R (on the application of Sturnham) v The Parole Board of England and Wales and another (No 2)

The statutory test for releasing a prisoner serving imprisonment for public protection differs substantively from the test governing the sentence’s imposition. After expiry of the tariff, the Parole Board must apply Crime (Sentences) Act 1997, section 28(6)(b), and decide whether confinement remains necessary for public protection.

The Board is not confined to asking whether the original significant risk of serious harm from further specified offences persists. It may consider any continuing risk to life or limb against which detention is necessary. The release threshold may therefore be lower than the risk threshold for imposing the sentence. Courts and the Board should apply the statutory language directly, without numerical definitions of risk or alternative paraphrases.

The appellant received an indeterminate sentence of imprisonment for public protection after being convicted of manslaughter. His tariff expired in May 2009. Following a delayed review, the Parole Board declined to direct release but recommended transfer to open conditions. He challenged the Board’s decision by judicial review.

Mitting J dismissed the challenge in [2011] EWHC 938 (Admin). The Court of Appeal dismissed the appeal in [2012] EWCA Civ 452; [2012] 3 WLR 476. The appellant was subsequently released on licence, but the appeal retained general importance.

The Supreme Court considered whether the release test under section 28(6)(b) of the Crime (Sentences) Act 1997 was substantively identical to the dangerousness test governing imposition of the sentence under section 225(1)(b) of the Criminal Justice Act 2003. It also considered whether the Board had applied an unlawful direction requiring risk to be no more than minimal.

1. Permission to appeal granted; appeal unanimously dismissed on both grounds. Lord Mance delivered the judgment, with which Lord Neuberger, Lord Sumption, Lord Reed and Lord Carnwath agreed.

2. The imposition and release tests are substantively different. Under section 225(1)(b) of the Criminal Justice Act 2003, imposition required the sentencing court to find a significant risk of serious harm through further specified offences. Under section 28(6)(b) of the Crime (Sentences) Act 1997, release required the Parole Board to be satisfied that confinement was no longer necessary for public protection. The provisions differ both in their wording and their default positions.

3. Parliament incorporated imprisonment for public protection into the established release regime for life sentences. It must therefore have intended the existing release test to apply, although that test differed from the threshold for imposing an indeterminate sentence. There is no incongruity in requiring a high initial threshold for imposition but permitting continued detention on the basis of a somewhat lower risk after the tariff.

4. The release inquiry is not confined to the risk identified at sentencing or to further offences listed in Schedule 15. The schedule was designed for imposition of the sentence, not release. The relevant question is whether a continuing risk to life or limb, including non-violent rape, makes confinement necessary for public protection.

5. Risk should not be translated into mathematical probabilities. Nor should the statutory release test be replaced with expressions such as “substantial risk” or “more than minimal risk”. Decision-makers should concentrate on the enacted language and assess all relevant circumstances.

6. The differing thresholds were compatible with the European Convention on Human Rights. A sufficient connection remained between detention and the statutory objective of public protection. The Convention did not require identical minimum levels of risk at sentencing and release.

7. The appellant did not establish that the Board had acted on the Secretary of State’s unlawful “no more than minimal” direction. The decisions below were therefore upheld on that issue. The court declined to formulate any closer paraphrase of section 28(6)(b).

1. United Kingdom Supreme Court: Permission to appeal was granted, but the appeal was unanimously dismissed on both grounds in [2013] UKSC 47.
2. Court of Appeal: The appeal from Mitting J was dismissed in [2012] EWCA Civ 452; [2012] 3 WLR 476.
3. High Court, Administrative Court: Mitting J dismissed the challenge to the Parole Board’s release decision in [2011] EWHC 938 (Admin).