In re Cummings

An emergency power to recall a life prisoner without a prior Parole Board recommendation is distinct from the Board’s role on the full statutory review. An immediate advisory referral under section 32(2) of Criminal Justice Act 1991 is a provisional check on urgent action. It does not require the Secretary of State to accept the advice. The mandatory formal reference under section 32(4)(b) of Crime (Sentences) Act 1997 remains the mechanism for determining whether the prisoner should be released. Refusal to follow informal advice is not irrational merely because the Board recommends release. Where the Secretary and Board disagree, the formal review should be expedited.

The appellant was a life prisoner who had been released on licence after a murder conviction. Following his wife’s death, concerns about the care of six children led to an emergency protection order and the revocation of his licence under section 32(2) of the Crime (Sentences) Act 1997.

The Secretary of State made an informal referral to the Parole Board under section 32(2) of the Criminal Justice Act 1991. The Board recommended that the appellant return to his licence conditions, but the Secretary of State declined to accept the recommendation and proceeded with the formal review. Sullivan J dismissed the appellant’s habeas corpus application. The appeal concerned whether the informal recommendation was binding, or whether refusal to follow it was irrational.

Appeal dismissed unanimously, with costs. Lord Phillips MR delivered the judgment, with which Simon Brown LJ and Longmore LJ agreed.

1. Statutory scheme. The emergency power in section 32(2) of the Crime (Sentences) Act 1997 permits urgent recall without a prior Parole Board recommendation where immediate action is considered necessary to protect the public. It is distinct from the ordinary route, where the Board considers the material more fully before recommending recall. After emergency recall, section 32(4)(b) requires a formal reference to the Board. The statutory procedure gives the prisoner reasons, an opportunity to make written representations and a hearing with representation under the Parole Board Rules 1997.
2. Effect of informal advice. The Secretary of State’s immediate referral under section 32(2) of the Criminal Justice Act 1991 is an extra-statutory, provisional safeguard. As explained in R v Parole Board ex parte Watson [1996] 1 WLR 906, it is based on limited material and does not replace the later full review. The general statutory duty to obtain the Board’s advice does not make that advice binding. The Secretary of State may reconsider an emergency recall if the Board advises release, but remains legally entitled to maintain the recall pending the formal review.
3. Application and rationality. The Secretary of State’s refusal to accept the informal recommendation was not irrational merely because it differed from the Board’s provisional view. The two-stage procedure rationally reflected the need for urgent protective action followed by a fuller adjudicative process.
4. Expedition. Where the Secretary of State and the Board disagree about the need for emergency recall, the formal hearing should be arranged with the utmost expedition consistent with a fair process.

• Court of Appeal (Civil Division): Dismissed the appeal with costs.
• Queen’s Bench Division (Administrative Court): Sullivan J rejected the appellant’s application for habeas corpus on 3 November 2000.