Bayliss v The Parole Board of England And Wales & Anor

A custodial sentence is not retrospectively unlawful merely because an appellate court later quashes or replaces it after disagreeing with the sentencing court’s assessment. A sentence imposed within jurisdiction remains valid and effective until set aside. Detention under it is ordinarily lawful and is not arbitrary where it continues to pursue the sentence’s protective objectives and the necessary causal link remains. A sentence outside statutory power or lacking a legal foundation may stand differently. The Parole Board’s statutory role is confined to post-tariff release decisions based on public protection. It cannot determine whether the sentence itself was lawful. A challenge to detention on that ground lies against the Secretary of State, who has ultimate legal responsibility for custody.

The appellant received an imprisonment for public protection sentence with a two-year minimum term. The Parole Board declined to direct his release after the tariff expired. The Court of Appeal (Criminal Division) later quashed the indeterminate sentence and substituted a determinate sentence: [2012] EWCA Crim 2720. The High Court dismissed a renewed application for permission to seek judicial review: [2013] EWHC 1464 (Admin).

The civil appeal proceeded on the issue whether detention after expiry of the tariff had become unlawful or arbitrary under Article 5 because the original IPP criteria were later found not to have been satisfied. The Secretary of State was joined, and the court also considered whether the Parole Board was a proper defendant.

The court unanimously dismissed the appeal against both respondents.

1. Parole Board and proper defendant. Under section 13(1) of the Prison Act 1952, legal responsibility for custody ultimately rested with the Secretary of State. The Parole Board’s statutory function under section 28 of the Crime (Sentences) Act 1977 was to review post-tariff detention by reference to public protection and, where appropriate, direct release. It had no power to review the validity or lawfulness of the sentencing order. The delay authorities, including Noorkoiv v Secretary of State for the Home Department and anr [2001] 1 WLR 3284, concerned shared responsibility for implementing review decisions and did not alter that analysis. The claim against the Board was misconceived and was dismissed.
2. Domestic lawfulness of the sentence and detention. Section 11(3) of the Criminal Appeal Act 1968 empowered the appellate court to quash and substitute a sentence. A Crown Court sentence imposed within jurisdiction was not a nullity merely because the appellate court later considered it wrong in principle or excessive. It remained valid and effective until replaced. The reasoning in R v Cain [1985] AC 46, R v Reynolds and ors [2008] 1 WLR 1075 and R (Modhej and anr) v Secretary of State for Justice [2012] EWCA Civ 957 supported that conclusion. The sentencing judge had jurisdiction to impose an IPP, and the later substitution did not render the original detention unlawful ab initio.
3. Article 5(1). Lawfulness under Article 5(1)(a) concerned the detention rather than the conviction. Detention pursuant to a court order was in principle lawful, although an order lacking a legal foundation or made in excess of jurisdiction could be different. Benham v UK (1996) EHRR 293 and Krzycki v Germany [1978] 13 DR 57 supported the conclusion that later appellate intervention did not retrospectively invalidate detention. TTM v London Borough of Hackney and ors [2011] 1 WLR 2873 and R (Evans) v Governor of HMP Brockhill (No. 2) [2001] 2 AC 19 were distinguishable.
4. Arbitrariness. Applying James and ors v United Kingdom [2013] 56 EHRR 12, continuing detention remained causally linked to the original sentencing objectives unless the refusal to release rested on grounds inconsistent with those objectives or on an unreasonable assessment of them. Here detention continued to address the protective purpose of the IPP and the appellant remained assessed as presenting public risk. The later disagreement about dangerousness did not retrospectively break the causal link or make detention arbitrary. The eventual sentence appeal was the available route for challenging the sentence and did not affect the earlier legal justification for detention.

• Court of Appeal (Civil Division) dismissed the appeal, holding that the Parole Board was not responsible for reviewing the lawfulness of the sentence and that post-tariff detention was neither unlawful nor arbitrary under Article 5.
• Court of Appeal (Criminal Division) allowed the sentence appeal, quashed the IPP sentence and substituted a determinate sentence: [2012] EWCA Crim 2720.
• High Court of Justice, Queen’s Bench Division dismissed the renewed application for permission to seek judicial review: [2013] EWHC 1464 (Admin).