Girling v Parole Board & Anor

A Parole Board assessing post-tariff detention must decide whether continued confinement remains necessary for public protection. A release plan may be relevant, but is not universally a precondition to release. The Secretary of State may control access to the Board at reasonable intervals, provided the Convention right to review remains effective. However, section 32(6) of the Criminal Justice Act 1991 does not authorise directions governing the Board’s judicial functions. An innocuous error in applying such directions did not invalidate the decision or breach Article 5.4.

The claimant, a post-tariff mandatory life prisoner, challenged the Parole Board’s refusal to direct his release. He alleged that the Board had failed to account properly for his serious illness, had unlawfully treated a release plan as essential, and lacked the independence required by Article 5.4 because the Secretary of State controlled referrals and issued directions about its decision-making.

The court considered the Board’s functions under section 28 of the Crime (Sentences) Act 1997, as amended, and the scope of section 32(6) of the Criminal Justice Act 1991. The central issues were whether the Board’s assessment and the statutory gateway complied with domestic law and Article 5.4, and what consequence followed from the directions.

1. Medical evidence. The Board had considered the claimant’s deteriorating health. The evidence did not establish that his identified risk factors had been removed or reduced so that he posed no risk to life or limb. There was no duty to adjourn to seek further evidence where the claimant had known of the concerns and had not produced evidence addressing them (para [17]).
2. Release plan. R v Parole Board ex parte Robinson showed that a release plan need not be a precondition in every case. In this case, however, the Board’s reference to a suitable release plan was directed to the claimant’s unresolved risk factors and was lawful. Direction 7(b), properly read, required consideration of an existing plan or release address; it did not impose a universal requirement that either must exist (paras [51]-[58]).
3. Access and independence. Article 5.4 permits administrative control of referral intervals, provided the State makes the review right effective. Sections 28(6) and 28(7) of the Crime (Sentences) Act 1997 secured access through a legal duty to refer at reasonable intervals, in any event within two years of the last Board determination. Judicial review supplied an effective remedy if the gateway remained closed unlawfully (paras [62]-[66]).
4. Directions and judicial functions. The Secretary of State’s gateway role differed fundamentally from directions governing how the Board decided cases. Section 32(6) of the Criminal Justice Act 1991 was confined to non-judicial functions. The directions therefore had no statutory application to the Board’s section 28 functions. That was a domestic-law error, but the directions were innocuous, caused no detriment, and did not vitiate the decision or breach Article 5.4 (paras [67]-[82]).
5. Orders. The court declared that section 32(6) should be construed not to apply to the Board’s judicial functions. The claim was otherwise dismissed, with no order as to costs. Permission to appeal was refused (para [83]).

First-instance judicial review in the High Court (Administrative Court). The claim was dismissed in all respects other than the declaration concerning the proper construction of section 32(6) of the Criminal Justice Act 1991. Permission to appeal was refused.