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The test to be applied when determining whether a prisoner serving a sentence of imprisonment for public protection should be recommended for release was not the same test as was to be applied by the sentencing judge in determining whether to impose such a sentence.
3 July 2013
Lord Neuberger (President), Lord Mance, Lord Sumption, Lord Reed and Lord Carnwath
(1) The appellant (S) was subject to a sentence of imprisonment for public protection (IPP) under section 225(1)(b) of the Criminal Justice Act 2003 (the 2003 Act). He was imprisoned in 2007 with a tariff which would expire in 2009. In 2010 the respondent (PB) found that S still presented a low risk of re-offending and a medium risk of serious harm, and declined to release him but recommended his transfer to Category D conditions. The test for imposition of a sentence of IPP was that the court was of ‘the opinion that there is a significant risk to members of the public of serious harm occasioned by the commission... of further specified offences.' The test for release was that PB was ‘satisfied that it is no longer necessary for the protection of the public that the prisoner should be confined.'
(2) S challenged the decision of PB on the basis that the test for release from a sentence of IPP should be the same as that applied for its imposition; and that even if the test is a different one, PB applied the wrong one in determining S's application.
(3) Lord Mance held: that S's primary submission had been that the test of ‘significant risk to members of the public' differed from that of ‘no longer necessary for the protection of the public'. However, the Divisional Court in R v Parole Board ex p Bradley  1 WLR 134 should not have applied a test of mathematical probability when assessing whether an individual was likely to offend in the future; the formulation ‘good grounds for believing that the offender may remain a serious danger to the public for a period which cannot be reliably estimated at the date of sentence' was to be preferred (Attorney General's Reference No 32 of 1996 (R v Whittaker)  1 Cr App R(S) 261 considered). Further, it was no correct to equate ‘substantial risk' with more than a minimal risk. It was preferable to look at the statutory language, rather than attempt to paraphrase it. The distinction between the tests for discretionary life sentences and for IPP seemed to depend upon the seriousness of the offences actually committed, rather than the potential for risk; the threshold criterion of dangerousness was the same in each case. Nothing in the statutory language suggested otherwise. It was implicit in considering a discretionary life sentence that the judge would have to assess future risk; that IPP sentences were placed in the same framework suggested that this was intended here too. It was not unrealistic for a judge to carry out this exercise for an uncertain period, even if that period might continue after the expiry of the tariff (R v Smith (Nicholas)  UKSC 37 doubted). The authorities cited to suggest that the test of imposition and for release from a sentence of IPP were the same were wrong (R (Bayliss) v Parole Board  EWHC 3127 (Admin); R v Pedley  EWCA Crim 840; R (on the application of Wells) v Parole Board  EWCA Civ 30 considered). The two tests were substantially different. The test for release followed that for release from discretionary and mandatory life sentences. The drafters must have been aware of the line of authority on these tests and accepted the distinction between the test for imposition and the test for release. The test for release did not make reference for the risk threshold required to justify imposition of the sentence. This was because the sentence itself would provide protection from risk during the tariff period, and at release the question was whether detention after the expiry of that period was necessary to achieve protection. There was nothing inconsistent about imposing a high threshold of risk for the imposition of the sentence but a lower one for release. This approach was well-established and would be known to someone facing any kind of life or IPP sentence. Further, the reference to risk of the commission of specified offences was a trigger for the imposition of a sentence of IPP but was clearly not part of the test for release, which looked at a more general level of risk. Following S's argument to its logical conclusion would have the effect of permitting a prisoner serving a life sentence to be released where the risk they posed was not at the same level as justified the sentence initially, but was still at a level which would justify a sentence of IPP  - .
(4) That nothing in the European Convention on Human Rights required the statutory language to be read differently. The cases referred to did not consider whether the minimum level of risk required to impose and maintain detention had to be identical. There was no reason why this should be the case  - .
(5) The question of whether PB had applied the correct test had barely been addressed before the Supreme Court. It would not be appropriate for the court to attempt to define the statutory language used  - .
 -  - Introduction
 -  - The factual background
 -  - The legislation
 -  - The case law background
 -  - The first ground
 -  - Second ground
 - Conclusion
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