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Sturnham, R (on the application of) v The Parole Board of England and Wales & Anor (No. 2)
United Kingdom Supreme Court
Jul 3, 2013
Smart Summary (Beta)
Factual and Procedural Background
The Appellant was convicted of manslaughter arising from a fatal altercation on 19 May 2006. On 31 January 2007, Judge [Baker] imposed a sentence of imprisonment for public protection (“IPP”) with a tariff of two years and 108 days, which expired on 19 May 2009. A first Parole Board review on 10 May 2010 declined to direct release but recommended transfer to open conditions. The Appellant commenced judicial-review proceedings alleging that the Parole Board had applied the wrong legal test and seeking damages for delay. Those proceedings were dismissed at first instance by Judge [Mitting] and on appeal. The damages aspect ultimately succeeded in the Supreme Court, but the legality of the Parole Board’s test for release remained live. Although the Appellant was released on licence on 7 September 2011, the Supreme Court granted permission to appeal because the issues retained wider importance.
Legal Issues Presented
- Whether the statutory criterion for imposing an IPP sentence (“significant risk to members of the public of serious harm”) is substantively identical to, or materially different from, the criterion the Parole Board must apply on release (“no longer necessary for the protection of the public”).
- Whether, on the facts of the Appellant’s case, the Parole Board misdirected itself by applying an unlawfully strict test (“no more than minimal risk”) when considering release.
Arguments of the Parties
Appellant's Arguments
- The two statutory phrases, though worded differently, must be read as imposing the same substantive test; consequently the Parole Board should release an IPP prisoner once the original “significant risk” no longer exists.
- Even if the tests differ, the Parole Board erred by adopting an unlawfully high threshold (“no more than minimal risk”) derived from an ultra vires ministerial direction.
- The European Convention on Human Rights (“ECHR”) requires symmetry between the imposition and release tests to preserve the requisite causal link between detention and public-protection objectives.
Respondents' Arguments (Parole Board & Secretary of State)
- The wording differences reflect a deliberate legislative choice: a higher threshold for imposition and a lower threshold (greater margin of safety) for release.
- Authority beginning with R v Parole Board, Ex p Bradley establishes that the release test is distinct and less exacting for the prisoner.
- The Board did not in fact rely on any unlawful direction; its decision was based solely on the statutory standard.
Table of Precedents Cited
| Precedent | Rule or Principle Cited For | Application by the Court |
|---|---|---|
| R v Hodgson (1967) 52 Cr App R 113 | Sets common-law criteria for discretionary life sentences: seriousness, future danger, and gravity of possible harm. | Used to illustrate historical approach to indeterminate sentencing and to contrast with later statutory framework. |
| R v Wilkinson (1983) 5 Cr App R (S) 105 | Discretionary life sentences reserved for exceptional cases where danger may persist for an indeterminate period. | Supports proposition that future-risk assessment has long been integral to life-sentence decisions. |
| R v Parole Board, Ex p Bradley [1991] 1 WLR 134 | Parole Board may apply a lower threshold of risk at release stage than sentencing court applied initially. | Cited as key authority justifying different tests for imposition and release; court declined to overrule it. |
| Attorney-General’s Ref No 32 of 1996 (R v Whittaker) [1997] 1 Cr App R (S) 261 | Prefers “good grounds for believing danger may persist” over mathematical probability. | Supports rejection of probability-based definitions of “significant risk.” |
| R v Pedley [2009] EWCA Crim 840; [2009] 1 WLR 2517 | “Significant risk” should not be reduced to numerical probability; IPP proportionate where risk persists. | Referenced to show courts’ reluctance to quantify risk mathematically. |
| R v Chapman [2000] 1 Cr App R 77 | Interrelationship between gravity of offence, likelihood of re-offending, and gravity of potential harm. | Used to demonstrate overlapping sentencing factors pre-2003. |
| Attorney-General’s Ref No 34 of 1992 (R v Oxford) (1993) 15 Cr App R (S) 167 | Affirms continued authority of Hodgson criteria. | Cited in discussion of historical sentencing practice. |
| R v Lang [2005] EWCA Crim 2864; [2006] 1 WLR 2509 | Parliament likely intended life-sentence seriousness criterion to mirror pre-existing case-law. | Illustrates judicial uncertainty over how far 2003 Act altered thresholds. |
| R v Kehoe [2008] EWCA Crim 819; [2009] 1 Cr App R (S) 41 | Post-2003, life sentences reserved for particularly grave culpability once IPP available. | Shows judicial view that IPP reduced need for discretionary life sentences. |
| Thynne, Wilson & Gunnell v UK (1991) 13 EHRR 666 | ECHR requires judicial involvement in continuing detention beyond tariff. | Background for positioning Parole Board as release decision-maker. |
| Stafford v UK (2002) 35 EHRR 32 | Further develops ECHR standards for indeterminate detention. | Supports statutory framework placing release decision with Parole Board. |
| R (Noorkoiv) v SSH D [2002] 1 WLR 3284 | Judicial oversight necessary for detention justifications post-tariff. | Explains why IPP integrated into existing Parole Board regime. |
| R v SSH D, Ex p Benson (1988) | Risk assessment for Parole Board focuses on threat to life or limb, including non-violent rape. | Provides content for “risk” considered at release stage. |
| R v Parole Board, Ex p Wilson [1992] QB 740 | Affirms lower release-stage risk threshold and Board’s expertise. | Relied on as companion authority to Bradley. |
| R v Parole Board, Ex p Lodomez (1994) 26 BMLR 162 | Statutory phrase “no longer necessary” should not be paraphrased. | Cited to endorse textual focus over glosses. |
| R v Lichniak [2002] UKHL 47; [2003] 1 AC 903 | Parole Board is an investigative, not adversarial, body. | Used to counter allegation of “onus” on prisoner at release stage. |
| In re McClean [2005] UKHL 46; [2005] UKHRR 826 | Confirms investigative nature of Parole Board assessments. | Supports view that no improper burden lies on prisoner. |
| R v Smith (Nicholas) [2011] UKSC 37; [2011] 1 WLR 1795 | Suggested sentencing judge assesses present, not future, risk under IPP. | Supreme Court expressed reservations but did not overrule; discussed in distinguishing tests. |
| R v Johnson [2006] EWCA Crim 2486; [2007] 1 WLR 585 | Absence of past harm does not negate future “significant risk.” | Cited to illustrate predictive nature of IPP sentencing. |
| R (Walker) v SS Justice [2009] UKHL 22; [2010] 1 AC 553 | Repeated characterisation of IPP as requiring predictive risk assessment. | Relied on to question reasoning in Smith. |
| R (Bayliss) v Parole Board [2008] EWHC 3127; [2009] EWCA Civ 1016 | Previously assumed symmetry between imposition and release tests. | Supreme Court rejected that assumption. |
| R (Girling) v Parole Board [2006] EWCA Civ 1779; [2007] QB 783 | Secretary of State lacked power to instruct Board to apply “minimal risk” test. | Formed basis for Appellant’s second ground; court found no actual reliance on unlawful direction. |
| Van Droogenbroeck v Belgium (1982) 4 EHRR 443 | Continuing detention must stay connected to original sentencing objectives. | Discussed but found consistent with distinct imposition/release thresholds. |
| M v Germany (2010) 51 EHRR 41 | Similar principle on “causal connection” under ECHR. | See above; court found no Convention breach. |
| James v UK (2013) 56 EHRR 12 | ECHR upheld causal connection where release depended on risk reduction. | Used to demonstrate Convention compatibility of IPP scheme. |
Court's Reasoning and Analysis
Ground 1 – Relationship between Imposition and Release Tests
- The statutory wording differs markedly: imposition requires the court to be “positively satisfied” of a significant risk, whereas release requires the Board to be satisfied it is no longer necessary to confine the prisoner.
- Parliament placed IPP within the pre-existing release framework for life sentences, a framework already recognised (through Ex p Bradley and successors) as applying a lower release-stage threshold.
- Historical case-law shows that sentencing and release tests have never been identical for discretionary life prisoners; the same legislative choice was carried forward for IPP.
- The Supreme Court rejected the notion that ECHR jurisprudence demanded symmetrical thresholds; a scheme with a high entry threshold and a stringent public-protection approach to release was rational and Convention-compliant.
- Accordingly, the Court of Appeal was right to apply the Ex p Bradley approach, and any earlier dicta suggesting identity of tests were incorrect.
Ground 2 – Alleged Misapplication of “Minimal Risk” Test
- The challenged ministerial guidance had already been declared ultra vires in R (Girling).
- On the evidence, the Parole Board did not rely on that guidance when considering the Appellant’s release; its internal documentation, even if referring to “more than minimal” risk, was not shown to have affected the decision.
- Both Judge [Mitting] and the Court of Appeal found no error of law, and the Appellant offered no substantive basis to disturb that finding.
- The Supreme Court declined the Appellant’s invitation to further paraphrase the statutory formula, preferring adherence to the text.
Holding and Implications
HOLDING: APPEAL DISMISSED ON BOTH GROUNDS.
Immediate Effect: The decision leaves intact the Appellant’s release status and upholds the Parole Board’s approach in his case.
Broader Implications: The Supreme Court confirms that the release test for IPP (and life) prisoners is intentionally distinct from the sentencing test. Parole Board panels must ask whether continued detention is “no longer necessary” for public protection, without importing the “significant risk” threshold or mathematical probabilities. No new precedent was set, but earlier dicta implying equivalence of the two tests have been disapproved, providing important clarification for future Parole Board reviews.
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