Law Report: Parole board should give reasons for its decision: Regina v Secretary of State for the Home Department, Ex parte Pegg. Queen's Bench Divisional Court (Lord Justice Steyn and Mr Justice Kay), 29 July 1994

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Since the system for dealing with the release of prisoners serving mandatory life sentences was essentially unfair, the courts, bearing in mind that fundamental rights were at stake, had to be extra vigilant in the exercise of its powers of judicial review of decisions of the parole board and the Home Secretary.

The Divisional Court quashed the parole board's decision that the next parole board review of the applicant's case would begin two years after his arrival at an open prison.

The applicant was convicted of murder in 1985 and was serving alife sentence. In February 1994 the parole board declined to recommend the applicant's release from prison on licence and decided that the applicant be transferred to open conditions with his next parole board review two years later. The Home Secretary affirmed that decision.

Richard Gordon QC (Bindman & Partners) for the applicant; Clare Montgomery (Treasury Solicitor) for the Home Secretary.

LORD JUSTICE STEYN, giving the court's judgment, said that the regulatory framework for the release of mandatory life sentence prisoners was set out in the Criminal Justice Act 1991. There were features of the system which militated against procedural fairness and open justice. The prisoner was entitled to disclosure of the trial judge's opinion of the penal element but he was not entitled to the report or the judge's comments of the description of the offence. Although the prisoner was entitled to make representations to the Home Secretary on the setting of the penal element, the prisoner was not allowed to see all the material placed before the Home Secretary. The prisoner could not require the Home Secretary to refer his case to the board and was not entitled to be present or represented at the meeting of the parole board.

A transparent and fair system had been introduced in respect of prisoners serving discretionary life sentences. A procedurally fair system was not accorded to prisoners serving mandatory life sentences. The distinction was based on the philosophy that a prisoner serving a mandatory life sentence had forfeited his life to the State.

Now that it had been established that a mandatory life sentence was divided into a penal phase and a protection (of the public) phase the distinction which accorded procedural fairness to discretionary life sentence prisoners but not to mandatory life sentence prisoners made no sense. The power of correcting this unsatisfactory state of affairs was in the first place in the hands of the executive.

Given the essential unfairness of the system in relation to prisoners serving mandatory life sentences, the courts had to bear in mind that fundamental rights were at stake. The courts could do no more than to be extra vigilant in the exercise of its powers of judicial review.

The challenge to the decision not to recommend release on licence was rejected. However, the effect of the decision that the next review should take place two years after transfer to open conditions must be seen in context. The applicant received exemplary reports about his efforts to address his attitudes and behavioural problem. The parole board gave no reasons for departing from the local review board's recomendation involving one year in open conditions. In the circumstances, procedural fairness gave rise to a duty to give reasons on this point.

There was a breach of the duty to give reasons.