handcuffsOn appeal from: [2012] EWCA Civ 452.

To paraphrase Lord Mance’s opening observations, this is another case considering the practical and legal issues resulting from imprisonment for public protection (IPP). Specifically, it is concerned with the proper test that the Parole Board must apply when considering whether to release those held under IPPs.

Case History

The appellant had been convicted of manslaughter, following an altercation outside of a pub. It is the sort of incident that is the bread and butter of the legal world, but for one fairly interesting feature. The judge concluded that the appellant was dangerous, and therefore imposed an IPP. On 19th May 2009, the appellant completed his tariff, and it was therefore up to the Parole Board to decide whether he should be released on licence.

The Parole Board dutifully reviewed his incarceration. The Crime (Sentences) Act 1997 states that they are required not to order release unless ‘they are satisfied it is no longer necessary for the protection of the public that the prisoner should be confined’. Based upon this, they concluded that the appellant had progressed significantly, but not significantly enough. He still posed a low risk of reoffending and a medium risk of serious harm. As a result, his incarceration continued.

Unsurprisingly, the appellant was not impressed by this conclusion, and sought a judicial review on two grounds. First, the Parole Board had applied the wrong test, and second, that the delay was sufficiently prolonged as to incur damages. The latter issue has been addressed ([2013] UKSC 23). All that was left was for the Supreme Court to address the first issue.

The instant appeal had been conducted on the basis that the imposition test was different from the release test. In the former, it was necessary to demonstrate ‘a substantial risk to members of the public’ under the Criminal Justice Act 2003, s 225(1)(b). In the latter, the Parole Board had to be satisfied that detention ‘was no longer necessary for protection of members of the public’ under the Crime (sentence) Act 1997, s 28(6)(b). This mirrored the approach set out in discretionary life sentences.

In practice, this means that whilst it is fairly onerous to get on the dangerous list, it is equally onerous to get off. Essentially, if you’re tarred with the dangerous brush, it’s up to you to show you’re no threat to get the tar off. That means that whilst his low and medium threat wouldn’t have been enough to initially impose the IPP, it was enough to sustain it.

There were two grounds for appeal:

  1. The test used to initially impose the sentence and the test used by the Parole Board when deciding release ought to be the same.
  2. That the Parole Board took into account the direction of the Secretary of State, who had no power to give such a direction.

Judicial Decision

The Supreme Court unanimously dismissed the appeal.

Ground One: Application of the same test

The appellant clearly wanted a system in which the imposition test and the release test were the same. This would mean that, when considering release, the Parole Board would have to meet the high standard required at the imposition stage to justify continuing incarceration. If this had been accepted, it would have made IPP parole far easier.

The appellant initially relied on resuscitating a line of reasoning that had failed in the case of Bradley [1991] 1 WLR 134. In Bradley, it had been argued that when evaluating the risk of an offender in discretionary life sentences, the test used at sentencing ought to be the same when deciding whether to release on licence. This line of reasoning had failed. However, that didn’t stop this appellant seeking to rely on it. They submitted that either Bradley was wrong to reject this reasoning, or IPPs should be treated differently from discretionary life sentences.

In arguing that discretionary life sentences are different from IPPs, they relied on R v Smith (Nicholas) [2011] UKSC 37, [2011] 1 WLR 1795, which established that when considering whether to impose an IPP, the sentencing court was not making ‘a predictive judgment of risk at the expiry of the tariff period’. Therefore, they argued, IPPs are an altogether different beast from discretionary life sentences.

Rejecting the argument of the appellant, Lord Mance relied on many lines of reasoning. He did not hide is contempt for the reasoning in Smith, and quickly concluded its irrelevance, before turning to give several reasons why IPPs should use the same approach outlined in Bradley.

First, the distinction between discretionary life sentences and IPPs was one of horribleness, not dangerousness. In both cases, the threshold of dangerousness was the same. This meant that when deciding issues of dangerousness, such as parole, they required the same tests. Therefore IPPs should follow the Bradley approach.

Second, the sentencing stage ought to use a different test to the Parole Board stage because substantially different decisions had to be made. Initial imposition depends on the Court being satisfied of “a significant risk to members of the public of serious harm occasioned by the commission of further specified offences”. This means being certain that an individual poses a significant risk because of their risk of committing further specific, and serious, offences.

In contrast, Parole Board decisions rely on them being “satisfied that it is no longer necessary for the protection of the public that the prisoner should be confined”. There may be many reasons why a prisoner may pose a threat, outside of their potential risk to cause the specified offences discussed at imposition. Harsh and unreasonable as that might sound on philosophical and moral grounds, there is no denying the language of the statute allows for such a conclusion. The language of the Parole test does seem to be concerned with a wider range of risks than the imposition test.

Third, when these tests were encapsulated in statutory form, Parliament and its drafters must have known of the Bradley test, and been content with it. If they had intended for a different test to be used when considering IPPs, why didn’t they say so? Fourth, and connected with drafters’ intentions, the release test makes no reference to the threshold risk that had initially justified the imposition of an IPP.

Fifth, whilst I may have said that there are moral objections to a different test, Lord Mance argued it was an entirely consistent and reasonable scheme. He concluded, “those who cross the initial threshold have notice that they are at peril of being held to protect the public against a more general and lesser level of risk…A person who has not committed a serious offence cannot be detained…because the threshold has not been crossed”. Some might argue this sounds circular, but there is some sense to this. It just means accepting that it’s ok to punish very bad people more than bad people, based on actuarial measurements of risk.

Sixth, there are no human rights issues to prevent on-going detention. Whilst cases such as Van Droogenbroeck v Belgium (1982) 4 EHRR 443 might demand a sufficient causal connection between the imposition of a risk-based sentence and their post-tariff risk-based incarceration, it was not concerned with addressing the amount or risk they must demonstrate. In Lord Mance’s words, ‘It was not concerned with the question whether the minimum level of risk at each stage was required to be identical in order to comply with the Convention”. All that is required is that the entire incarceration is framed in the same language; risk and dangerousness.

Based on these reasons, the appeal was dismissed.

Ground Two: Secretary of State

A copy of an internal Parole Board document was shown to Mitting J, in which the Parole Board identified that it had adopted the ‘more than minimal’ test; a test originally directed by the Secretary of State.

Mitting J, at the original trial, concluded that ‘he would not be prepared to say that it was an unlawful test’. He then dismissed the appeal on the basis that there was nothing to suggest that the Board had actually taken that part of the Secretary of State’s direction into account. The Court of Appeal upheld this.

Lord Mance recognised that the appellant had barely addressed the issue, and concluded that he had not established any reason for the court to do anything but uphold the decision of the Court of Appeal. Therefore again, the appeal was dismissed.


The strengths of this judgement are Lord Mance’s excellent dissections and reflections on the legislation involved. He systematically demonstrates the irrefutable similarities between the legislation creating IPPs and the legislation relating to discretionary life sentences. He eloquently demonstrates that the only difference between the two sentences is the nastiness of the offence, not the dangerousness of the offender. By the end of the judgement, there is no denying that it must have been Parliament’s intention that the two of them ought to be dealt with in the same way.

There are some weakness however in the reasoning. Lord Mance concludes that it is coherent and consistent to allow for an IPP offender to be detained based on risks far lower than the initial risk that had incarcerated him. Whilst it may be coherent and consistent with other indeterminate sentences, he doesn’t sufficiently explain why this is OK.

This issue deserves more. For one thing, the ECHR’s view of a sufficient causal connection has developed since Van Droogenbroeck. Causality is a complex and judicially shifting concept, but the ECHR are clearly becoming more inclined to demand that the reason we initially lock them up is the same as the reason why they stay locked them up. A few muttered comments about dangerousness and risk don’t explain why his risk of committing dangerous acts justifies incarceration to reduce his risk of committing low-level crime. For more on the issue, look at Stafford v United Kingdom [2002} 35 EHRR 32.

But more importantly, actuarial justice and the assessment of risk are steadily infecting the judicial system, and the Supreme Court ought to be paying closer attention to it. The weakness in the judgement is not that the thought is absent, but that it gets so little consideration. An entire ontological and jurisprudential analysis could have been pursued, fully explaining the role that risk and dangerousness ought to play in detention, but instead it is reduced to a meagre few paragraphs that do nothing more than rehash the reasoning of a judgement that is now over 20 years old and considerably harder to justify that it once was.