Gulliver v The Parole Board

Factual and Procedural Background

This appeal concerns an order by Judge Collins on 6 November 2006 dismissing the Appellant's claim for judicial review of a Parole Board decision. The Parole Board had decided not to direct the Appellant's re-release from prison after he was recalled by the Secretary of State for Justice for an alleged breach of his licence conditions following release on licence.

The Appellant was sentenced on 4 February 2005 to three years' imprisonment for assault occasioning actual bodily harm against his former partner. He was released on licence on 17 March 2006 but was recalled to prison seven days later on 24 March 2006 due to an alleged breach involving failure to recharge a satellite tracking unit, which compromised monitoring of his whereabouts.

Written representations were made on the Appellant's behalf on 28 April 2006. The Parole Board initially reached preliminary adverse conclusions in May 2006 but held a full oral hearing on 13 June 2006, ultimately deciding on 15 June 2006 not to recommend his release until automatic release at three-quarters of his sentence. The Appellant has since been released.

Legal Issues Presented

1. Whether, having found that the Appellant was not in breach of his licence conditions, the Parole Board was entitled to consider all available evidence and assess the risk to the public in deciding whether to recommend immediate release.
2. Whether the Secretary of State may revoke a prisoner's licence and recall him only if the prisoner is in breach of licence conditions, or also for other good reasons such as public protection despite no breach.
3. The nature of the Parole Board's responsibility and role in reviewing recall decisions and recommending release under the Criminal Justice Act 2003.

Arguments of the Parties

Appellant's Arguments

• Contended that the Parole Board should only review the validity of the Secretary of State's reasons for recall and not exercise an independent judgment on the risk or release.
• Argued that the Parole Board was not entitled to consider evidence beyond the Secretary of State's decision or to recommend refusal of release if no breach was proven.

Respondent's Arguments

• Submitted that the Parole Board has an independent and supervisory role to assess all available evidence and make its own judgment on whether to recommend release based on risk to the public.
• Argued that the Secretary of State's power to recall is not limited solely to cases of breach of licence conditions but may be exercised for broader public protection reasons.
• Relied on case law supporting a broad supervisory role of the Parole Board, including its duty to consider the wider picture beyond the Secretary of State's reasons for recall.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
R (Smith (No 2) and West) v The Parole Board [2005] 1 WLR 350	Recall is not a punishment; Parole Board has essential features of a court under article 5(4) ECHR; recall hearings do not determine a criminal charge under article 6.	Confirmed that recall serves public protection and that the Parole Board's role includes independent assessment of risk and fairness.
R v Sharkey [2000] 1 WLR 160	Purpose of recall is to protect the public against risk.	Supported the view that recall is concerned with risk to public safety, not punishment.
R v Parole Board, ex parte Watson [1996] 1 WLR 906	Parole Board must exercise independent judgment on recall and release decisions; it is the primary decision-maker and not bound to defer to the Secretary of State.	Applied to confirm the Parole Board's supervisory role and independent assessment of risk, applicable also to short-term prisoners.
R (Jackson) v The Parole Board and the Home Secretary [2003] EWHC (Admin) 2437	Parole Board's role includes assessing likelihood of compliance with licence conditions and deciding on immediate release based on risk.	Supported the principle that Parole Board's role is not limited to reviewing reasons for recall but involves wider risk assessment.
Rodgers [2003] EWHC 1923 (Admin)	This precedent was mentioned but not examined in detail for this appeal.	The Court declined to address the correctness of this decision in the current appeal.

Court's Reasoning and Analysis

The Court analysed the statutory framework governing release, recall, and the role of the Parole Board, distinguishing between short-term prisoners and life prisoners. It noted that the Appellant was a short-term prisoner governed by the Criminal Justice Act 1991 for release and the Criminal Justice Act 2003 for recall.

The Court emphasised that the Parole Board's statutory duty under section 239 of the CJA 2003 is to consider all evidence before it, including any new material beyond that considered by the Secretary of State. The Parole Board is not confined to reviewing the Secretary of State's reasons for recall but must exercise its own independent judgment, focusing solely on the risk to the public.

The Court relied on established authorities, including R v Parole Board ex parte Watson, which reject the view that the Parole Board should defer to the Secretary of State or limit itself to validity of recall reasons. Instead, the Parole Board is the primary decision-maker assessing whether release is appropriate based on public safety.

The Court rejected the Appellant's argument that the Parole Board's role was limited if no breach of licence conditions was proven. It held that the Secretary of State's power to recall is not necessarily restricted to breaches but may be exercised for public protection reasons. The Parole Board's role includes reviewing all circumstances and making a risk assessment at the time of decision.

The Court found that the Parole Board lawfully exercised its discretion and that there was ample evidence to justify refusal of immediate release. The Court also noted that the recall is not a punishment but a public safety measure and that the Parole Board's decision-making process must be fair and procedurally sound.

The Court dismissed the appeal, agreeing with the lower court that the Parole Board properly took into account all circumstances and that its decision was neither irrational nor unlawful.

Holding and Implications

The Court DISMISSED THE APPEAL.

The direct effect of this decision is that the Parole Board is entitled to consider all available evidence and make an independent assessment of risk when deciding whether to recommend the immediate release of a prisoner recalled under section 254 of the Criminal Justice Act 2003. The Secretary of State's decision to recall does not limit the Parole Board's role to reviewing only the validity of that decision. No new precedent was established beyond affirming the Parole Board's supervisory and independent role in these circumstances.