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

Section 32(2) of the Criminal Justice Act 1991 gives the Parole Board broad power to advise on any matter referred by the Secretary of State that is connected with the early release or recall of prisoners. That includes a mandatory life prisoner’s suitability for open conditions, because transfer to open conditions is closely connected with possible release on life licence. An appeal concerning earlier Parole Board decisions will not be determined where subsequent events have rendered those decisions academic.

The claimant, a mandatory life prisoner, challenged the Secretary of State’s reference of his case to the Parole Board and a later decision to await further drug testing before acting on the Board’s recommendation. He argued that the reference should have required consideration of release on life licence, rather than suitability for open conditions, and that the wrong statutory power had been used.

Mr David Pannick QC, sitting as a Deputy High Court Judge, dismissed the judicial review claim on 11 September 2001. By the time of the appeal, the claimant had been transferred to open conditions, failed further tests and absconded. The central issues were the scope of section 32(2) and whether the appeal remained justiciable.

1. Appeal dismissed. The claimant’s subsequent absconding meant that the earlier determinations of the Parole Board had become entirely academic. It was therefore improper to give further consideration to the challenge to what the Board had previously been asked to determine.
2. The Court of Appeal also considered the appeal hopeless on its substantive basis. The formal reference made to the Parole Board on 21 March 2001 had fully referred the case in accordance with the statutory provisions.
3. Section 32(2) of the Criminal Justice Act 1991 is drafted in broad terms. It empowers the Parole Board to advise the Secretary of State on any matter referred to it that is connected with the early release or recall of prisoners. The power therefore extends to advice on a mandatory life prisoner’s suitability for transfer to open conditions. Such suitability is plainly closely connected with the possibility of future release on life licence.
4. The claimant’s arguments that the Secretary of State had failed to ensure consideration of release and had used the wrong statutory power consequently provided no basis for relief. Lord Justice Mantell and Sir Swinton Thomas agreed with Lord Justice Kennedy. The appeal was dismissed, with the stated costs directions.

• Court of Appeal (Civil Division): Appeal dismissed; the earlier Parole Board decisions were academic following the claimant’s absconding, and the statutory reference was in any event sufficient. [2002] EWCA Civ 439.
• High Court: Mr David Pannick QC, sitting as a Deputy High Court Judge, dismissed the judicial review application on 11 September 2001.