Poku, R (on the application of) v Secretary of State for Justice & Anor

Changes to statutory early-release arrangements do not alter the sentence imposed by the sentencing judge or interfere with judicial independence merely because they change the period spent in custody or on licence. The sentencing judge marks relative culpability through the custodial sentence imposed, while the executive gives effect to the applicable release regime.

The Parole Board’s task is confined to assessing whether the prisoner presents an acceptable risk to the public, including the risk of reoffending. It must not take account of an extraneous comparison with a co-defendant’s release under legislation that does not apply to the prisoner under review. Consistent application of different statutory regimes does not itself create legal unfairness requiring a remedy.

The claimant received a 12-year sentence for serious drug trafficking offences. His co-defendants received sentences of 10 and 14 years. Amendments made by section 26 of the Criminal Justice and Immigration Act 2008 meant that the 14-year prisoner was automatically released at the halfway point, while the claimant remained subject to the earlier regime and required a favourable Parole Board recommendation for release at that stage.

The claimant sought judicial review of refusals by the Parole Board and the Secretary of State to reconsider his case. He argued that the change in the relationship between the sentences breached Article 6 of the European Convention on Human Rights and that fairness required the Parole Board to take his co-defendant’s release into account.

1. Claim dismissed. The amendments to the early-release provisions did not interfere with the sentencing judge’s independence or re-determine the claimant’s sentence. The judge could only mark relative culpability through the length of the custodial sentences imposed. The actual period served was necessarily uncertain because release depended on the statutory regime, Parole Board decisions, disciplinary additions and possible compassionate release.
2. The early-release provisions formed part of the composite punishment package, as recognised in R (West) v Parole Board [2005] 1 WLR 350, but they did not form part of the judicial exercise of marking relative culpability. The claimant’s sentence remained unchanged. There was therefore no breach of Article 6.
3. The Parole Board’s statutory role was to decide whether the individual prisoner posed an acceptable risk to the public. Under the Secretary of State’s directions pursuant to section 32(6) of the Criminal Justice Act 1991, “acceptable” qualified risk, and risk concerned the possibility of reoffending. The relationship between the claimant’s sentence and a co-defendant’s sentence was irrelevant to that assessment.
4. Taking the co-defendant’s automatic release into account would introduce an extraneous matter and would be unlawful. The Parole Board’s refusal to grant an exceptional review was therefore an accurate statement of its duty and was not objectionable.
5. The claimant had not shown legally actionable unfairness. Parliament had pursued legitimate objectives through amendments applied consistently to prisoners within their scope, while prisoners outside that scope continued to be treated consistently under the regime applicable to them.