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 UNDERHILL)

		Royal Courts of Justice Strand, London, WC2A 2LL
		29th January 2009

Lord Justice Thomas:

1. There is before me a renewed application for permission to appeal in a case involving the applicant, who is a lifer prisoner. He was convicted on 1 March 1978 of the murder and rape of a young child. At the time he was 23. In accordance with the law then in place, the judge put forward a minimum term recommendation of 12 years to Her Majesty's Principal Secretary of State for the Home Department. That term was endorsed by the then Lord Chief Justice, Lord Lane. However, there were grounds for the Home Secretary reconsidering the term; he set the term as 20 years. That term expired, therefore, in 1997 as the applicant had been on remand for a period prior to his conviction, and time on remand then and now is counted towards the minimum period. He has not been released. He has for a considerable period of time been held at Her Majesty's Prison at Frankland, a lifer prison, and he his now in HM Prison Wakefield from where he has appeared by video link today after a considerable delay for reasons that have now been explained to me.
2. The Parole Board considered his case in 1995, 1998, 2004 and 2006, and again, in circumstances to which I will refer in a moment, in 2008. On each occasion the Parole Board made no recommendation as to his release. On 4 April 2008 his lifer manager refused permission to recategorise him for a move to open conditions.
3. There had been begun in February 2007 judicial review proceedings arising out of the 2006 decision. After a number of hearings the matter came on before Underhill J as a renewed permission application on 6 May 2008. When it came before him, not only was there a challenge to the decision of the Parole Board of 2006, but a challenge to the decision of the lifer manager not to re-categorise him, made in 2008. In a very detailed judgment he refused that application.
4. It is clear that the principal reason, or in the applicant's view the only reason, why he was not moved to open conditions and has not been released, is that he has not undertaken what is known as an extended Sex Offender Treatment Program which was available to him. He had undertaken a Sex Offender's Treatment Program in 1999 at Wakefield Prison. The view is that he must undertake the extended program. There is clearly from the papers a considerable issue of confrontation, about which I need say no more at present.
5. After the hearing before Underhill J there was a renewed application to this court. Before that was considered on paper by Hooper LJ there was a hearing before the Parole Board on 28 August 2008, which again refused to set conditions for his release. It seems pretty clear that when the renewed application came on before Hooper LJ, Hooper LJ did not know of that or of the decision of the Parole Board as set out in its letter of 1 September. In what can only be described as a careful letter, the Parole Board on 1 September 2008 set out in detail the reasons why it had taken the position it did. It set out at paragraph 11 of the letter what it considered should happen:

"Accordingly, the panel determined that your risk still remained too high for transfer to open conditions or release. Having seen and heard you give evidence, it was the opinion that your apparently confrontational and rigid style may not be assisting your rehabilitation and progress through the prison system. It did, however, agree with Mr Payne-Smith and Ms Krause that there should be thought given to trying to resolve the outstanding issues between you and the prison authorities and to the possibility of 'tailoring' some treatment to deal with the outstanding areas of risk fully set out in the reports. The panel also noted that you had no release plan that had been put forward and investigated. It was also concerned that your attitude towards complying with the outstanding offence related work would be an indication of your response and willingness to comply with the restrictions of licence conditions."

6. I have enquired today, because it was not apparent to me from the papers, what had taken place to carry the matter forward. There is a further letter in the papers before me from a Mr Marston of the Parole Board, dated 19 November, but that letter does not deal with this issue. The reference to the report of Mr Payne-Smith is a reference to an independent report which very carefully (and in what appears to be a balanced way) sets out the difficulties that have arisen. It seems to me plain from paragraph 11 of the decision of the Parole Board that they recognised there was force in some of what was put forward by Mr Payne-Smith. However it is of course a matter for them and those acting on behalf of Her Majesty's Secretary of State for Justice as to the way in which apparently what is set out in that report, as reflected in paragraph 11 of the Parole Board's decision, should be taken forward.
7. The issues raised in paragraph 11 are closely allied to the fundamental argument that is made by Ms Krause in this case. Without disrespect to her, I believe it can be summarised very briefly. It is this: that the system adopted by the Parole Board of relying on attendances at courses (where they are available) is a system which is not lawful. That is because it is incumbent on the authorities, both the Parole Board and the prison authorities, to examine the position of each person, particularly a lifer who has been in prison for 30 years, in a much more rounded way. It seems to me, at first sight, that what is in paragraph 11 of the Parole Board's decision is some indication that in the circumstances of this particular and unusual case, where a lifer has been detained for 10 years beyond his tariff period, that there may be force in that submission.
8. This was not an issue before Underhill J. The view could be taken that the proper course would be for me to say that none of this evidence should be admitted, that there was nothing therefore to displace the decision of Underhill J, and that what should happen is that, if Ms Krause wanted to pursue the argument which I have basically outlined, she should start all over again. Bearing in mind that this matter has been going on for some time, and the cost and expense of that process, it seems to me that the better course would be to adjourn this application for the Parole Board and the Secretary of State to have an opportunity of considering the matters which the Parole Board set out in paragraph 11 of their decision, which I have set out in this short judgment. The matter should then be restored before me in, say, five or six months' time. It seems to me also that that would give a further opportunity to look at the point which was raised before Underhill J as to whether the issue is also related to the question of transfer to a Category C prison.
9. What I therefore propose to do is to adjourn the application, to require that the matter come back before me in five or six months' time but there be permission to apply to bring it back earlier or later to me. I would request that counsel attend on behalf of the Parole Board and the Secretary of State to assist the court in relation to the issue raised in paragraph 11 and to anything that may have happened subsequent to it.
10. I should add that in the view I have taken of this case it would be of great assistance to the court if counsel were able to represent the applicant on that renewed application, but of course that is not a matter for me; it is entirely a matter for the Legal Services Commission. It is for them to consider.
11. I therefore adjourn the application to enable the further matters indicated to be dealt with by the Parole Board and the Secretary of State.

Order: Application adjourned