QUEEN'S BENCH DIVISION
London, WC2A 2LL
B e f o r e :
On the application of PEARSON
|- and -
|THE PAROLE BOARD
Smith Bernal Wordwave Limited, 190 Fleet Street
London EC4A 2AG
Tel No: 020 7421 4040, Fax No: 020 7831 8838
Official Shorthand Writers to the Court)
Miss Kristina Stern (instructed by The Treasury Solicitor) for the Defendant
Crown Copyright ©
Mr Justice WILSON :
"You have been recalled to prison because you have breached condition 5(ix) of your licence in the following ways:
5(ix) It has been reported that you failed to not engage in any work or other organised activity or spend leisure time involving a person under the age of 18 either on a professional or voluntary basis. In that you were instructed by your probation officer to have no contact with [the first boy and his younger brother]. In addition it was reported that Social Services received two referrals regarding the aforementioned children were having contact with you. The first referral was received by your probation officer who received information that you had visited the children. The second referral was received from the Child Protection Police, stating that you were taking children, including [the first boy and his younger brother] for rides and outings in your car.
It was also reported that on 11 January 2002 the core group from the case conference visited the home of [the first boy] who confirmed that you had taken him and three other children and no adults to a bonfire in Himley in Staffordshire.
In view of the offences for which you were originally sentenced and your behaviour described above, the Home Secretary is no longer satisfied that it is right for you to remain on licence."
"ů the Board shall direct the prisoner's release if satisfied that it is no longer necessary for the protection of the public that he should be confined (but not otherwise)."
"It is not necessary that the person shall have committed, or be suspected of having committed, any further offence, for these powers to be invoked. It is no part of the Parole Board's remit to decide what punishment any defendant should undergo. Its concern is with the protection of the public against risk."
"Our judge-made public law recognises that the impact of recall is fully as grave as Hale L.J. says it is. It accordingly calls for a high standard of fair procedure. What it does not do is react schematically to the need by insisting on the translation of the criminal trial process into the different context of a Parole Board hearing. Indeed, even if [counsel for the claimant] had been right in his submission that recall amounts to the determination of a criminal charge, it would not in my judgment follow that a quasi-criminal trial had to take place."
"What undoubtedly is necessary is that the justice, when forming his opinion, takes proper account of the quality of the material upon which he is asked to adjudicate. This material is likely to range from mere assertions at the one end of the spectrum which is unlikely [or] may not have any probative effect, to documentary proof at the other end of the spectrum. The procedural task of the justices is to ensure that the defendant has a full and fair opportunity to comment on, and answer, that material. If that material includes evidence from a witness who give oral testimony, clearly the defendant must be given the opportunity to cross-examine. Likewise, if he wishes to give oral evidence, he should be entitled to. The ultimate obligation of the justice is to evaluate that material in the light of the serious potential consequences to the defendant, having regard to the matters to which I have referred, and the particular nature of the material, that is to say taking into account, if hearsay is relied upon by either side, the fact that it is hearsay and has not been the subject of cross-examination, and form an honest and rational opinion."
"In my judgment this summarises the approach which should generally suffice in relation to the Parole Board's functions. I would only add the qualification, however, that there may be cases where fairness is not met simply by the Parole Board giving such weight to contested evidence as it thinks fit, whilst bearing in mind that it has not been tested. Fairness may require a defendant to be able to challenge crucial evidence relied upon as a justification for recall by seeking to show by cross-examination that it is false and ought not to be given any weight at all. After all, lengthy periods of imprisonment are often potentially at stake."
He went on to decide that, in the circumstances of that case, it had not been unlawful for the hearsay evidence to be admitted.
a) late in November 2001 and early in December 2001 the first boy's maternal grandmother had told police officers that her daughter had been letting the claimant have contact with her grandsons and that he had been taking them on outings;
b) that early in December 2001 the first boy's maternal uncle had told the probation officer that the claimant had been visiting the home of the first boy and his brother and taking the first boy out;
c) that on 4 January 2002 the first boy's mother had informed a case conference, albeit inconsistently with what she had previously said, that the claimant had been taking her sons on outings and that in particular he had taken the first boy to the bonfire; and
d) that on 11 January 2002 the first boy himself had informed the police constables and a social worker that the claimant had taken him and three other children, namely two boys and a girl, to the bonfire.
"1. The Crime and Disorder Act 1998 requires the Parole Board to direct your release only if it is satisfied that it is no longer necessary for the protection of the public that you should be confined. The panel which considered your case on 5 September was not so satisfied and has therefore not directed your release at this stage. This decision is binding upon the Secretary of State.
3. The panel heard a great deal of evidence over 2 days. In coming to their conclusion they took into account the following factors and findings:
4. The panel was satisfied that you were conversant with and understood the conditions of your licence. In particular you had been expressly warned by your supervising officer to have no contact with [the first boy's mother] or her family, especially her sons.
5. The panel was satisfied that your recall to prison was justified. You admitted in your evidence to them that in retrospect you accepted that you had breached your licence by persistent contact with [the first boy's mother], a mother of a vulnerable family, and by going to the Himley bonfire event knowing that it would be attended by large numbers of children and families. Your lapses were described by Counsel as errors of judgment with no intention of unacceptable or unlawful behaviour. In the panel's view, however, such behaviour constitutes breaches of condition vi and, arguably, ix of your licence.
6. The panel also received evidence that when you attended the Himley bonfire you took a number of children with you including [the three boys] and a girl ů The panel acknowledge that in this respect they did not have primary evidence. However, they received statements made under the Criminal Justice Act 1967 and evidence from two experienced police officers, both members of a child protection unit and a social worker, all of whom had considerable background knowledge of the children involved. The police officers were involved in taking the statement from the boys. They were able to assist the panel with their views on the credibility of the children and their susceptibility to pressure or bullying from [the first boy's uncle]. You denied taking the children to the Himley bonfire. You maintained that the evidence of the children was a fabrication made under pressure from [the uncle] whose intention, plus that of [the grandmother], was to secure your return to prison. Your position was supported by the witnesses called on your behalf, although much of their evidence was in reality based on information provided by you. The panel accepted the contention made by Counsel on your behalf that the statements taken by the police from the children could have been more detailed in order to provide a better basis for cross checking for consistency. However, the statements are clear and unequivocal and, supported as they were by the police officers' evidence, were considered by the panel to be credible. The panel did not accept the view that this evidence emerged because of pressure and/or bullying by [the uncle]. They found that the evidence of the police officers and the social worker in particular, given their personal knowledge of the persons concerned, was such as to rebut that submission.
7. On balance the panel considered that it was reasonable to place reliance upon the children's statements. They did not believe that there was any substantive evidence that [the third boy's] statement was influenced by [the first boy's uncle]. The suggestion that he was in some way related to [the uncle] was unsupported. Your counsel made various submissions on the reliability of the children's statements and their evidential value, but he did not formally oppose their being tendered as evidence. On the evidence as a whole the panel have rejected your claim not to have taken the children to the Himley bonfire, which you admitted attending. They did not find as credible your explanation of why you apparently left there early and this, in their judgment, raised some doubt as to the accuracy of your recall of the events.
8. The panel acknowledged that you diligently kept your appointments with your supervising officer. You have the support of various people, not least your [aunt]. Nevertheless the panel were concerned to learn from [your first supervisor] that he considered that you were less than frank in your dealings with him.
9. You have been before the courts on four occasions (including the index offence) for sexual offences against children. The behaviour which gave rise to your recall to prison was, to some degree, similar to the pattern of your previous offending in that it involved a vulnerable family.
10. Your pre-sentence report for the Wolverhampton Crown Court in February 2000 described you as at very high risk of offending. Your supervising officers in their evidence to the panel expressed the same view. Your performance on the Sex Offender Treatment Programme was relatively modest. There were clear deficits not least in the areas of the identification of risk factors and coping strategies. It was said that you would benefit from further work on relapse prevention. In your evidence to the panel you appeared to accept this. Your report following the Sex Offender Treatment Programme indicated that you made one entry in your risk factor diary. It related to high risk emotions including anger and hate. Your evidence to the panel at one point suggested that these emotions remain to be addressed.
11. The panel concurred that the risk you present remains too high to permit your release. You expressed a wish to undertake the adapted Sex Offender Treatment Programme. The panel hope that early consideration will be given to this."
a) A report on the result of the claimant's attendance while in prison prior to release in the 'Sex Offender Treatment Programme' was by no means entirely negative but indicated that, by reason of his learning difficulties, an adapted programme would have been more suited to him.
b) Following his release on licence, the claimant had on any view resumed a small degree of contact with the first boy's mother. She was a single mother struggling, with the assistance of a social worker, to bring up her children; and the evidence was that she was na´ve and vulnerable. It was clearly valid for the claimant's resumed contact with her to be compared to his friendship with the mother of the victim of the offences of which he had been convicted in 2000. Furthermore the claimant's first supervisor gave evidence to the Board that in the summer 2001 he had told him not to have contact either with the mother or with her children. In his evidence the claimant had sought to explain his limited contact with the mother on the basis that most of it arose out of the developing, and, as he suggested, malicious, campaign on the part of the uncle and the grandmother to secure his recall to prison.
c) The first supervisor also gave evidence that the claimant had not informed him in advance about intended occurrences, in particular his meetings with the mother, and that, to that extent, there had been a lack of proper frankness on his part.
d) Even on his own account, the claimant had gone on 3 November to a bonfire, namely an event likely to be attended by a large number of children. It was fair for the Board to conclude that he thereby deliberately put himself into a position of risk. The claimant's evidence was to the effect that he had gone to the bonfire because as a child he had never been allowed to go to such an event and so wanted belatedly to act out a stunted part of his own childhood.
MR JUSTICE WILSON: I disseminated my judgment in draft to counsel yesterday and I was happy to note that there was no return from either of them indicating glaring error, so the draft judgment has now been turned into "a judgment approved by the court for handing down subject to editorial corrections", and unless I announce any editorial correction this morning, and Iádo not intend to do so unless a problem is drawn to my attention, this is my judgment on MráPearson's application and it follows that his claim is dismissed.
MISS STERN: My Lord, Iáam very grateful. I myself noted no editorial corrections whatsoever.
MR JUSTICE WILSON: Good.
MISS STERN: My Lord, that leaves only a very simple application for costs on the usual basis against a legally assisted party, and Iáunderstand there is no objection to that. That is the only order that is sought by the defendant.
MR JUSTICE WILSON: MissáJordan, good morning. How nice of you to come in Mr Challinor's place.
MISS JORDAN: Thank you, my Lord.
MR JUSTICE WILSON: This application for costs against your client as a publicly funded party, what I expect MissáStern will be suggesting is quantification to be adjourned generally, is that it?
MISS STERN: My Lord, yes.
MR JUSTICE WILSON: You have your protection. Is it now the Access to Justice Act?
MISS JORDAN: Yes, my Lord.
MR JUSTICE WILSON: You have your protection under that and it can only be an order for costs in principle, then it would have to be quantified in the light of your client's means, and I suspect there not being any aspiration by the defendant to quantify them unless your client was to come into a lot of money, but anyway, Iáam asked to make an order for costs against your client with quantification adjourned generally with liberty to the defendant to restore. Can you oppose that?
MISS JORDAN: No, my Lord.
MR JUSTICE WILSON: Is that the order that you are seeking, MissáStern?
MISS STERN: My Lord, it is.
MR JUSTICE WILSON: That order is granted.
MISS STERN: I am grateful, my Lord.
MISS JORDAN: The only other matter is the claimant would ask for legal aid assessment.
MR JUSTICE WILSON: Of course, and also a detailed public funding assessment of the claimant's costs.
MISS JORDAN: Iáam grateful.
MR JUSTICE WILSON: Any other application, MissáJordan?
MISS JORDAN: No, my Lord, thank you.
MR JUSTICE WILSON: Thank you very much for coming.