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England and Wales High Court (Administrative Court) Decisions
You are here: BAILII >> Databases >> England and Wales High Court (Administrative Court) Decisions >> Foley, R (on the application of) v Parole Board for England and Wales & Anor  EWHC 2184 (Admin) (27 July 2012)
Cite as:  EWHC 2184 (Admin),  WLR(D) 241
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QUEEN'S BENCH DIVISION
Strand, London, WC2A 2LL
B e f o r e :
MR JUSTICE TREACY
| R (on the application of Caron Foley)
|- and -
|(1) The Parole Board for England and Wales
(2) The Secretary of State for Justice
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Sam Grodzinski QC (instructed by Treasury Solicitor) for the Defendants
Hearing dates: 15th May 2012
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Mr Justice Treacy :
"The Secretary of State may also give to the Board directions as to matters to be taken into account by it in discharging any functions under [this Part or Chapter II]; and in giving any such directions the Secretary of State shall in particular have regard to – (a) the need to protect the public from serious harm from offenders; and (b) the desirability of preventing the commission by them of further offences and of securing their rehabilitation."
"In deciding whether or not to recommend release on licence, the Parole Board shall consider primarily the risk to the public of a further offence being committed at a time when the prisoner would otherwise be in prison and whether any such risk is acceptable."
"the Board is satisfied that it is no longer necessary for the protection of the public that the prisoner should be confined."
"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 lifer's level of risk to the life and limb of others is considered to be more than minimal."
This is sometimes referred to as "the life and limb test".
"Prohibition of discrimination
The enjoyment of the rights and freedoms set out in this Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with an national minority, property, birth or other status."
The first issue: "other status"
The second issue: objective justification
Objective justification: The Claimant's submissions
"In the present case, the Court notes that the applicant's complaint concerns provisions regulating the early release of prisoners. The decision whether to allow early release is a risk-assessment exercise: Failure to approve early release is not intended to constitute further punishment but to reflect the assessment of those qualified to conduct it that the prisoner in question poses any unacceptable risk upon release…The Court accordingly considers that, insofar as the assessment of the risk posed by a prisoner eligible for early release is concerned, there is no distinction to be drawn between long term prisoners serving less than fifteen years, long term prisoners serving fifteen years or more and life prisoners. The methods of assessing risk and the means of addressing any risk identified are in principle the same for all categories of prisoners."
"In respect of the difference in treatment between prisoners serving determinate sentences of fifteen years or more and those serving indeterminate sentences, the Court observes that the imposition of a determinate sentence rather than an indeterminate sentence would appear to indicate that the individual in question poses a lower, and not a higher, risk upon release. The Court has found that only considerations of risk could justify the imposition of different early release requirements in the present case (see para 74 above). Given the apparently greater risk posed by life prisoners the Court is of the view that a system which imposes on them less stringent conditions for early release while prisoners serving fixed-term sentences of fifteen years or more are subject to more stringent conditions appears to lack any objective justification. In this regard, the requirements of Article 5(4) concerning the right of life prisoners to have their initial release determined by a judicial body cannot provide the justification for treating long-term prisoners less favourably."
Objective justification: The Defendant's submissions
"But the predominant purpose of the sentence will be punitive and the sentence which the Court imposes will represent the period which the Court considers that the Defendant should spend in custody as punishment for the crime or crimes of which he has been convicted."
"Given this in-built delay in the overall release process, ought not that process to start if anything earlier rather than later than in the case of determinate sentence prisoners whose eligibility for parole under statute starts at the half way point of their sentence and who must in any event be released after serving two thirds."
"Thus, thirdly, the sentence passed is not…a simple statement of the period the Defendant must spend in prison. The sentence is in reality a composite package, the legal implications of which are in large measure governed by the sentence passed."
Lord Justice Thomas: