Criminal Justice Act 2003, section 239

The Parole Board

Part 12 Sentencing

(1)The Parole Board is to continue to be, by that name, a body corporate and as such is—

(a)to be constituted in accordance with this Chapter, and

(b) to have the functions conferred on it by this Chapter in respect of fixed-term prisoners and by Chapter 2 of Part 2 of the Crime (Sentences) Act 1997 (c. 43) (in this Chapter referred to as “the 1997 Act”) in respect of life prisoners within the meaning of that Chapter.

(2)It is the duty of the Board to advise the Secretary of State with respect to any matter referred to it by him which is to do with the early release or recall of prisoners.

(3)The Board must, in dealing with cases as respects which it makes recommendations under this Chapter or under Chapter 2 of Part 2 of the 1997 Act, consider—

(a)any documents given to it by the Secretary of State, and

(b)any other oral or written information obtained by it;

and if in any particular case the Board thinks it necessary to interview the person to whom the case relates before reaching a decision, the Board may authorise one of its members to interview him and must consider the report of the interview made by that member.

(4)The Board must deal with cases as respects which it gives directions under this Chapter or under Chapter 2 of Part 2 of the 1997 Act on consideration of all such evidence as may be adduced before it.

(5)Without prejudice to subsections (3) and (4), the Secretary of State may make rules with respect to the proceedings of the Board, including proceedings authorising cases to be dealt with by a prescribed number of its members or requiring cases to be dealt with at prescribed times.

[F212 (5A)Rules under subsection (5) may, in particular, make provision—

(a)requiring or permitting the Board to make provisional decisions;

(b)about the circumstances—

(i)in which the Board must or may reconsider such decisions;

(ii)in which such decisions become final;

(c)conferring power on the Board to set aside a decision or direction that is within subsection (5B),

and any such provision may relate to cases referred to the Board under this Chapter or under Chapter 2 of Part 2 of the 1997 Act.

(5B)The following are within this subsection—

(a)a direction given by the Board for, or a decision made by it not to direct, the release of a prisoner which the Board determines it would not have given or made but for an error of law or fact, or

(b)a direction given by the Board for the release of a prisoner which the Board determines it would not have given if—

(i)information that was not available to the Board when the direction was given had been so available, or

(ii)a change in circumstances relating to the prisoner that occurred after the direction was given had occurred before it was given.

(5C)Provision made by virtue of subsection (5A)(c)—

(a)may not confer power on the Board to set aside a direction for the release of a prisoner at any time when the prisoner has already been released pursuant to that direction, but

(b)may make provision for the suspension of any requirement under this Chapter or under Chapter 2 of Part 2 of the 1997 Act for the Secretary of State to give effect to a direction of the Board to release a prisoner, pending consideration by the Board as to whether to set it aside.F212]

[F213 (5D)Rules under subsection (5) may also make provision for functions of the Board (including judicial functions) to be exercised by employees of the Board, other than any function so far as its exercise involves—

(a)making a public protection decision in relation to a prisoner within the meaning of section 237A(2) of this Act or section 28ZA(2) of the 1997 Act;

(b)giving a direction for the release of a prisoner on licence under this Chapter or under Chapter 2 of Part 2 of the 1997 Act;

(c)making a decision or giving a direction under subsection (4) or (4F) of section 31A of the 1997 Act (imprisonment or detention for public protection: termination of licences);

(d)reconsidering a decision or setting aside a decision or direction under provision made by virtue of subsection (5A).F213]

(6)The Secretary of State may also give to the Board directions as to the matters to be taken into account by it in discharging any functions under this Chapter or under Chapter 2 of Part 2 of the 1997 Act; and in giving any such directions the Secretary of State must have regard to—

(a)the need to protect the public from serious harm from offenders, and

(b)the desirability of preventing the commission by them of further offences and of securing their rehabilitation.

(7)Schedule 19 shall have effect with respect to the Board.

Definitions used in section 239 6

the Board

“the Board” means the Parole Board;

Defined in s.268(1) · see it in the full Act
fixed-term prisoner

(1) In this Chapter “fixed-term prisoner” means—

(a)a person serving a sentence of imprisonment for a determinate term, or

(b)a person serving a determinate sentence of detention under section 91 or 96 of the PCC(S)A 2000, under section 226A, 226B, 227 , 228 or 236A of this Act or under section 250 , 252A , 254, 262, 265, 266 or 268A of the Sentencing Code .

Defined in s.237(1) · see it in the full Act

“fixed-term prisoner” and “fixed-term sentence” have the meaning given by section 237(1) (as extended by section 237(1B));

Defined in s.268(1) · see it in the full Act
prisoner

(2) In this Chapter, unless the context otherwise requires, “prisoner” includes a person serving a sentence falling within subsection (1)(b); and “prison” includes any place where a person serving such a sentence is liable to be detained.

Defined in s.237(2) · see it in the full Act

“prison” and “prisoner” are to be read in accordance with section 237(2);

Defined in s.268(1) · see it in the full Act
the 1997 Act

“the 1997 Act” means the Crime (Sentences) Act 1997 (c. 43);

Defined in s.268(1) · see it in the full Act
public protection decision

(2) A “public protection decision”, in relation to a prisoner, is a decision as to whether the decision-maker is satisfied that it is not necessary, or no longer necessary, for the protection of the public that the prisoner should be confined.

Defined in s.237A(2) · see it in the full Act
licence

“licence” means a licence under Chapter 6;

Defined in s.305(1) · see it in the full Act

Cases considering section 239 115

The Secretary of State for Justice v Robert Sneddon

[2024] EWCA Civ 1258 · 28 October 2024Interprets

The provision obliges the Parole Board to advise when the Secretary of State refers a matter connected with early release or recall. It gives the Board an advisory function and does not make its recommendation binding. (see paras [24]-[25]; [32]) The provision permits the Secretary of State to direct the matters which the Parole Board must consider when performing its functions, reinforcing the statutory allocation of decision-making responsibility. (see paras [9]; [25])

Calder, R (on the application of) v Secretary of State for Justice

[2015] EWCA Civ 1050 · 15 October 2015Interprets

The section supplies the statutory basis for the Parole Board’s power and duty to examine the original recall decision as well as to determine whether release is appropriate (see paras [34]–[45]). The Board’s duty to advise on referred matters concerning early release or recall supports its power and duty to consider the original recall decision (see paras [34]; [38]–[45]). The Board must consider the documents supplied by the Secretary of State and oral or written information obtained by it when dealing with the reference (see para [36]). The Board must deal with the referred case by considering all the evidence adduced before it (see para [36]). The subsection permits the Secretary of State to supplement the Board’s statutory duties by directions. In the absence of current directions, the Board’s powers and duties derive from the Act itself (see paras [37]–[38]).

Gilbert, R (On the Application Of) v The Secretary of State for Justice

[2015] EWCA Civ 802 · 23 July 2015Interprets

The court held that the Secretary of State has discretion whether to refer a transfer-to-open-conditions question to the Parole Board for advice. The Board’s resulting advice is not binding, and a rational refusal to follow it is lawful. (see paras [68]-[73]; [92]) The court held that Directions issued under this provision govern the Parole Board’s statutory functions. They did not constrain the Secretary of State’s separate discretion to formulate and apply a transfer policy, and were not inconsistent with the absconder policy. (see paras [53]-[63])

95 more judgments, and what each says about section 239, are in the case-law panel in the full Act.

Explanatory note

569.This section re-enacts section 32 of the Criminal Justice Act 1991. Its effect is to continue in being, and make provision for the constitution of, the Parole Board. The statutory duty of the Parole Board as set out in subsection (2) is to advise the Secretary of State on the release and recall of prisoners. In undertaking this function the Board must consider any evidence which the Secretary of State puts before it and any other evidence which it obtains (see subsection (3)). Subsections (5) and (6)give the Secretary of State the power to make rules concerning the proceedings of the Board and to give directions to the Board with regard to protecting the public and preventing further offences being committed. Subsection (7) introduces Schedule 19.

All the explanatory notes for the Act

Amendments and notes

3 notes from legislation.gov.uk

Amendments

  1. F212S. 239(5A)-(5C) inserted (28.6.2022) by Police, Crime, Sentencing and Courts Act 2022 (c. 32), ss. 133, 208(1); S.I. 2022/520, reg. 5(o)
  2. F213S. 239(5D) inserted (24.5.2024) by Victims and Prisoners Act 2024 (c. 21), ss. 73(3), 81(1)(b)

Commencement

  1. I98S. 239 wholly in force at 4.4.2005; s. 239 not in force at Royal Assent, see s. 336(3); s. 239 in force for certain purposes at 26.1.2004 by S.I. 2003/3282, art. 2, Sch.; s. 239(5)(6) in force at 7.3.2005 by S.I. 2005/373, art. 2; s. 239 in force in so far as not already in force at 4.4.2005 by S.I. 2005/950, art. 2(1), Sch. 1 para. 19 (subject to art. 2(2), Sch. 2)