QUEENS BENCH DIVISION
Strand, London, WC2A 2LL
B e f o r e :
| THE QUEEN
-on the Application of-
- and -
THE PAROLE BOARD
THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
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)
Kristina Stern (instructed by The Treasury Solicitor) for the Defendant
Crown Copyright ©
Mr Justice Forbes:
"34A (1) Subject to subsection (2) below [which does not apply in the present case], subsection (3) below applies where a short-term prisoner aged 18 or over is serving a sentence of imprisonment for a term of three months or more.
(3) After the prisoner has served the requisite period for the term of his sentence, the Secretary of State may, subject to section 37A below, release him on licence.
(4) In this section "the requisite period" means
(c) for a term of eighteen months or more, a period that is 135 days less than one-half of the term.
"39 (1) If recommended to do so by the (Parole) Board in the case of a short-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."
"(2) It shall be the duty of the (Parole) Board to advise the Secretary of State with respect to any matter referred to it by him which is connected with the early release or recall of prisoners.
(6) The Secretary of State may also give to the (Parole) Board directions as to the matters to be taken into account by it in discharging any functions under this Part; and in giving any such directions the Secretary of State shall in particular have regard to
(a) the need to protect the public from serious harm from offenders; and
(b) the desirability of preventing the commission by them of further offences and of securing their rehabilitation."
"1. In deciding whether or not to recommend the recall of a short-term prisoner who is or has been subject to Home Detention Curfew, or to recommend the immediate release of such a prisoner who has been recalled, the Parole Board shall consider whether;
- The prisoner's continued liberty or, as the case may be, immediate release, would present an unacceptable risk to the public of further offences being committed.
- The prisoner's behaviour during the period in which he was subject to curfew conditions indicates that the trust placed in the individual in allowing release on Home Detention Curfew has been breached.
2. In considering these issues, the Board shall, in particular, take into account:
(a) Whether the prisoner is likely to commit further offences; and
(b) Whether the prisoner has failed to comply with one or more of his licence conditions or might be likely to do so in the future; and
(c) Where the prisoner has been charged with a new offence committed whilst subject to Home Detention Curfew, that it is desirable for the prisoner to be recalled to custody, unless it is clearly apparent that the conduct that has led to the prisoner being charged does not merit recall."
"Prior to being recalled to prison, (the Claimant's) prognosis was reasonably positive and in my opinion he would have made gradual progress with (the) above care plan.
We had advised him against further use of alcohol in case this produced any further episodes of disinhibited behaviour. He himself was fully adherent to this Care Plan and appeared well motivated to carry it through.
In my opinion, recalling him to prison has fundamentally affected his immediate prospects of recovery from his present depression and anxiety. Since his re-arrest, his risk of suicide and deliberate self-harm will have increased to moderate to high, whereas this was low whilst he was accessing appropriate care and attention. I am concerned for his welfare whilst detained in prison in terms of the significant impact on his mental health and the increased risk of suicide and self-harm."
"You have been recalled to prison because you breached condition 16.vi of your licence in the following way:
Your failure 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 it has been reported by Bath Police that your behaviour on 7th November 2003 led to your arrest and subsequent charge with the offence of assault.
In view of the offences for which you were originally sentenced and the report of your behaviour described above, the Home Secretary is no longer satisfied that it is right for you to remain on licence."
(i) a letter dated 8th December 2003, enclosing Dr Pearson's psychiatric report and asking the Parole Board to release the Claimant on Home Detention Curfew "to enable him to access the medical help that he requires";
(ii) a letter dated 15th December 2003, enclosing written representations from the Claimant and Ms Graham; in her letter, Ms Graham urged the Parole Board to release the Claimant to enable him to receive appropriate medical treatment and to enable him to provide support for her and for the child that she was expecting in July 2004; and
(iii) a further letter dated 29th December 2003, enclosing a letter dated 23rd December from David Drew, a Community Psychiatric Nurse, confirming that the Claimant would be offered an opportunity to attend appointments with a member of the East Mendip Community Mental Health team upon his release from prison.
"REASONS FOR REJECTING REPRESENTATIONS AGAINST RECALL
Mr Buxton was released from custody under Home Detention Curfew. Within a few weeks he had been recalled following a charge of actual bodily harm. The victim of the assault was his girlfriend. Neither Mr Buxton nor his girlfriend disputes that they argued and that she was injured as a result of his actions. However, she does not want charges to proceed and has provided the panel with written evidence that she wants him to be released from prison so that they can continue their life together. In his representations Mr Buxton says that he has learnt from the events that led to his being charged.
Mr Buxton has mental health problems and the panel was provided with evidence that psychiatric oversight will be available on release. HDC will remain in force until 10 February 04.
The panel assessed Mr Buxton's risk of reoffending and of causing harm to others as remaining too high for release. In reaching this conclusion it took note of:
- his long record of highly persistent offending, which includes beaches of trust and of court orders;
- his history of substance abuse;
- the fact that he will be released (and initially confined by curfew) to the home of a partner whom he has recently assaulted; and
- the relatively long period remaining on licence.
Mr Buxton's representations are accordingly rejected."
(i) the Board misdirected itself with regard to the extent to which it was entitled to take account of the Claimant's personal circumstances; and
(ii) the Board failed to provide any or any adequate reasons regarding its consideration of the Claimant's personal circumstances, a failure that was material, because both domestic law and the European Convention on Human Rights ("the ECHR") required the Board to consider the Claimant's mental health and his partner's pregnancy.
"The belated imposition on him in those circumstances of a serious disciplinary punishment seven days' segregation in the punishment block and an additional twenty-eight days to his sentence imposed two weeks after the event and only nine days before his expected date of release which may well have threatened his physical and moral resistance, is not compatible with the standard of treatment required in respect of a mentally ill person."
"Mental health must also be regarded as a crucial part of private life associated with the aspect of moral integrity. Article 8 protects a right to identity and personal development, and the right to establish and develop relationships with other human beings and the outside world the preservation of mental stability is in that context an indispensable precondition to effective enjoyment of the right to respect for private life."
"78. It is possible to draw some general conclusions from these authorities:
(i) The right to respect for family life is not a right which a prisoner necessarily loses by reason of his/her incarceration;
(ii) On the other hand, when a court considers whether the state's reason for interfering with that right are relevant and sufficient, it is entitled to take into account
(a) The reasonable requirements of prison organisation and security; and
(b) the desirability of maintaining a uniform regime in prison which avoids any appearance of arbitrariness or discrimination;
(iii) Whatever the justification for a general rule, ECHR law requires the court to consider the application of that rule to the particular case, and to determine whether in that case the interference is proportionate to the particular legitimate aim being pursued;
(iv) The more serious the intervention in any given case (and interventions cannot come very much more serious than the act of separating a mother from a very young child), the more compelling must be the justification."
"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 every material consideration, however insignificant, and to deal with every argument, however peripheral, would be an unjustifiable burden."
"Mr Kovats, representing the Board, has invited the court to give guidance for the assistance of those who consider cases such as this and draft decision letters to prisoners. This is a request to which I would wish to respond, given the important and responsible task which the Board discharge and the undesirability of repeated court challenges to decisions of the Board. But it is difficult to give very specific guidance. Plainly the Board must in each case focus on the question of risk to which their decision is directed. Full account must be taken, as they affect any individual prisoner, of the matters listed in the Secretary of State's directions. It seems to me in general desirable that the Board should identify in broad terms the matters judged by the Board as pointing towards and against a continuing risk of offending and the Board's reasons for striking the balance as it does. Needless to say the letter should summarise the considerations which have in fact led to the final decision. It would be wrong to prescribe any standard form of decision letter and it would be wrong to require elaborate or impeccable standards of draftsmanship."
"5. Any custodial order inevitably curtails the enjoyment, by the person confined, of rights enjoyed by other citizens. He cannot move freely and choose his associates as they are entitled to so. It is indeed an important objective of such an order to curtail such rights, whether to punish him or to protect the public or both. But the order does not wholly deprive the person confined of all rights enjoyed by other citizens. Some rights, perhaps in an attenuated or qualified form, survive the making of the order. And it may well be that the importance of such surviving rights is enhanced by the loss or partial loss of other rights. Among the rights which, in part at least, survive are three important rights, closely related but free standing, each of them calling for appropriate legal protection: the right of access to a court; the right of access to legal advice; and the right to communicate confidentially with a legal adviser under the seal of legal professional privilege. Such rights may be curtailed only by clear and express words, and then only to the extent reasonably necessary to meet the ends which justify the curtailment."
(i) Section 36 of the 1991 Act, which provides for the early release of prisoners on compassionate grounds;
(ii) Section 47 of the Mental Health Act 1983, which provides for the transfer to hospital of a serving prisoner;
(iii) Rules 9, 20 and 21 of the Prison Rules 1999, which respectively provide for the temporary release of the prisoner on (inter alia) compassionate grounds and to assist in maintaining family ties (Rule 9), for the provision of appropriate medical attendance (Rule 20) and for mandatory medical reporting in the case of a prisoner whose health is likely to be injuriously affected by continued imprisonment or any conditions of imprisonment (Rule 21).
"a. That the role of the Parole Board is to determine whether or not release on licence presents an unacceptable risk of reoffending;
b. That if the Parole Board were to conclude that the risk of reoffending was unacceptable in the circumstances, then it is obliged to refuse to direct the prisoner's release;
c. That the effect of recall upon a serving prisoner is relevant only to the extent that it is relevant to the quantity and quality of risk that he represents;
d. That the question of whether or not a risk is "acceptable" or "unacceptable" does not depend upon any balancing of the interests of the prisoner against the public interest. It is simply an assessment of the extent of risk which the prisoner presents;
e. That it is no part of the Parole Board's role to balance the protection of the public against the prisoner's interests;
f. That there is no interference with the right to respect for family life in requiring the continuing detention of a serving prisoner who presents an unacceptable risk of reoffending. The extent to which private and family life can in practice be respected is constrained by the fact that the Claimant is a serving prisoner. It is the fact of the sentence which must be safely administered which determines the manner in which the Claimant's family and private life can be respected;
g. That factors such as the prisoner's mental health and the compassionate factors are relevant in the case of serving prisoners in the following respects:
i. Mental health problems may require a prisoner to receive medical treatment, increased surveillance and ongoing care (see, e.g. rule 9 of the Prison Rules 1999 which authorises temporary release from prison in order to receive medical treatment and rules 20 and 21 which deal with medical attendance upon prisoners and the effect of imprisonment on the health of prisoners). The medical treatment provided to the Claimant in prison has not been criticised in any way in this application; and
ii. Compassionate factors can be taken into account in the authorisation of temporary leave (see, e.g. rule 9 of the Prison Rules 1999 which authorises temporary release from prison on compassionate grounds) and/or in the early release of prisoners on compassionate grounds under section 36 of the Criminal Justice Act 1991."