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England and Wales Court of Appeal (Civil Division) Decisions


You are here: BAILII >> Databases >> England and Wales Court of Appeal (Civil Division) Decisions >> Watson, R (on the application of) v Parole Board [1996] EWCA Civ 1321 (04 March 1996)
URL: http://www.bailii.org/ew/cases/EWCA/Civ/1996/1321.html
Cite as: [1996] WLR 906, [1996] EWCA Civ 1321, [1996] 2 All ER 641, [1997] COD 72, [1996] 1 WLR 906

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BAILII Citation Number: [1996] EWCA Civ 1321

IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE,
QUEEN'S BENCH DIVISION
(CROWN OFFICE LIST)
(MR. JUSTICE POPPLEWELL)
QBCOF 95/1663/D

Royal Courts of Justice
Strand
London WC2
4 March 1996

B e f o r e :

THE MASTER OF THE ROLLS (Sir Thomas Bingham)
LORD JUSTICE ROSE
LORD JUSTICE ROCH

IN THE MATTER OF AN APPLICATION FOR JUDICIAL REVIEW

____________________

R E G I N A
- v -
PAROLE BOARD
Ex parte David Adam Watson

____________________

(Handed down judgment of John Larking Verbatim Reporters, Chancery House, Chancery Lane
London WC2 Tel: 0171 404 7464 Official Shorthand Writers to the Court)

____________________

MR. E FITZGERALD QC (Instructed by Messrs. B M Birnberg & Co. DX57059, Camden Town)
appeared on behalf of the Appellant

MR. S KOVATS (Instructed by The Treasury Solicitor)
appeared on behalf of the Respondent

____________________

HTML VERSION OF JUDGMENT
____________________

Crown Copyright ©

  1. THE MASTER OF THE ROLLS: Mr Watson received a discretionary sentence of life imprisonment. After serving a long term in prison he was released on licence. After just over a year at liberty his licence was revoked and he was recalled to prison.
  2. The Parole Board informally confirmed this recall. Having later considered his case in detail the Parole Board decided not to direct his release and he remains in prison. He obtained leave to challenge the lawfulness of this decision by the Parole Board. His challenge was rejected by Popplewell J.
  3. Mr Watson renews his challenge in this court.
  4. I

  5. Mr Watson is now aged 53. In April 1975 he was convicted on four counts of buggery and five of indecent assault and was sentenced to life imprisonment on each of the counts of buggery and to seven years concurrently on each of the counts of indecent assault. The offences were committed against schoolboys and were accompanied by beatings and other sadistic acts. At the time of these convictions Mr Watson had previous convictions of indecent assault on boys aged nine and thirteen and buggery of a boy aged nine.
  6. On 29 January 1993 the Home Secretary directed Mr Watson's release on licence and he was released on 1 February 1993. He had been in prison (including a period on remand) for over eighteen years. His licence contained terms which required him to place himself under the supervision of a probation officer and to report in accordance with that officer's instructions. In August 1993 he was advised by his solicitor that there was no reason why two young men named James Wilson and Stephen Goodall should not stay with him as his guest. His probation officers, however, were concerned at his association with these young men, one of whom was eighteen and the other (Goodall) seventeen. They were also concerned at reports of contacts between Mr Watson and a fourteen year old boy who had absconded from a children's home. The probation officers had elicited information from Mr Watson about his contacts with this boy, and had also warned him of the inappropriateness of his seeking to establish a parental or supervisory relationship with these young men. Reports were written on 10 and 13 December 1993 recording these concerns. It was decided to seek a report from Dr Mendelson, a consultant forensic psychiatrist.
  7. Dr Mendelson reported in writing on 16 February 1994. In the course of his report he said :
  8. "I am particularly concerned by his refusal to associate with a more age-appropriate group of homosexuals. Instead, he still indulges his interest in young men and is eagerly looking forward to the proposed age reduction of consenting homosexuals. However, he still denies having any sexual fantasies or urges towards young boys. He claims that he is mixing with the youths, as you no doubt heard from his Probation Officer, only to fulfil his needs to care for others. Yet he admits that he finds these dependent relationships somewhat rewarding. They are of course partly reminiscent of his original behaviour surrounding the index offences."

  9. Dr Mendelson referred to a meeting at which he and the probation officer had impressed their concerns on Mr Watson and he expressed a hope (described as "slim") that this might have some influence on him. Dr Mendelson continued :
  10. "I cannot say that David Watson is in imminent danger of reoffending. However, I regret that he is failing to make the progress that either his Probation Officer or I would wish. Moreover, by maintaining his association with youths, he is inevitably going to come into contact with boys and situations of temptation. In his seemingly arrogant way, he will not consider that this is a risk, nor that he need not even take it. I feel that unless he can change his attitude it is likely that he will fall into further trouble. He is of course extremely vulnerable to allegations and I doubt whether the youngsters he chooses to mix with will be that long in discovering the potential to blackmail him. However, he remains confident this will not be the case, despite discussing our frank concerns with him. "

  11. Dr Mendelson believed that Mr Watson had the potential to develop adequately and minimise the risk of re-offending and did not consider that there were grounds for his recall to prison at that time.
  12. At the instigation of the probation officers, Mr Watson's case was referred to the Parole Board who recommended the addition of a further condition to his licence. The Secretary of State on 17 March 1994 accordingly directed that a condition be added that Mr Watson should not entertain at his residence male persons under the age of consent nor engage in any activity involving such persons without the permission of his probation officer. A letter was written to Mr Watson warning him about his future conduct and informing him of this new condition. The letter was handed to Mr Watson on 23 March 1994 and he signed a written copy of the condition. It appears that on being notified of this condition Mr Watson told Goodall to leave his bedsitter in which Goodall had for some time been living, but Mr Watson did not tell the probation officer that Goodall had been doing so.
  13. On the same day, 23 March 1994, Goodall went to Mr Watson's probation officer and made a report. The effect of the report (later recorded in a written statement) was that Mr Watson had asked Goodall to get hold of a gun and had suggested that the two of them should take Wilson to the New Forest, beat him up and kill him. The probation officers were concerned to learn not only the details of this proposed plan but also that Goodall had been living at Mr Watson's address without the knowledge or permission of the probation officer. It was agreed that the Home Office should be informed and that Mr Watson's recall should be recommended. This recommendation was accepted. On 26 March 1994 Mr Watson's licence was revoked by the Home Secretary and he was recalled to prison.
  14. Reasons for his recall were given to Mr Watson in prison in these terms :
  15. "The Secretary of State revoked your life licence on 26 March 1994, under section 39(2) of the Criminal Justice Act 1991.
    This action was taken after evidence was received indicating that you had allegedly suggested that a firearm be obtained on your behalf. It was also alleged at a later date, that you spoke of a plan to attack, and possibly kill a young man.
    These recent developments have followed earlier events and concerns expressed by the Probation Service and Dr Mendelson, which resulted in the conditions of your licence being varied. In addition you have concealed from your supervising officer the fact that you had been cohabiting with a 17 year old boy since January 1994. Having regard to all the circumstances, in particular the offences for which you were sentenced to life imprisonment, the Secretary of State considered that your presence in the community no longer constituted an acceptable risk to the safety of others. For that reason, he decided to immediately revoke your life licence and recall you to prison."

  16. On 30 March 1994 the Parole Board considered and confirmed Mr Watson's recall. Its reasons were :
  17. "1. The pattern of your conduct since release on licence belies the assurances that you gave to the Board and falsifies the belief then held that you could be released without risk to the public.
    2. This conduct has already led to changes in the conditions of your licence and you have received one warning letter on 23 March 1994.
    3. Finally your offering accommodation to a boy of seventeen and hiding this fact from your probation officer makes recall inevitable."

  18. Arrangements were put in train for a formal review of Mr Watson's recall by the Parole Board. For this review, a considerable body of documentary material was placed before the Board, including copies of reports by probation officers, the statement by Goodall, the letter of Dr Mendelson, the Board's recommendation of 30 March 1994, statements by a Governor and Chaplain at Winchester Prison, written representations by and on behalf of Mr Watson, a letter from his solicitors and testimonials to his character. The review took place on 22 July 1994 when Mr Watson was represented by counsel. On 25 July 1994 the Parole Board wrote to Mr Watson giving its reasons for not recommending his release. This letter is of importance and its terms should be quoted in full :
  19. "Discretionary Lifer Panel - 22 July 1994
    1. On 26 March 1994 the Secretary of State revoked your life licence and recalled you to prison. This decision was confirmed by the Parole Board on 30 March 1994. Pursuant to Section 39(4) of the Criminal Justice Act 1991, a panel of the Parole Board convened on 22 July 1994 to consider your representations against recall. The Act requires the Board to direct your release only if it is satisfied that it is no longer necessary for the protection of the public that you be confined. The panel were not so satisfied and have therefore rejected your representations.
    2. The panel carefully considered :-
    (a) your history of offending, in particular your convictions for sexual offences against boys, some of them involving acts of violence ;
    (b) your history whilst in hospital and in prison ;
    (c) the reports and statements in the dossier, excluding the statement of Stephen Goodall which was disregarded by the panel following submissions by your Counsel ;
    (d) your representations and other statements submitted by you ;
    (e) the evidence of Ms Robinson, your Probation Officer ; and
    (f) your evidence and the evidence of Mr Edwards, your legal representative, and the full submissions of your Counsel.
    3. In rejecting your representations against your recall, the panel were wholly convinced, on the totality of the evidence that they heard, that you continue to present a very real risk to the public and that there is a substantial risk that if you were released you would again commit serious sexual offences against males under the age of consent.
    4. The panel accepted and took into account the fact that you have not committed any criminal offence since your release on licence and that there was no condition in your life licence that you should not associate with male persons under the age of consent. Nonetheless, on the evidence, the panel was satisfied that by reason of your association with young men aged 17, with criminal convictions, drug addiction and no settled way of life, you exposed them and young members of the public and yourself to a substantial potential risk. They accepted the contention that you created an undesirable dependency of those youths on you. They took the view that the risk of these associations leading to serious sexual offending was very high. You were not honest and open with your supervising officer. You concealed the extent of your associations from her and then did not heed her advice and warnings that you must associate with more appropriate persons. You accommodated a young person, aged 17, in your room for a period of some months without disclosing this to your supervising officer or seeking her advice.
    5. In coming to their conclusion, the panel took into account all the evidence that they heard, but particularly:-
    (a) your own evidence. You told the panel that the young people with whom you were associating were, during the association, committing criminal offences to feed their drug and alcohol addiction. The panel had no doubt that you had no insight into or understanding of the risks you were running or the reasons why these associations were inappropriate ;
    (b) the evidence of Mrs Robinson, whose evidence they accepted. She told the panel that she did advise you on a number of occasions that you should associate with more age appropriate persons and that you should not associate with criminally orientated youths, but that you ignored this advice and the warnings given to you by her. She said that she had told you that you must have an open and honest relationship with her but that you had concealed from her the extent of your associations and the fact that Stephen Goodall was living in your room with you
    (c) the reports of Dr Mendelson. In his report of 16 February 19 94, Dr Mendelson said that he was particularly concerned with your refusal to associate with more age appropriate homosexuals. You were eagerly looking forward to the proposed reduction in the age of consent for homosexuals. You were failing to make the progress that the Doctor and the Probation Officer would wish. It is right that Dr Mendelson said "I cannot say that David Watson is in imminent danger of reoffending" but he went on to say that by maintaining your association with youths you are inevitably going to come into contact with boys and situations of temptation. Dr Mendelson said that you would not consider that there was a risk and that until you can change your attitude it is likely that you will fall into further trouble. The panel agreed with this view and detected no change of substance in your views. Until there is evidence of change you will continue to be a risk ;
    (d) the statement of Mr Hearn, the Governor V, that you make no secret of your association with young males and that this makes you a risk ; and
    (e) the statement of the Chaplain that it is your stubbornness to do things your way which gives greatest cause for concern.
    5. The panel considered that it is essential that you should receive further assessment and treatment to lead to an understanding and insight into your potential for reoffending, with a view to your eventual release. They recommended to the Secretary of State that on completion of any assessment and treatment that is considered necessary your case should again be reviewed to see whether it is appropriate to transfer you to open conditions.
    6. The decision of the panel not to direct your release is binding upon the Secretary of State. However it is a matter for him to decide whether to accept the recommendations that you undertake further assessment and treatment and that your case be referred back to the Board for a further review upon completion of such treatment."

    II

  20. Section 32 (2) of the Criminal Justice Act 1991 provides :
  21. "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."

  22. The Board is required by section 32(3) to make recommendations on consideration of documents given to it by the Secretary of State and any other oral or written information obtained by it, and it may interview the person to whom the case relates. Section 32(6) requires the Secretary of State, in giving directions to the Board, to have regard in particular to the need to protect the public from serious harm from offenders and the desirability of preventing the commission by them of further offences and of securing their rehabilitation. Section 34 of the 1991 Act so far as material reads :
  23. " (1) A life prisoner is a discretionary life prisoner for the purposes of this Part if -
    (a) his sentence was imposed for a violent or sexual offence the sentence for which is not fixed by law ; and
    (b) the court by which he was sentenced for that offence ordered that this section should apply to him as soon as he had served part of his sentence specified in the order.
    (2) A part of a sentence so specified shall be such part as the court considers appropriate taking into account -
    (a) the seriousness of the offence, or the combination of the offence and other offences associated with it ; and ...
    (3) As soon as, in the case of a discretionary life prisoner -
    (a) he has served the part of his sentence specified in the order ("the relevant part") ; and
    (b) the Board has directed his release under this section,
    it shall be the duty of the Secretary of State to release him on licence.
    (4) The Board shall not give a direction under subsection (3) above with respect to a discretionary life prisoner
    unless -
    (a) the Secretary of State has referred the prisoner's case to the Board ; and
    (b) the Board is satisfied that it is no longer necessary for the protection of the public that the prisoner should be confined.
    (5) A discretionary life prisoner may require the Secretary of State to refer his case to the Board at any time -
    (a) after he has served the relevant part of his sentence ; ...".

  24. Section 37(3) of the 1991 Act provides that where a life prisoner is released on licence, his licence shall unless previously revoked under section 39(1) or (2) remain in force until his death.
  25. Section 39 of the 1991 Act is one of a series of three sections headed " Misbehaviour after release". So far as material it provides :
  26. "(1) If recommended to do so by the Board in the case of a long-term or life prisoner who has been released on licence under this Part, the Secretary of State may revoke his licence and recall him to prison.
    (2) The Secretary of State may revoke the licence of any such person and recall him to prison without a recommendation by the Board, where it appears to him that it is expedient in the public interest to recall that person before such a recommendation is practicable.
    (3) A person recalled to prison under subsection (1) or (2) above -
    (a) may make representations in writing with respect to his recall ; and
    (b) on his return to prison, shall be informed of the reasons for his recall and of his right to make representations.
    (4) The Secretary of State shall refer to the Board -
    (a) the case of a person recalled under subsection (1) above who makes representations under subsection (3) above ; and
    (b) the case of a person recalled under subsection
    (2) above.
    (5) Where on a reference under subsection (4) above the Board -
    (a) directs in the case of a discretionary life prisoner ; ....
    his immediate release on licence under this section, the Secretary of State shall give effect to the direction "

  27. The scheme of these provisions is clear. Once a discretionary life sentence prisoner has served the penal or tariff term of his sentence he may require the Secretary of State to refer his case to the Board and the Secretary of State must do so. If the Board is satisfied that it is no longer necessary for the protection of the public that the prisoner should be confined, it will direct his release and the Secretary of State must then release him on licence.
  28. The recall to prison of a discretionary life sentence prisoner released on licence may be effected in one or other of two ways. If recall is recommended by the Board, the Secretary of State may revoke the prisoner's licence and recall him. If a prisoner so recalled makes representations in writing with respect to his recall, the Secretary of State must refer the case to the Board. Alternatively, the Secretary of State may revoke the prisoner's licence and recall him without a recommendation by the Board if it is expedient in the public interest to do so and it is impracticable to obtain a recommendation. This procedure is plainly appropriate only in cases where there is thought to be urgent need to protect the public. Where it is adopted, the case must be referred to the Board whether representations are made or not. If(whichever recall procedure is adopted and whether a case is referred under subsection (4)(a) or subsection (4)(b) of section 39) the Board directs the immediate release on licence of the discretionary life sentence prisoner, the Secretary of State must give effect to that direction.
  29. In Mr Watson's case the emergency procedure under section 39(2) was followed. His case had to be referred to the Board, but in any event he made written representations.
  30. Since Mr Watson was recalled under section 39(2), there was no statutory obligation on the Secretary of State to consult the Board at that stage or at any time before the reference under section 39(4). But the evidence is that in practice he does so, after recall of the prisoner under section 39(2), and if the Board considers the recall to have been unreasonable the Secretary of State will consider releasing the prisoner. This extra-statutory procedure is recognised in the Parole Board Rules 1992. These prescribe the information and reports which the Secretary of State must serve on the Board and the prisoner on a reference under section 39(4) and there is included :
  31. "The details of any memorandum which the Board considered prior to making its recommendation for recall under section 39(1) of the Act or confirming the Secretary of State's decision to recall under section 39(2) of the Act, including the reasons why the Secretary of State considered it expedient in the public interest to recall that person before it was practicable to obtain a recommendation from the Board."

    III

  32. Mr Watson's first challenge was to the lawfulness of this extra-statutory confirmation of his recall by the Parole Board on 30 March 1994. Mr Fitzgerald QC on his behalf submitted that this procedure compromised the Parole Board's standing as a review body independent of the executive by involving it in the process of recall ; denied Mr Watson any right at that stage to a fair hearing or an opportunity to make representations ; pre-empted or unfairly influenced the review of the Parole Board under section 39(4) ; and gave rise to a real danger of bias within the test laid down in R v Gough [1993] AC 646.
  33. Mr Kovats for the Board pointed out that since, in the absence of an emergency, the Act provided for the Board to recommend recall under section 39(1) and later review the case under section 39(4) there could under the Act (the European Convention apart) be no objection to the less formal involvement of the Board in confirming recall rather than recommending it. But his main answer rested on the substantial merits of the procedure involved. This extra-statutory consultation of the Board at the time of recall, pending review under section 39(4), could only work to the advantage of the prisoner, by giving him a chance of accelerated release ; it could not work to his disadvantage. The Board was not (in contrast to its role under section 39(1)) involved in making a decision to recall, but was merely acting as an extra-statutory watchdog. There was no call for the prisoner to be heard at that stage, since a full hearing, at which the prisoner would enjoy full rights to be heard, would inevitably follow when a prisoner had been recalled under section 39(2). The Board's informal confirmation could not in practice pre-empt or unfairly influence the section 39(4) review, since the members conducting that review would always be different from those giving the earlier confirmation ; and they would appreciate that the confirmation had been provisional and tentative, given on a partial hearing of only one side of the case, without the benefit of the full materials and representations available at the later review. There was no real danger of bias, since those conducting the later review would inevitably form their own judgment on all the materials presented to them.
  34. I do not regard the confirmation procedure adopted here as objectionable. To condemn it could only work to the disadvantage of discretionary life prisoners recalled under section 39(2). It would not make sense to impose the requirements of a full hearing on a step which is clearly intended to be tentative and provisional. I would regard the procedure as objectionable if there were any reason to suppose that those conducting the later review would feel that they could not direct release on licence without appearing to disagree with, or implicitly criticise, those who had earlier confirmed the recall. In my view there is no such reason. No one who reaches a decision on full argument and evidence following a hearing between the parties accuses of error or impliedly criticises the maker of a preliminary decision taken on hearing one party alone. The standing of those conducting the review under section 39(4), under judicial chairmanship, is sufficient guarantee of complete independence and objectivity. The earlier confirmation will be seen as part of the history but in itself of no weight at all. There is in my opinion no danger of bias whatever.
  35. IV

  36. The Board's letter of 25 July 1994, quoted above, makes clear in its first paragraph the test which the Board applied in considering Mr Watson's release under section 39(4) :
  37. "The Act requires the Board to direct your release only if it is satisfied that it is no longer necessary for the protection of the public that you be confined."

  38. This is the test which section 34(4)(b) requires the Board to apply when considering the initial release of a discretionary life sentence prisoner. Is the same test applicable on a review under section 39(4) ?
  39. Mr Fitzgerald strongly argued that it is not. At the stage of considering initial release, he pointed out, a discretionary life prisoner was serving a sentence imposed by a judge who must (to justify passing the sentence) have concluded that the prisoner was likely to be a danger to the public for the foreseeable future. That judgment would stand unless and until displaced. It would be displaced only when the Board concluded under section 34(4) (b) that it was no longer necessary for the protection of the public that the prisoner should be confined. But once that conclusion had been reached and the prisoner had been released on licence, he was substantially (if not technically) at liberty. There was no longer a presumption in favour of continued imprisonment (see R v Parole Board ex parte Lodomez, unreported, 4 May 19 94). Ground had now to be shown for depriving the former prisoner of the freedom he had been held entitled to enjoy. Accordingly, the Board should confine itself to determining the validity of the reasons for recall given by the Home Secretary. Alternatively, the Board should apply a different test : whether it was positively satisfied that recall was necessary to prevent the commission of (in Mr Watson's case) further serious sexual assaults of the kind that had led to the original sentence.
  40. These submissions are not unattractive, and they have the practical justification that if a prisoner has been released because the Board was satisfied under section 34(4) (b), and nothing has changed, it would be absurd and oppressive if, following recall and review under section 39(4), the Board were not to direct immediate release. There must in practice be some relevant new material to justify the Board's reconsideration of the substance of the case. I do not, however, conclude that either of Mr Fitzgerald's arguments is sound.
  41. It would in my view be subversive of the review regime established by the Act if the Board confined itself to reviewing the validity of the Home Secretary's reasons for recall. It is the judgment of the Board as an independent quasi-judicial review body, not the judgment of the Home Secretary as an arm of the executive, which matters. He is a party to the review, and of course his evidence and submissions must be received and weighed. But the Board must make its own mind up, and give its own reasons. It would seriously undermine the integrity of the system if the Board were to defer to the Home Secretary's view unless it were shown to be wrong. It is itself the primary decision-maker.
  42. I find Mr Fitzgerald's alternative argument more persuasive, but I reject it for these reasons :
  43. (1) Even when released on licence, a discretionary life sentence prisoner remains subject to that sentence, passed because of the likelihood of danger to the public.
    (2) By the time the Parole Board conducts its review under section 39(4) the prisoner is back in prison, continuing to serve his sentence.
    (3) Section 39(4) prescribes no statutory test which the Board is to apply. But the Board's function under section 39(5) is almost exactly the same as that under section 34(3), namely to direct (or not) the prisoner's release. In the absence of express statutory provision, it is to be assumed that the same test is applicable.
    (4) In exercising its practical judgment the Board is bound to approach its task under the two sections in the same way, balancing the hardship and injustice of continuing to imprison a man who is unlikely to cause serious injury to the public against the need to protect the public against a man who is not unlikely to cause such injury. In other than a clear case this is bound to be a difficult and very anxious judgment.

  44. But in the final balance the Board is bound to give preponderant weight to the need to protect innocent members of the public against any significant risk of serious injury. This is the test which section 34(4)(b) prescribes, and I think it is equally appropriate under section 39(4).
  45. Had the Board adopted a test more favourable to Mr Watson, it appears from the letter that it would nonetheless have held that test to be met on the facts here. But in my view the Board applied the right test.
  46. V

  47. Thirdly, Mr Fitzgerald challenged the merits of the Board's decision. He pointed out, correctly, that Mr Watson h ad committed no criminal offence and broken no condition of his licence. His association with youths of seventeen and eighteen (it was said) showed no propensity to commit offences against the much younger boys who had been the victims of his original offences. He had done nothing whatsoever to encourage the fourteen year old absconder. No reliance could be placed on the suspicion of intended violence which had prompted Mr Watson's emergency recall.
  48. These are fair points. But they were matters for the Board. It is not for the court to second-guess the judgment of a specialist tribunal. It is evident from the Board's letter that the Board reviewed the case fully, paying regard to the evidence it heard and the submissions it received. Even disregarding, as the Board did, the allegation of intended violence, there was material before it (much of it rehearsed in the letter) which could found a reasonable apprehension of serious injury to members of the public if Mr Watson were released on licence at that time.
  49. I would dismiss the appeal. In my judgment the judge reached the right answer for the right reasons.
  50. LORD JUSTICE ROSE: I gratefully adopt the recital of the facts, issues and submissions in the judgment of the Master of the Rolls.
  51. As to alleged procedural irregularity and bias, it is to be noted that the Home Secretary's consultation of the Parole Board on 30th March 1994 was a step which was potentially in the applicant's interest. It afforded to that independent body an immediate opportunity, which the Home Secretary was not obliged to give at that stage, to advise as to the propriety of his decision to revoke the applicants licence. The advice then given by the Board without, at that urgent stage, having heard representations from the applicant, was that recall was appropriate. The Board's reasons for that view were made known to the applicant, as is apparent from the terms of his letter of 20th May, well before the hearing on 22nd July. There is no allegation or evidence to suggest that the Discretionary Lifer Panel on 22nd July was actually biassed. I am unable to accept that "there was a real danger of bias" (per Lord Goff of Chievely in R v Gough 1993 AC 646 @ 670F). Those who then sat were not the same members of the Board who had considered the matter on 30th March. They were experienced professionals chaired by a judge. The material which they considered was much fuller, and included, for example, reports from the Governor and Chaplain which had not been available in March. The hearing was inter partes. The applicant made representations through counsel. In my judgment, it is impossible in these circumstances to contend that there was any unfairness in the July Panel knowing of the March decision or the reasons for it.
  52. As to the test applied, I see no warrant for the suggestion that a different test should be applied by the Board when reviewing a decision to recall a discretionary lifer under s 39(4) (b) from that applicable when determining whether to direct initial release under s 34 (3) and (4) . In both cases the prisoner is in custody by virtue of a life sentence imposed by the trial judge and the question is whether, having served the tariff part of his sentence, he should continue to be confined. In both cases the need to protect the public is paramount. The only test specified in the Act is in s 34(4) (b) namely "that it is no longer necessary for the protection of the public that the prisoner should be confined". That test is as apt for cases of re-release as for cases of initial release. There is nothing in the English authorities or in the decisions of the European Court of Human Rights to suggest that different tests are appropriate. Accordingly, the judge was right to reject the contention that a different test should be applied in re-release cases.
  53. As to the merits of the decision, there was in my judgment abundant evidence to justify the Panel's conclusion that in 1994 the applicant continued "to present a very real risk to the public" and that his association with youths with criminal connections, drug addiction and no settled way of life created an undesirable dependency of those youths on him so that "the risk of those associations leading to serious sexual offending was very high". An association with such people was established by the applicant's own evidence; it was persisted in, despite advice and warnings from the probation officer, from whom the applicant sought to conceal it; it involved the applicant locking a 17 year old in his premises and visits from others under 16, in the context of the applicant looking forward to a reduction in the age of consent; it displayed a lack of insight on the part of the applicant into the risks he was running and a stubborn refusal to change; and it lead Dr Mendel son, who could not say there was an imminent risk of reoffending, to conclude that, until the applicant changed his attitude, it was likely he would fall into further trouble.
  54. Accordingly and for the other reasons given by the Master of the Rolls, I agree that this appeal should be dismissed.
  55. LORD JUSTICE ROCH: I agree.
  56. The reference by the Secretary of State of his decision to recall the appellant to prison to the Parole Board and the discharge by the Parole Board of their duty under Section 32(2) of the Criminal Justice Act 1991 to advise the Secretary of State does not, in my judgment, render the Parole Board partisan or mean that the Parole Board ceases thereafter in the appellant's case to be an independent body which can exercise a judicial function independent of the executive. Mr Fitzgerald did not go so far as that in argument, because the remedy he was seeking was the quashing of the decision of the 25 July 1994 and a reference of the appellant's case to a different Discretionary Life Panel who would not be informed of the Parole Board's confirmation on the 30 March 1994 of the Secretary of State's decision to recall the appellant to prison or for their reasons for that confirmation. Mr Fitzgerald did not submit that the Parole Board had become incapable with dealing judicially with the appellant's representations against his recall. It is also to be observed that no suggestion was made that the confirmation of the Secretary of State's revocation of the appellant's licence was unreasonable on the material available to the Board or that the reasons the Board gave could be criticised.
  57. Did the fact that the Discretionary Life Panel knew of the Board's decision of the 30 March and the reasons for that decision create a real danger of bias in the panel, although its members were different from those who had acted on the 3 0 March? Again, in my judgment, the answer is "No it did not". The proof is there in the Panel's decision letter. The Panel clearly listened to the submissions of the appellant's counsel and of the appellant and accepted some of them. The Panel excluded the statement of Stephen Goodall, for example. It was not suggested either to this court or to Popplewell J that the Panel had behaved in a biased manner.
  58. Section 39(4) (b) of the 1991 Act placed a duty on the Secretary of State to refer to the Parole Board the case of the appellant. He having been recalled to prison by the Secretary of State under sub-section (2) of that Section. Section 39(5) obliges the Secretary of State to give effect to the Board's direction that a recalled Discretionary Life Prisoner be released immediately on licence. Section 3 9 does not expressly confer on the Parole Board authority to direct the immediate release on licence of a Discretionary Life Prisoner. That authority derives from Section 32 and Section 34(3). It is of considerable importance, in my opinion, that Section 32 (6) enables the Secretary of State to give the Board directions as to the matters to be taken into account by the Board in discharging its functions under Part 2 of the Act (The Early Release of Prisoners). Parliament requires the Secretary of State if he chooses to give such directions to have particular regard to:
  59. " (a) the need to protect the public from serious harm from offenders and
    (b) the desirability of preventing commission by them of further offences and of securing their rehabilitation."

    Section 34(4) provides:

    "The Board shall not give a direction under ss (3) above with respect to a Discretionary Life Prisoner unless ....
    (b) The Board is satisfied that it is no longer necessary for the protection of the public that the prisoner should be confined."

  60. That provision is not repeated in Section 39, in my judgment, because there was no need that it should be repeated. The power of the Board to direct the release of a Discretionary Life Prisoner is a single statutory power which can be exercised at any time after the expiration of the specified part of the sentence, whether the Secretary of State is referring the life prisoner's case to the Board under Section 34(4) or under Section 39(4). The test that the Board has to apply in both situations is the same; that the Board has to be satisfied that further confinement of the prisoner is no longer necessary for the protection of the public. That this is the test in all cases is consistent with the intention of Parliament as manifested in the language of Section 32(6) . The test is justified if the protection of innocent people is to be placed above the personal liberty of one who has been guilty of grave offending and who may still represent a danger to others. In my opinion, it is incontrovertible that Parliament in the Act has manifested an intention to put the protection of the public as the over riding consideration. It follows that in my judgment the Board directed itself correctly as to the test it had to apply.
  61. On Mr Fitzgerald's third submission, that the Board's conclusion was Wednesbury unreasonable I agree with the judgments of my Lords on that issue and would simply refer to paragraph (2) of the Grounds of the Appellant's Notice of Appeal which reads:
  62. "It is submitted that, if the correct test were applied, there was insufficient evidence of renewed dangerousness to justify a recall ......"

  63. That sentence implies first that there was evidence albeit it is said that the evidence was insufficient, and secondly that if the test applied by the Board was the correct test, then the evidence of renewed dangerousness was sufficient.
  64. Appeal dismissed. Legal Aid Taxation. Leave to appeal to the House of Lords refused.


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