CO/2315/2005 
Neutral Citation Number: [2005] EWHC 2508 (Admin)
IN THE HIGH COURT OF JUSTICE 
QUEEN'S BENCH DIVISION  
THE ADMINISTRATIVE COURT 
Royal Courts of Justice 
Strand
London WC2 

Wednesday, 26 October 2005
 
B E F O R E:

MR JUSTICE SULLIVAN 

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THE QUEEN ON THE APPLICATION OF DAVID JAMES MILLS
(CLAIMANT)

-v- 

(1) SECRETARY OF STATE FOR THE HOME DEPARTMENT

(2) THE PAROLE BOARD 

(DEFENDANTS) 
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Computer-Aided Transcript of the Stenograph Notes of 
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MS FLO KRAUSE (instructed by Scott-Moncrieff, Harbour & Sinclair) appeared on behalf of the CLAIMANT
MR DANIEL STILITZ (instructed by Treasury Solicitor) appeared on behalf of the DEFENDANT
 
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J U D G M E N T 

1.	MR JUSTICE SULLIVAN:  This is an application for judicial review of two decisions: firstly, a decision of the Parole Board contained in a decision letter dated 6 January 2005 not to advise the Secretary of State as to the claimant's suitability for open prison conditions; and secondly, a decision by the Secretary of State, contained in a letter dated 7 April 2005, refusing the claimant's request to refer the case back to the Board with a request that it consider the claimant's suitability for open conditions.  
2.	The challenge to the second decision is parasitic upon the challenge to the first.  If the first decision was lawful, the Secretary of State was perfectly entitled not to ask the Board to look at the matter again.  On the other hand, if the first decision was legally flawed, then the Secretary of State should, all other things being equal, have re-referred the matter to the Board so that it could proceed to make a lawful decision.  Was the first decision unlawful?
3.	The background to the case is sufficiently set out in the Board's decision letter dated 6 January 2005, which was addressed to the claimant. 
"3.  You were convicted on 13 June 1979 of murder and were ordered to be detained during her Majesty's pleasure.  You were only 15 years old at the date of the offence and 16 when you were sentenced.  The index offence involved stabbing a man when you were in drink during the course of a robbery.  You had previous convictions for dishonesty and one offence of assault occasioning actual bodily harm.  
4.  On 24 September 1990 you were released on life licence.  You had a drink problem and found difficulty in coping with the pressure of life on licence.  Your life licence was revoked on 14 October 1992 following a number of driving offences when in drink.  The record also shows that you have also absconded on three occasions and have had a number of adjudications for drug abuse.  
5.  On 28 April 2003 you were released on life licence to Carpenter House probation hostel without first being moved into open conditions, pursuant to the recommendations of the prison psychologist and your probation officer.  Within four months you were arrested for driving with excess alcohol, no insurance and no driving licence.  In December 2003 you moved away from Carpenter House and into independent accommodation.  
6.  On 25 December 2003 you were arrested again for drink related motoring sentences.  Sentence was   adjourned until January 2004, but you failed to attend court and remained at large until June 2004.  From the start of the year you lost contact with your supervising officer and your lifestyle began to breakdown.  You had been taking heroin and crack cocaine because you were having difficulty adjusting to the open community.  In August 2004 you were reported as having a sense of relief at being back in custody as you wished to deal with problems which undermined your last licence period.  Risk factors were again identified as drug and alcohol abuse, violence, poor judgment and decision making."
4.	Pausing there, the reference to the Board under section 32(4) of the Crime (Sentences) Act 1997, dated 28 September 2004, stated that the Secretary of State had revoked the claimant's life licence on 18 June 2004.  So far as relevant for present purposes, the reference to the Board said: 
"The case is now referred to the Parole Board in accordance with section 32(4) of the Crime (Sentences) Act 1997, to consider whether or not to recommend immediate release on life licence under section 32(5) of the 1997 Act ... 
If the Board does not recommend immediate release it should advise on the continuing areas of risk that need to be addressed.  
In any event the Board should note that it is not being asked to comment on or make any recommendation about;
 (i) the security classification of a closed prison in which the prisoner may be detained; 
 (ii) any specific treatment needs or offending behaviour work required;
 (iii) the date of the next review."  
A number of documents were attached, including the Secretary of State's reasons for recall.  Returning to the Parole Board's letter, paragraphs 7 to 9 were in these terms.  
"7.  On the positive side, the panel accepts that your behaviour in closed conditions is good and your motivation to address risk areas appears to be greater now that it was on the last recall.  Nevertheless, the panel confirms that your recall was necessary and appropriate.  Having carefully considered your representations the panel were unable to direct your release.  If you were released there is too high a risk that there would be a breakdown of supervision and a return to a lifestyle including drug and alcohol abuse which were factors in the index offence and remain a risk to life and limb.  
8.  Further work is necessary to address your problems with alcohol, your susceptibility to adverse influences, your understanding and acceptance of supervision, your decision making and lifestyle.  
9.  While you did not challenge the appropriateness of your recall following the offences in December 2003, The panel was invited to recommend that you carry out any further work in open conditions.  Although that approach was supported by the prison psychologist and probation officer, the panel do not feel it appropriate to make any specific recommendation at this stage, and the Secretary of State did not ask for such a recommendation in the terms of referral."
5.	The detailed statement of grounds filed in support of the application for permission to apply for judicial review contended that it was "implicit" within the referral that the Board would give consideration to the claimant's suitability for transfer to open conditions, or, at the very least, that there was nothing in the referral which precluded the Board from expressing a view about that matter, so that the Board had misunderstood the ambit of its powers.  Reference was made to the practice of the Board and the Secretary of State in section 28 cases where the latter does, in practice, ask the former for advice as to a lifer's suitability for open conditions.  
6.	Reliance was also placed on a letter from the Secretary of State dated 17 January 2005 as indicating that the Secretary of State had expected that the Board would make a recommendation.  The letter is addressed to the claimant.  It states that the matter was referred to the Parole Board under section 32(4) of the 1997 Act, and continues: 
"The Parole Board did not direct your immediate release on life licence under section 32(5) of the 1997 Act for the reasons in their letter to you dated 6 January 2005, nor did they recommend a transfer to open conditions.  
In the circumstances the Secretary of State has no authority to release you.  He has decided that your next review by the Parole Board will be in DECEMBER 2005.  This will enable you to work on your cognitive skills and alcohol abuse."
7.	In granting permission, Ouseley J observed: 
"I have real doubts about the arguability of the case, but there are issues as to the power of the Parole Board and what the Secretary of State expects from it on the reference under section 32 which make it appropriate for permission to be given." 
8.	On face of it, the letter dated 17 January 2005 might have suggested an administrative Catch 22.  The Secretary of State did not ask the Board for any advice as to the claimant's suitability for transfer to open conditions so the Board made no recommendation in that respect.  The Secretary of State then proceeded to rely upon the fact that the Board had not made such a recommendation.  
9.	After permission to apply for judicial review had been granted, the defendants filed detailed grounds supported by witness statements.  In a witness statement filed on behalf of the Secretary of State, Mr Smith, whose responsibilities in the lifer review and recall section of the National Offender Management Service included consideration of Parole Board recommendations for the release or transfer to open conditions of prisoners serving life sentences, said in paragraphs 3 and 4 of his witness statement: 
"3.  My understanding is that Rule 20 of the Parole Board Rules 2004 precludes the Board from deciding matters, which have not been referred to it by the Secretary of State.  No request was made in the Secretary of State's memorandum to consider a recommendation of transfer to open conditions so that, as I understand the position, the Board had no power to issue a decision containing such a recommendation, and no such recommendation was made.  
4.  The decision of the Secretary of State not to refer the question of a transfer to open conditions was made in the light of the claimant's history of serious misconduct.  For the purpose of the hearing of this case on 30 December, a document entitled 'Secretary of State's View' was issued ... This sets out the Secretary of State's views on the case and the serious misconduct as outlined in that document which, I maintain, rendered a transfer to open conditions an unrealistic proposition.  In summary, the Secretary of State's view was that the claimant was effectively unmanageable and would not comply with supervision, further, that he had been given every opportunity of addressing concerns related to his case but had failed to heed those concerns ..." 
10.	Rule 20, referred to by Mr Smith, is in these terms:  
"The panel’s decision determining a case shall be recorded in writing with reasons, signed by the chair of the panel, and provided in writing to the parties not more than 7 days after the end of the hearing; the recorded decision with reasons shall only make reference to matters which the Secretary of State has referred to the Board."
11.	Although Ms Krause, on behalf of the claimant, submitted that there was nothing in the reference to the Board dated 28 September 2004 to prevent the Board from giving advice about the claimant's suitability for open conditions, that, with respect, misses the point.  The Board is a creature of statute.  Its powers to direct or advise are triggered by references made to it by the Secretary of State.  Although the various enactments permitting or requiring the Secretary of State to make references to the Board do not expressly state that the Board's response to those references must be confined within the terms of the reference, such a limit upon the powers of a statutory body would normally be inferred as a matter of ordinary statutory construction.  As a creature of statute, the Board is not free to go off on a frolic of its own and give the Secretary of State the benefit of its unsolicited advice.  
12.	The matter is put beyond doubt by the terms of Rule 20 when considered in the context of the overall statutory framework conferring powers and duties upon the Board.  The question is not whether a reference by the Secretary of State expressly prohibits the Board from giving advice about a particular matter, but whether a particular matter has been referred to the Board for it to give advice or, in appropriate circumstances, to make a direction.  
13.	The reference dated 28 September 2004 did not ask the Board to give the Secretary of State advice on the suitability of the claimant for open conditions.  This may be contrasted with the standard form of referral under section 28 of the 1997 Act.  This requires the Board to consider whether or not it would be appropriate to direct the prisoner's release, but continues: 
"If the Board does not consider it appropriate to direct release, it is invited to advise the Secretary of State regarding- 
(i) whether the prisoner should be transferred to open conditions (if detained in closed conditions).  If the Board makes such a recommendation it is invited to comment upon the degree of risk involved ..."
14.	Ms Krause drew attention in her skeleton argument to the similarity between sub-sections 28(5) and (6) and sub-sections 32(4) and (5).  It is unnecessary for present purposes to set out the terms of those enactments.  It is true that they are similar and that neither gives the Secretary of State power to ask the Board for advice as to the suitability of a prisoner for open conditions.  However, section 32(2) of the Criminal Justice Act 1991 does give the Secretary of State power to ask the Board for such advice:  
"(2) It shall be the duty of the Board 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."
15.	In my judgment, the position is clear.  First, the Secretary of State has power to ask for advice as to the suitability of a prisoner for open conditions under section 32(2) of the 1991 Act.  Secondly, when he wishes to ask the Board for such advice, he does so in terms.  Thirdly, when he does so, the Board is under a duty to give him advice about that matter, and fourthly, Regulation 20 enables it to give reasons for that advice.  
16.	There is unfortunately a lack of evidence as to the practice of the Secretary of State in section 32 cases.  Mr Stilitz told me upon instructions that there were circumstances in which the Board did make recommendations in respect of a prisoner's suitability for open conditions in references under section 32.  Setting aside those cases where the advice is given accidentally: for example, because the wrong forms are used, it would appear that there are cases under section 32 where the Secretary of State, either during the course of the hearing or in advance of the hearing, does invite the Board to make a recommendation as to suitability for open conditions.  In so doing, the Secretary of State would be invoking the power conferred upon him by virtue of section 32(2) of the 1991 Act.  
17.	However, it is clear that the Secretary of State has a discretion as to whether or not to seek such advice under section 32(2).  He decided not to seek such advice in the present case for the reasons given in Mr Smith's witness statement.  While I appreciate that the claimant might disagree with those reasons, it is impossible to say that the decision not to seek the Board's advice in the circumstances of this particular case was irrational.  Since no advice was sought, the Board was perfectly entitled, indeed bound, to decline the invitation made by those representing the claimant at the hearing to express a view about his suitability for open conditions.  
18.	It would appear from the Board's decision letter that it did not simply say that it had no power to make such a recommendation because it had not been asked to do so by the Secretary of State and refuse to entertain any submissions about the matter, rather it was prepared to listen to submissions made on behalf of the claimant.  It cannot be criticised for that.  But having done so, it concluded that it was "not appropriate to make any specific recommendation at this stage".  
19.	In short, there were two reasons why the panel made no recommendation.  Firstly, it did not think it appropriate to do so; and secondly the Secretary of State had not asked it to do so.  Even if the panel had had power to make a recommendation, the claimant would still have had to surmount the hurdle of the panel's view that it was not appropriate to make a recommendation.  Ms Krause criticised that element of the decision letter upon the basis that the reasons given were inadequate.  I disagree.  
20.	At the very highest, the claimant's case is this: notwithstanding the terms of Rule 20, the panel was not precluded from expressing a view about his suitability for open conditions.  For the reasons set out above, I do not accept the premise.  Rule 20 did preclude the panel from expressing such a view.  But on the assumption that that is wrong, the panel simply had power, if it wished, to go further than was strictly necessary.  In those circumstances, elaborate reasons for declining to do so were not necessary.  It was quite sufficient for the panel to say that it did not think it appropriate to go further than was necessary.  It was not required, in those circumstances, to give reasons for reasons.  
21.	For these reasons, I am satisfied that the Board's decision of 6 January 2005 was lawful.  The lawfulness of that decision is not affected by the terms of the letter dated 17 January 2005.  In truth, there is no Catch 22.  Now that the evidence is available, it is plain that the Secretary of State was not relying on the fact that the panel had made no recommendation, but was simply noting it as a fact.  The basis of the Secretary of State's decision was that he had not sought the panel's advice about that issue.  That was a decision which, for the reasons set out above, he was lawfully entitled to take.  For these reasons, this application must be dismissed.
22.	For the sake of completeness, I should add that, even if I had thought that there was substance in the complaint now that the matter has been clarified by evidence from the Secretary of State, I would have hesitated long and hard about granting any relief because it will be remembered that the letter of 17 January 2005 had stated that the next review by the Parole Board will be in December 2005.  On the basis that that timetable is adhered to, there would have been little practical purpose that could have been served by granting any relief in any event. 
23.	MS KRAUSE:  My Lord, may I raise just a couple of matters.  The first one is if I could have detailed assessment of the claimant's costs.
24.	MR JUSTICE SULLIVAN:  You may.
25.	MS KRAUSE:  I am obliged.  The second one is also that the action was brought to clarify the interplay between the sections and the powers between the Secretary of State and the Parole Board (inaudible) of when the next review will be because (inaudible) section 28 review, so he will be considered for suitability of transfer then.  The final matter is this, I wonder if I can urge your Lordship to treat the evidence which was received today orally with caution as to what the practice is, simply because we have not seen an alternative letter of reference, saying: well, if you do not consider release appropriate, please advise me as to open conditions.  The reason I say this is it is not my experience that there is such a letter.
26.	MR JUSTICE SULLIVAN:  Forgive me, Ms Krause, that is why I deliberately said that Mr Stilitz told me upon instruction.  I did actually start off by saying that the state of the evidence about it was not really satisfactory, or words to that effect.  That will all be in the judgment.  In other words, I think that sufficiently protects your position in any other case.
27.	MS KRAUSE:  Indeed.
28.	MR JUSTICE SULLIVAN:  -- because it is said in terms.  I in fact was taking on board your comments about the weight to be given to what counsel says upon instructions -- any counsel, not just Mr Stilitz I emphasise.  Right, any more for any more? 
29.	MS KRAUSE:  No, my Lord.
30.	MR JUSTICE SULLIVAN:  Thank you both, very much.