Law Report: Mandatory lifers denied parole board's reasons: Regina v Secretary of State for the Home Department, Ex parte Creamer and Ex parte Scholey. Queen's Bench Division (Lord Justice Rose), 21 October 1992

The court was bound by Court of Appeal authority to decide that natural justice did not require that a mandatory life prisoner should be informed of the reasons for the parole board's refusal to recommend his release on licence or the nature of the material before the board.

Lord Justice Rose dismissed applications by two prisoners, Anthony Creamer and James Scholey, for judicial review of decisions of the parole board not to recommend their release on licence.

The applicants were each serving a mandatory life sentence imposed on conviction for murder. Both had served the tariff period for retribution and deterrence. Any further sentence was served if the parole board or the Home Secretary thought the prisoner would pose an unacceptable risk of danger to the public if released.

In each case the applicant had been released on licence and recalled on the basis of an unsettled lifestyle. In each case the parole board decided not to recomend the applicant's re-release.

The parole board had information about each applicant which was likely to have played a part in the board's assessment of the risk which the applicant presented to the public. However, each applicant was not given an opportunity of dealing with that information and did not know the essence of the allegations made against him.

Each applicant challenged the parole board's decision on the ground that he was entitled to know what material was before the board and the reasons for the board's decisions.

Edward Fitzgerald and Keir Starmer (Deighton Guedalla; BM Birnberg & Co) for the applicants; Stephen Richards and Robert Jay (Treasury Solicitor) for the Home Office.

LORD JUSTICE ROSE said that the applications raised the important question whether the Court of Appeal's decision in Payne v Lord Harris (1981) 1 WLR 754 was still good law and binding in the light of further decisions during the intervening decade.

Under the Criminal Justice Act 1967, there was, on recall, a right to reasons and make representations but there was no entitlement to see the material before the board. The change in the law requiring disclosure of such material, by section 34 of the Criminal Justice Act 1991, applied only to discretionary life prisoners and would not avail the applicants.

In Payne v Lord Harris, it was held in the case of a mandatory life prisoner that natural justice did not require that he should be informed of the reasons for refusal to release him on licence or the nature of the case against him.

Payne was followed in Gunnell v Parole Board, unreported, 30 October 1984, which held that natural justice did not require disclosure of police and medical reports to a discretionary life-sentence prisoner.

In R v Parole Board, Ex parte Wilson (1992) 2 All ER 576, the Court of Appeal declared that a discretionary life prisoner was entitled to disclosure of reports to be put before the board.

Payne was distinguished on the ground that it was concerned with a mandatory life sentence. Gunnell was not followed on the basis that liberty of the subject was involved.

In R v Home Secretary, Ex parte Doody, the Independent, 7 May 1992, the Court of Appeal quashed the Home Secretary's decisions in relation to mandatory life prisoners who had not been given information as to the trial judge's view on their tariffs. Payne was distinguished on the basis that it concerned the second risk period of the sentence.

Mr Fitzgerald submitted that the reasoning in Payne was flawed and that Ex parte Wilson's reliance on the liberty of the subject justified a similar approach to disclosure in the case of a mandatory life prisoner and the reasoning in Doody applied.

Mr Richards submitted that Payne was conclusive and binding, that the sole basis in Ex parte Wilson for distinguishing Payne was because it concerned a mandatory life prisoner and Doody was a tariff case and could not supersede Payne.

If the matter were free from authority, his Lordship would have no hesitation in concluding that, in 1992, subject to necessary exceptions arising, for example from public interest immunity or where disclosure of material in a medical report might damage the patient, mandatory life prisoners like discretionary life prisoners should be entitled to see the material before the board on review, on recall and on post-recall.

A prisoner's right to make representations was valueless unless he knew the case against him. Secret, unchallengeable reports which might contain damaging inaccuracies and which resulted in continuing loss of liberty were, or should be, anathema in a civilised, democratic society.

The distinction in principle between mandatory and discretionary sentences was recognised.

But once it was accepted that both types of sentence had a tariff and possible risk element, that risk to the public was the sole justification for detention once the tariff period had been served, and that assessment of risk was in each case made by essentially similar procedures, it seemed that the requirements of natural justice should in both cases be the same.

But the matter was not free from authority. Payne was binding and indistinguishable factually or in any other way from the present applications.

Whether the Court of Appeal wished or felt able to depart from Payne was for that court to decide.

The apparent judicial climate in recent years tending towards a principle of openness did not undermine the doctrine of precedent or permit his Lordship to depart from an indistinguishable Court of Appeal decision.

The applications therefore failed.