Girling v Secretary of State for the Home Department & Anor

A statutory power enabling a minister to give directions to an independent tribunal must be construed consistently with the tribunal’s judicial role. Under section 32(6) of the Criminal Justice Act 1991, the Secretary of State may give general guidance about legally relevant matters that may assist the Parole Board’s structured decision-making. He may not prescribe the legal test, require the Board to reach a result, or require it to take account of irrelevant matters.

The Board remains responsible for applying the statutory release test and for deciding the relevance and weight of evidence in each case. Directions requiring consideration of potentially relevant matters, where relevant and available, do not compromise its independence.

Girling v Secretary of State for the Home Department concerned a life prisoner whose application for judicial review challenged the Parole Board’s refusal in October 2004 to direct his release. Paul Walker J dismissed the challenges based on the prisoner’s health and release plan, but declared that section 32(6) of the Criminal Justice Act 1991 did not apply to the Board’s judicial functions: [2005] EWHC 546 (Admin); [2006] 1 WLR 1917.

The Secretary of State appealed that declaration. The prisoner had died after permission to appeal was granted and no representative of his estate was identified. The central issue was whether section 32(6) permitted directions to the Board when it exercised its judicial function of deciding a life prisoner’s release.

1. The Secretary of State’s appeal was allowed. The declaration that section 32(6) of the Criminal Justice Act 1991 did not apply to the Parole Board’s judicial functions was set aside.
2. When deciding whether to direct the release of a life prisoner under section 28(6) of the Crime (Sentences) Act 1997, the Board exercises a judicial function. It is the decision-maker, while the Secretary of State is a party to the review. The Board is a court for article 5.4 purposes and must be independent of the executive.
3. That independence does not require section 32(6) to be confined to the Board’s non-judicial functions. In context, “directions” means general guidance about matters which may lawfully be taken into account. The provision does not authorise mandatory instructions as to the legal test, the outcome of a case or class of cases, or the consideration of legally irrelevant matters.
4. The Board must itself apply the statutory test and assess the relevance and weight of evidence. Directions requiring it to consider identified matters where relevant and available are lawful. The 2004 directions in paragraphs 5 to 7 were therefore unobjectionable. The court added, without deciding the point necessary to the appeal, that the Secretary of State should not restate the statutory release test in paragraph 4; the Board should determine the governing principles from the law and parties’ submissions.
5. The court exercised its discretion to determine the Secretary of State’s otherwise academic appeal because the declaration raised an issue of general importance. It declined to entertain Mr Girling’s own appeal, since no representative advanced it and the remaining issues either concerned him personally or were not live.

1. Court of Appeal (Civil Division): allowed the Secretary of State’s appeal and set aside the declaration concerning section 32(6) of the Criminal Justice Act 1991; declined to entertain Mr Girling’s appeal: [2006] EWCA Civ 1779.
2. High Court, Administrative Court: Paul Walker J dismissed the claimant’s challenges concerning health and release planning, but declared that section 32(6) should not apply to the Parole Board’s judicial functions: [2005] EWHC 546 (Admin); [2006] 1 WLR 1917.