Hirst v Parole Board & Anor

In deciding whether to release a discretionary life prisoner, the Parole Board must address the proper construction of Crime (Sentences) Act 1997, section 28(6)(b), including whether that provision places any burden of proof on either party. The evaluation of future risk may make the language of burden of proof inappropriate, but factual findings may still be required. If the Board considers that the provision places the burden on the prisoner, it must construe the provision compatibly with section 3 of the Human Rights Act 1998 where necessary. The Board may avoid determining the issue only if it is satisfied that the outcome would be the same whichever approach applies. A panel which expressly adopts a burden on the prisoner acts in a manner capable of making the prisoner a victim for Convention purposes, even without an adverse release decision.

The applicant, a discretionary life prisoner convicted of manslaughter, sought judicial review concerning the approach which the Parole Board’s Discretionary Lifer Panel would take when reconsidering his release after expiry of his tariff. He argued that, under Article 5 of the Convention, the Secretary of State should bear the burden of showing that continued detention was justified. The Board’s Secretariat had stated that the prisoner had to show that the risk was sufficiently low for release.

Mr Justice Moses dismissed the judicial review claim on the basis that the applicant was not then a victim under section 7 of the Human Rights Act 1998. The Court of Appeal considered whether permission should be granted and whether the issue should first be addressed by the Panel at its imminent hearing.

1. Application dismissed. The court refused permission to appeal against the Administrative Court’s decision.
2. The applicant’s argument was at least arguable: section 28(6)(b) might impose a burden of proof on the prisoner, and that might be incompatible with Article 5(1)(a) read with Article 5(4).
3. The Board’s letter expressing its view was not itself an act. However, if the Panel expressly construed section 28(6)(b) as placing a burden of proof on the applicant, that would be an act. The applicant could be regarded as a victim because that approach would increase the chance that release would be refused; an adverse decision on the merits was not required.
4. There were three possible approaches: no burden of proof, a burden on the Minister, or a burden on the prisoner. Since section 28(6)(b) concerns evaluation of future risk, the concept of burden of proof might be inapt, although factual findings could arise in reaching the evaluation.
5. The Panel should determine the construction issue in the concrete case, unless it was manifestly satisfied that the result would be the same whichever approach applied. If the ordinary meaning of the provision imposed a burden on the prisoner, the Panel would have to interpret it compatibly with section 3 of the Human Rights Act 1998.
6. Lord Justice Keene agreed that the Panel should either determine the burden issue or state expressly that it was unnecessary because of its factual findings. It should not remain silent if the issue was raised.

• Court of Appeal (Civil Division): The application for permission to appeal was dismissed. [2002] EWCA Civ 1329
• Administrative Court: Mr Justice Moses dismissed the application for judicial review on 31 May 2002 and refused permission to appeal.