to explain the January 2002 letter by saying that the reference to the 1998 policy was intended only to refer to that part of the policy which prescribed that where a two-year period was fixed the review should start after 18 months.  It had not been intended to mean that the period before a review took place was immutably fixed at two years.
18.	After that evidence was filed external events moved on.  We have already mentioned the Strasbourg decision in Benjamin and Wilson which was delivered two weeks after Mr Watts signed his statement.  On 25th November 2002 the House of Lords gave their opinion in R (Anderson) v Home Secretary [2002] UKHL 46; [2002] 3 WLR 1800 in which they declared that section 29 of the Crime (Sentences) Act 1997 was incompatible with ECHR article 6, in that the Secretary of State, and not a court, was the decision-maker when determining the tariff period for a mandatory life sentence prisoner.  In the meantime a Home Office Minister, Mr Hilary Benn MP, had told Parliament on 17th October 2002 that as an interim measure new administrative arrangements were to be made for the review and release of mandatory life sentence prisoners with effect from 1st January 2003.  These arrangements would introduce an element of judicial procedure into the processes to be adopted if either a prisoner or the Home Secretary were dissatisfied with what was now to be a provisional recommendation by the Parole Board in the first instance.
19.	In his statement Mr Benn said, correctly, that at present responsibility for the release of such prisoners rested with the Home Secretary and that this responsibility could not be conferred on the Parole Board without primary legislation.  This remains the position to-day, although following the decision of the House of Lords in Anderson the Government has made clear its intention to cause new primary legislation to be enacted which will render our law ECHR compatible.
20.	Before we describe the effect of the judgment under appeal we need to say something about the statutory framework within which the Parole Board at present plays its part in relation to decisions on the release of mandatory life sentence prisoners.  The release of these prisoners is not governed by section 28 of the 1997 Act.  Section 29 is the governing section.  It provides that:
“(1)	If recommended to do so by the Parole Board, the Secretary of State may, after consultation with the Lord Chief Justice together with the trial judge if available, release on licence a life prisoner who is not one to whom section 28 above applies.
(2)	The Parole Board shall not make a recommendation under subsection (1) above unless the Secretary of State has referred the particular case, or the class of case to which that case belongs, to the Board for its advice.”
21.	The Board itself derives its statutory existence and authority from section 32 of the Criminal Justice Act 1991 (“the 1991 Act”).  Section 32(2) imposes on the Board a duty to advise the Secretary of State with respect to any matter referred to it by him which is connected with the early release or recall of prisoners.  Section 32(6) gives the Secretary of State power to give directions to the Board as to the matters to be taken into account in discharging any of its statutory functions.  For present purposes the relevant directions are in these terms, so far as is material:
“1.	The Home Secretary takes the final decision on the release of mandatory life sentence prisoners (‘lifers’) and that decision might be taken on grounds that go beyond the risk posed by the prisoner.  The Home Secretary is also concerned with the wider political implications, including the effect on public confidence in the life sentence system which release may have, ie how the public would be likely to respond to the lifer being released at that juncture.
2.	The Parole Board’s responsibilities in the release consideration are whether, having regard to the degree of risk involved of the lifer committing further imprisonable offences after release, it remains necessary for the protection of the public for the lifer to be confined.
3.	Each case should be considered on its individual merits.”
22.	Two particular matters should be noted.  The first is that unlike section 28(7), section 29 gives a mandatory life sentence prisoner no power to require the Secretary of State to refer his case to the Parole Board if certain statutory criteria are fulfilled.  The Parole Board’s involvement in a release decision can only be triggered by a reference by the Secretary of State under section 29(2).  The second is that neither Parliament nor the Secretary of State has charged the Board with the responsibility to set the intervals between reviews.  In Mr Spence’s case the relevant part of the reference to the Parole Board was in these terms:
“The prisoner is currently detained in closed prison conditions and the Board is asked to consider whether the prisoner is ready to be moved to open prison conditions.  If … the Board decided to make such a recommendation, it should:
(i)   comment on the degree of risk involved;
(ii)  recommend when the next review of the prisoner’s case should begin.”
23.	The Board was also expressly asked to give its reasons for the timing of the next review if it recommended a review beginning earlier than 18 months after the prisoner’s transfer to open conditions.  In the event the Board did not expressly address this question.  It merely prescribed that the next review should begin nine months after the transfer to open conditions.
24.	We were told that the practice of asking the Board to recommend when the next review of a prisoner’s case should begin has now been abandoned because prisoners’ legal advisers had developed the practice of making legal challenges to the Board’s recommendations (and reasons) and to the Home Secretary’s response, as in the present case.
25.	The judge rejected Mr Spence’s application for judicial review.  He said that it had not been established that the Secretary of State had applied the wrong policy or had applied policy in a blanket way.  He went on to reject a challenge on ECHR grounds to what had happened.  He said that as the Board had not recommended Mr Spence’s release no basis could be made out for concluding that his continued detention was unlawful during the period for which the Board recommended he should be detained.  He considered that the issue raised by the case was whether the Secretary of State had the power or capacity to delay such release as a Board might at a future date recommend, by setting the period of time between reviews himself, as opposed to acting on the Board’s recommendation.  And he concluded, after reviewing the effect of relevant ECHR case law, that Mr Spence’s fundamental rights were sufficiently protected by the requirement (derived from ECHR article 5(4)) that the lawfulness of his detention must be reviewed at reasonable intervals.
26.	We have been shown a decision by Grigson J in R (Clough) v Secretary of State for the Home Department [2003] EWHC 597 (Admin) which is to similar effect.
27.	It appears that to a great extent the issues raised on this appeal are now primarily of academic interest only.  Following a change of Home Office policy, the necessary preparatory work for Mr Spence’s next review is in fact now to begin in May 2003, with the next Parole Board review occurring in November.  As a result the period he will have spent in open conditions before the next review begins has been reduced to 12 months, which is closer to the Parole Board’s recommendation (nine months) than the Home Secretary’s original decision (18 months).
28.	Mr Lennon, who appeared for Mr Spence, said that there were three grounds for challenging the judge’s decision:
(1)	Because the Home Secretary’s original decision was unlawful, since the executive can have no power to make a decision which causes, or potentially causes, delay in the release of post tariff mandatory life sentenced prisoners;
(2)	Because the decision to delay Mr Spence’s review for 18 months after his arrival in open conditions violated his ECHR article 5(4) right to have the lawfulness of his detention reviewed “speedily”.
(3)	Because the Home Secretary’s decision was irrational.
29.	We consider that there is no substance in the first point.  The Parole Board, which is to be equated with a court for this purpose, decided that he should stay in prison until his next review.  He therefore continued to be detained in prison pursuant to an order of a court, and the Parole Board’s statutory involvement in the case was for the time being at an end.  The occasion to challenge the lawfulness of his continuing detention would arise if in the events that subsequently happened he could justly assert that this continuing detention was not being reviewed “speedily”.  This is Mr Lennon’s second point, to which we therefore turn.
30.	The problem with his second point is that the ECtHR has conspicuously declined to be prescriptive about the length of the detention period which would lead to a violation of article 5(4) in the absence of a review (see Oldham v UK (App No 36273/97), paras 30-37).  Strasbourg jurisprudence makes it clear that the question whether such periods comply with the article 5(4) requirement must be determined in the light of the circumstances of each case (Oldham, para 31), and the evolving Home Office policies, which we have described earlier in this judgment, follow the principles set out in that jurisprudence.  It is therefore impossible to say on the particular facts of this case that, viewed prospectively, the Home Office’s January 2002 decision somehow or other violated Mr Spence’s Convention rights.  In R (MacNeill) v Parole Board [2001] EWCA Civ 448 this court applied the principles set out in the Oldham case when it held that there were proper reasons for setting a two year period before the next Parole Board review on the facts of that particular case.
31.	As to Mr Lennon’s third point, Mr D’Cruz’s January 2002 letter was unhappily phrased because it suggested that the Lifer Unit had simply applied the July 1998 policy automatically, regardless of whether a two-year period before the next review was appropriate in the circumstances of Mr Spence’s particular case; and also regardless of whether a policy which on the face of it was concerned with defining the period to be spent in open conditions before a first review was equally appropriate in a case of a prisoner like Mr Spence who had been released and then recalled on licence a number of times.  We remind ourselves, however, that Mr D’Cruz’s letter must not be scrutinised as if it were a judgment by a High Court judge.  The later letter from the Lifer Unit, which ought, but for a muddle, to have preceded the bringing of these proceedings, showed that an individualised approach had in fact been adopted in Mr Spence’s case, and this was an approach which could not be stigmatised as irrational.
32.	For these reasons we dismiss this appeal.
33.	We consider that it would be helpful to expand a little on the matters raised in Mr Lennon’s second ground of appeal (see paragraph 28(2) above). The detention of all mandatory life prisoners in open conditions is subject to automatic review.  The issue for the purposes of ECHR article 5(4) in a case like this is accordingly whether the interval that is initially prescribed to take place between the reviews is a reasonable one taking into account all the facts of the case (see Oldham v UK (2000) 31 EHRR 813 at paragraph 31).  If the interval is not a reasonable one, and there is a breach of article 5(4), the decision to impose too long an interval can be successfully challenged before a court under the Human Rights Act 1998, section 7(1).  
34.	If events subsequent to the initial fixing of the review date, but before the review date itself occurs, show that the interval initially prescribed should be shortened, Mr Watts has explained that there are internal procedures whereby a prisoner can request a review of the interval by the Home Secretary.  That point is important, not because it is suggested that any such review would be appropriate in this case, but because it demonstrates that the power to initiate a process which may lead to a shortening of the interval does not lie solely in the hands of the executive.  
35.	The decision as to the length of the interval is thus not one which under the Convention needs to be taken by a court for the purposes of article 5(4) (see Oldham v UK and Ashingdane v UK (1985) 7 EHRR 528 at paragraph 52).  It can be taken by the Home Secretary.  In determining whether the interval complies with article 5(4) on the facts of a particular case, the court asks itself whether the interval was reasonable.  The answer to this question is a matter for the court.  The court does not, therefore, apply the Wednesbury test and ask whether the interval was not one which a reasonable decision-maker could determine.  In considering the question of reasonableness, the court will give appropriate weight to the views both of the Home Secretary and of the Parole Board.   
36.	During the course of argument a question was raised whether the Parole Board possessed the power to adjourn its review of Mr Spence’s case for a period of, say 15 months, on the basis that it wished to defer expressing an opinion on the case until he had spent nine months in open conditions and it had the benefit of reports on the matters with which it was, on an interim basis, concerned.  In EMA v ACAS [1980] 1 WLR 302, for instance, in a quite different statutory context the House of Lords held that ACAS possessed the power to suspend the performance of its statutory obligations for periods in excess of two years if in so doing it forwarded the purposes of the statute under which it was created (see Lord Scarman at pp 317E-318C).
37.	Whether such a suspensive power exists in any given case, however, must depend upon the particular statutory context.  Under its governing legislation as it now stands the Parole Board is not a free agent.  It has the duty to advise the Secretary of State with respect to any matter referred to it by him (1991 Act, section 32(2)).  In the present context its duty is to advise the Home Secretary on the matters he referred to it pursuant to section 35(3) of the 1997 Act.  In Mr Spence’s case, the Board was asked:
(i)	Is Mr Spence ready to be moved to open prison conditions, and if so what is the risk involved, and when should his next review begin?
(ii)	If he is not suitable for transfer to open conditions, when should his next review begin, and what are the areas of concern to be tackled and/or issues to be resolved in the meantime?
(iii)	Alternatively, is this such an exceptional case that the Board recommends release without a period in open conditions, and if so what are the Board’s reasons for recommending this course?
38.	The Board is a creature of statute, and we do not consider that, however desirable it may be for questions relating to a prisoner’s liberty to be kept under the firm proactive control of a court-like body, under the legislation as it now stands the Board has any power to tell the Home Secretary by way of an answer to his questions that it cannot answer any of them immediately and that it proposes to defer answering them for, say, 15 months when it will review the case on the basis of new evidence to be garnered in accordance with the interim recommendations it will make for the prisoner’s detention and further training and testing in the meantime.  It is not for this court but for Parliament to determine in the light of recent caselaw (both in this jurisdiction and at Strasbourg) whether the Board’s powers should be altered to enable it to take a proactive, rather than a reactive, role in these matters in future.