Bayliss v The Parole Board of England & Wales

Where an indeterminate sentence for public protection is later quashed because its statutory conditions were not met, it remains arguable that post-tariff detention was arbitrary under Article 5 of the European Convention on Human Rights. Quashing the sentence does not necessarily mean that it was a nullity from the outset.

The Parole Board’s task after such a sentence is imposed is to apply the statutory release criteria and decide whether continued confinement remains necessary for public protection. It need not refer expressly to every factor considered, provided material matters were before it and were taken into account.

The claimant received an imprisonment for public protection sentence under section 225 of the Criminal Justice Act 2003, with a two-year minimum term. After the tariff expired, the Parole Board declined to release him or transfer him to open conditions.

The Court of Appeal (Criminal Division) later quashed the sentence and substituted a determinate term. Following his release, the claimant’s judicial review claim was restricted to damages for allegedly unlawful or arbitrary detention. A deputy High Court judge dismissed the renewed application for permission. The central issue was whether post-tariff detention could be arbitrary where the sentence authorising it had subsequently been quashed.

1. Permission on ground 1. The appeal was arguable only on whether the claimant’s post-tariff detention had been arbitrary under Article 5. The fact that the imprisonment for public protection sentence was quashed did not necessarily mean that it had never existed for legal purposes. An excessive sentence may nevertheless be a lawful sentence. R (on the application of Daniel Modhej and Scott Smith v Secretary of State for Justice [2012] EWCA Civ 957 supported treating a successful sentence appeal as replacing, rather than nullifying, the original sentence.
2. The separate Article 5 question remained open. Under James v United Kingdom [2013] 56 EHRR 12, compliance with national law was insufficient if detention was arbitrary. It was arguable that, where the statutory foundation for an indeterminate sentence was absent because its criteria were not satisfied, the causal link between the sentencing order and post-tariff detention might be broken. The court noted that the approach to arbitrariness might receive further consideration in R (on the application of) Faisal Kaiyam and Anr [2013] EWCA Civ 1587.
3. Grounds 3 and 4 were unarguable. Once an imprisonment for public protection sentence had been imposed, the Parole Board’s role was to apply section 28(6) of the Crime Sentences Act 1997 and decide whether continued confinement remained necessary to protect the public. The Board had given cogent reasons based on the claimant’s driving-related offending and the risk of serious harm.
4. Grounds 5 and 6 were also unarguable. There was no evidence of an unpublished policy. The claimant’s family circumstances and relationship with his daughter were before the Board and were relevant insofar as they informed the statutory risk assessment. The Board was not required to set out every factor considered.
5. Ground 2 was not resolved. The Secretary of State was joined as a defendant because the court was minded to grant permission on ground 1. The Chancellor agreed with Lord Justice Fulford.

• Court of Appeal (Civil Division) — Permission to appeal was granted on ground 1 only. Grounds 3–6 were refused as unarguable, and ground 2 was left unresolved. The Secretary of State was joined as a defendant.
• High Court of Justice, Queen’s Bench Division — The deputy High Court judge dismissed the renewed application for permission to apply for judicial review.
• Court of Appeal (Criminal Division) — The imprisonment for public protection sentence was quashed and a determinate sentence substituted.