COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
CROWN OFFICE LIST
(MR JUSTICE HOOPER)
B e f o r e :
(Lord Bingham of Cornhill)
LORD JUSTICE PILL
LADY JUSTICE HALE
|R E G I N A|
|- v -|
|(1) THE PAROLE BOARD||Appellant|
|(2) THE SECRETARY OF STATE FOR THE HOME DEPARTMENT|
|Ex parte OWEN JOHN OYSTON||Respondent|
Smith Bernal, 180 Fleet Street, London EC4A 2HD
Telephone 0171 421 4040
Official Shorthand Writers to the Court)
behalf of THE APPELLANT
MISS BEVERLEY LANG (instructed by Messrs David Price & Co, London WC1N 3DA) appeared on behalf of THE RESPONDENT
Crown Copyright ©
"1. In deciding whether or not to recommend release on licence, the Parole Board shall consider primarily the risk to the public of a further offence being committed at a time when the offender would otherwise be in prison and whether any such risk is acceptable. This must be balanced against the benefit, both to the public and to the offender, of early release back into the community under a degree of supervision which might help rehabilitation and so lessen the risk of re-offending in the future. The Board shall take into account that safeguarding the public may often outweigh the benefits to the offender of early release.
2. Before recommending early release on licence, the Parole Board shall consider whether:
(1) the safety of the public will be placed unacceptably at risk. In assessing such risk the Board shall take into account:(a) the nature and circumstances of the original offence;(b) whether the prisoner has shown by his attitude and behaviour in custody that he is willing to address his offending behaviour by understanding its causes and its consequences for the victims concerned, and has made positive effort and progress in so doing.(c) in the case of a violent or sexual offender, whether the prisoner has committed other offences of sex or violence, in which case the risk to the public of release on licence may be unacceptable.(d) that a risk of violent or sexual offending is more serious than a risk of other types of offending.(2) The longer period of supervision that parole would provide is likely to reduce the risk of further offences being committed.(3) The prisoner is likely to comply with the conditions of his licence.(4) The prisoner has failed to meet the requirements of licensed supervision, temporary release or bail on any previous occasion and, if so, whether this makes the risk of releasing him on licence unacceptable.(5) The resettlement plan will help secure the offender's rehabilitation.(6) The supervising officer has prepared a programme of supervision and has recommended specific licence conditions."
"A panel of the Parole Board considered your application on 07 April 1999 and found you not suitable for early release on licence.
The panel gave the following reasons for their decision:
(1) Mr Oyston was convicted of Rape and indecent assault of a young woman. (2) He has shown no remorse for these offences. (3) Whilst he has been of good behaviour in prison there is no evidence to show that he has gained insight or under-standing about the offences, and there is little in consequence to indicate that he has modified his behaviour and attitudes, shown victim empathy and developed strategies to avoid re-offending. (4) His appeal against conviction has been dismissed. (5) Whilst he is reported to have applied for the SOTP [Sexual Offenders Training Programme] and other courses to address issues other than sexual offending, including previous infidelity, his inability to accept responsibility for his offences has precluded him from the SOTP which requires an acceptance of wrong doing. (6) The panel are concerned at this lack of course work to help him gain insight. (7) There is in consequence little evidence that the risk of re-offending has been reduced. (8) He lacks a release plan with offence- focused work designed to reduce the risk and the panel in consequence of all the above factors does not therefore consider him suitable for early release."
"Was the decision to refuse parole unlawful by reason of its alleged reliance upon the [respondent's] denial of guilt and the consequences which flowed from that denial?"
"Where a prisoner either pleads guilty or after conviction later accepts his guilt, it is plain that he is in a position to address his offending in the sense that he can examine his underlying motivation, unreasonable reactions to stress or provocation and anger management and suchlike matters.
But there may be a variety of reasons why a prisoner will not accept his guilt. He may genuinely have been wrongly convicted. Although inwardly he may know he is guilty, he may be unwilling to accept that he has lied in the past or confront loss of face in accepting what he has hitherto denied. Where, for example, the offence is one of specific intent, he may genuinely have persuaded himself that he did not have the necessary intent. Such a man may in all other respects be a model prisoner. He may have behaved impeccably in prison, occupied his time constructively and shown himself trustworthy and reliable with a settled background to which to return.
Should he be denied parole solely because of his attitude to the offence? In the majority of cases I think plainly not. Each case will depend upon its own circumstances and this Court should avoid trying to lay down principles which may well not be universally applicable. While I have no doubt that paragraph 1.3(b) should be taken into account in all cases, the weight to be attached to it will vary greatly. At one end of the scale is the persistent offender, in particular the persistent sex offender, who refuses to accept his guilt in the face of clear evidence and is unable to accept that he has a propensity to such conduct which needs to be tackled if he is not to offend again.
In such a case it may well be a determinative consideration. At the other end of the scale is the first offender, where the motivation for the offence is clear and does not point to a likelihood of re-offending. In the majority of cases it is unlikely to be more than one of many factors to which undue weight should not be given."
"I hesitate to offer yet a further summary of the essential approach to be derived from the cases. I do so only to the extent that the following propositions, while of general application, bear particularly on the way in which Mr Tabachnik has put his case for the applicants:
(1) The Parole Board must assume the prisoner's guilt of the offence or offences of which he has been convicted.
(2) The Board's first duty is to assess the risk to the public that the prisoner might commit further offences if he is paroled.
(3) It is therefore unlawful for the Board to deny a recommendation for parole on the ground only that the prisoner continues to deny his guilt.
(4) But in some cases, particularly cases of serious persistent violent of sexual crime, a continued denial of guilt will almost inevitably mean that the risk posed by the prisoner to the public or a section of the public if he is paroled either remains high or, at least, cannot be objectively assessed. In such cases the Board is entitled (perhaps obliged) to deny a recommendation."
"In 1992 Oyston was having sexual relationships with a number of young models from M's agency, one such model was R (18-years-old). He had been having that relationship with her for 2 years.
In 1992, as was the norm, M attended a Manchester restaurant and took a group of girls which included the 16 year old Miss A [the complainant in the two counts of rape and indecent assault] and R.
At the end of the evening M took Oyston back to his home at Claughton Hall, Lancaster. They used M's Toyota Supra motor vehicle for the trip and they were accompanied by Miss A and R. Oyston sat in the rear of the vehicle with Miss A. She'd hardly spoken to Oyston when he took hold of her hand, undid his trousers, took out his penis and put her hand onto his penis. He caused her to masturbate him until his penis was hard. He then forced her head down onto his penis and put it into her mouth. He held her head down onto his penis. His hand was on her head, moving it up and down. He ejaculated in her mouth.
When they got to Claughton Hall M stayed in the car whilst Oyston, R and Miss A went into the premises and Oyston took them both to his bedroom. Miss A sat in a chair while Oyston had consensual sex with R. Oyston then told Miss A to get into the bed, which she did because she was scared and because of what had happened to her in the car. She was also afraid of M who was outside and waiting for her. She got into bed and Oyston had sexual intercourse with her, she just lay still and didn't move. She didn't want to have sex, but felt that she had no choice."
"His family ties are very, very strong. His family have encouraged him throughout and have been a source of strength. He has regular contact with his family by 'phone and visits, and I have witnessed the strong family bond between them."
".... there is no evidence to show that he has gained insight or understanding about the offences, and there is little in consequence to indicate that he has modified his behaviour and attitudes, shown victim empathy and developed strategies to avoid re-offending."
"Parliament provided that reasons shall be given, and in my view that must be read as meaning that proper, adequate reasons must be given. The reasons that are set out must be reasons which will not only be intelligible, but which deal with the substantial points that have been raised."
"What the Secretary of State must do is to state his reasons in sufficient detail to enable the reader to know what conclusion he has reached on the principal important controversial issues. To require him to refer to every material consideration, however insignificant, and to deal with every argument, however peripheral, would be to impose an unjustifiable burden."
"In my judgment, the reasons which are required by Rule 15 to be recorded in writing and signed by the chairman of the panel, must not only be the reasons for and upon which the decision was made but must also, as required by well established principles of law, be intelligible and deal with the substantial points which have been raised."
"In the context of a hearing before the DLP, the reasons must explain why the DLP is not satisfied that it is no longer necessary for the prisoner to be confined. It should not, therefore, normally be necessary for any further explanation of the reasons for the decision to be given...."
"The court can and, in appropriate cases, should admit evidence to elucidate or, exceptionally, correct or add to the reasons; but should.... be very cautious about doing so. I have in mind cases where, for example, an error has been made in transcription or expression, or a word or words inadvertently omitted, or where the language used may be in some way lacking clarity. These examples are not intended to be exhaustive, but rather to reflect my view that the function of such evidence should generally be elucidation not fundamental alteration, confirmation not contradiction."
ORDER: Appeal dismissed with costs.