QUEEN'S BENCH DIVISION
B e f o r e :
MR JUSTICE MOSES
IN THE MATTER OF AN APPLICATION FOR A WRIT OF HABEAS CORPUS AD SUBJICIENDUM
AND IN THE MATTER OF THE CRIMINAL JUSTICE ACT 1991
|BARRY JOHN RODGERS||(CLAIMANT)|
|THE GOVERNOR OF HM PRISON BRIXTON|
|THE SECRETARY OF STATEMENT FOR THE HOME DEPARTMENT||(DEFENDANTS)|
Smith Bernal Wordwave Limited
190 Fleet Street London EC4A 2AG
Tel No: 020 7404 1400 Fax No: 020 7831 8838
(Official Shorthand Writers to the Court)
MS C IVIMY (instructed by Treasury Solicitor) appeared on behalf of the DEFENDANT
Crown Copyright ©
Wednesday, 12th March 2003
"You will be under the supervision of a probation officer or a social worker of a local authority social services department and must comply with the conditions of this licence".
Paragraph two stated:
"Your supervision commences on 26/11/2001 and expires on 25/02/2002 unless this licence is previously revoked".
The date 2002 was, it subsequently emerged, a mistake. The date intended was 25th February 2005.
Paragraph 5 stated that:
"while under supervision you must ..." among other things:
"vi. be of good behaviour, not commit any offence and not take any action which would jeopardise the objectives of your supervision, namely to protect the public, prevent you from re-offending and secure your successful re-integration into the community".
Paragraph 7 dealt with the consequences of non-compliance. It stated:
"If you fail to comply with any requirement of your probation supervision (set out in paragraph 3, 4 and 5 above), or if you otherwise pose a risk to the public, you will be liable to have your licence revoked and be recalled to custody until the date on which your licence would otherwise have expired ..."
"There is clear evidence from Mr Rodgers's positive response to his custodial sentence that he has [left] his offending lifestyle behind him. Whilst he still knows many people who are part of the local offending scene, he has disassociated himself from them. I would suggest that although the risk of re-offending remains, the risk is not great and it is likely that there would be warning signs prior to any offending, in particular how he was spending his leisure time and with whom. Risk would also increase if he lost his job or his relationship broke down and should he re-offend, the risk of serious harm would be high. There is no evidence that he poses a risk to probation staff or himself. These new offences were it appears atypical in the sense that Mr Rodgers consumption of alcohol was 'out of character' but nonetheless resulted in the victimisation of both parties and such behaviour clearly highlights a susceptibility to 'losing control' when under the influence of alcohol. But Mr Rodgers has a considerable investment in 'going straight' and this lapse appears just that, but needs to be addressed if the risk of harm is to be reduced".
"You have been recalled to prison because you have breached condition 5(vi) of your licence in the following ways:
It has been reported that you have failed to be of good behaviour, not commit any offence and not take any action which would jeopardise the objectives of your supervision, namely to protect the public, prevent [you] from re-offending and secure your successful re-integration into the community; in that, your behaviour has led to your arrest and charge with two offences of common assault and one offence of affray. You initially appeared at Horseferry Road Magistrates Court on 05 September 2002 and have since been convicted of the above offences and are due to appear at Horseferry Road Magistrates Court for sentencing on 26 September 2002.
In view of the offences for which you were originally sentenced and your behaviour as described above, the Home Secretary is no longer satisfied that it is right for you to remain on licence".
"Notwithstanding that regrettable error [the error in the licence] the panel noted that his index offences were for armed robbery and that the convictions in September involved serious offences of violence. In these circumstances, the panel considered that Mr Rodgers' liberty would present an unacceptable risk of a further offence being committed".
"shall ... remain in force until the date on which he would (but for his release) have served three-quarters of his sentence".
In this case, that date is 25th February 2005.
"To protect the public, to prevent re-offending, to ensure the prisoner's successful re-integration into the community".
In determining whether or not to recommend recall, the Parole Board is directed to consider three separate questions -- whether:
"(a) the prisoner's continued liberty would present an unacceptable risk of a further offence being committed. The type of re-offending does not need to involve a risk to the public safety ... or
(b) the prisoner has failed to comply with one or more of his [or her] licence conditions, and that failure suggests that the objectives of probation supervision have been undermined; or
(c) the prisoner has breached the trust placed in him or her by the Secretary of State in releasing him or her on licence, whether through any failure to comply with one or more of the licence conditions, or any other means".
The directions conclude that "each individual case shall be considered on its merits without discrimination on any grounds".
Did the Secretary of State have power to recall?
"In Ex parte Ermakov (supra) Hutchison LJ with whom the other members of the Court agreed, at page 315 H said:
'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 maybe in some way lacking clarity. These examples are not intended to be exhaustive but rather reflect my view that the function of such evidence should generally be elucidation not fundamental alteration, confirmation not contradiction'".
Butterfield J pointed out that the Ermakov case and others were concerned with an express statutory obligation to give reasons. However:
"the careful and clear reasoning set out in ex parte Ermakov ... is in our considered judgment the proper approach which should be adopted in relation to the admission of evidence sought to explain reasoning in the decision making process of the Parole Board in cases such as those now under consideration.
Accordingly we conclude that where evidence is proffered to elucidate correct or add to the reasons contained in the decision letter a Court should examine the proffered evidence with care, and should only act upon it with caution. In particular, a Court should not substitute the reasons contained in proffered evidence for the reasons advanced in a decision letter. To do so would unquestionably raise the perception, if not the reality, of subsequent rationalisation of a decision that had not been properly considered at the time".