Parole board's recall of prisoner was lawful

LAW REPORT v 22 November 1995

Regina v Parole Board, ex parte Watson; Queen's Bench Division (Mr Justice Popplewell); 16 October 1995

The test to be applied by the parole board when considering whether to release a life prisoner on licence after recall was the same as the test that applied when it considered the prisoner's initial release, namely, whether it was satisfied it was no longer necessary for the protection of the public that the prisoner be confined.

Mr Justice Popplewell dismissed an application by David Watson for judicial review of the parole board's decision not to order his immediate release on licence.

In 1975 the applicant was convicted of four offences of buggery and five offences of indecent assault on schoolboys and sentenced to life imprisonment and seven years concurrent. In 1993 he was released on licence. In 1994 his probation officer expressed concern about the applicant, who was associating with young men. The Home Secretary recommended the applicant's recall to prison and the parole board, without hearing representations from the applicant, confirmed that decision.

At a hearing before the board's discretionary lifer panel, the parole board's confirmation was made known. The panel considered representations from the applicant. It took the view that the risk of his association with young men aged 17 with criminal convictions, drug addiction and no settled way of life leading to serious sexual offending was very high. It was not satisfied that it was no longer necessary for the protection of the public that the applicant be confined. It refused to direct the applicant's release.

The applicant applied for judicial review of the decision on the grounds, among others, that the panel's procedure was irregular in that the fact that the parole board had earlier confirmed the recall was made known to the panel, and that the panel applied the wrong test in that when judging the appropriateness of recall under section 39 of the Criminal Justice Act 1991 the panel must consider whether the applicant's re-detention was positively justified and must not apply the test, under section 34 for cases for initial release, that the applicant's continued detention was no longer necessary.

Edward Fitzgerald QC (B.M. Birnberg & Co) for the applicant; Steven Kovats (Treasury Solicitor) for the Home Secretary.

Mr Justice Popplewell said that the statutory provisions were designed to give effect to the decision in Thynne v United Kingdom (1990) 13 EHRR 666, which was to the effect that a judicial body independent of the executive must determine the merits of continuing detention on grounds of dangerousness after the completion of a discretionary lifer's tariff [the period to satisfy the requirements of deterrence and retribution] and that the merits of any redetention after conditional release must likewise be reviewed by an independent judicial body.

His lordship was unpersuaded that the panel's decision was in any way affected by the fact that some previous body associated with the parole board had confirmed the applicant's recall. Having considered section 39(1) and (2), Parliament considered that a parole board's recommendation on recall was not a bar in any way to the subsequent hearing by a parole board of the merits. The panel which heard the full hearing would in every case be aware that there must have been a recommendation either before recall or sanctioning the recall.

Section 39 laid down no criteria for recall. The Home Secretary contended that the criteria adopted - namely, the Act required the board to direct release only if it was satisfied it was no longer necessary for the protection of the public that the applicant be confined - was the correct test and that there was no good policy reason why the test should be different from that for initial release since in each case it was a question of whether a prisoner who had served the tariff period of his sentence should be confined.

The clear conclusion was that the test to be applied by the board was that which it had in fact applied, and the suggested test that the board had to come to a positive decision that the applicant presented a high risk of committing further offences had no validity.

There was ample material on which the board applying the test that it did could properly come to the conclusion that the recall was justified. The application was dismissed.

Ying Hui Tan, Barrister