England and Wales Court of Appeal (Civil Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
(MR JUSTICE CRANSTON)

		Royal Courts of Justice Strand, London, WC2A 2LL
		22nd July 2009

Lord Justice Dyson:

1. In June 2006 the claimant was sentenced to a term of imprisonment for public protection ("IPP") for causing death by dangerous driving. HHJ Hall specified a minimum term to be served of two years less the time spent on remand. The tariff period expired on 28 April 2008.
2. He challenges the decision by the Parole Board ("the Board") not to direct his release and not to recommend his transfer to open conditions. He does so by (1) a claim for habeas corpus and (2) a claim for judicial review. Both claims were dismissed by Cranston J on 13 November 2008. The claimant appeals as of right against the dismissal of his claim for habeas corpus. His application for permission to appeal against the refusal of judicial review was refused by the judge and, on appeal, was adjourned by me until today, with the appeal to follow if permission was granted.
3. The claimant is now 32 years of age. He has previous convictions for 103 offences dating back to 1990. His case was referred to the Board by the Secretary of State on 8 November 2007. On 9 July 2008 the Board made the decisions which are the subject of the challenge.

Legal framework

4. At the material time, section 225 of the Criminal Justice Act 2003 ("the 2003 Act") provided:

"(1) This section applies where --

(a) a person aged 18 or over is convicted of a serious offence committed after the commencement of this section, and

(b) the court is of the opinion that there is a significant risk to members of the public of serious harm occasioned by the commission by him of further specified offences.

(2) If --

(a) the offence is one in respect of which the offender would apart from this section be liable to imprisonment for life, and

(b) the court considers that the seriousness of the offence, or of the offence and one or more offences associated with it, is such as to justify the imposition of a sentence of imprisonment for life,

the court must impose a sentence of imprisonment for life.

(3) In a case not falling within subsection (2), the court must impose a sentence of imprisonment for public protection.

(4) A sentence of imprisonment for public protection is a sentence of imprisonment for an indeterminate period, subject to the provisions of Chapter 2 of Part 2 of the Crime (Sentences) Act 1997 (c. 43) as to the release of prisoners and duration of licences."

5. The following definitions are relevant. A "serious offence" is an offence which is a) a specified offence and b) punishable by a sentence of at least ten years or life: see section 224(2) of the 2003 Act. A "specified offence" is a specified violent or sexual offence: see section 224(1). A specified violent offence is one listed in Schedule 15 Part 1: see section 224(3). This includes causing death by dangerous driving: see Schedule 15 Part 1 paragraph 48. "Serious harm" means death or serious personal injury, whether physical or psychological: see section 224 (3).
6. Section 28 of the Crime (Sentences) Act 1997 ("the 1997 Act") provides:

"(5) As soon as, in the case of a life prisoner to whom this section applies—

(a) he has served the part of his sentence specified in the order or direction ("the relevant part"); and

(b) the Parole Board has directed his release under this section,

it shall be the duty of the Secretary of State to release him on licence.

(6) The Parole Board shall not give a direction under subsection (5) above with respect to a life prisoner to whom this section applies unless—

(a) the Secretary of State has referred the prisoner's case to the Board; and

(b) the Board is satisfied that it is no longer necessary for the protection of the public that the prisoner should be confined.

(7) A life prisoner to whom this section applies may require the Secretary of State to refer his case to the Parole Board at any time—

(a) after he has served the relevant part of his sentence; and

(b) where there has been a previous reference of his case to the Board, after the end of the period of two years beginning with the disposal of that reference

These proceedings.

7. By a claim form issued on 8 October 2008 the claimant alleged that the Board erred in that it: (1) applied the wrong test; (2) adopted an incorrect approach to the consideration of transfer to open conditions; (3) failed to have due regard to progress made by the claimant since the last OASys assessment of risk and relied on out-of-date OASys assessments; (4) failed to fix the next review of the claimant's case at a date which would ensure that his detention would remain justified. He also claimed a mandatory order for his immediate release on the ground that his continued detention was unlawful, and he claimed various other relief in the alternative.

The facts

8. The background is fully set out by Cranston J at paragraphs 2 to 10 of his clear judgment. The claimant pleaded guilty to causing the death of his girlfriend by dangerous driving. In his sentencing remarks of 30 June 2006, HHJ Hall noted that, prior to the conviction for the index offence, the claimant had been disqualified from driving 16 times, usually for driving at the wheel of somebody else's car. In 1997 he had been convicted of dangerous driving after a police chase. The index offence had been committed some six weeks after the claimant had been released from a 150-day sentence for taking a vehicle without consent and driving whilst disqualified. HHJ Hall concluded that there was a significant risk of serious harm to members of the public, the risk being of people being killed on the road in a car chase, with the claimant driving someone else's car whilst disqualified from driving.
9. OASys assessments of the claimant were made whilst he was in custody in July 2006 and June 2007. These assessments identified those at risk from the claimant as being members of the public, other road users and passengers if he were to be driving. The risk was road traffic accidents and the death of a person. The risk was said to be likely to be greatest if the claimant had relapsed into drug misuse and he was driving to obtain drugs, driving illegally or driving under the influence of alcohol.
10. The 25 July 2006 assessment said that the claimant was at a high risk of reconviction, 129/168, and posed a high risk of causing serious harm to the public and the community. The 29 June 2007 assessment said that he was still at high risk of reconviction, although his score had fallen to 108/168 and his risk of causing serious harm had reduced to medium. A medium risk is defined in these assessments in these terms:

"…there are identifiable indicators of risk of serious harm. The offender has the potential to cause serious harm but is unlikely to do so unless there is a change in circumstances, for example … drug or alcohol misuse."

11. In addition to the OASys assessments there were various prison reports and reports prepared by two probation officers. All these assessments and reports were placed before the Board, as were the sentencing remarks of HHJ Hall. At the hearing on 7 July 2008 the claimant was represented by Mr Rule, who also represented him before Cranston J, as he has done today. There was oral evidence from the claimant and the two probation officers.

The decision

12. In its decision letter of 9 July 2008 the Board wrote:

"1. The Parole Board is empowered to direct your release if it is satisfied that it is no longer necessary for the protection of the public that you be confined. The Panel of the Parole Board that considered your case on 7^th July 2008 was not so satisfied and has therefore not directed your release.

…

5. Whilst there does not, as yet, appear to have been a formal identification of your risk factors, you have recognised the deleterious effects of drug abuse in your life and have undertaken a Short Duration Programme in March 2007 as a first step towards treatment. Unfortunately, however, you received an adjudication for possession of controlled substances in January 2007 (before you undertook the course) as well as being the addressee of an envelope found to contain controlled substances in December 2007. You have, however, participated in the VDT scheme and provided as substantial number of drug tests.

6. In addition to the foregoing, you have undertaken the ETS in August 2007, worked with the Sycamore Project, have undertaken work on bereavement in respect of the woman whose death you caused and have achieved enhanced status. An OASys assessment of risk undertaken in 2007 scored 129/168, lowered in a re-assessment in 2007 to 108/168 but both indicated a high risk of re-conviction.

7. We took oral evidence from you and from Ms L Everatt, Home Probation Officer and Mr U Lebeanya, Seconded Probation Officer. From this evidence, we are satisfied that the root of your offending has been your addiction to illicit drug use and you recognise the need to undertake the RAPT course to start to address this problem and this work needs appropriately to be successfully completed in closed conditions before further progress if considered, notwithstanding your evident ambivalence regarding the commencement of this work. The need to do this work in closed conditions was supported by both Probation Officers.

8. For our part, we require to be satisfied that the level of risk of serious harm from re-offending is reduced to a level consistent with open conditions or release. We appreciate that there is not a present risk of violent or sexual offending. At present, however, and without formal assessment of risks and their reduction we are obliged to have regard to the OASys assessment of risk which indicates an incompatibility with either course."

The grounds of appeal.

13. Mr Rule submits that the judge was wrong to reject each of the four grounds of challenge that he advanced in the court below.

The first ground: the wrong test

14. It was common ground before the judge that section 28(6)(b) of the 1997 Act should be interpreted in this case as raising the question whether the Board was satisfied that the claimant no longer posed a significant risk to members of the public of serious harm occasioned by the commission of further specified offences. In other words, the test provided by section 28(6)(b) mirrors the test for the imposition of an IPP under section 225(1)(b) of the 2003 Act. Without deciding the point, the judge accepted for the purpose of the present proceedings that this was the correct test. I proceed on the same basis.
15. The judge therefore accepted that section 28(6)(b) should be read as providing that the Board should not give a direction to release an IPP prisoner unless satisfied that:

"It is no longer necessary for the protection of the public against a significant risk of serious harm from the commission of further specified offences that the prisoner should be confined."

And I would emphasise the words "further specified offences": see paragraph 15 of his judgment. At paragraph 23 the judge asked whether the Board had applied this test and, in paragraphs 23 and 24, he explained why he was satisfied that it had done so. He said this:

"23. The Board then went on to conclude, as indicated earlier, that it was not so satisfied and therefore did not recommended release. The Board set out in detail the background to the offence, the previous offending behaviour and referred to the deleterious effect of drugs in the offender's life. In that regard it noted that the claimant had undertaken work in relation to drugs, but had had an adjudication for possession of a controlled substance in 2007. It referred to the OASys assessments. It considered the oral evidence of the probation officers and it highlighted that the further work in closed conditions was derived from what they said. Then, in the concluding paragraph, the Board said that it required to be satisfied that the level of risk of serious harm from re-offending was reduced to a level consistent with open conditions on release. There was the mention, in paragraph 8, that there was no present risk of violent or sexual offending. Mr Rule said that the Board was well aware of what it was saying there, because of the submissions that he had made at the hearing. Notwithstanding that, it seems to me clear from the context of that passage and from the Board's consideration of the range of matters which it had before it, that it was referring to other violent or sexual offending, not offending constituted by death by dangerous driving.

24. In my view, it is plain from the decision letter that the Parole Board was applying the right test. It was considering whether it was satisfied that a significant risk of serious harm to members of the public was sufficiently reduced subsequent to the claimant's sentence so that it was no longer necessary for the protection of the public that he be confined. On my interpretation of the Parole Board's decision as a whole, its approach was that even if the claimant had made some progress, which it recorded, it was not satisfied that the level of risk of serious harm to the public, which had been identified by the learned judge in sentencing him, had been reduced to a level justifying his release. The Parole Board applied the right test and, on the evidence before it, it was entitled to reach the conclusion it did."

16. Mr Rule submits that the test specified in section 28(6)(b) of the 1997 Act does not apply in the same way to prisoners sentenced to IPP as it does to those sentenced to life imprisonment. He submits that the test for release for those sentenced to IPP should be the test which applies in the case of those serving an extended sentence pursuant to section 58 of the Crime and Disorder Act 1998. In support of this argument he relies on R (Sim) v Parole Board [2003] EWCA Civ 1845; [2004] QB 1288.
17. I would reject this submission for the same reasons as the judge. Mr Sim was not serving an indeterminate sentence. He had been detained after recall from licence. The Court of Appeal held that in those circumstances Article 5 of the European Convention on Human Rights required section 44A(4) of the Criminal Justice Act 1991 to be construed so that the Board was obliged to conclude that it was no longer necessary to detain a recalled prisoner unless the Board was positively satisfied that the interests of the public required that he should be confined. Keene LJ, with whom Ward LJ and Munby J agreed, made it clear at paragraphs 46 and 51 that there was a distinction to be drawn in relation to the onus of proof between an extended sentence and an indeterminate sentence. The position of a prisoner who was recalled during his licence was different from that of a prisoner who was currently serving a sentence imposed by the court. In my judgment Sim provides no assistance in the present case. Section 28(6)(b) is clear and unequivocal. It provides that the Board shall give a direction to release unless it is satisfied that it is no longer necessary for the protection of the public that the prisoner should be confined. In my judgment the test for lifers and IPP prisoners is the same. I am in no doubt that the Board applied the right test. It was not satisfied that it was no longer necessary for the protection of the public against the significant risk of serious harm from the commission by the claimant of further specified offences, namely offences of causing death by dangerous driving.
18. Mr Rule submits that the decision letter does not make it clear that this is the test that the Board applied. The reference to "risk of serious harm from reoffending" in paragraph 8 of the letter is at least consistent with the Board applying a test of risk of serious harm from any reoffending, as opposed to reoffending by the commission of specified offences. That is Mr Rule's submission.
19. In my judgment it is clear, on a sensible interpretation of the letter, that the Board was referring to reoffending by causing death by dangerous driving. That was the risk to which attention was drawn in the OASys reports:

"road traffic accidents, death of person"

20. In his skeleton argument to the Board, Mr Rule formulated the test in terms which do not differ from the test which is now agreed. The Secretary of State did not take a different view before the Board. There is no reason to think that the Board applied a different test. In my judgment the first ground of appeal would have no real prospects of success and I would refuse permission to appeal in relation to it.

Ground 2: transfer to open conditions

21. Mr Rule submits that the Board's decision not to recommend that the claimant be detained in open conditions was disproportionate and unreasonable. He relies on the fact that there was no history or risk of violent or sexual offending or of a propensity to cause death by dangerous driving. The index offence, the fact that the tariff period was only two years and that the offence was not so grave as offences for which life sentences are passed, all support the argument that, if the claimant was not to be recommended for release, he should at least have been recommended for transfer to open conditions. The judge dealt with this submission at paragraph 25 in the following terms:

"The second submission was that there was a failure to consider a transfer to open conditions. I cannot accept that. The Secretary of State had sought advice from the Parole Board as to whether the claimant should be transferred to open conditions. The Parole Board noted that both the Home Probation Officer and the external probation officer had given oral evidence. From that it inferred that the claimant needed to undertake further offending work to reduce his level of risk and that that should be completed in closed conditions before progress to open conditions could be recommended. The Parole Board adopted that approach in paragraph 9. It concluded that the risks posed by the claimant were not reduced sufficiently to be consistent with open conditions. In my view, even applying an enhanced rationality test because liberty is at stake, the Parole Board's decision in this regard cannot be treated as flawed. Whether or not the RAPt courses are available in open conditions is not a matter before me in terms of the evidence. In any event, it seems to me that the Parole Board was coming to its conclusion regarding open conditions in a perfectly straightforward way and properly applying the test mandated by statute"

22. I agree, with one qualification. None of the reports that were placed before the judge and neither of the probation officers who gave evidence recommended that the claimant should be transferred to open conditions. The only qualification is that there is one report from the claimant's lifer manager, J Doyle, dated 29 February 2008, which stated that he would "like to see" the claimant complete a RAPT course (on drug addiction run by the Rehabilitation of Addicted Prisoners Trust) "either in custody or in open conditions". The two probation officers who gave evidence to the Board said that their recommendation was that the further work on drug use that the claimant needed to undertake to reduce his level of risk should be provided in closed conditions. I have already referred to the summary of that evidence, which is recorded by the Board in its decision letter of 9 July. An important factor which led the Board not to recommend transfer to open conditions was the claimant's own recognition that he needed to undertake the RAPT course to start to address his misuse of drugs work, which needed to be completed successfully before further progress would be considered. The RAPT course was only available in closed conditions. In these circumstances, in my view it is not possible to dismiss the Board's decision on the open conditions issue as unreasonable or disproportionate. I would not grant permission to appeal on this ground.

The third ground: failure to have regard to progress since the latest OASys assessment.

23. Mr Rule submits that it was unreasonable of the Board to make its assessment on the basis of the June 2007 OASys report without obtaining evidence of the up-to-date position, including an up-to-date OASys assessment. He relies on paragraphs 6.4-6.9 of PSO 2205. In August 2007 the claimant had successfully undertaken the Enhanced Thinking Skills course, worked with the Sycamore project, undertaken work on bereavement in respect of the loss of his girlfriend whose death he caused, and achieved enhanced status as well as working in the prison kitchen. All of this information was disclosed to the Board.
24. The claimant did not seek an adjournment at the hearing before the Board to obtain an up-to-date OASys report. It is clear from the exchange between Mr Rule and the court this morning that this was a tactical decision made by him, no doubt made partly if not entirely because the claimant was advised that an adjournment might involve considerable delay. Whilst it is true that the latest OASys report was dated 29 June 2007, a few days more than 12 months before the date of the hearing, the Board had a considerable amount of up-to-date material from which it could assess the risk posed by the claimant. It had a report by his personal officer dated 27 October 2007, by his wing/unit manager of 6 December 2007, by his lifer manager of 29 February 2008, by a Seconded Probation Officer of 6 February 2008 and an external probation officer of 19 December 2007. It also had a security report of February 2008 dealing with suspicions of the claimant's involvement in drugs whilst in prison. Further, at the hearing itself the Board heard evidence from Miss Everatt the claimant's Home Probation Officer and Mr Lebeanya, a Seconded Probation Officer. As I have said, both advised that the claimant needed to undertake further work in closed conditions before he could be released.
25. It is clear therefore that the Board had up-to-date information from which it was able to determine whether the claimant's risk was sufficiently reduced. Further, the matters which Mr Rule suggests were not taken into account were the successful completion of an Enhanced Thinking Skills course in August 2007 and work with the Sycamore project on bereavement, both of which were expressly referred to at paragraph 6 of the Board's decision letter.
26. Mr Rule also submits that the Board did not take into account the fact that it did not have the benefit of a recent OASys report. In my judgment there is no reason to suppose that the Board did not take into account the fact that the most recent OASys report was slightly more than 12 months out of date. It is obvious that one of the most important aspects of an assessment is the date when it is made. The Board must have been of the view that the two OASys reports that it had, taken with all the other material before it, were sufficient to enable it to make a proper assessment. I would not grant permission to appeal on ground 3.

Ground 4: Timing of the next parole review

27. Mr Rule submits that the Board should have set an early date for the next review. In my judgment this submission is misconceived. The Secretary of State had asked the Board to determine whether to direct the claimant's release and, if it did not direct the claimant's release, to advise on whether the claimant should be transferred to open conditions and on the continuing errors of risk that needed to be addressed. At paragraph 5 of the referral, the Secretary of State had specifically said that the Board was not being asked to make any recommendation about the date of the next review. In these circumstances the Board had no power to set the date for the next consideration of the claimant's case. The Board's jurisdiction is confined to the matters referred to it by the Secretary of State: see rule 20 of the Parole Board Rules. It is clear that the Secretary of State can fix the review date, but Article 5(4) of the Convention does not require this to be done by a court: see Blackstock v UK [2004] (Application 59512/00) at page 18 and R (Day) v SSHD [2004] EWHC 1742 (Admin) at paragraphs 34-35 and 45-47. For these reasons I would not give permission to appeal in relation to the fourth ground.
28. It follows that in my judgment none of the grounds of appeal on the judicial review is arguable and I would not give permission to appeal against the refusal of judicial review.

Habeas corpus

29. Since for the reasons that I have given the decision of the Board was lawful, the foundation for the claimant's case that his continued detention is unlawful and that he is entitled to habeas corpus does not exist. But in any event it is clear in the light of the decision of the House of Lords in R (James) v SSJ [2009] UKHL 22; [2009] 2 WLR 1149 that the habeas corpus appeal is unsustainable. Even if the Board's decision not to recommend the claimant's release was wrong in law, that would not lead to the conclusion that his continued detention was also unlawful.
30. But for the reasons that I have given, I would dismiss the habeas corpus appeal.

Lord Justice Moore-Bick:

31. I agree.

Lady Justice Arden:

32. I also agree.

Order: Appeal dismissed