QUEENS BENCH DIVISION
Strand, London, WC2A 2LL
B e f o r e :
| The Queen (on the application of BARRY JACKSON)
|- and -
|(1) THE PAROLE BOARD
(2) THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Mr James Maurici (instructed by The Treasury Solicitor) for the Defendants
Hearing date : 13 October 2003
Crown Copyright ©
Mr Justice Richards:
"(1) If recommended to do so by the Board in the case of a short-term or long-term prisoner who has been released on licence under this Part, the Secretary of State may revoke his licence and recall him to prison.
(2) The Secretary of State may revoke the licence of any such person and recall him to prison without a recommendation by the Board, where it appears to him that it is expedient in the public interest to recall that person before such a recommendation is practicable.
(3) A person recalled to prison under subsection (1) or (2) above-
(a) may make representations in writing with respect to his recall; and
(b) on his return to prison, shall be informed of the reasons for his recall and of his right to make representations.
(4) The Secretary of State shall refer to the Board-
(a) the case of a person recalled under subsection (1) above who makes representations under subsection (3) above; and
(b) the case of a person recalled under subsection (2) above.
(5) Where on a reference under subsection (4) above the Board-
(b) recommends in the case of any person,
his immediate release on licence under this section, the Secretary of State shall give effect to the recommendation."
Barry Jackson was released from HMP Acklington on ACR Licence on 11th September 2002. The licence expiry date is 26th January 2003 with a sentence expiry date of 11th June 2003.
Immediately upon release there were difficulties with effecting supervision of Barry Jackson and emergency recall was requested on 12 September. Unfortunately, despite that being agreed it was not executed as of 1st October 2002. On that date I wrote to the Sentence Enforcement Unit to inform a change of circumstances and that it had been possible to engage Barry Jackson constructively in supervision. That letter requested a series of six licence conditions to support his supervision and contain risk.
As of 22nd October 2002, the Supervising Probation Officer of Barry Jackson had not been notified of any new licence being issued. Although Barry Jackson has maintained contact with his Supervising Officer, there have been escalating concerns about his mental health which has been deteriorating over some days prior to 22nd October. Indeed Barry Jackson had been admitted into a Psychiatric Ward at Manchester Royal Infirmary the previous weekend. On the afternoon/evening of 22nd October, Barry Jackson against medical advice, discharged himself from hospital and went to stay at his mother's address, 84 Bankhouse Road, Blackley, Manchester. From information received from the Community Mental Health Team and from Barry Jackson's mother I deduce that Barry Jackson was still very poorly and presented a significant risk of harm and of re-offending. Barry Jackson is considered to be a high-risk offender. He has a history of mental health problems including paranoid delusions as well as a history of alcohol and drugs misuse. His index offence was a Robbery in which he produced a hand grenade to threaten the victim, when in dispute over a lottery ticket at a local shop. The shop in question is local to his mother's home address, 84 Bankhouse Road, Blackley.
The situation, which developed on 22nd October, amplified earlier concerns about being able to work constructively with Barry Jackson. In the week since his release from prison his behaviour has given rise to serious concerns about the risk of harm and of re-offending and although strenuous attempts have been made to provide effective supervision regrettably these have not been successful given the magnitude of the risk factors in this case.
In my view, on 22nd October 2002, Barry Jackson presented an immediate and significant risk of harm to the public. Added to this is the issue of Barry Jackson's own vulnerability in the context of his history of mental health illness including attempt at self-harm/suicide. My recommendation was for immediate recall on an emergency basis.
The grounds for recall are Barry Jackson's failure to live where reasonably approved by his Supervising Officer in that he did not seek approval to leave hospital (Condition 3) and also engaging in behaviour which jeopardised the objectives of his supervision (condition 6)."
"You have been recalled to prison because you have breached condition 5 (viii) of your licence in the following way:
It has been reported that you have failed to comply with condition 5 (viii) of your licence which requires you to attend upon a duly qualified psychiatrist/psychologist medical practitioner for such care, supervision or treatment as that practitioner recommends, in that, on 22nd October 2002 you discharged yourself from the Psychiatric Ward at Manchester Royal Infirmary, against medical advice, to stay at your mother's address of 84 Bankhouse Road, Blackley.
In view of the offences for which you were originally sentenced, the risk suggested by your offending history and your behaviour as described above, the Home Secretary is no longer satisfied that it is right for you to remain on licence."
"The panel has read all the papers in this case including Mr Jackson's representations.
Mr Jackson committed the index offence in drink. It involved a robbery during which he threatened the victim with a hand grenade. He has a history of drink related violence and other offending and has received psychiatric input across a number of years.
It is therefore of concern he admits to consuming a large amount of alcohol and to being extremely abusive to probation staff on release.
His behaviour prior to recall gave rise to serious concern about the risk of self-harm and of re-offending and he is considered at high risk to himself and the public.
His representations are rejected."
First issue: lawfulness of recall
"(2) the court can and, in appropriate cases, should admit evidence to elucidate or, exceptionally, correct or add to the reasons; but should, consistently with Steyn LJ's observations in ex parte Graham, 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 in 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. Certainly there seems to me to be no warrant for receiving and relying on as validating the decision evidence – as in this case – which indicates that the real reasons were wholly different from the stated reasons. It is not in my view permissible to say, merely because the applicant does not feel able to challenge the bona fides of the decision-maker's explanation as to the real reasons, that the applicant is therefore not prejudiced and the evidence as to the real reasons can be relied upon. This is because, first, I do not accept that it is necessarily the case that in that situation he is not prejudiced; and, secondly, because, in this class of case, I do not consider that it is necessary for the applicant to show prejudice before he can obtain relief. Section 64 requires a decision and at the same time reasons; and if no reasons (which is the reality of a case such as the present) or wholly deficient reasons are given, he is prima facie entitled to have the decision quashed as unlawful.
(3) There are, I consider, good policy reasons why this should be so. The cases emphasise that the purpose of reasons is to inform the parties why they have won or lost and enable them to assess whether they have any ground for challenging an adverse decision. To permit wholesale amendment or reversal of the stated reasons is inimical to this purpose. Moreover, not only does it encourage a sloppy approach by the decision-maker, but it gives rise to potential practical difficulties. In the present case it was not, but in many cases it might be, suggested that the alleged true reasons were in fact second thoughts designed to remedy an otherwise fatal error exposed by the judicial review proceedings. That would lead to applications to cross-examine and possible for further discovery, both of which are, while permissible in judicial review proceedings, generally regarded as inappropriate. Hearings would be made longer and more expensive."
"34. In my judgment, the following propositions appear from the above authorities:
i. Where there is a statutory duty to give reasons as part of the notification of the decision, so that (as Laws J put it in Northampton County Council ex p D) "the adequacy of the reasons is itself made a condition of the legality of the decision", only in exceptional circumstances if at all will the Court accept subsequent evidence of the reasons.
ii. In other cases, the Court will be cautious about accepting late reasons. The relevant considerations include the following, which to a significant degree overlap:
a. Whether the new reasons are consistent with the original reasons.
b. Whether it is clear that the new reasons are indeed the original reasons of the whole committee.
c. Whether there is a real risk that the later reasons have been composed subsequently in order to support the tribunal's decision, or are a retrospective justification of the original decision. This consideration is really an aspect of (b).
d. The delay before the later reasons were put forward.
e. The circumstances in which the later reasons were put forward. In particular, reasons put forward after the commencement of proceedings must be treated especially carefully. Conversely, reasons put forward during correspondence in which the parties are seeking to elucidate the decision should be approached more tolerantly.
35. To these I add two further considerations. The first is based on general principles of administrative law. The degree of scrutiny and caution to be applied by the Court to subsequent reasons should depend on the subject matter of the administrative decision in question. Where important human rights are concerned, as in asylum cases, anxious scrutiny is required; where the subject matter is less important, the Court may be less demanding, and readier to accept subsequent reasons. …"
i) First, there is no statutory duty to give reasons at the same time as time as the recall decision; and it is understandable why there is no such requirement in the case of a recall under s.39(2) in particular, since the subsection contemplates that a decision may be taken as a matter of urgency in the public interest. The statutory requirement is that reasons are to be given later and for the purpose of enabling the recalled prisoner to make representations to the Parole Board on a referral of the case under s.39(4).
ii) On the facts this is not a case where later reasons are advanced to contradict earlier reasons. The document relied on as recording the actual reasons for the decision taken on 22 October is the report of 24 October which sets out, in accordance with the procedure for emergency applications, the matters upon which the request for a recall was made. That document pre-dated the written statement of reasons prepared on 25 October. It is true that the later witness statement is sought to be relied on to identify the document of 24 October as the critical document and to explain that the document of 25 October was drafted on a mistaken basis by an inexperienced and temporary member of staff. But the circumstances are materially different from those in Ermakov, where the later affidavit was sought to be relied on as setting out reasons that contradicted those in the only contemporaneous document.
Second issue: lawfulness of the Parole Board's confirmation
"It would in my view be subversive of the review regime established by the Act if the board confined itself to reviewing the validity of the Secretary of State's reasons for recall. It is the judgment of the board as an independent quasi-judicial review body, not the judgment of the Secretary of State as an arm of the executive, which matters. He is a party to the review, and of course his evidence and submissions must be received and weighed. But the board must makes it own mind up, and give its own reasons. It would seriously undermine the integrity of the system if the board were to defer to the Secretary of State's view unless it were shown to be wrong. It is itself the primary decision maker." (916E-F)