Pilgrim, R (on the application of) v Parole Board & Anor

Parole for a determinate-sentence prisoner is governed by the statutory discretion applicable to that sentence. The decision-maker may take into account the risk of further offending; refusal is not confined to cases involving a risk to life and limb. The statutory regime for life prisoners is materially different because life imprisonment may exceed the sentence otherwise proportionate to the offence. Parliament therefore prescribed a distinct release test for life prisoners, and guidance reflecting that distinction is lawful.

The claimant was serving a 12-year determinate sentence for importing heroin. The Parole Board refused to recommend release after considering his progress, risk assessments, breach of temporary leave and need for further testing in open conditions.

He sought judicial review of the Secretary of State’s directions under Criminal Justice Act 2003, section 239. He argued that determinate-sentence prisoners should be subject to the same release test as life prisoners: whether confinement remained necessary for public protection because the risk to life and limb was more than minimal. The issue was whether the directions unlawfully permitted consideration of the risk of further offending.

1. Claim dismissed. Section 35 of the Criminal Justice Act 1991 gave the Secretary of State, and subsequently the Parole Board, an unfettered discretion concerning release on licence after a determinate-sentence prisoner had served half the sentence. A risk of further offending was a proper matter to take into account unless Parliament had excluded it.
2. Section 239(6) of the Criminal Justice Act 2003 expressly required the Secretary of State, when giving directions, to have regard to the desirability of preventing further offences. The directions’ focus on the risk of a further offence during the period when the prisoner could otherwise remain in custody was therefore lawful.
3. The release framework for life prisoners was different. Under section 28(6)(b) of the Crime (Sentences) Act 1997, release depended on whether continued confinement remained necessary for public protection. That reflected the special nature of a life sentence, which could require imprisonment beyond the punishment proportionate to the offence because of dangerousness.
4. There was no basis for importing the life-prisoner test into determinate-sentence cases. The possibility that a life prisoner might obtain release despite an intention to commit non-violent offences did not alter the clear statutory distinction. The directions accorded with the different statutory provisions and were lawful.