Black, R (on the application of) v Secretary of State for Justice

Under section 35(1) of the Criminal Justice Act 1991, the Secretary of State retains a discretion to reject a Parole Board recommendation for the early release of a long-term determinate prisoner. He must exercise that discretion in each case and may not adopt a policy of never using it. The statutory scheme does not require fresh material before the recommendation may be rejected. The Secretary of State may reach a different rational assessment of public-safety risk from the Parole Board, even on substantially the same material. Article 5(4) of the European Convention on Human Rights applies directly to delay in referring a case to the Parole Board, as decided in R (Johnson) v Secretary of State for the Home Department, but not to the Secretary of State’s involvement in deciding early release in the claimant’s category.

The claimant, a category A prisoner serving a 24-year determinate sentence for serious violent and other offences, challenged the Secretary of State’s refusal to accept a Parole Board recommendation that he be released on licence. The Secretary of State had considered the same material as the Board but reached a different assessment of the risk to public safety.

The claimant argued that article 5(4) required release decisions to be made by the Parole Board, that the Secretary of State was required to accept a favourable recommendation because of the anomaly identified in R (Clift) v Secretary of State for the Home Department, and that rejection was unlawful without fresh material. The central questions were the scope of the Secretary of State’s statutory discretion and whether article 5(4) imposed the proposed limits.

1. Application dismissed. The claimant’s three submissions failed.
2. Article 5(4) did not directly govern the Secretary of State’s involvement in early-release decisions for prisoners serving determinate sentences in the claimant’s category. R v Parole Board, ex parte Giles proceeded on the basis that article 5(4) did not directly apply to determinate sentences. R (Clift) v Secretary of State for the Home Department likewise treated the issue as one engaging article 14, rather than as making the Secretary of State’s involvement unlawful.
3. The ratio of R (Johnson) v Secretary of State for the Home Department was confined to delay in placing an eligible prisoner’s case before the Parole Board. It did not decide that article 5(4) prevented the Secretary of State from exercising the discretion conferred by section 35(1) of the Criminal Justice Act 1991.
4. Section 35(1) conferred an express discretion which the Secretary of State was required to exercise in each case. A policy of never exercising the retained discretion would contradict section 35(1) and the statutory purpose. Section 50 provided the specific and exclusive procedure for transferring functions to the Parole Board; it could not be bypassed by administrative policy.
5. The Secretary of State was entitled to make his own assessment of risk to public safety. The statutory scheme did not require him to review the Parole Board’s recommendation for legal or rational correctness, nor did it require fresh material before rejecting it. He could reach a different rational judgment on substantially the same evidence.
6. Powergen and Danaei were distinguishable. They concerned statutory contexts in which an unsuccessful party sought to reassert an issue already determined by an independent adjudicator. Section 35(1) contemplated separate assessments by the Parole Board and the Secretary of State.

The judgment is a first-instance judicial review decision. Permission was granted by Mitting J on 26 January 2007. The application was dismissed by the Administrative Court.