Mills, R (on the application of) v Secretary of State for the Home Department & Anor

A statutory body may exercise only powers triggered by a reference made within the scope authorised by statute. The Parole Board’s response to a reference under the Crime (Sentences) Act 1997 must be confined to matters referred by the Secretary of State. Rule 20 of the Parole Board Rules 2004 confirms that its recorded decision may refer only to those matters.

The Secretary of State has a discretion under section 32(2) of the Criminal Justice Act 1991 to seek advice on suitability for open conditions. Unless that advice is sought, the Board is entitled, and may be required, to decline to make a recommendation on the issue. A decision not to seek such advice was not irrational on the facts.

The claimant sought judicial review of the Parole Board’s decision not to advise on his suitability for open prison conditions and of the Secretary of State’s refusal to refer that issue back to the Board.

The claimant had been recalled from release on life licence. The Secretary of State’s reference under section 32(4) of the Crime (Sentences) Act 1997 asked the Board to consider immediate release and continuing areas of risk, but did not request advice on open conditions. The central issue was whether the Board nevertheless had power to make such a recommendation and whether the Secretary of State was obliged to seek it.

1. The application was dismissed. The Parole Board’s decision of 6 January 2005 was lawful, and the Secretary of State was entitled not to re-refer the issue.
2. The Board is a creature of statute. Its powers to direct release or give advice are triggered by references from the Secretary of State. Although the relevant enactments do not expressly state that the Board’s response must be confined to the reference, that limitation follows from ordinary statutory construction.
3. Rule 20 of the Parole Board Rules 2004 makes the position clear: the Board’s recorded decision and reasons may refer only to matters referred by the Secretary of State. The question is whether the matter was referred, not whether the reference expressly prohibited the Board from addressing it.
4. The reference under section 32(4) of the Crime (Sentences) Act 1997 did not request advice on suitability for open conditions. The similarity between sections 28(5) and (6) and sections 32(4) and (5) did not alter that conclusion.
5. Section 32(2) of the Criminal Justice Act 1991 gives the Secretary of State power to ask the Board for advice on any matter connected with early release or recall. That power is discretionary. Where the Secretary of State invokes it, the Board must advise on the referred matter and may give reasons under Rule 20.
6. The Secretary of State lawfully decided not to seek advice on open conditions, having regard to the claimant’s history of serious misconduct. The Board was therefore entitled, and indeed bound, to decline the invitation made at the hearing to express a view on that issue.
7. Even if the Board had possessed power to make the recommendation, its view that it was inappropriate to do so was adequately expressed. It was not required to give reasons for declining to go beyond what was necessary.
8. The Secretary of State’s later letter did not create an administrative Catch 22. It recorded that no recommendation had been made; the decision rested on the fact that advice had not been sought. The claimant’s costs were subject to detailed assessment.