Girling v Parole Board & Anor

Factual and Procedural Background

Since 1965, persons convicted of murder have been mandatorily sentenced to life imprisonment. The Home Secretary, as a member of the executive, has historically released such prisoners before sentence expiry when deemed appropriate. Procedures introduced in 1983 separated considerations of retribution and deterrence (advised by the judiciary) from public risk (advised by the Parole Board).

On 25 September 1984, the Plaintiff was sentenced to life imprisonment for the murder of his female partner during a drunken rage, with a tariff of 12 years before parole consideration. From late 1996, he was a post-tariff mandatory lifer. The Parole Board refused his release on 8 October 2004, prompting the Plaintiff to seek judicial review, alleging failure to properly consider medical evidence and improper regard to the absence of a release plan.

The Plaintiff also invoked Article 5 of the European Convention on Human Rights, particularly Article 5.4, which guarantees the right to a speedy court decision on the lawfulness of detention. The Plaintiff contended that the Parole Board does not meet the criteria of a "court" under Article 5.4 due to insufficient independence from the Home Secretary.

The Plaintiff sought an order requiring the Parole Board to reconsider its decision and declarations that certain Home Secretary directions and statutory provisions were incompatible with Article 5.4. The Home Secretary’s directions included instructions that the Parole Board consider the resettlement plan and release address before directing release.

The Plaintiff’s health deteriorated due to acute leukaemia diagnosed in June 2000. The Parole Board’s refusal to release was based on outstanding risk factors including alcohol abuse, violence, problematic relationships with women, anger, and sexual attitudes and behaviour. The Board noted the absence of a suitable release plan and realistic relapse prevention strategies as essential before release was possible.

Following correspondence and legal proceedings, the court directed an expedited hearing focused initially on whether the Parole Board should reconsider its refusal of release. The hearing expanded to consider issues including the Parole Board’s consideration of medical evidence, the lawful linkage of risk with release plans, and the independence of the Parole Board from the Home Secretary.

Legal Issues Presented

1. Whether the Parole Board failed to properly consider the Plaintiff’s medical condition in assessing risk to the public.
2. Whether it is lawful for the Parole Board to link risk to life and limb with the existence of a release plan.
3. Whether the Home Secretary’s directions to the Parole Board and the statutory framework governing referrals undermine the Parole Board’s independence and compliance with Article 5.4 of the European Convention on Human Rights.

Arguments of the Parties

Plaintiff's Arguments

• The Parole Board failed to adequately weigh the Plaintiff’s serious and deteriorating medical condition in its risk assessment, thus failing the necessary balancing exercise.
• The Parole Board improperly linked the risk assessment to the presence of a release plan, which should not be a precondition to release if the risk is sufficiently low.
• The Home Secretary’s directions requiring consideration of the release plan and the statutory requirement that the Plaintiff must first obtain a referral from the Home Secretary before the Parole Board can consider release compromise the Parole Board’s independence, rendering it not a “court” under Article 5.4.
• The statutory provisions and directions contravene the Plaintiff’s rights under Article 5.4 by limiting direct access to the Parole Board and allowing executive interference in judicial functions.
• The Plaintiff sought declarations that the Home Secretary’s directions and certain statutory provisions are incompatible with the Human Rights Act 1998 and Article 5.4.

Defendants' Arguments

• The Parole Board properly considered all relevant evidence, including medical reports, and there was no obligation to adjourn to obtain further medical opinion absent such evidence being presented.
• The Parole Board’s linkage of risk with the release plan is lawful and consistent with established case law, which recognizes that risk assessment may depend on the availability of a structured release plan.
• The Home Secretary’s directions are general, not case-specific, and serve to provide a structured approach without compromising the Parole Board’s judicial independence.
• The statutory framework, including the requirement for referral by the Home Secretary, complies with Article 5.4, as confirmed by relevant European Court of Human Rights decisions.
• The Parole Board is sufficiently independent to constitute a “court” under Article 5.4, and the directions do not fetter its discretion in a manner that breaches the Convention or domestic law.
• The power of the Home Secretary to give directions under section 32(6) of the Criminal Justice Act 1991 is subject to interpretation and does not apply to judicial functions of the Parole Board.

Table of Precedents Cited

Court's Reasoning and Analysis

The court first addressed whether the Parole Board erred by failing to consider the Plaintiff’s medical condition in assessing risk. The court found no such error, noting that the evidence did not establish that the Plaintiff’s serious health issues negated the identified risk factors. The Plaintiff bore the evidential burden to demonstrate any reduction in risk, which was not met. There was no duty on the Parole Board to adjourn to obtain further medical opinion absent such evidence.

Regarding the linkage of risk with the presence of a release plan, the court analyzed the Parole Board’s letter and relevant case law, particularly R v Parole Board ex parte Robinson. It concluded the Parole Board’s approach was lawful and consistent with Robinson, which allows for cases where a release plan is not a precondition to release but recognizes that in some cases, including the Plaintiff’s, a suitable release plan is essential due to ongoing risk factors.

The court then examined the independence of the Parole Board in light of the Home Secretary’s directions and the statutory referral scheme. It acknowledged the Parole Board must be independent to qualify as a "court" under Article 5.4. While the Home Secretary’s role as a gateway to the Parole Board was noted, the court found that this did not undermine the Board’s independence, especially given the statutory duty to refer cases at reasonable intervals and the availability of judicial review to enforce this duty.

The court considered whether the Home Secretary’s directions, issued under section 32(6) of the Criminal Justice Act 1991, unlawfully interfered with the Parole Board’s judicial functions. It concluded that section 32(6) does not empower the Home Secretary to give directions concerning judicial functions of the Parole Board. The directions were therefore issued without proper statutory authority in this context.

However, the court found that the directions were innocuous in content and did not cause any detriment to the Plaintiff or affect the Parole Board’s decision. Consequently, the erroneous application of the directions did not vitiate the Parole Board’s decision or breach Article 5.4. The court distinguished this from cases where executive control over release decisions was more direct and fundamental.

Finally, the court rejected the Plaintiff’s claim that the statutory provisions governing referrals contravened Article 5.4, concluding that the statutory scheme, as interpreted and enforced through judicial review, complies with the Convention requirements.

Holding and Implications

The court DISMISSED the Plaintiff’s application for judicial review in all respects except for a declaration concerning statutory interpretation. It declared that section 32(6) of the Criminal Justice Act 1991 should be construed so as not to apply to the judicial functions of the Parole Board.

The direct effect of this decision is that the Parole Board’s decision of 8 October 2004 refusing the Plaintiff’s release is upheld. No legal error was found in the Board’s consideration of medical evidence or the linkage of risk with release plans. Although the Home Secretary’s directions were issued without proper authority regarding judicial functions, this did not invalidate the decision or breach the Plaintiff’s rights under Article 5.4.

No new precedent was established beyond clarifying the limits of the Home Secretary’s power to issue directions to the Parole Board in its judicial capacity. The court refused permission to appeal, finding no real prospect of success for either party.