Brooke & Ors , R (on the application of) v The Parole Board & Anor

A body which determines whether continued imprisonment is lawful must be, and appear to be, independent of both the executive and the parties. This requirement applies to the Parole Board when exercising its judicial release functions under Article 5(4) of the European Convention on Human Rights and at common law.

Departmental sponsorship is not inherently incompatible with that independence. It becomes incompatible where the sponsoring Minister or department seeks to influence release criteria or outcomes, controls judicial procedure through funding, or maintains arrangements which objectively identify the Board with offender management. Directions under section 239(6) of the Criminal Justice Act 2003 may give guidance on legally relevant matters, but cannot prescribe or restate the statutory release test.

The Lord Chancellor and Secretary of State appealed against declarations made on 7 September 2007 by Hughes LJ and Treacy J in the Divisional Court. The declarations stated that the Parole Board lacked the objective independence required by common law and Article 5(4) of the European Convention on Human Rights.

The respondents were prisoners whose release, re-release or future release depended on decisions of the Board. The Secretary of State was a party to those decisions through the preparation of dossiers and, in some cases, the expression of a view on release. The Board adopted a neutral stance.

The appeal concerned whether the Board's sponsorship by the responsible department, together with arrangements for directions, appointments, tenure and funding, created actual or apparent executive influence over its judicial functions.

1. Appeal dismissed. The Divisional Court was entitled to declare that the Board did not demonstrate the independence required by common law and Article 5(4) when performing its judicial functions.

2. The Board is not a conventional adversarial court. Nevertheless, when it decides whether continuing detention is lawful, it determines a question of liberty and must be independent of the executive and of the parties. The Secretary of State's role in preparing material and expressing a view did not permit executive influence over the Board's assessment.

3. The statutory public-protection inquiry does not require detention until all risk of reoffending has disappeared. The Board must decide whether the risk to the public outweighs the hardship of detaining a prisoner after the punitive part of the sentence has been served.

4. Following R (Girling) v Parole Board [2006] EWCA Civ 1779, the power to give directions under section 239(6) of the Criminal Justice Act 2003 was confined to guidance about legally relevant matters. It did not permit the Secretary of State to prescribe the test for release or direct how the Board should conduct its risk assessment.

5. The Minister's attempt to procure appointments intended to change release outcomes, and the use of funding to restrict interviews which the Board considered valuable, were improper encroachments. A short renewable term was not itself objectionable, but a general power to terminate an appointment for unsatisfactory performance lacked the safeguards required for independence. Termination required good cause and a fair process.

6. Sponsorship of an executive non-departmental public body was not intrinsically incompatible with independence. The existing arrangements were defective because the sponsoring unit was responsible for offender management and prepared material subject to the Board's judicial appraisal. The Ministry had to place the Board so that its independence from that unit was manifest. The court did not prescribe the precise institutional solution.

• Court of Appeal (Civil Division) — dismissed the Secretary of State's appeal and upheld the Divisional Court's declarations: [2008] EWCA Civ 29 .
• Divisional Court — on 7 September 2007, declared that the Parole Board did not meet the common-law and Article 5(4) requirements of objective independence from the executive and the parties. It granted permission to appeal.