Case No: C1/2011/0904 + C1/2011/0979 
Neutral Citation Number: [2012] EWCA Civ 452
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
(MR JUSTICE MITTING)

Royal Courts of Justice
Strand, London, WC2A 2LL

Date:  Thursday 23rd February 2012

Before:

LORD JUSTICE LAWS
LORD JUSTICE MCFARLANE
and
LORD JUSTICE KITCHIN
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Between:

	Sturnham	
Appellant	
	- and -		
	
(1)Secretary of State for Justice
(2)Parole Board	
Respondent	

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(DAR Transcript of 
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Mr Hugh Southey QC and Mr Philip Rule (instructed by Lewis Nedas and Co) appeared on behalf of the Appellant.
Mr Simon Murray (instructed by Treasury Solicitor) appeared on behalf of the First Respondent (SSJ).
Mr David Mankell (instructed by Treasury Solicitor) appeared on behalf of the Second Respondent/Interested Party (Parole Board).
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Judgment

Lord Justice Laws:

1.	The appeals before the court arise out of a judgment given by Mitting J on 14 March 2011 ([2011] EWHC Admin 938) in judicial review proceedings in which the claimant, who had been sentenced to imprisonment for public protection (“IPP”), contended that the Parole Board had applied the wrong test in deciding whether to direct his release and also that his rights protected by Article 5.4 of the European Convention on Human Rights had been violated by delay in the conduct of a Parole Board review.  The Parole Board and the Secretary of State for Justice were both named as defendants in the proceedings.  Mitting J rejected the arguments concerning the test for release, but accepted that there had been a breach of Article 5.4 and awarded £300 damages.

2.	On 13 July 2011 Sir Richard Buxton granted the claimant permission to appeal against the judge's rejection of his case as to the test for release.  This grant of permission was on one ground only relating to the construction of Section 28(6)(b) of the Crime Sentences Act 1997 ("the 1997 Act").  Sir Richard refused permission on a second ground to the effect that the Parole Board had taken account of directions issued by the Secretary of State which were unlawful or ultra vires.  However permission on this second ground was granted by Patten LJ on 23 November 2011 following a renewed application.  Sir Richard Buxton on 13 July 2011 also granted permission to the Secretary of State to appeal against the award of damages for delay.  The claimant seeks to cross-appeal against the award, contending that it should be in the sum of £1,000 rather than £300. He has not obtained permission to mount that argument.

3.	I turn to the 1997 Act.  Section 28(5) and (6) provide in part: 

“5 (a)a life prisoner to whom this section applies has served the relevant part of his sentence; and
(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—
... 
(b)the Board is satisfied that it is no longer necessary for the protection of the public that the prisoner should be confined.”

4.	The term "life prisoner" includes a person serving a sentence of IPP pursuant to section 225 of the Criminal Justice Act 2003 (see Section 34(2)(d) of the 1997 Act).  The statutory conditions for the imposition of a sentence of IPP include the requirement given by Section 225(1)(b) of the Criminal Justice Act 2003 : 

"...the court is of the opinion that there is a significant risk to members of the public of serious harm occasioned by the commission by him of further specified offences”

5.	I turn briefly to the facts of the case.  On 31 January 2007 the claimant, having been convicted by a Crown Court jury, was sentenced to IPP with a minimum term of two years and 108 days for an offence of manslaughter.  On 19 May 2006 he had twice punched the victim in a car park outside a public house.  The victim died the next morning.  Mitting J quoted the observations of the trial judge passing sentence and so shall I : 

"I have myself reached a conclusion that you will be dangerous. You hold and express strong views. You are physically very strong. You are possessed of a forceful personality. If you meant what you said in evidence, you regard it as your right to respond with violence to anyone who uses it or threatens you. In my judgment you would not shrink from exercising that supposed right. For some years you have not brought your heavy drinking under control and you have not respected court orders for drink-related offences. You are, in addition, a cocaine user. You do not yet show any commitment to change your drinking and drug-taking habit. 
I have reached the conclusion therefore that you do pose a danger of the sort described by the Act, largely because of your drinking and your unreformed attitude and your personality."

6.	The minimum term of two years and 108 days expired on 19 May 2009.  In prison the claimant had what Mitting J described as a chequered history. He assaulted a fellow inmate, disobeyed orders and was involved on a number of occasions in brewing hooch in jail.  Reports prepared in order to assist the Parole Board in deciding whether to direct his release under Section 28 of the 1997 Act contained a somewhat mixed picture.  They are summarised at paragraphs 10 to 16 of his judgment by Mitting J, who stated at paragraph 17:

“That brief description of the views of responsible officials about the claimant demonstrates that this was a far from straightforward case for the Parole Board when it came to consider its decision.”

7.	The Secretary of State referred the case to the Parole Board on 10 July 2008.  A dossier was prepared but was not provided to the Parole Board until 13 July 2009, over two months after the expiry of the claimant's minimum term.  Directions were given, representations were submitted, and a hearing was convened on 14 April 2010.  However the claimant became ill that day and so the hearing was adjourned until 10 May 2010.  A decision was issued four days after that.  I need only set out the two paragraphs which were quoted by the judge at paragraphs 18 and 19 of his judgment :

"The Parole Board is empowered to direct your release if it is satisfied that it is no longer necessary for the protection of the public that you be confined. The panel of the Parole Board that considered your case on 14 April and 10 May 2010 was not so satisfied that your risk was low enough to direct release. However it does recommend your transfer to open conditions."

Then later: 

“Having taken into account the written and oral evidence and the matters specified in the Secretary of State's directions, the panel commends you for your progress but considers that your risk was not low enough to be released. However there would be significant benefits to a period of time in open conditions where you could test and develop your relapse prevention plans and further build your relationship with your family."

8.	The Secretary of State's direction, which it is said was wrongly taken into account by the Parole Board, is contained in paragraph 4 of directions issued by the Secretary of State in relation to prisoners sentenced to life imprisonment as follows : 

"the test to be applied by the Parole Board in satisfying itself that it is no longer necessary for the protection of the public that the prisoner should be confined is whether the likelihood of risk to life and limb of others is considered to be more than minimal."

9.	It is convenient also to notice at this stage guidance issued by the Parole Board itself to its own members relating to prisoners sentenced to IPP and contained in paragraph 8.1 of a document issued in July 2010:

“The Board is empowered to direct the release of those indeterminate sentence prisoners who have served a period of imprisonment necessary to satisfy the requirements of retribution and deterrence, the tariff. In order to direct release, the Board must be satisfied that it is no longer necessary for the protection of the public that the prisoner should be confined. The test to be applied is whether the offender's level of risk to life and limb is considered to be more than minimal. There is a presumption that release will not be directed unless the evidence demonstrates to the Board's satisfaction that the level of risk is acceptable for release. The Board should refuse to direct release where it is satisfied that there exists the risk of serious violence or sexual offending, including arson, irrespective of the precise nature of the index offence."

The claimant was released on licence by direction of the Parole Board on 7 September 2011.  

10.	It is convenient first to address the issue relating to damages.  There is no challenge to the finding of the judge (paragraph 40) that there was a violation of the claimant's right pursuant to ECHR Article 5.4 to a speedy hearing of the Parole Board proceedings.  The judge held (paragraphs 37 to 39) that there was a delay of at least six months in the delivery of the dossier to the Board, but no adequate explanation had been offered for the delay and that in consequence the Parole Board did not consider the case until at least six months after it should have done.  The primary responsibility was that of the Secretary of State (paragraph 41).  The judge granted a declaration that the claimant's Article 5.4 right was violated.  He proceeded to consider whether he should also make an award of compensation.  He noted (paragraph 44) that this was not a case in which the claimant's release on licence had been postponed by the delay. He accepted (paragraph 47) as "substantially true" a short witness statement made by the claimant in which he speaks of the stress and anxiety occasioned to him by the delay. Having referred to Greenfield [2005] 1 WLR 673, to which I will return, Mitting J expressed himself satisfied that the Strasbourg court would make a modest award of damages (paragraph 51) and proceeded, as I have said, to give judgment for £300.

11.	The claimant's only cause of action for damages is to be found in section 8 of the Human Rights Act 1998.  Section 8(1) provides that in relation to any act of a public authority found to be unlawful under that statute the court "may grant such relief or remedy...as it considers just and appropriate".  Subsections 3 and 4 then provide: 

“(3)No award of damages is to be made unless, taking account of all the circumstances of the case, including—
(a)any other relief or remedy granted, or order made, in relation to the act in question (by that or any other court), and
(b)the consequences of any decision (of that or any other court) in respect of that act,
the court is satisfied that the award is necessary to afford just satisfaction to the person in whose favour it is made.

(4)In determining— 
(a)whether to award damages, or 
(b)the amount of an award, 
the court must take into account the principles applied by the European Court of Human Rights in relation to the award of compensation under Article 41 of the Convention.”

12.	It is unnecessary to set out Article 41.  At paragraph 6 of his opinion in Greenfield Lord Bingham of Cornhill stated : 

"It is...to Strasbourg that British courts must look for guidance on the award of damages."

The core provision in our domestic law which marches with Article 41 is the requirement of section 8(3) that the court be satisfied "that the award is necessary to afford just satisfaction" to the claimant.  

13.	Although there is now a good deal of jurisprudence both here and in Strasbourg on the issue of compensation for breach of Article 5.4, the ascertainment of clear principles governing the issue is with respect an elusive exercise.  In relation to the Strasbourg cases it is to be borne in mind that section 8(4) of the Human Rights Act enjoins us, not to have regard generally to the case-law, but to take into account the principles applied by the European Convention on Human Rights.  However not too much should be made of this given the observations of Lord Bingham in Greenfield at paragraph 19, which with great respect I need not set out. 
14.	In the 18th edition of McGregor on Damages this is stated at paragraph 43 – 023: 

"Of course whether a finding of breach of the Convention is sufficient to afford the applicant just satisfaction is a peculiarly subjective matter and it is therefore not surprising to find that the case law does not provide any coherent principles to apply in deciding whether or not this is the case and there are cases where different results have occurred even though they appear to be indistinguishable on their facts.  All that can be said is that it appears to be an increasing trend in the European Convention on Human Rights that a finding of breach alone is sufficient."

That last observation is not a view shared by all the commentators.

15.	It is in my judgment worth bearing in mind that a regime in which, as here, damages for breach of a legal right are a discretionary remedy is to be contrasted with the conventional position at common law where damages for a private law wrong, tort or breach of contract are generally a matter of entitlement. The common law, however, also knows another rule, namely that damages are not generally recoverable for administrative tort: that is, for a public law wrong.  Now, the distinct territory of section 8 is marked by the fact that the defendant is a public authority and the wrong is a violation of the Convention.  Depending on the facts this territory is often a closer neighbour to our public than to our private law. That circumstance brings into focus a distinction of some significance in the search for principle.  It is between cases where the violation of the Convention right has an outcome for the claimant which constitutes or is akin to a private wrong, such as trespass to the person, and cases where the violation has no such consequence. This distinction was, as I see it, drawn by Lord Bingham in Greenfield.  Referring to rights guaranteed by Article 6 of the Convention, with which Greenfield was directly concerned, he said this at paragraph 7: 

“These are important rights, and significant violations are not to be lightly regarded. But they have one feature which distinguishes them from violations of articles such as article 3, where an applicant has been tortured, or article 4, where he has been enslaved, or article 8, where a child has been unjustifiably removed from its family; that it does not follow from a finding that the trial process has involved a breach of an article 6 right that the outcome of the trial process was wrong or would have been otherwise had the breach not occurred. There is an obvious contrast with article 5, guaranteeing the right to liberty and security of the person, which provides in para (5): 

‘Everyone who has been the victim of arrest or detention in contravention of the provisions of this article shall have an enforceable right to compensation.’
There is a risk of error if Strasbourg decisions given in relation to one article of the Convention are read across as applicable to another.”

16.	As I see it, the present case is not one in which the claimant can claim that he was arrested or detained in breach of Article 5.  His complaint rather is of breach of his Article 5.4 right to a speedy determination before the Parole Board.  As regards that, for my part I should have thought there is no guaranteed right to compensation under Article 5.5.  If that is wrong, Mr Southey was, I apprehend, inclined to acknowledge this morning that some concrete loss has to be demonstrated if the Article 5.4 case is to lead to a claim for damages. 
17.	In Greenfield Lord Bingham continued at paragraph 8: 

“In the great majority of cases in which the European Court has found a violation of article 6 it has treated the finding of the violation as, in itself, just satisfaction under article 41. Very many examples could be cited… " 

Examples are then given.  The quotation continues: 

“In most of these cases the Court declined to speculate on what the outcome of the particular proceedings would have been had the violation not occurred. 
   The routine treatment of a finding of violation as, in itself, just satisfaction for the violation found reflects the point already made that the focus of the Convention is on the protection of human rights and not the award of compensation. It is noteworthy that, in exercising its former jurisdiction under the original article 32, the Committee of Ministers did not, before 1987, award compensation at all, even where a violation was found: D J Harris, M O'Boyle and C Warbrick: Law of the European Convention on Human Rights (Butterworths, 1995), p 699. Thus the Court of Appeal (Lord Woolf CJ, Lord Phillips of Worth Matravers MR and Auld LJ) were in my opinion right to say in Anufrijeva v Southwark London Borough Council [2003] EWCA Civ 1406, [2004] QB 1124, paras 52-53: 
‘52. … The remedy of damages generally plays a less prominent role in actions based on breaches of the articles of the Convention, than in actions based on breaches of private law obligations where, more often than not, the only remedy claimed is damages.
53. Where an infringement of an individual's human rights has occurred, the concern will usually be to bring the infringement to an end and any question of compensation will be of secondary, if any, importance.’
Where article 6 is found to have been breached, the outcome will often be that a decision is quashed and a retrial ordered, which will vindicate the victim's Convention right.

18.	The distinction between cases where the violation amounts to a private law wrong and those where it does not is reflected in some of the Strasbourg cases. In Migon v Poland  (Application number 24244/94, 25 June 2002) the court said at paragraph 92 : 

“In the present case, the Court cannot speculate as to whether the applicant would have been detained if the procedural guarantees of Article 5 § 4 of the Convention had been respected in his case. Consequently, the Court considers that the non-pecuniary damage claimed is adequately compensated by the finding of a violation of this provision.”

This follows the line taken in Nikolova v Bulgaria [1991] 31 EHRR 64 (paragraph 76) and Niedbala v Poland [2000] 33 EHRR 1137 (paragraph 88).  

19.	There is, with respect, a very helpful discussion of the Strasbourg cases by Stanley Burnton J (as he then was) in KB v The South London Mental Health Review Tribunal [2004] QB 936 (see in particular paragraphs 32 and following).  Stanley Burnton J noted, however, having referred to Nikolova, Niedbala and Migon, that (paragraph 37) there were other recent decisions in which the Strasbourg court had awarded damages where the only claim related to frustration and distress.  He concluded (paragraph 41) that there was: 
 
“...no ‘clear and constant jurisprudence’ of the European Court on the recoverability of damages for distress under Article 5.5 in the absence of deprivation of liberty. There are two principles applied by the Court: that damages are not recoverable in the absence of deprivation of liberty, and that damages are recoverable for distress which may be inferred from the facts of the case. It follows that this Court must itself determine the principles it is to apply."

At paragraph 73 Stanley Burnton J indicated that the principle which he would apply to claims for damages for distress was as follows: 

"Thus, even in the case of mentally ill claimants, not every feeling of frustration and distress will justify an award of damages. The frustration and distress must be significant: of such intensity that it would in itself justify an award of compensation for non-pecuniary damages. In my judgement, an important touchstone of that intensity in cases such as the present will be that the hospital staff considered it to be sufficiently relevant to the mental state of the patient to warrant its mention in the clinical notes."

20.	Stanley Burnton J's observations as to the "clear and consistent jurisprudence" in Strasbourg march with the comment in McGregor on Damages to which I have drawn attention.  It is in the circumstances difficult to see how cases such as Oldham [2001] 31 EHRR 34 (two year delay: £1,000 awarded), or Hirst v UK Application 40787/98 (two periods of delay: a two year period between reviews held unacceptable: £1000 awarded), and Blackstock [2006] 42 EHRR 2 (22 months between reviews: €1460), to all of which Mr Southey QC referred today, can be treated as constituting any authoritative body of principle.  

21.	Stanley Burnton J's approach to damages for distress in Article 5 cases was followed in R (Degainis) [2010] EWHC Admin 137 in which Saunders J declined to award damages.  The only reported case (apart from the present) in this jurisdiction in which the intensity of frustration and distress has led to an award of damages for violation by delay of Article 5.4 seems to have been R (Guntrip) [2010] EWHC Admin 3168, to which Mitting J referred at paragraph 50 of his judgment.  There the delay was some two years.  At paragraph 54 Ouseley J recognised that : 

“...in many cases, perhaps the large majority, a declaration will be a sufficiently effective and just remedy.”

However, he awarded £1200, recognising two unusual features which he stated had particular force.  The first was the long delay.  The second was described by Ouseley J as follows at paragraph 56: 

“Second, the Claimant did suffer from mental illness which I am satisfied made that delay and uncertainty more difficult to cope with. And his stress and frustration were further exacerbated here because, although I have concluded that an earlier review would not have led to release or transfer, the Claimant had made what appeared to be very considerable, largely successful and distinctly promising efforts on his courses, gaining support from responsible officers at least for progress to open conditions. He had a reasonable basis for genuinely believing he would be released or transferred to open conditions, and that delay in the review alone stood in his way.”

22.	In the light of all these observations on the learning I would venture to describe the principles which are to be applied for the resolution of the damages issue in this case in the following way.  1) Damages are only to be awarded where that is necessary to afford just satisfaction under the Human Rights Act 1988 section 8(3).  2) In an Article 5.4 delay case the Convention right will ordinarily be vindicated and just satisfaction ordinarily achieved by a declaration.  The focus of the Convention and of the court is on the protection of the right rather than compensation of the claimant.  3) But if the violation involves an outcome for the claimant in the nature of a trespass to the person, just satisfaction is likely to require an award of damages.  The paradigm of such a case arises where the claimant's detention is extended by reason of the delay.  Another case might be where the delay occasions a diagnosable illness in the claimant.  4) Other cases where the outcome or consequence of the delay is stress and anxiety but no more, will not generally attract compensation in the absence of some special feature or features by which the claimant's suffering is materially aggravated.  I consider that Ouseley J's decision in Guntrip can only be supported on the footing that it was such an exceptional case. The Strasbourg court's observation in Silver v UK [1991] 13 EHRR 582, which was concerned with prisoners' correspondence is worth noting (paragraph 10):

"It is true that those applicants who were in custody may have experienced some annoyance and sense of frustration as a result of the restrictions that were imposed on particular letters. It does not appear, however, that this was of such intensity that it would in itself justify an award of compensation for non-pecuniary damage." 

The words “of such intensity” were emphasised not by the court but by Stanley Burnton J quoting that observation.

23.	Nothing in these propositions, as I see it, is contradicted by anything in Strasbourg which may be said to be of general application.  Mr Southey's position was, as I understood him to accept today, that delay by the Parole Board constituting a violation of Article 5.4 will give rise to a right to damages in every case save perhaps the eccentric instance where the Parole Board process is effectively meaningless, such as might arise where the prisoner was expressly determined to commit further serious crimes as soon as he was released.  I am clear that that is not the law. 

24.	In the present case neither proposition 3 nor proposition 4 above applies.  The case is not made exceptional on its facts by the possibility that a timely decision would or might have led to an earlier transfer to open conditions. A declaration would in my judgment have been sufficient here.  I would accordingly allow the Secretary of State's appeal on the damages issue.  It must follow that I would refuse permission to appeal to the claimant to raise the contention that the award ought to be increased.

25.	I turn to the primary issue on the claimant's own appeal which concerns the correct construction of section 28(6)(b) of the 1997 Act.  I repeat the provision for convenience.  The Parole Board is not to direct release unless it "is satisfied that it is no longer necessary for the protection of the public that the prisoner should be confined".

26.	The submission is that in the case of a convict sentenced to IPP this test is only met if the court is satisfied that he poses the same risk as had to be shown in order to justify the imposition of the IPP sentence in the first place, namely "a significant risk to members of the public of serious harm occasioned by the commission by him of further specified offences”.  The reference to “further specified offences” includes all offences of serious violence or serious sexual offences and arson (see Schedule 15 to the Criminal Justice Act 2003).

27.	The Secretary of State submitted in writing, but maintained the point only faintly this morning, that because the claimant has now been released on license, this issue and also that arising from the second ground of appeal concerning the Secretary of State's directions is moot or academic, and the court should not entertain it.  The claimant on the other hand says that these issues will be live in his case if he is recalled from parole and the question of his re-release has to be considered by the Parole Board.  The issues have moreover a more general significance, since manifestly it is the Parole Board's duty to apply the correct test for release in every case before them.  Granting permission to appeal on the construction question Sir Richard Buxton stated : 

"The point has sufficient of a history and is of sufficient importance for it not to be concluded at the permission stage."

28.	It has been recognised in the House of Lords that a public law dispute, though academic as between the parties, may properly be heard and tried out if there is good reason in the public interest to do so and not least if it raises a "discrete point of statutory construction " free of individual facts (see per Lord Slynn in ex parte Salem [1999] 1 AC 450 at 457A, a case in which the appellant had died before the hearing).  In the circumstances here we think it right, as we indicated at the outset of the argument, that these remaining points should be canvassed and that we should deal with them.

29.	As the judge noted, the Secretary of State conceded the construction of section 28(6)(b) of the 1999 Act now advanced by the claimant in R(Bayliss) [2008] EWHC Admin 3127.  On appeal in that case Dyson LJ (as he then was) was content to accept the concession without deciding the point.  There is also a comment of Latham LJ in R(O'Connell) v Parole Board [2008] 1 WLR 979, paragraph 311, on which the claimant relies.  However, the issue as to the construction of the subsection is now plainly open for decision before us.

30.	The claimant by Mr Southey refers to an observation made by this court in R (Walker) v Secretary of State [2008] 1 WLR 1977 at paragraph 35: “the [purpose of the IPP] is to detain in prison serious offenders who pose a significant risk to members of the public of causing serious harm by further serious offences until they no longer pose such a risk”.  It is submitted that Parliament cannot have intended a convict sentenced to IPP to remain in detention at a time when he poses a lesser risk than had to be shown to justify the sentence in the first place. Mr Southey also referred us to Lang & Ors [2006] 1 WLR 2509, showing (paragraph 8) that the sentence of IPP is for practical purposes much the same as a life sentence.  Paragraph 16 in that case refers to the impact of IPP on prison occupancy.  Paragraph 17(viii), to which Mr Southey took us, states that Parliament cannot have intended that indeterminate sentences be passed for relatively minor offences.  Moreover C [2009] 1 WLR 2158 reminds us, as Mr Southey pointed out, that IPP is concerned with future risk.  R v Pedley [2009] 1 WLR 2517 states at paragraph 22 that the IPP prisoner will be released “once the significant risk no longer exists.”  All these cases, it is to be noted, are concerned with the nature and purpose of IPP.  None addresses section 28(6)(b) of the 1997 Act.  
31.	The test stipulated by section 28(6)(b) applies by force of section 28(1)(a) to every life prisoner in respect of whom a minimum term order has been made.  Such prisoners include but are not limited to those sentenced to IPP.  By seeking to import, in the case of IPP prisoners only, the test for risk required to be met when the IPP sentence is passed, Mr Southey would have the court read the statute differentially: applying one meaning to section 28(6)(b) in the case of IPP convicts and another or others in other cases.  Such an approach is in my judgment wrong in principle.  It introduces a want of coherence and self consistency which the court would not attribute to any statutory provision unless driven to do so.  If the legislature had intended different rules for different classes of life prisoner it is in my view plain and obvious that it would have specifically so provided.  

32.	The argument is not saved by the submissions (see Mr Southey's first skeleton, paragraph 3.9, and developed before us today) that there is no need to read into section 28(6)(b) additional qualifying words since it is all a question of what is "necessary” in the circumstances.  This argument, with respect, goes nowhere.  It requires the phrase "necessary for the protection of the public" to be read in one meaning for IPP cases and another for others.  

33.	Nor do I accept Mr Southey's suggested point of principle that there must be an equivalence of risk at the point when IPP is imposed and when release is being considered.  This was, as it seems to me, effectively given the lie by the Divisional Court in Ex parte Bradley [1991] 1 WLR 134, referred to by Mitting J in his judgment at paragraph 22. In that case the court (Stuart Smith LJ and Simon Brown J as he then was) had to decide what test the Parole Board should apply in considering the release of a prisoner serving a discretionary life sentence.   The nature of the risk was and is risk to life or limb.  But that does not address the level of risk.  The applicant contended that the level of risk which the Parole Board had to consider was the same as had to be shown to justify the imposition of his life sentence in the first place, namely a "likelihood" of his committing serious offences in the future. The Divisional Court rejected this submission.  This is what was said at 145F to 146C : 

"The real answer to Mr Fitzgerald's submission we have concluded to be this: the sentencing court recognises that passing a life sentence may well cause the accused to serve longer, and sometimes substantially longer, than his just desserts.  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 court they are thus much better placed to evaluate the true extent of the risk 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 recommendations 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 had protected society for an appreciable time -- it seems to us perfectly appropriate that the Parole Board to apply some lower test of dangerousness, ie one less favourable to the prisoner. 

In short, the true position is in our judgment this, the imposition of the life sentence itself can only be justified by a very high degree of perceived public danger: there would otherwise be the temptation to impose it altogether too often simply in the interests of long term public safety.  But, once lawfully imposed, the life sentence then justifies the prisoner's continued detention, even although the risk is ultimately perceived is substantially less than an actual probability of his seriously re-offending upon release, and common sense surely supports such a conclusion.  Were it otherwise, the Parole Board would be required to release back into society a relatively high risk group some of whom (although logically, of course, less than 50 per cent) would commit further serious offences of violence.  Parliament cannot be thought to have intended such an approach.  We certainly do not feel driven to circumscribe the Parole Board's discretion in such a fashion."

34.	With respect, I consider this reasoning to be compelling.  None of it is in my judgment undermined by the cases on the nature and effect of IPP.  Bradley serves I think to refute Mr Southey's argument as to the equivalence of risk as between sentence and release as much in the present context as in the context of Bradley itself.  I see nothing in the Strasbourg jurisprudence to dislodge this conclusion, including the case of Stafford v United Kingdom  [2002] 35 EHRR 32, referred to by Mitting J in paragraph 24 of his judgment.  Certainly the Strasbourg cases speak, as Mr Southey has demonstrated, of the need to show a link between the purpose of the original sentence and the prisoner's continued detention (see Van Droogenbroeck v Belgium [1982] 4 EHRR 443, paragraph 40); and I note in particular paragraph 82 of Stafford rejecting the contention that a life prisoner sentenced for murder might be detained beyond his tariff because of a risk of non-violent offences of fraud.  In my judgment, however, this link is met in section 28(6)(b) by the recognition that the risk referred to is risk to life and limb.  

35.	I cannot see that any difference is made by the fact, as submitted by Mr Southey, that an IPP may not be imposed where the seriousness of the offence does not justify a life sentence (Criminal Justice Act 2003, section 225(2) and (3)).  The Parole Board must of course assess the risk posed by the prisoner having regard to all the circumstances, but what they are to focus on is the risk posed by the prisoner at the time they are considering the case.  That is not, as a matter of definition or principle, driven by the requirements of section 225(2) and (3).  

36.	In the end, it seems to me that Mr Southey urges a statutory policy by which the measure of risk to be considered in relation to release is by law conditioned by the nature of the sentence originally passed.  But Parliament has not in section 28(6)(b) adopted such a policy.

37.	I turn to ground 2, for which as I have said Patten LJ granted permission to appeal on 23 November 2011.  It is said that in its decision of May 2010, whose relevant paragraphs I have set out, the Parole Board paid heed to paragraph 4 of the Secretary of State's directions, and that was unlawful. In R(Girling) v Parole Board [2006] EWCA Civ 1779 this court regarded paragraph 4 of the Secretary of State's directions as objectionable insofar as it purported to tell the Parole Board how to decide whether or not a prisoner should be released.  The court did not, however, determine that the Secretary of State's statement of the test was itself legally erroneous.  Nor did the court do so in R (Brooke) v Parole Board [2008] 1 WLR 1950, to which Mr Southey has also referred.

38.	Mitting J said this at paragraph 33 of his judgment: 

“The issue raised in these proceedings is much narrower. It is that the Board in its decision letter, by its reference to the Secretary of State's directions, demonstrated that, contrary to the clearest statement of principle in Girling, it was paying heed to something that it should not. The answer to that is factually simple. The Secretary of State's directions contain a good deal of general and perfectly sensible guidance about the approach which should be adopted when assessing the suitability of a prisoner for release on licence (paragraphs 5 and 6). Those were held by the Court of Appeal in Girling to be unobjectionable. I need not set them out. They are clearly unobjectionable. In my judgment, and as a matter of fact, the Board was simply referring to that unobjectionable part of the guidance when it made the comment that it had regard to the Secretary of State's directions when reaching the decision.”

39.	For my part I see no reason to disagree with these conclusions arrived at by the learned judge below.  The Parole Board must be taken to have been aware of Girling (in which judgment was given on 23 December 2006) when they reached their decision in this case.  I do not consider that the Parole Board's own guidance, to which Mr Southey has referred, suggests otherwise, though it is right that no new directions have been issued to include a reference to Girling.  It is to be noted that in its decision in the present case the Parole Board said no more than that they had taken into account "the matters specified in the Secretary of State's directions".  That would be a strange way to express obedience to a direction.

40.	It seems to me, moreover, that if, as I take to be the case, the Secretary of State in paragraph 4 of the directions meant by the phrase "more than minimal" only that there had to be a real and not merely a fanciful risk, there is nothing objectionable about the content of the direction as an interpretation of section 28(6)(b).  "More than minimal" indicates that a fanciful risk will not suffice.  Nor will it.  The Parole Board is concerned to see whether there is a real, not a fanciful, risk to life and limb posed by the prisoner.  

41.	For all these reasons I would dismiss the claimant's appeal.

Lord Justice McFarlane: 
42.	I agree

Lord Justice Patten: 
43.	I also agree.

Order: 2011/0904 allowed; 2011/0979 dismissed