Gulliver's Travails

The whole point of a law report, apart from the obvious reporting the law, is being able to determine the reason for deciding the case. I have drawn a blank on R (Gulliver) v The Parole Board.

Gulliver was recalled to prison by the Minister of Justice on the ground that he had breached a licence condition.

The Parole Board decided that Gulliver had not breached the licence condition. And that the Minister of Justice was wrong, but it was not unreasonable to be wrong. And that it would not direct Gulliver's release for a reason other than that for which he was recalled to prison.

Gulliver sought a judicial review, it was refused by Collins J, and he appealed to the Court of Appeal. The CofA held: "When considering the recall to prison of a prisoner who had been released on licence the Parole Board was not confined to a review of the breach of the licence condition for which the Secretary of State for Justice had ordered his recall, but was entitled to take into account all the circumstances in deciding whether or not to order his release". That's the decision.

"The question was whether, having held that there had been no breach, the Parole Board was entitled to consider all the circumstances and decide not to release the claimant".

The problem is that Parliament left a gaping gap in legislation: "The 2003 Act did not set out how the Parole Board was to approach its task on considering whether to release a prisoner whose licence had been revoked". Therefore, either the Parole Board assumes it's own powers, or more likely the Home Office issued guidance to the Parole Board which is taken to be the law by the Parole Board. And, the courts have adopted the "hands off" approach rather than deal with the issue.

"The question was the nature of the responsibility of the Parole Board when considering whether to order the prisoner’s immediate release when he had been recalled under s 254 of the 2003 Act".

There is no case-law to provide a precedent to guide the CofA.

"The purpose of the recall was to protect the public against risk".

"The Parole Board when considering whether to order the release of a recalled prisoner on licence had to have regard to all the circumstances of the case and to decide whether to recommend release considering the risk to the public".

What is clearly missing from the law report is "all the circumstances of the case". It may be that the Parole Board decided correctly in this particular case. But, how are we to know if these circumstances remain secret? On the basis of what has been published, in my view, the Parole Board, Collins J, and the Court of Appeal have all decided wrongly. The ground for recall fell. I suspect that the rest of it is an attempt to sweep it under the carpet.

Is that the shape of an elephant I see under the carpet?