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Public law and Regulation

Case reports and guidance on public law and professional regulation issues

15 APR 2015

Hall and Koselka v Parole Board of England and Wales [2015] EWHC 252 (Admin); (2015) PLLR 019

Prisons – Criminal justice – Imprisonment for Public Protection – LASPO – Arbitrary detention

The claimants were serving sentences under the imprisonment for public protection system, which, since their conviction, has been replaced with a more lenient regime under the Legal Aid, Sentencing and Punishment of Offenders Act 2012. The claimants sought review of the Parole Board’s decisions not to release them on licence. The claim was dismissed. The Parole Board, exercising its wide discretion, was permitted to make an assessment of the risk posed to the public by the claimants and require their further detention, and were able to do that without cutting across any of the claimants’ ECHR rights.

13 February 2015

Administrative Court

Mrs Justice Similer DBE
1.The claimants (K and H) were serving sentences of imprisonment for public protection (IPP). The Parole Board refused to release them on licence. H and K sought judicial review of the Parole Board’s refusals.
2.K was given a minimum sentence of two years and five months. He had been detained for two years and three months beyond this minimum term. H was given a minimum sentence of two-and-a-half years. He had been detained for six years and two months beyond this minimum term. Both K and H had been transferred for ‘open’ conditions but, on account of certain incidents, returned. The assessments before the Parole Board indicated they posed a risk to the public.
3.The IPP sentence was removed under section 123 of the Legal Aid, Sentencing and Punishment of Offenders Act 2012 (LASPO) and replaced with a more generous regime. This occurred during the time of K and H’s detention. The regime enacted under LASPO was prospective.
4.The Parole Board, in determining whether K and H ought to be released, operated under the test set out in section 28 of the Crime (Sentences) Act 1997. That is to say, the Parole Board made their assessment by asking whether K and H’s detention remained necessary for the protection of the public. The relevant Guidance suggested attention ought to be directed to risk.

5.The questions before the court were whether the Parole Board had been required to:
(i)consider the fact that the IPP sentence had been replaced;
(ii)consider factors pertaining the private and family life of an applicant, that would point in favour of release on licence, under Article 8 ECHR;
(iii)provide guidance to panel members relating to the necessity of increasing scrutiny linked to the increasing period of the detention and compliance with ECHR; and
(iv)find that H’s on-going detention in particular had become severely disproportionate and a violation of his human rights.

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6.The claim was dismissed.
7.First, it was held that it did not follow from the requirement of the increasingly intense scrutiny linked to an increasing period of detention that the threshold for release would change as time went on. What was required was a risk assessment. This does not require a balancing of interests. Even if a prisoner convicted under the pre-LASPO regime lead the existence of an ‘other status’ for the purpose of a discrimination argument under Article 14, it could not be found that the claimants were in an analogous situation to those prisoners convicted post-LASPO, as the different treatment could be explained by reference to the fact the 2012 Act came into force later and did not contain provisions furnishing the reopening of previous sentences. LASPO did not alter the sentence originally imposed and the Parole Board, in its review, could not be said that the Parole Board had to consider the LASPO reforms as a mandatory relevant consideration.
8.Second, the test to be applied under section 28 was consideration of the risk upon potential release. In that assessment, factors relating to the prisoner’s family and private life are only relevant so far as they go to the assessment of risk. It was not necessary for the Parole Board to balance public protection against other interests. Under the pre-LASPO regime, section 30 of the 1997 Act allowed for release of a prisoner on compassionate grounds in exceptional circumstance, it therefore provided for a regime in which factors relevant to Article 8 could be properly taken into account.
9.Third, the Guidance was adequate and its direction towards the risk assessment was appropriate. The test contained within section 28 was to be applied and, it follows, any factor relevant to that consideration would be a relevant consideration. The test under section 28 also provided a satisfactory safeguard against the possibility of arbitrary detention.
10.Fourth, the judge who handed down the original sentence had expressed that H’s release would be determined by public safety, ie. H would only be released when it was considered safe to do so. The possibility of post-minimum-term detention being longer than the minimum term itself was an inevitable result under the IPP system. The on-going detention of H did not violate Article 3. The threshold under Article 3 is a high one and would only be met in situations where a sentence was grossly disproportionate. In terms of Article 5, H’s detention was aligned with the objective statutory regime, namely protecting the public. H was subject to frequent reviews, a move to ‘open’ conditions, and offers of courses which could aid rehabilitation. The Parole Board had wide discretion and was able to conclude that H posed enough of a risk to justify his continued detention.

Key paragraphs
[38]-[39], [41]-[43], [49]-[50] – Effect of change in statutory regime.
[57]-[58], [61], [63] – Article 8 and risk assessment under the pre-LASPO regime.
[65]-[67] – Adequacy of the Guidance.
[71]-[75], [77] – Discussion of the potential arbitrariness of H’s sentence.