Statutory delay of parole eligibility: Morgan v Ministry of Justice (Northern Ireland) [2023] UKSC 14

The life of a criminal barrister has several sources of irritation.

One is the difficulty of getting clients to see the marvelous subtlety of the logic of the criminal law.

For example, “If you plead guilty you will get a reduced sentence” is not the same as, “You get a longer sentence for not pleading guilty”. You do get a longer sentence, but only because it is the sentence that fits the crime and any mitigating factors you point to will not include a guilty plea.

Yes, but …

Another irritant is having to explain for the millionth time the difference between a sentence of imprisonment and an eligibility for release. Why, for example, a person sentence to a richly-deserved 10 years’ imprisonment [1] may be released after, say, only one year. [2]

This distinction between the sentence and the release is particularly acute if the law on release is changed after a person is sentenced, so that initial calculations of time to be spent in prison have to be revised upwards. You can imaging how irksome this is for the prisoner, to whom it looks like an increased sentence.

The need to properly interpret such a change was the central issue in Morgan v Ministry of Justice (Northern Ireland) [2023] UKSC 14 (19 April 2023). The answer looks easy now that we can read the judgment, but there were respectable arguments on both sides. Did the change in release eligibility amount to a retroactive penalty, and further, did it make it impossible for proper legal advice to have been given before the change?

A central consideration was a decision of the Grand Chamber of the Eurpoean Court of Human Rights, Del Río Prada v Spain (Application No 42750/09) (2014) 58 EHRR 37. Pursuant to that decision, the imposition of a sentence could be taken to include the administrative rules as to release. It is not always easy, as European decisions illustrate, to distinguish between measures concerning the imposition of a sentence and measures concerned with its execution or enforcement. In Del Río Prada the distinction was recognised and endorsed, and the same distinction had been made in the relevant domestic law (see Morgan at [83] ff) but the Spanish law interpreted in Del Río Prada was distinguishable (at [94]).

And on the foreseeability of the law point, there was authority for the proposition that measures relating to the execution or enforcement of a sentence do not need to be foreseeable (at [100]). As noted at [103], the Court in Del Río Prada had said that foresight of a change in a penalty is to be assessed in the context that “the progressive development of the criminal law through judicial law-making is a well-entrenched and necessary part of legal tradition in the Convention States”.

Any barrister who has to explain to a client why an increase in the period that has to be spent in prison is not the same as an increase in the sentence can hand over the judgment in Morgan. And any advice on when release can be expected can always be given with the caveat that the law on release might change.

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[1] Another source of irritation is having to use all those fucking apostrophes when specifying periods of sentences such as imprisonment.

[2] On good behaviour and without a judicially-imposed minimum term, a successful application for release on parole after serving one-third of the sentence can be expected, with any actual period in custody prior to being sentenced taken into account as time served. In the example I have suggested, the prisoner was most fortunate to have been refused bail from the outset and so to have spent a couple of years in pre-sentence custody. In any event, release on parole comes with conditions and there is potential for recall to prison to continue serving the sentence until it expires. This applies to so-called long-term sentences, which are usually defined as being more than two years’ imprisonment. Shorter sentences of imprisonment commonly have no parole date but release is usually when half the term has been served. Consult your local laws.

Decisions on unproven facts: R (on the application of Pearce) v Parole Board [2023] UKSC 13

In a criminal trial, facts in issue need to be proved to the relevant standard. For example, the elements of the offence charged must be proved beyond reasonable doubt. In civil cases, the facts that have to be proved to make out a claim must be proved on the balance of probabilities.

Parole hearings are judicial (but inquisitorial) and civil. Where a prisoner who is subject to an indeterminate sentence, such as imprisonment for life, applies for parole, the governing legislation may provide, for example, that the Parole Board may not direct release on parole unless it is “satisfied that it is no longer necessary for the protection of the public that the prisoner should be confined.”

In that legislative enviroment, [1] one might ask whether this absence of a need to protect the public is a fact in issue that must be proved on the balance of probabilities before release may be ordered.

This was a point of contention in R (on the application of Pearce) v Parole Board [2023] UKSC 13 (5 April 2023). The proceedings in the Supreme Court did not involve the applicant for parole, as the release issue had been settled, but the appropriateness of guidance given administratively to the Board was under review.

Nevertheless, the judgment is of general interest because of its treatment of information received by the Board which amounted to accusations about the applicant's dangerous conduct, although those accusations were never proved. In what circumstances, if any, could the Board use unproven allegations to reach a conclusion that release on parole should be declined?

If an allegation has not been proved, that may still mean that it was nearly proved and that it raises sufficient concern to justify its being taken into account. But some accusations may never have reached the courtroom, or even been the subject of a formal complaint. Plainly, in those circumstances, the Board would have to be careful to comply with the requirements of fairness to the applicant.

The premiss of the legislation is that, for this category of prisoner, release will not be ordered unless the prisoner satisfies the Board that confinement is no longer necessary for the protection of the public. The prisoner’s absence of dangerousness is in issue in the proceedings, and taking unproven allegations into account on that issue is to do what in a trial would be unacceptable.

But parole proceedings, although they must be conducted in compliance with the rules of natural justice, are not trials, and the Board is not required to confine its deliberations to admissible evidence. The prisoner is not in jeopardy of conviction in a parole application, and indeed the prisoner can only gain an advantage without risking further penalty. So the decision process can be described as evaluation of risk based on an holistic assessment of all the circumstances. [2]

“[A] decision-maker, whether a member of the executive branch of government or a judicial body, when assessing future risk, is not as a matter of law compelled to have regard only to those facts which individually have been established on the balance of probabilities; the decision-maker, from the assessment of the evidence as a whole, can take into account, alongside the facts which have been so established, the possibility that allegations, which have not been so established, may be true” (at [44], and see the summary at [65] and the conclusions at [72]-[87]).

This case applies where a tribunal acts judicially and inquisitorially to assess a risk but without being bound by the rules of evidence. There may be a tendency for more issues in criminal law to be approached in that way, for example as a result of advocacy of the introduction of special courts to try allegations of a sexual nature. Would a move away from jury trials permit the abolition of the law of evidence? Would trial by expert assessors of information be any better than trial by jury? [3]

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[1] Section 28(6)(b) of the Crime (Sentences) Act 1997 [UK].

[2] See [83] and [87(vii)].

[3] The use of unproven allegations as evidence may remain highly controversial, and would not necessarily be endorsed by logicians. Truth is a matter of veracity and reliability, and, as those are not logical matters, a logician would have to treat an allegation as if it were true, and ask what it then would say about the acceptability of the risk. The current potential for replacing judges and judicial tribunals with some sort of AI (which need not be confined to logical processes) is unclear, although the tools used by officials such as probation officers to assess an offender’s dangerousness or likelihood of recidivism could be seen as major steps in that direction.