Bowen v Secretary of State for Justice

A Parole Board direction may make a life or indeterminate-sentence prisoner's release subject to licence conditions integral to the management of risk. Where residence at Approved Premises is necessary for public protection, the Secretary of State need not release the prisoner before suitable accommodation becomes available.

The Secretary of State must nevertheless take reasonable steps to fulfil the conditions within a reasonable time. Reasonableness depends on the individual circumstances, including rehabilitation needs, suitable location, alternative accommodation and whether any national shortage materially affected the prisoner.

Continued detention pending fulfilment of integral conditions remains causally connected to the original sentence, provided release occurs within a reasonable timeframe.

The appellants were respectively serving a life sentence and a sentence of imprisonment for public protection. After their minimum terms expired, the Parole Board directed release on licences requiring initial residence at Mandeville House, an Approved Premises in Cardiff. The Board knew when places would become available. The appellants remained in prison for 69 and 118 days respectively before release.

Whipple J dismissed their claims for judicial review alleging breach of section 28 of the Crime (Sentences) Act 1997, article 5 of the Convention and public law duties. She permitted an appeal only on the construction of section 28 and the reasonableness of the delays. The appellants sought permission from the Court of Appeal on additional Convention and systemic-provision grounds.

The central questions were whether section 28 required immediate release despite the unavailability of the Approved Premises, whether the waiting periods were unreasonable, and whether the additional grounds had a real prospect of success.

1. Appeal dismissed; permission to appeal on the additional grounds refused. The court unanimously agreed with McCombe LJ.

2. Sections 28(5), 28(6) and 31(3) of the Crime (Sentences) Act 1997 form a coherent scheme. The Parole Board may determine that release is safe only if recommended licence conditions are in place. Where those conditions are necessary for public protection, they are implicit in and integral to the direction for release. Section 28 does not require immediate, unconditional release when the necessary Approved Premises placement is unavailable. Such a construction would produce impracticable and unsafe consequences: paras 43–54.

3. The Secretary of State must take reasonable steps to implement the conditions within a reasonable timeframe. Whether delay is unreasonable depends on the facts of the individual case. Relevant matters may include the prisoner's rehabilitation and family links, the suitability and availability of alternative premises, the Board's knowledge of the anticipated release date and whether a national shortage genuinely affected that prisoner: paras 44, 49, 57–60 and 83.

4. The judge was entitled to conclude that the waits of 69 and 118 days were reasonable. Mandeville House supported the appellants' family and rehabilitation needs; enquiries concerning alternatives had been unsuccessful; and the Board had known the availability dates when it made its decisions. No material showed that a national shortage had affected these particular waiting periods: paras 75–87.

5. An appeal under CPR 52.21 proceeds by review. The weight accorded to a first-instance evaluation depends on the nature of the decision, the evidential material and any advantage enjoyed by the judge. Whipple J had considered substantially more written evidence than was presented on appeal, so considerable deference was appropriate: paras 62–73.

6. Continued detention remained causally connected to the original sentences. The Board had judicially determined that release would be safe with the specified conditions, and without them there would have been no release. Provided the conditions were implemented within a reasonable timeframe, the executive did not usurp judicial control: paras 98–102.

7. The proposed appeals concerning the alleged James duty and systemic under-provision lacked a sufficient prospect or practical purpose. A further hearing and contested fresh evidence would have been required, contrary to the overriding objective: paras 88–96.

1. Court of Appeal (Civil Division): By [2017] EWCA Civ 2181, unanimously dismissed the appeal on the permitted ground and refused permission to appeal on the additional grounds.
2. High Court, Administrative Court: Whipple J dismissed both claims for judicial review. She granted permission to appeal on the construction and application of section 28 of the Crime (Sentences) Act 1997, but refused permission on the remaining proposed grounds. No citation is stated.