Abstract
This origins of this case are highly dependent upon its facts, however, the resulting issues in the case were ones of legal principle. On 31 July 2002, the Claimant was convicted of murder and sentenced to the mandatory life sentence. His minimum term was set at 18 years, which expired in September 2019. Prior to the expiry of his minimum term, the Claimant was transferred to HMP Hollesley Bay open prison in December 2017. Upon the expiry of his minimum term, the Claimant became eligible for regular reviews of his continued detention by the Parole Board (the Defendant).
On 26 March 2020, a Parole Board hearing was held to consider the Claimant’s continued detention. As a result of the coronavirus pandemic, this was conducted by telephone. The panel considering the Claimant’s case were tending towards directing his release and therefore adjourned the hearing for an up to date and complete Risk Management Plan from his Community Offender Manager, with the expectation that, upon receipt, a decision could be made on the papers without the need to formally reconvene. On 5 May 2020, the Risk Management Plan was considered by the panel, and, on 11 May 2020, the panel chair emailed the case manager with the panel’s reasoned decision directing the Claimant’s release. The email was sent at 08:51. At 10:24 on 11 May 2020 (approximately 90 minutes after the reasoned decision had been provided), the case manager was informed that the Claimant had been returned to a closed prison because of an allegation made on 9 May 2020 that items had been passed to him in the prison car park (‘the incident’).
On 12 May 2020, the panel chair made directions for further reports dealing with the return to closed conditions. These directions, however, were never actioned following the intervention of the Defendant’s legal advisor who, on 12 June 2020, concluded that the email of 08:51 on 11 May 2020 rendered the Defendant functus officio and therefore the panel chair had no power to reopen the decision to release the Claimant. On 18 June 2020, the Defendant issued the panel’s reasoned decision to release.
On 9 July 2020, the Secretary of State for Justice (‘SSJ’) (an Interested Party in the case) applied for a reconsideration of the decision to release the Claimant (pursuant to Parole Board Rules 2019, r 28 (‘the PBR’)). The SSJ asserted that the decision to release the Claimant was irrational and/or procedurally unfair (PBR, rr 28(1)(a) and (b)) because the panel had failed to consider the incident of 9 May 2020. The reconsideration application was granted by HHJ Topolski QC. He concluded that the Parole Board had not been rendered functus officio when the panel had made its decision (on 11 May 2020 at 08:51) but, rather, when it had communicated its decision to the parties (18 June 2020). The result was that the decision not to consider the incident was a mistake of law which rendered the decision to release irrational.
The Claimant issued judicial review proceedings on 10 November 2020 on two grounds. First, upon the scope of the reconsideration mechanism, whereby reconsideration based upon a mistake of law was not within the scope of that which could be reconsidered (only irrational or procedurally unfair decisions could be considered, see PBR, rr 28(1)(a) and (b)). Second, whether the decision was based upon the legally erroneous conclusion that the Defendant was not functus officio. Permission to apply for judicial review was granted by Saini J.
Rule 28(1) provides for the reconsideration of cases on the grounds that the decision is irrational (r 28(1)(a)) or procedurally unfair (r 28(1)(b)). However, reconsideration is only possible where: a panel has decided on the papers that a prisoner is suitable or unsuitable to be released (under r 19(1)(a) or (b)); or a panel has decided that a prisoner is suitable or unsuitable to be released on the papers after an oral hearing had been directed under r 19(1)(c) (under r 21(7)); or a panel has decided that a prisoner is suitable or unsuitable to be released following consideration at an oral hearing (under r 25(1)). A prisoner’s case is eligible for reconsideration if they are one serving an indeterminate sentence, an extended sentence, or determinate sentence if their initial release is subject to a Parole Board direction (r 28(2)).
The Parole Board is said to be functus officio once they have carried out (or completed) the referral made to them by the SSJ under, for example, the Crime (Sentences) Act 1997, s 28, or the Criminal Justice Act 2003, s 239. One question in this case was when the referral was deemed to have been carried out or completed.
Commentary
In considering, and granting, the reconsideration application of the SSJ, HHJ Topolski QC was of the view that the Defendant was not functus officio until 18 June 2020 (the date of communication of the panel’s decision to all parties). This conclusion allowed him, as a next step, to consider the substance of the application relating to the incident as it occurred before the Defendant was functus. His conclusion was the panel had been irrational in not considering it. Though I have not had sight of this decision, and only parts of it are referred to in Stacey J’s judgment, it seems that even from a most basic reading that HHJ Topolski QC was stretching the meanings of illegality and irrationality and almost combining them into a single concept whereby the failure of the panel to consider the incident was a mistake of law which meant that the decision to release was irrational. There are several initial issues with this conclusion. The most obvious, originating from the above facts, is that the incident was not reported to the panel until after the decision had been made therefore how could they have been expected to consider what was otherwise ‘highly relevant’ material (at [27]) when it did not exist at the time of the decision. If material, whether highly relevant or not, is provided after a decision is made, it does not affect the rationality of the initial decision as the panel had considered (as far as they knew) all available relevant information when deciding to release. A second initial issue is that the case appears unnecessarily circular due to HHJ Topolski’s approach whereby ‘…all of the problems stemmed from the panel’s conclusion that it was functus which, on his analysis would be an error of law’ and the failure to take into account the incident was ‘…inextricably bound up with, part and parcel if you like, of the functus decision’ (at [38]).
To determine whether the Defendant is functus one must differentiate between the judicial element and the administrative elements involved. The need for there to be two elements is to bridge the ‘gap’ between the panel and the prisoner and the administrative elements should not be mistaken for the judicial element. In normal judicial proceedings, there is no gap to bridge as the judge can communicate with the parties in the case directly in that by handing down the judgment in open court to which the parties can be (and usually are) present. As a result of this direct communication, no administrative element is required. The absence of direct communication between the panel and the prisoner requires administrative steps to be taken to facilitate an indirect communication. These steps are the panel making the decision, the case manager receiving the decision and, finally, the case manager communicating the decision to the parties. The first step is judicial and the second and third steps are administrative. By way of comparison, if the Parole Board sat like any other court, the receiving and communicating steps would not be necessary. Functus occurs at the completion of the judicial element and not at the completion of any administrative elements. In this case, the judicial element had been completed at 08:51 on 11 May 2020, at that point the Defendant was functus officio (at [63]).
HHJ Topolski QC had concluded that the Defendant was not functus officio and therefore completed the reconsideration process under r 28. The question was whether he ought to have done so at all? Stacey J held that he ought to have not, even though he ‘…was straining to do so’ (at [49]). This conclusion seems almost self-explanatory when one considers the nature of the question of whether a decision maker is functus at all. Functus ‘…is purely binary and a question of law…’ (at [42]), it is irrelevant as to what material, however highly relevant it may be, could or should have been considered. The PBR state that a decision can only be reconsidered on the ground of irrationality or procedural unfairness (PBR, r 28(1)), not on the ground of illegality. Though an effort was made in the Ministry of Justice consultation on the reconsideration process (prompted by the decision in R (DSD) v Parole Board [2018] EWHC 694 (Admin)) to mirror the three traditional bases for judicial review, this did not however make its way into the PBR as enacted by Parliament (at [25]). This oversight may, in due course, find its way into an amended version of the PBR.
As a prison lawyer, I asked myself whether the SSJ could have done something else to achieve his objective (assuming the objective was to keep the Claimant in custody until such time as the incident had been investigated)? The SSJ could have informed the Defendant more promptly than they did. This, though, may be unfair to the SSJ as the Claimant was returned to closed conditions following an incident ‘…in the early evening of Saturday 9 May 2020…’ (at [5]). Had the SSJ informed the Defendant on that day (or the next day Sunday), the case manager may (or may not) have had time to email the panel before they sent their decision at 08:51 on Monday morning. In the event, the Defendant was not informed by the SSJ until 10:24 on Monday morning. Alternatively, the SSJ could have held back the information from the Parole Board until after a decision had been made and thereby ‘hedging its bets’. If the panel did not release the Claimant, he could have been returned to closed conditions with the potential of a fresh referral to the Defendant to consider the incident. If the panel did release (as they did), the Claimant could have been recalled to custody due to the alleged incident coming to light. Neither of these options would have been advisable and would have been fair to the Claimant. Finally, recall was not an option for something which predated the release decision, a person cannot breach a licence that had not been issued. The inescapable conclusion reached is that the Claimant had to be released and the SSJ was the victim of his own rules: something which will, no doubt, not be the case for long.