R v Secretary of State for the Home Department, ex parte Zulfikar [1996] COD 256

Citation: R v Secretary of State for the Home Department, ex parte Zulfikar [1996] COD 256

Decision

Ex parte Zulfikar established certain principles which should be adopted by the Parole Board when a prisoner comes before it seeking a progressive move to open conditions and/ or ultimately release. Those principles are as follows:

1. Each case is decided upon its own merits and its own facts;
2. There is a presumption that the prisoner before it has been properly convicted, i.e. he was in fact guilty of the index offence;
3. The Parole Board must take into account any denial of guilt from the part of the prisoner;
4. The Board must also take into account if the prisoner has refused to participate in offending behaviour programmes in order to address his risk;
5. However, release cannot be refused purely because the prisoner denies his guilt, although in practice it is easy to see how denial makes a demonstration of risk reduction more difficult (i.e. a denier cannot demonstrate remorse for the offending, and there may also be difficulties in effectively engaging with offending behaviour courses).

R (oao Smith and West) v Parole Board [2005] UKHL 1

Citation: R (oao Smith and West) v Parole Board [2005] UKHL 1

Decision

Smith and West is authority for the principle that the Parole Board has a common law duty to ensure its procedure is fair when considering whether recalled prisoners should be re-released. In order to decide the matter of re-release fairly, an oral hearing may be required. If a prisoner is unfairly refused an oral hearing, his rights under Article 5 may be engaged and he may be entitled to claim damages.

R (Palmer) v Home Secretary [2004] EWHC 1817 (Admin)

Citation: R (Palmer) v Home Secretary [2004] EWHC 1817 (Admin)

Court: High Court (Queen’s Bench Division, Administrative Court)

Decision

When a prisoner is recategorised to a higher secuirty category, he must be given reasons why he has been recategorised.

This principle was restated in Palmer. The reason for this is if a prisoners wishes to appeal a decision as to his categorisation, he must know, as far as possible, the reasons why the decision was made in order that he may deal with allegations against him.

Collins J further stated that:

"He may, of course, not necessarily know the precise source of the information which is relevant to risk because, as is obvious, such information may come from informants, it may come from confidential police sources, or otherwise it may be necessary, in order to protect third parties, that the prisoner does not know the details."

Nevertheless, reasons must be given, whilst the source of the information giving rise to those reasons need not.

R v Deputy Governor of Parkhurst Prison, ex parte Leech [1988] A.C. 533.

Citation: R v Deputy Governor of Parkhurst Prison, ex parte Leech [1988] A.C. 533.

 

Decision

 

When deciding whether judicial review is the appropriate remedy for a prisoner's grievance, his advisor should consider whether he has exhausted all other remedies. The most common of these is the prison's internal complaints system through usage of the COMP and COMP1 forms. Alternatively, a prisoner may choose to make a complaint to the Prison and Probation Ombudsman ('PPO'). However, it must be noted that the PPO does not constitute a remedy for judicial review purposes, as was explained in ex parte Leech by Lord Bridge (at 561 - 564). This is for the simple reason that the PPO's recommendations are not binding.

 

 

 

R (oao Potter) v Secretary of State for the Home Department [2001] EWHC Admin 1401

Citation: R (on the application of Potter) v Secretary of State for the Home Department [2001] EWHC Admin 1401

Court: High Court (Queen's Bench Division, Administrative Court)

Decision

Potter relates to the Incentives and Earned Privileges Scheme in prisons, which you can read about here.

Essentially, Potter clarified that the IEP scheme is not to be used to punish prisoners. It is not a form of discipline. Punitive use of the IEP system will render the decision as to a particular prisoner's IEP status vulnerable to challenge, either by written representations from the prisoner's solicitor, or ultimately through judicial review. Similarly, if a prisoner has been adhering to criteria relating to a certain privilege, taking that privilege away may constitute grounds for judicial review on the basis that the prisoner had a legitimate exception.

Walker v Secretary of State for the Home Department [2008] EWCA Civ 30

Citation: Walker v Secretary of State for the Home Department [2008] EWCA Civ 30

Court: Court of Appeal (Civil Division)

Decision

In Walker, the Court of Appeal held that the Prison Service's failure to provide sufficient offending behaviour programmes was arbitrary and unreasonable, and therefore unlawful. This is of utmost relevance to prisoners serving indeterminate sentences whose release depends on risk reduction which in turn is largely dependent on the completion of such courses. The Court further held that whilst pre-tariff detention is for the punishment of offenders, detention after expiry of the minimum term is to protect the public from those who still pose a risk. Detention past the expiry of the minimum is only justifiable if the prisoner is still dangerous.

R (on the application of Noorkoiv) -v- Secretary of State for the Home Department [2002] 1 WLR 3284

Citation: R (on the application of Noorkoiv) -v- Secretary of State for the Home Department [2002] 1 WLR 3284

Court: Court of Appeal (Civil Division)

Decision

This decision is of relevance:

1. Post-release (i.e. to recalled prisoners) and;
2. Pre-release.

Once the Secretary of State has revoked an individual's licence, and he has subsequently been recalled to custody, the recalled prisoner should be brought before the Parole Board as quickly as possible. If not, Article 5(4) ECHR could be infringed. The lack of the Parole Board's recourses or administrative difficulties cannot justify a breach of Art. 5(4).

The principle also applies to prisoners who have served their minimum term (i.e prior to initial release). In this particular case, the appellant's Parole Board review did not occur until two months after the expiry of his minimum term. The court held that this delay amounted to a breach Art. 5(4). This is because the purpose of pre-release reviews is to determine whether the individual can be lawfully detained after the expiry of the minimum term.

R (on the application of Shutt & Tetley) v Secretary of State for Justice [2012] EWHC 851 (Admin)

Citation: R (on the application of Shutt & Tetley) v Secretary of State for Justice [2012] EWHC 851 (judgment can be found here:

http://www.prisons.org.uk/sandt.pdf)

Court: Administrative Court (High Court, Queen's Bench Division).

Decision

It was held in R (on the application of Shutt & Tetley) v Secretary of State for Justice [2012] EWHC 851 that a local Incentives and Earned Privileges Policy ("IEP") policy which precluded individuals who maintained their innocence from ever achieving "Enhanced" level on the scheme was unlawful.

This means that IEP policies must be drafted in such a way that prisoners who deny their offending should not automatically be excluded from gaining Enhanced status by virtue of their denial. In other words, a blanket ban is unlawful.

It should be noted however that in Shutt & Tetley, no injustice was found to these particular claimants themselves. This was for the following reasons:

1. The claimants were later assessed for the Sex Offender Treatment Programme and found suitable but not ready for the course, because of their denial and;
2. The claimants' OASys reports indicated that nothing more pressing needed to be done.

R (on the application of Broadbent) -v- The Parole Board [2005] EWHC 1207 (Admin)

Citation: R (oao Broadbent) v The Parole Board [2005] EWHC 1207 (Admin).

Court: Administrative Court (High Court, Queen's Bench Division).

In R (Broadbent) v The Parole Board (2005), it was held that a charge and even a prosecution are not sufficient reasons alone to justify recall to custody following release on licence. This is because a charge and prosecution alone cannot, without more evidence, justify a conclusion that there is a risk of the recalled prisoner re-offending.

This is important to bear in mind when submitting written representations to the Parole Board when applying to get your client re-released or an oral hearing.