Life in crime

'There may be trouble ahead,' as Nat King Cole once famously sang. The Parole Board is already stretched to the limits of its capacity, but it will be pushed to breaking point in the near future by the demands of the new 'preventative detention' sentencing regime. The recent case of Johnson v Secretary of State for the Home Department [2007] EWCA Civ 427 should sound alarm bells ringing.

The Court of Appeal found that there was a breach of Article 5(4) of the European Convention on Human Rights '“ the right to a speedy review of the lawfulness of detention '“ because of an eight-and-half-months delay in considering the prisoner's application for parole. Accordingly, the prisoner would have an enforceable right to compensation under Article 5(5) ECHR.

Johnson had been sentenced in May 2000 to a determinate sentence of seven years. Under the old sentencing regime he was a long-term prisoner. This meant he was entitled to be released after serving two-thirds of his sentence, but eligible to be considered for parole after serving half of the sentence. Home Office practice determines that such prisoners are sent a form asking whether they wished to be considered for parole some six months prior to that first eligibility date (June 2003 in Johnson's case). He responded positively. However, there were a number of delays in assembling the dossier of information for the review. The Parole Board did not consider Johnson's application for parole until January 2004: eight-and-a-half months after his parole eligibility date. Johnson sought judicial review, claiming the delay had breached the obligation to determine speedily the lawfulness of his detention after the expiration of his parole eligibility date. As such his continued detention was 'arbitrary'.

The Court of Appeal considered Noorkoiv [2002] EWCA Civ 770, where a life sentence prisoner whose consideration for parole had been delayed beyond the expiration of the tariff period. Lord Woolf CJ explained that continued detention was still lawful because it was detention after conviction by a competent court and thus complied with Article 5(1)(a).

However, it was detention from which the prisoner was entitled to be released after the expiration of the tariff period, unless he posed a danger to the public. Whether that was the case required the Parole Board to make a determination. Unless that was done 'speedily' it would contravene Article 5(4).

In Johnson's case, the original judicial review application was dismissed because the state successfully argued that there was a distinction between indeterminate life sentences (Noorkoiv) and determinate sentences (Johnson). The Court of Appeal found the distinction less persuasive. Waller LJ surveyed the authorities and found that one cannot simply state that Article 5(4) can have no application in the case of a determinate sentence. Although there was no express statutory regime for referring the case to the Parole Board - as in the case of life sentences - there was nevertheless a well-established practice to invite determinate sentence prisoners to apply for parole six months ahead of their eligibility date. In his view, this was a distinction without a difference in terms of Article 5(4). Although the European Convention does not impose any obligation on the UK to introduce a scheme for the early release of prisoners, once it has chosen to do so, Article 5 applies so that the application of the scheme is not arbitrary.

Unsatisfactory

The Court of Appeal found it unsatisfactory that there was 'evident incongruity' between the position of a determinate sentence prisoner applying for early release and that of a life sentence prisoner. In both cases there is the risk that, unless the sentence is kept under review, the continued detention will become arbitrary. In Johnson's case, there had been an unjustified and arbitrary delay of eight months before his case for early release was considered. This rendered his detention unlawful under Article 5(4). If Johnson could show that but for the delay he would have been released earlier, he was entitled to compensation.

This case has ramifications far beyond determinate sentence prisoners. Under the Criminal Justice Act 2003 sentencing regime there has been a transfer of power from the courts to the Parole Board. Under the s 225, a judge must impose indefinite Imprisonment for Public Protection (IPP) '“ a life sentence in all but name '“ on anyone convicted of any of 153 specified violent or sexual offences, if the judge considers the offender poses a significant risk of serious harm to the public by committing further such offences. This is essentially 'preventative detention'. The judge fixes a tariff period '“ punishment to fit the actual crime '“ and then adds an indeterminate sentence to reflect the supposed future risk. Thus the ultimate decision as to when the offender is released rests with the Parole Board following the expiration of the tariff.

Tariffs

The average tariff is just 30 months, but there have been cases where the tariff was as little as six months. As in Johnson, it can often take many months for the prison and other authorities to put together all the information to be assessed by the Parole Board. Discounting the time spent on remand, there will be IPP prisoners just beginning their sentence with their parole review date already looming. Under the old regime there were about 200 discretionary and automatic life sentences handed down each year. Since April 2005, there have been 2,000 IPPs imposed, at a current rate of 100 per month. By 2011, the Home Office estimates there will be 12,500 inmates serving IPP. There is an appalling prospect of thousands of offenders sentenced to IPP with short tariff periods and the Parole Board being so stretched '“ due to numbers of both indeterminate and (now) determinate sentences to be reviewed '“ that their applications for parole cannot be assessed until long after the parole eligibility date set by the judge. The impact of Noorkoiv and Johnson is that their continued detention will be rendered arbitrary and unlawful, and the state exposed to claims for compensation. Then it will be for the new Minister of Justice to 'face the music and dance.'