AUDI JOHNSON (R on the application of) v PAROLE BOARD FOR ENGLAND AND WALES & Anor

Where the Parole Board has made a reasoned decision under section 256(1)(a) of the Criminal Justice Act 2003 fixing a future release date, it has determined the reference and becomes functus officio. Section 12(1) of the Interpretation Act 1978 does not confer a continuing power to defer, advance or otherwise re-fix that date.

The fixed date and necessary licence conditions form part of the Board’s decision that the prisoner is suitable for release. They are therefore subject only to the limited reconsideration and slip-rule mechanisms provided by the Parole Board Rules 2019. The statutory scheme gives priority to a definitive release date on which the prisoner, the Secretary of State and those arranging release can rely.

The claimant had been recalled to custody after release on licence. Following a reference under section 255B(4) or section 255C(4) of the Criminal Justice Act 2003, the Parole Board fixed his release date as 10 March 2021 and directed residence at approved premises.

Because the approved premises were unavailable, the Board later amended the date first to 8 April 2021 and then to 15 March 2021. The claimant challenged the Board’s power to make those changes. The central issue was whether section 12(1) of the Interpretation Act 1978 implied a continuing power to re-fix a date already fixed under section 256(1)(a) of the 2003 Act.

1. Claim succeeded. The Board had no power to re-fix the claimant’s release date after making a reasoned decision under section 256(1)(a) of the Criminal Justice Act 2003.
2. Section 12(1) of the Interpretation Act 1978 implies that a statutory power may be exercised from time to time unless a contrary intention appears. The statutory scheme governing post-recall references disclosed that contrary intention.
3. The Board has three alternative ways of determining a reference: directing immediate release, fixing a release date, or making no direction as to release. Although the phrase determine the reference appears expressly in section 256(1)(b), fixing a date under section 256(1)(a) is equally conclusory. The wording of section 256A(4) confirmed that the three outcomes were equivalent modes of determination.
4. The word fixing conveyed a definitive date to which the prisoner, the Secretary of State and those responsible for release arrangements were required to work. The statutory scheme sometimes made express provision for delayed release, but it did not create a general power to alter a date fixed under section 256(1)(a).
5. The release date and necessary licence conditions were part and parcel of the Board’s decision that the prisoner was suitable for release. Under Rules 25 and 28 of the Parole Board Rules 2019, those matters were final unless the decision was eligible for reconsideration and an application was made within time on the limited grounds of irrationality or procedural unfairness. Rule 30 provided only for correction of an accidental slip or omission.
6. The reasoning in R (Secretary of State for Justice) v Parole Board and R (Dickins) v Parole Board was accepted as correct, although the functus analysis in each case had been obiter. The claim was determined on the preliminary issue, with any secondary issues to be addressed separately if necessary.

First-instance judicial review in the Administrative Court. Permission was granted by Heather Williams J on 7 October 2021. The court determined the preliminary issue in favour of the claimant.