Hayes, R (on the application of) v Secretary Of State For Home Department

Permission to appeal may properly be granted where a mandatory life sentence prisoner raises an arguable legitimate-expectation issue about whether the Parole Board considered release, particularly where the issue was not addressed below and clarification is important. The available material did not disclose what the Secretary of State had asked the Board to consider. The scope of the Board’s consideration therefore required clarification. A life sentence prisoner is entitled to as much certainty as can be achieved regarding release. The court made no determination on the substantive statutory issue.

The applicant was a mandatory life sentence prisoner whose tariff had expired. He sought judicial review of a Parole Board decision recommending release to open conditions. Mr David Pannick QC, sitting as a deputy judge of the High Court, dismissed the application on 11 September 2001.

The proposed appeal concerned whether the recommendation was authorised by Crime (Sentences) Act 1997, section 29, and Criminal Justice Act 1991, section 32. The applicant also argued that he had a legitimate expectation that his position regarding release would be considered by the Board. The central issue for permission was whether that argument, which had apparently not been considered below, required determination on appeal.

Lord Justice Latham granted permission to appeal and ordered expedition.

1. The court could not determine from the material provided what request the Secretary of State had made to the Parole Board under section 29 of the Crime (Sentences) Act 1997. It was therefore unknown whether the Board had considered the applicant’s release on the face of the documents.
2. The applicant’s contention that, as a mandatory life sentence prisoner whose tariff had expired, he had at least a legitimate expectation that his position regarding release would be considered by the Board in April was arguable. The argument did not appear to have been considered by the deputy judge.
3. Clarification of the applicant’s position was important. A person serving a life sentence was entitled to as much certainty as could be achieved about release. Granting permission could assist that clarification and would not hinder it, even if subsequent events overtook the appeal.
4. The statutory argument had been the principal focus below, concerning section 29 of the Crime (Sentences) Act 1997 and section 32 of the Criminal Justice Act 1991. The Court of Appeal did not decide the meaning or application of either provision at this stage.
5. The formal order was: permission to appeal granted; expedition ordered; the case to be listed for two hours; and Form 86 to be redrafted.

• Court of Appeal (Civil Division): Permission to appeal granted against the dismissal of the judicial review application. Expedition was ordered.
• Administrative Court: Mr David Pannick QC, sitting as a deputy High Court judge, dismissed the application for judicial review on 11 September 2001.