QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
B e f o r e :
|THE QUEEN ON THE APPLICATION OF ANTHONY EDWARD MARTIN||Claimant|
|THE PAROLE BOARD||Defendant|
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MR P SAINI (instructed by Treasury Solicitor, London SW1H 9JS) appeared on behalf of the Defendant
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"Mr Martin is serving five years for manslaughter, with three years concurrent for GBH and one year concurrent for possession of a firearm without a certificate. A variation in conviction and sentence by the Court of Appeal in March 2002 replaced life imprisonment and a ten year concurrent sentence. Mr Martin fatally shot a sixteen year old youth and seriously injured another young man who had broken into his farmhouse. The weapon used was a pump action shot gun and a large quantity of ammunition was later found around the house and in the outbuildings.
Mr Martin had been the victim of a burglary in May 1999 at which time it is reported he told the police that if the burglars returned he would blow their heads off. Mr Martin had owned a number of firearms until his shotgun licence was revoked in 1994. He had fired at the vehicle of a man, who with his children, he had encountered on his land. The dossier refers to Mr Martin agreeing that there have been further incidents where he had inappropriately used a firearm.
In prison he is described as getting on well with staff and other prisoners. There have been no adjudications. He has sought to improve his Maths, History, English and Art. He has not undertaken any cognitive based or offending behaviour courses. Mr Martin's PED was 26th September 2002 and at first he turned down the opportunity to apply for parole. The reports from the probation service refer to the immense media interest in the case and to the possibility that this attention has reinforced Mr Martin's views about taking the law into his own hands. It is also stated that Mr Martin takes little responsibility for his actions and believes that the victims were to blame for what happened.
Neither probation officer recommends release on parole and the panel agreed with this assessment. Mr Martin has refused to undertake any offence focused work on release and is equivocal about meeting reporting requirements and any conditions which might be imposed. Under these circumstances, and given Mr Martin's downplaying of the seriousness of the offences for which he was convicted the risk of further offending by Mr Martin is not manageable in the community. It remains too high for parole to be granted.
It is Mr Martin's intention to eventually return to his farm. He has been encouraged to consider possibilities of living abroad for a while and the file contains a letter from a charity, the POW Trust, supporting such a proposal. The Board, however, concluded that there are no exceptional compassionate circumstances (as required under Part IV of Probation Circular 52/97) to justify this course of action."
"In summary, my view is that there are no grounds in your letter for re-considering the Board's decision in this case."
"... in the interests of completeness, I have arranged for the members of the panel that considered Mr Martin's case to see the reports of Ms Craissati and Dr Joseph. They have now done so and are agreed that had they been aware of this material it would not have affected the decision in any way.
There remains no justification whatsoever for re-considering the Board's decision in this case."
Ground 1: failure to consider the reports of Dr Joseph and Miss Craissati or the judgment of the Court of Appeal
"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."
"... in approaching the question of sentence we have to assume the opinion expressed by Dr Joseph supported by Miss Craissati is correct. It however remains the position that Mr Martin used a firearm which he knew he was not entitled to have in a manner which was wholly unjustified. There can be no excuse for this, though we treat his responsibility as being reduced for the reasons explained by Dr Joseph.
There is also no doubt that the two men who broke into Mr Martin's house were intent on committing burglary. Mr Martin was entitled to use reasonable force to protect himself and his home, but the jury were surely correct in coming to their judgment that Mr Martin was not acting reasonably in shooting one of the intruders, who happened to be 16, dead and seriously injuring the other.
Any shortcomings on the part of the police could not justify Mr Martin taking the law into his own hands. We understand how frustrated Mr Martin may have been and in deciding what sentence is appropriate we take into account not only the evidence of his medical witnesses, but also the conduct to which he had been subjected. We also take into account that we must make it clear that an extremely dangerous weapon cannot be used in the manner in which it was used by Mr Martin that night."
A little later:
"In view of the time Mr Martin has already spent in custody, within about a year he will be eligible for consideration for parole."
"I am left with a real concern that a failure to make enquiries has resulted in this case in unfairness.
In the absence of any explanation from the Board as to why they felt it right to proceed without such investigation, I take the view that unfairness has been established by the applicant. I should add that [counsel] relies on the absence of any request to the Board by the applicant for any particular course of action. Of course, that is a matter which has to be taken into account. ... But here we have a prisoner, not represented, who is perhaps not fully aware of the procedures of the Board or of his rights in that connection. The Board obviously has to bear in mind the position in relation to a prisoner having to make his own representations. It seems to me that, having regard to section 32(3), there is an independent duty on the Board to consider in each case whether it needs any further information, or whether it needs to adopt any particular form of procedure."
Mr Saini does not dispute this principle but he seeks to distinguish that case from this on the facts. Notwithstanding the factual differences, I consider that the Parole Board erred by failing to obtain the relevant material from the Court of Appeal. Its potential relevance was or ought to have been obvious. To that extent a legal error has been identified. However, that is not the end of the matter.
Ground 2: assessment of risk
"... his unwavering belief that he is the one who has been wronged in the first instance by the burglars in the second by the Criminal Justice System and thirdly that he also disregarded a previous restriction on the use of guns. In all these circumstances I believe Mr Martin must be assessed as continuing to pose a risk to anyone seeking to do him or his property any harm."
She also attached significance to past incidents involving the inappropriate use of firearms, including the one five years prior to the commission of this offence. The second probation officer, Chris Dewsnap, stated:
"Mr Martin demonstrates no remorse for his behaviour or victim empathy. He holds very strong views that he is perfectly justified in protecting himself and his property even in the extreme manner displayed in the commission of this offence. He clearly holds the view 'An Englishman's home is his castle' and he is entitled to take any steps necessary to secure that. ...
... Mr Martin does not believe he has done anything wrong and as a result has refused to undertake any offence-focused work. In my opinion Mr Martin's entrenched views make him a high risk of behaving similarly in future."
Ground 3: remorse and the recognition of guilt: the Zulfikar point
"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 para 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."
In R v Secretary of State for the Home Department, ex parte Zulfikar (No 2) (1st May 1996), Buxton J referred to those passages, adding:
"... the Parole Board would be in error if it denied a person parole on the sole ground, or I venture to say, the dominating ground of his attitude to the offence."
The same point arose in R v Parole Board, ex parte Oyston, Court of Appeal, 1st March 2000, BAILII:  EWCA Crim 3552, in which Lord Bingham of Cornhill CJ said, in paragraph 43:
"In almost any case the Board would be quite wrong to treat the prisoner's denial as irrelevant, but also quite wrong to treat a prisoner's denial as necessarily conclusive against the grant of parole."
Ground 4: media interest
"... refer to the immense media interest in the case and to the possibility that this attention has reinforced Mr Martin's views about taking the law into his own hands."
Essentially, the submission on behalf of Mr Martin is that the media interest has not been of his making and that it was erroneous to hold it against him. I find nothing in this ground of challenge. If a man holds heterodox views about his right to take the law into his own hands when his "castle" is invaded or if he resents being criminalised for what he has done, it seems to me to be a matter of common sense that there is a possibility that such views or resentment will be further nourished by sympathetic media and public interest. It may sustain his belief that he has done nothing wrong. To the extent that the Parole Board adopted these views, it committed no legal error.
Ground 5: personal circumstances, home, family and community ties
"Where the defendant or any party does attend a hearing [which your Lordship has characterised as a hearing for permission to seek review], the court will not generally make an order for costs against the claimant."