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The Court of Appeal has given judgment in an appeal which concerned a rule change which afforded a prisoner or the Secretary of State a 21-day period to apply for an administrative review of a Parole Board decision ("the Reconsideration Mechanism").

In 2018, a public consultation took place regarding a number of measures designed to improve the existing Parole Board Rules 2016, including introducing a mechanism which would allow a prisoner or the Secretary of State to request an internal administrative reconsideration of the Parole Board decision on grounds similar to bringing a judicial review. The Reconsideration Mechanism was introduced by the Parole Board Rules 2019 ("the 2019 Rules"). Under the terms of the Reconsideration Mechanism any direction for release following a paper review or an oral hearing is provisional for a period of 21 days to allow an application for reconsideration to be made.

The Reconsideration Mechanism was challenged on the basis that it was (a) ultra vires the Criminal Justice Act 2003 ("the 2003 Act"), (b) incompatible with Article 5(1) ECHR and (c) incompatible with Article 5(4) ECHR.

The Court of Appeal rejected all three grounds of challenge.

On the first ground, the Appellant argued that the Reconsideration Mechanism removed a substantive power from the Parole Board, therefore the 2019 Rules were not "rules with respect to the proceedings of the Board" as required by s.239(5) of the 2003 Act. The Court of Appeal found that the 2019 Rules did not have the effect of removing any substantive powers from the Parole Board, finding that "in simple terms, it creates the concept of a provisional decision which remains provisional - and subject to reconsideration for 21 days - until it becomes final" (at §23).

In relation to the second ground, the Appellant argued the Reconsideration Mechanism infringed Article 5(1) ECHR. The Court of Appeal rejected this ground for similar reasons to the first ground: "the Parole Board decision to release does not become final, binding and operative until the expiry of the 21-day reconsideration period; until that moment, the decision remains provisional, non-binding and subject to reconsideration" §37.

The Appellant's third ground contended that the Reconsideration Mechanism infringed Article 5(4) on the basis that it was a blanket policy that unlawfully delayed the release of every indeterminate prisoner. The Court of Appeal considered that there was no delay as no final decision is made until the expiry of the 21-day reconsideration period. Furthermore, the Reconsideration Mechanism allows a prisoner or the Secretary of State to apply to shorten the 21-day period.

A copy of the decision is here.

Sir James Eadie QC and Jason Pobjoy were instructed by the Secretary of State for Justice.

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