England and Wales High Court (Administrative Court) Decisions

IN THE HIGH COURT OF JUSTICE
QUEENS BENCH DIVISION
ADMINISTRATIVE COURT

		Royal Courts of Justice Strand, London, WC2A 2LL
		6th August 2004

Mr Justice Forbes:

1. Introduction. The Claimant is a short-term prisoner who is serving a 33 months' prison sentence for drug related offences. On 29^th September 2003 he was released on Home Detention Curfew. On 10^th November 2003, the Claimant was recalled to prison following an incident that occurred on 7^th November in which the Claimant's partner, Ms Emma Graham ("Ms Graham"), was injured as a result of which the Claimant was arrested and charged with an offence of causing actual bodily harm. In these proceedings, the Claimant seeks Judicial Review of the Parole Board's decision on 13^th January 2004, whereby it rejected the Claimant's representations against his recall to prison.
2. The Statutory Framework. So far as material, section 34A of the Criminal Justice Act 1991 ("the 1991 Act") provides as follows:

"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.

3. Section 37A of the 1991 Act provides that where anybody is released under section 34A(3), the licence is to include a curfew condition, which requires the released person to remain, for periods for the time being specified in the condition, at a place so specified, which may be a probation hostel, and also requires that he be subject to electronic monitoring during specified periods.
4. Section 39 of the 1991 Act provides (inter alia) as follows:

"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."

5. Section 32, subsections (2) and (6) of the 1991 Act provide as follows:

"(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."

6. The Secretary of State's directions to the Parole Board, issued under section 32(6) of the 1991 Act, concerning the recall of offenders who are subject to Home Detention Curfew, state (inter alia) that:

"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."

7. The Factual Background. The Claimant is now 28 years of age. He is a persistent offender. Between 1991 and 2003 he has appeared before the Courts on 26 separate occasions and has been convicted of a total of 92 offences. On 13^th March 2003, at the Exeter Crown Court, the Claimant was convicted (inter alia) of two offences of possession of Class A drugs (cocaine and ecstasy) with intent to supply and sentenced to two concurrent terms of 33 months' imprisonment.
8. On 29^th September 2003, the Claimant was released from prison on Home Detention Curfew pursuant to sections 34A and 37A of the 1991 Act. His licence expiry date is 22^nd October 2004.
9. At about 8.30 pm on 7^th November 2003, following an argument with the Claimant, Ms Graham called the police to her home address where she lived with the Claimant. Upon the police's arrival, Ms Graham was found to be in a very distressed state and to have a cut approximately 2 inches long across the top of her head, two broken fingers and a suspected broken nose. When asked what had happened, the Claimant said: "Me and Emma had been out drinking. We came back home and we've been having problems lately as I've just come out of prison. We started arguing and I chucked a table in the air which hit Emma in the head. It's my fault".
10. In view of Ms Graham's condition and injuries the police summoned an ambulance that took her to hospital where she received appropriate medical treatment. The Claimant was arrested and taken to Bath Police Station, where he was charged with assault occasioning actual bodily harm, contrary to section 47 of the Offences Against the Persons Act 1861.
11. On 10^th November 2003, the Claimant appeared before the Wells Magistrates' Court. It appears that, at the hearing that then took place before the Justices, Ms Pearson made it clear that she had not made any formal complaint to the Police about the incident that had occurred on the 7^th November and that she had no intention of making any such complaint. The case was then adjourned for the Crown Prosecution Service to consider the position. The Claimant was released on bail and returned to live at his mother's address in Poole.
12. Shortly afterwards, the Claimant was voluntarily admitted to St Ann's, a local psychiatric hospital, where his condition was assessed by Dr Sandra Pearson, a Consultant Adult Psychiatrist, on 12^th November prior to his being transferred to Phoenix House in Wells.
13. Dr Pearson's diagnosis, as expressed in her Psychiatric Report dated 4^th December 2003, was that the Claimant was suffering from "moderate recurrent depression", for which he was treated with appropriate antidepressant medication. In addition, Dr Pearson stated that the Claimant required "a period of social stability with adequate support from friends and family, which I understand is available." Dr Pearson then went on to express the following opinion with regard to the Claimant's prognosis:

"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."

14. On 14^th November 2003, the Claimant's licence was revoked and he was recalled to prison by the Secretary of State, pursuant to section 39(2) of the 1991 Act. The case was then referred to the Parole Board to confirm the revocation or recommend re-release, pursuant to section 39(4). The Secretary of State's reasons for revocation of the Claimant's licence were stated to be:

"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 7^th 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."

15. On 14^th November, on the authority of the recall, the Police collected the Claimant from Phoenix House and took him in custody to Yeovil Police Station. On 15^th November, the Claimant was taken to Dorchester Prison, where he was placed in the hospital wing. Following his recall under section 39(2), the Claimant is no longer eligible for release on Home Detention Curfew (see section 34A(1)(g) of the 1991 Act).
16. On 10^th December 2003, the Crown Prosecution Service gave the appropriate notice to the Clerk to the Justices, discontinuing the charge of assault against the Claimant, pursuant to section 23 of the Prosecution of Offences Act 1985.
17. The Claimant's solicitor, Mr Stephen Nicholls ("Mr Nicholls"), has made the following representations to the Parole Board concerning the Claimant's recall:

(i) a letter dated 8^th 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 15^th 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 29^th December 2003, enclosing a letter dated 23^rd 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.

18. On 13^th January 2004, the Parole Board rejected the Claimant's representations against recall (the decision under challenge in these proceedings) and gave the following reasons for having done so:

"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."

19. The Grounds of Challenge. On behalf of the Claimant, Mr Southey submitted that the decision of the Parole Board was flawed for the following two generally expressed reasons:

(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.

20. The Parties' Submissions. Stated in broad terms, it was Mr Southey's submission that the Parole Board ("the Board") erred in failing to consider the Claimant's personal circumstances adequately or at all and/or in failing to give adequate reasons for the decision challenged. In particular, he suggested, the Board failed to consider and/or in its reasons the Board failed to address the two principle and material issues raised on the Claimant's behalf, namely (i) the risk that recall would result in a significant decline in his mental health; in particular, that recall would give rise to a risk of suicide and (ii) the fact that his partner is now pregnant with their child (hereafter collectively referred to as "the Claimant's personal circumstances").
21. Mr Southey pointed out that section 39 of the 1991 Act gives no specific guidance as to the approach to be adopted by the Board when considering representations regarding recall to prison. He therefore concentrated the first part of his submissions on the terms of the guidance given to the Board by the Secretary of State in the directions issued under section 32(6) of the 1991 Act ("the directions": see paragraphs 5 and 6 above). Mr Southey submitted that, properly construed, the directions issued by the Secretary of State under that section do require the Board to take an offender's personal circumstances into account when considering his or her recall.
22. It was Mr Southey's contention that a crucial aspect of the guidance given in the Secretary of State's directions is that they require the Board to consider whether the risk to the public of further offences being committed ("the risk") is an "unacceptable risk". Mr Southey submitted that the word "unacceptable" suggests that the Board is not required to determine whether the risk is in excess of a particular level that is applicable in all cases, regardless of the personal circumstances of the recalled offender. He argued that the Board is required instead to consider all the particular circumstances of the offender to determine whether the level of risk is acceptable in those circumstances. Mr Southey submitted that the impact of recall on the offender and his or her family are therefore highly relevant factors assessing what is acceptable by way of risk to the public
23. By way of example and to demonstrate his point, Mr Southey suggested that the level of risk required to justify the recall of a single parent with the sole care of a child, who would be taken into care if the parent was recalled to prison, must be higher than the level required to justify the recall of a person who has no such special personal circumstances. The reason why that was so, Mr Southey submitted, was that the level of risk that was acceptable in the case of the single parent was higher, because of the obvious social and welfare benefits to both the child and society in not parting parent and child.
24. Mr Southey suggested that this analysis of paragraph 1 of the directions was consistent with the terms of paragraph 2. He pointed out that paragraph 2 of the directions makes reference to the likelihood of reoffending as a factor to be considered by the Board when considering the issues raised in paragraph 1. Mr Southey submitted that this was plainly a matter to be determined objectively and without reference to the personal circumstances of the recalled offender. He suggested that if the Board is required to determine the risk in paragraph 1 by reference to the same more limited considerations as paragraph 2, there would be no need to refer to the likelihood of reoffending as a factor to be considered in paragraph 2.
25. Mr Southey submitted further that the words of paragraph 2 of the directions suggest that rehabilitation is an important factor to be considered when determining whether risk is acceptable, because reference is made to compliance with licence conditions. Mr Southey submitted that if rehabilitation is an important factor, this strongly suggests that the personal circumstances of the offender should be considered, because those circumstances will be very material to the question of rehabilitation.
26. Mr Southey also referred to section 32(6) of the 1991 Act (see paragraph 5 above) and submitted that, consistent with his suggested interpretation of the directions, the terms of paragraph (b) of subsection (6) indicate that the Secretary of State's directions to the Board are required to facilitate the rehabilitation of the offender (inter alia). He therefore maintained that, if the current directions do not require the Board to take into account an offender's personal circumstances, the directions would tend to undermine rehabilitation rather than facilitate it, contrary to the objective expressed in section 32(6)(b).
27. The second main part of Mr Southey's submissions, in support of the proposition that the Board was required to consider the Claimant's personal circumstances when considering his recall to prison, was that it was necessary for the Board to do so, because the Claimant's recall to prison might involve the violation of his human rights under Articles 3 and 8 of the European Convention on Human Rights (the "ECHR").
28. Article 3 of the ECHR provides that no one "shall be subjected to torture or to inhuman or degrading treatment or punishment." Article 3 is an absolute right and is not subject to any form of qualification. Article 8(1) provides that everyone "has the right to respect for his private and family life, his home and his correspondence." However, Article 8(1) is a qualified right. Interference with Article 8 can be justified (inter alia) when the interference is "in accordance with the law and is necessary in a democratic society … for the prevention of disorder or crime … or for the protection of the rights and freedoms of others": see Article 8(2) of the ECHR.
29. Mr Southey submitted that "degrading treatment" within the meaning of Article 3 is "such as to arouse … feelings of fear, anguish and inferiority capable of humiliating and debasing them and possibly breaking their physical or moral resistance": see Ireland ~v~ United Kingdom (1978) 2 EHRR 25 at paragraph 167.
30. Mr Southey also referred to the decision of the European Court of Human Rights ("the ECtHR") in the case of Keenan ~v~ United Kingdom (2001) 33 EHRR 38, in which it was concluded that the imposition of additional days on a prisoner suffering from mental health problems together with a lack of adequate care violated Article 3 of the ECHR. In paragraph 115 of its judgment, the ECtHR made the following observation:

"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."

31. Mr Southey submitted that the decision in Keenan ~v~ United Kingdom (supra) shows that a prisoner is entitled to careful consideration of his or her mental health whenever decisions are taken that may impact on that prisoner's mental health. He argued that this is particularly true when a decision is taken that may increase the period that will be served in custody by the prisoner in question. Mr Southey submitted that, in the present case, nowhere in the reasons for its decision was there any indication that the Board had considered the Claimant's mental health problems and that the Board's failure to do so was contrary to the proper approach in such a case as indicated in Keenan.
32. Turning to the Claimant's right to respect for his private and family life, it was Mr Southey's submission that Article 8 of the ECHR was engaged both because Dr Pearson's report showed that the Claimant's mental stability would be disturbed as a result of his recall and because his partner is pregnant with their child.
33. As to the first part of that submission, Mr Southey referred to and relied on the decision of the ECtHR in the case of Bensaid ~v~ United Kingdom (2001) 33 EHRR 10 and the following statement of principle, which is to be found in paragraph 47 of the Court's judgment:

"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."

34. Mr Southey pointed out that the psychiatric evidence adduced on behalf of the Claimant showed that his recall to prison would harm his mental stability. It was therefore Mr Southey's submission that Article 8 was engaged by the Claimant's recall to prison and that it was accordingly necessary for the Board to consider the proportionality of the decision to recall the Claimant. As a consequence, he submitted, the Board should have supplied reasons for the decision challenged, justifying the interference with the Claimant's Article 8 rights.
35. As to the second part of his general submission with regard to Article 8 (see paragraph 22 above), Mr Southey submitted that Article 8 of the ECHR obliges the state to take particular steps to foster relationships between a prisoner and his/her family: see paragraph 1 of the Commission's admissibility decision in McCotter ~ United Kingdom Appn. No. 00020479/92, quoted in paragraph 28 below. Mr Southey pointed out that Ms Graham was likely to need the Claimant's support both during her pregnancy and after the birth of their child. Mr Southey also made the obvious further point that the Claimant's ability to provide support to the family unit would be greatly reduced by the fact of imprisonment and by any mental health problems that may result from his recall.
36. Mr Southey submitted uncontroversially that the right to respect for family life is not necessarily lost by reason of imprisonment: see paragraph 78 of the judgment of Lord Phillips MR, giving the judgment of the Court of Appeal in The Queen on the application of P and Q and QB ~v~ Secretary of State for the Home Department (2001) EWCA Civ 1151, where he said this:

"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."

37. Mr Southey acknowledged that Article 8 is a qualified right, but submitted that this did not mean that Article 8 is irrelevant. It was Mr Southey's submission that the Board still needed to consider all the circumstances (including the Claimant's personal circumstances) in order to determine whether there was sufficient justification for the interference with the Claimant's Article 8 rights in the particular circumstances of this case.
38. Mr Southey also referred to the Commission's decision in the case of McCotter ~v~ United Kingdom (supra), in paragraph 1 of which the Commission observed that "Article 8 … requires the State to assist prisoners as far as possible to create and sustain ties with people outside prison in order to facilitate prisoners' social rehabilitation." He submitted that any lack of support for the family on the part of the Claimant as a result of his recall to prison would be likely to interfere with the Claimant's rehabilitation since it will place strains on his relationship with Ms Graham.
39. Mr Southey submitted that the failure of the Board to give adequate reasons for its decision is particularly significant in the context of Article 8 of the ECHR, because it means that it is unclear whether the Board was persuaded that sufficient justification had been established for the interference with the Claimant's Article 8 rights and, if so, on what basis.
40. In support of his submissions, Mr Southey referred to and relied on the decision of the Court of Appeal in R ~v~ The Parole Board ex parte Oyston QBCOF 1999/1107/C: 1^st March 2000, BAILII: [2000] EWCA Crim 3552, in which it was held that the Board had erred in not giving sufficient reasons for a decision to refuse parole to a prisoner sentenced to a determinate sentence, because it failed to show that an issue of substance had been considered by the Board, namely the evidence with regard to a proposed change of lifestyle that would reduce the risk of further offences being committed. In reaching its decision (see paragraphs 30-31), the Court of Appeal applied the following well known statement of principle in Bolton Metropolitan District Council ~v~ Secretary of State for the Environment (1995) 3 PLR 37:

"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."

41. On behalf of the Parole Board, Ms Stern referred to subsections 36(2) and 36(6) of the 1991 Act and submitted that the Board is bound to apply the Secretary of State's directions in reaching its decisions and that it could not lawfully decline to do so. In effect, the directions are mandatory. She stressed that it is for the Board to assess whether the prisoner's continued liberty or immediate release "would present an unacceptable risk to the public of further offences being committed" and submitted that, in carrying out that assessment, the Board is not required to balance the interests of the prisoner against the protection of the public, whether by reference to Statute, the Common Law or the ECHR. Accordingly, it was Ms Stern's submission that there could be no obligation upon the Board to articulate such a balancing exercise in its reasons.
42. So far as concerns domestic law, Ms Stern submitted that, in essence, when considering representations with regard to recall, it is the Secretary of State's directions issued under section 32(6) of the 1991 Act that define the Board's role. As already indicated, the directions are mandatory. She submitted that, in the present case, the Board was therefore required to assess the risk to the public presented by the Claimant and to determine whether he could be released safely on licence (i.e. whether or not the Claimant presented an unacceptable risk to the public of reoffending). Ms Stern emphasised that, in carrying out its task, the question for the Board is not what the public would regard as an acceptable risk, but whether the Board considers that the risk is an unacceptable risk for the public to be exposed to.
43. However, Ms Stern accepted that a prisoner's personal circumstances could be relevant to the Board's overall assessment of the risk of reoffending and/or compliance with licence conditions in the future. She referred to the Board's reasons and submitted (correctly, in my view) that it was clear that the Board did have the Claimant's personal circumstances in mind when reaching its conclusions although, because there was no evidence as to how those circumstances might impact on the risk of the Claimant reoffending, they did not have any direct bearing on the Board's assessment of risk in this particular case.
44. Ms Stern referred to the guidance given in paragraph 47 of the judgment of Lord Bingham, LCJ, in ex parte Oyston (supra), and submitted (again, in my view, correctly) that, in the present case, the Board had plainly had that guidance in mind and had entirely complied with it. What Lord Bingham said was this:

"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."

45. Ms Stern submitted that, having regard to the terms of the Secretary of State's directions, it would have been inappropriate and unlawful for the Board to have decided that the risk of the Claimant reoffending or causing harm was unacceptably high (as it did in the present case) but nonetheless to have then directed his release on licence in order to avoid harm and/or distress to the Claimant and/or to his partner, Ms Graham.
46. So far as concerns Article 3 of the ECHR, Ms Stern submitted (correctly, in my view) that it was not engaged in the circumstances of this case. She referred to the observations of the European Commission on Human Rights in its admissibility decision in MH ~v~ United Kingdom Appn. No. 22162/93, a case in which the applicant (who was serving a life sentence) made complaint under Article 3 (inter alia) with regard to the mental distress allegedly caused to him by the length of his detention and the delays between each Parole Board review. In finding that the complaint under Article 3 was "manifestly ill-founded", the Commission stated: "The Commission recalls that Article 3 of the Convention cannot be read as requiring that an individual serving a sentence of life imprisonment must have that sentence reconsidered by a national authority (judicial or administrative) with a view to its remission or termination … ."
47. As for the Claimant's Article 8 rights, Ms Stern made the obvious and non-contentious point that it is important to bear in mind that the Claimant is currently subject to a lawful prison sentence and was so at the time of the Board's consideration of the representations made on his behalf. She submitted that the apparent interference with the Claimant's Article 8 rights by reason of his recall to prison was part of the inevitable curtailment of those rights that resulted from the original lawful sentence of imprisonment imposed upon the Claimant. In this regard, Ms Stern referred to (inter alia) the following observations of Lord Bingham in paragraph 5 of his speech in R (Daly) ~v~ SSHD (2001) UKHL 26:

"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."

48. Ms Stern also made the further powerful point that the prison regime applicable to serving prisoners in England and Wales is subject to various statutory and regulatory provisions for addressing adequately and making appropriate provision for the personal medical and/or compassionate needs of a serving prisoner. She submitted that it was by reference to these provisions that the personal circumstances of the Claimant can be and will be addressed to the extent that it is or may be necessary to do so. In support of that submission, Ms Stern referred to and relied upon the following statutory provisions and regulations:

(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).

49. In my view, Ms Stern's submissions are correct. I agree with her summary as to what constitutes the applicable principles and proper approach in cases such as the present (see paragraph 30 of the Board's written Detailed Grounds of Defence), as follows:

"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."

50. I therefore accept Ms Stern's submission that the Board is not required to balance the protection of the public against the interests of the individual prisoner in determining whether or not to recommend release on licence. The restriction upon private and family life complained of flowed necessarily from the fact of the Claimant's imprisonment. In those circumstances, provided that, as here, the detention was lawful and justified under Article 5(1) of the ECHR, and provided that, as here, there is no flaw in the Board's assessment of risk, the Board's decision is unassailable. I reject Mr Southey's submissions to the contrary effect.
51. I also accept Ms Stern's submissions with regard to the reasons given by the Board for its decision. In my view, the Board fully complied with the guidance given by Lord Bingham in ex parte Oyston (see paragraph 44 above). The question of risk was properly addressed. The factors that led to the assessment of risk were set out. The desire of the Claimant's partner to see him released, the Claimant's mental health problems and the availability of treatment in the community were referred to but, quite properly, these were not factors that were directly relied upon by the Board in assessing risk, because there was no evidence before the Board that either of these factors could be relied upon as reducing the risk presented by the Claimant in the community. Moreover, I accept that there was no obligation on the Board to address matters specifically in its decision letter that it could not lawfully take into account. I reject Mr Southey's submissions to the contrary effect.
52. Conclusion. For the foregoing reasons, I have come to the firm conclusion that this application must be and is herby dismissed.