Sturnham, R (On the Application Of) v Secretary of State for Justice

The Parole Board’s release test for a prisoner serving imprisonment for public protection is the statutory test in section 28 of the Crime (Sentences) Act 1997. It is not subject to an additional requirement that the Board be satisfied that there is no significant risk of serious harm from further specified offences. The sentencing threshold and the release threshold are different. The Secretary of State may provide general guidance, but cannot determine the legal test governing release. A delay caused by administrative error may breach the right to a speedy review under Article 5.4. Where the prisoner suffers genuine anxiety and distress, a modest award of damages may be necessary to afford just satisfaction.

The claimant was serving an imprisonment for public protection sentence imposed after conviction for manslaughter. His minimum term expired on 19 May 2009. The Parole Board considered his case in April and May 2010, directed transfer to open conditions, but declined to direct release.

He challenged the Board’s decision on three grounds: that it had applied an impermissible gloss to the statutory release test; that its decision was irrational; and that the delay in reviewing his case breached Article 5.4. The central issues were the proper statutory test, the effect of guidance issued by the Secretary of State and the Board, and the appropriate remedy for delay.

1. The claim succeeded only on the delay issue. The statutory challenges to the Board’s release test and the irrationality challenge were rejected.

2. Section 28(6) of the Crime (Sentences) Act 1997 applies the same release test to prisoners serving imprisonment for public protection as to conventional life prisoners. The court would not read into the provision a requirement that the Board be satisfied that there was no significant risk of serious harm from further specified offences.

3. The threshold for imposing an indeterminate sentence is not necessarily the threshold governing continued detention after the minimum term. Following the reasoning in R v Parole Board ex p Bradley [1990] 3 AER 828, the Parole Board applies the statutory test on review, rather than the sentencing judge’s test. The Board must reach the required level of satisfaction from its own inquiries; there is no burden of proof on the prisoner.

4. Girling v Secretary of State for the Home Department [2006] EWCA Civ 1779 established that the Secretary of State could not prescribe the legal principle governing release. However, the Board’s reference to the Secretary of State’s directions was understood as reference to unobjectionable general guidance, not to the impermissible release test in paragraph 4.

5. The Board’s decision was rational. Its assessment of the claimant’s conduct, progress and continuing risks was level-headed and provided a rational basis for transfer to open conditions without release.

6. The administrative failure to provide the dossier in time caused a delay of approximately six months. The claimant’s Article 5.4 right to a speedy review was therefore breached. A declaration was appropriate. Applying section 8 of the Human Rights Act 1998 and the approach in R v Secretary of State for the Home Department ex p Greenfield [2005] UKHL 14, the court awarded £300 for anxiety and distress. The Secretary of State was responsible for the delay and damages, not the Parole Board.

not stated in the judgment.