England and Wales High Court (Administrative Court) Decisions

IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT

		Royal Courts of Justice Strand, London, WC2A 2LL
		8 November 2004

Mr Justice Keith:

Introduction

1. In October 1994, the claimant was sentenced to twelve years' imprisonment. In April 2002, he was released from custody on licence, but in May 2003 he was recalled to prison when his licence was revoked. The Parole Board subsequently confirmed his recall to prison. In this claim for judicial review, he seeks to have that decision of the Parole Board quashed, and he asks the Court to declare that the decision not to release him from prison was unreasonable. All references in this judgment to sections of an Act are to sections of the Criminal Justice Act 1991 unless otherwise stated.

The facts

2. The facts are not in dispute. It was following his conviction for an offence of burglary with intent to commit rape that the claimant was sentenced to twelve years' imprisonment. He also received concurrent sentences of nine years' and four years' imprisonment for offences of causing grievous bodily harm with intent and indecent assault respectively. The claimant has a long record of previous convictions going back to 1979 when he was 14 years old. His first offences were theft of a motor car, driving without insurance and driving whilst disqualified. Prior to the offences for which he is now in prison, he had been convicted on nine further occasions of numerous offences including driving without insurance, assault occasioning actual bodily harm, theft, burglary and rape. He had been sentenced to three years' imprisonment in December 1986 for offences of rape and theft, and to seven years' imprisonment in February 1989 for an offence of rape.
3. The claimant's current sentence expires on 16 March 2006. On 16 April 2002, having been in prison for eight years, the claimant was released on licence, pursuant to section 33(2), which requires the Secretary of State to release on licence a long-term prisoner (defined in section 33(5) as a prisoner serving a sentence of imprisonment for a term of four years or more) as soon as he has served two-thirds of his sentence. The licence stated that he would be under supervision until the expiry of his sentence. It also stated that the objectives of this supervision were (a) to protect the public, (b) to prevent re-offending on his part, and (c) to achieve his successful re-integration into the community.
4. Para. 5 of the licence set out the conditions of his licence. Section 37(4) required him to comply with those conditions. They applied while he continued to be under supervision. They included requirements that he kept in touch with his supervising officer, that he lived at Braley House Hostel unless given prior approval by his supervising officer to live elsewhere, and that he complied with any requirements reasonably imposed on him by his supervising officer for the purpose of ensuring that he addressed his alcohol and sexual offending behaviour problems. But for present purposes, the most important condition was that in para. 5(vi), which required him to

“….. be of good behaviour, not commit any offence and not take any action which would jeopardise the objectives of [his] supervision …..”

5. Two other terms of the claimant's licence need to be mentioned. Para. 7 of the licence stated:

“If you fail to comply with any requirement of your probation supervision (set out in paragraphs 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 …..”

And para. 8 of the licence stated:

“Your sentence expires on 16/03/2006. In accordance with the provisions of Section 40 of the Criminal Justice Act 1991, you are liable to be returned to custody if you are convicted of a further imprisonable offence committed before your sentence has fully expired. The court dealing with the new offence may add all or part of the outstanding period of the original sentence on to any new sentence it may impose.”

6. On 28 May 2003, the Secretary of State revoked the claimant's licence and recalled the claimant to prison. He did so pursuant to section 39(2), which provides:

“The Secretary of State may revoke the licence of [a long-term prisoner] and recall him to prison without a recommendation by the [Parole] Board, where it appears to him that it is expedient in the public interest to recall that person before such a recommendation is practicable.”

The Secretary of State's reasons for revoking the claimant's licence were that he had broken condition 5(vi) of his licence, and that he had been living at his ex-partner's address prior to Christmas 2002, whereas permission for him to live away from the hostel had not been given until February 2003. The documents setting out the Secretary of State's reasons for revoking the claimant's licence said this about why the Secretary of State believed that the claimant had broken condition 5(vi) of his licence:

“….. despite being instructed by your supervising officer, both verbally and in writing, not to contact your ex-partner, you have admitted that you contacted her on the evening of 23 May 2003 and during the following weekend. It has also been alleged that you have physically assaulted and raped your ex-partner and have been displaying intimidating and abusing behaviour towards her.”

The document concluded:

“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.”

7. In reaching this decision, the Secretary of State had relied on a report about the claimant dated 28 May 2003 from the claimant's supervising officer. It was that report which had referred to the breaches which had resulted in the revocation of the claimant's licence. But the report also included the following passages:

“It has been confirmed by Worcester Police Intelligence, that Mr Morecock currently owns a vehicle registration G336 WHP that has been seen both at [the address of the claimant's ex-partner] and parked in the vicinity of the hostel on a number of occasions over a period of several weeks. Mr Morecock had been given a written warning by myself on 8.11.2002 for driving his car illegally, as he holds only a provisional driving licence.

At the time of his release he represented a very high risk to the general public of further sexual offending, especially when disinhibited by alcohol. It was highlighted that the risk of being caught was not a deterrent to this man. The situation has not changed within the time that he has been released. It would appear that Mr Morecock has continued to demonstrate further risky behaviours. These include, driving illegally, which he has been warned about both verbally and in writing by his supervising officer, as well as by Worcester Police Intelligence. I understand that on the afternoon of the [23] /05/03 Mr Morecock was stopped while driving his car illegally and has subsequently been issued with a summons for driving without a Licence and without insurance.”

8. Section 39(4) requires the Secretary of State to refer to the Parole Board the case of a person recalled to prison under section 39(2). Representations were then made in writing on 8 September 2003 by the claimant's solicitors for consideration by the Parole Board. The letter recorded that the claimant's ex-partner had withdrawn the allegations of rape and assault. It denied that the claimant had ever failed to live at the hostel. It admitted that the claimant had been in contact with his ex-partner on 23 May 2003, despite having been instructed not to contact her, but it stated that she had initiated the contact. And it admitted that the claimant had driven a motor vehicle as an uninsured driver and as a provisional licence holder, the latter being an admission, so Miss Abigail Nixon for the claimant told me, that he had driven unsupervised and without L plates.
9. On 24 September 2003, the Parole Board responded to those representations. It noted that the grounds for his recall had been twofold:

“….. firstly, it was said he had failed to be of good behaviour and the specific allegations were that he had sexually assaulted and intimidated his partner and that he had persisted in driving illegally. Secondly, it was alleged that he had failed to reside at the address stipulated.”

That was not quite correct. The document setting out the Secretary of State's reasons for revoking the claimant's licence had not referred to the driving offences at all. However, the Board accepted his ex-partner's assurance that all the allegations relating to her were unfounded, and it found no conclusive proof that the claimant had failed to reside as directed. But it rejected the claimant's representations over his recall to prison. It said:

“However, his solicitor has admitted that he has been driving illegally and the panel notes that he has now been summoned for driving while disqualified and driving with no insurance. In this regard, he has demonstrably breached the licence condition requiring him to be of good behaviour; accordingly his representations are rejected.”

Thus, the Parole Board confirmed his recall to prison on a ground on which the Secretary of State had not relied when recalling him to prison. It may be that the Secretary of State had not bothered to refer to the driving offences in the document setting out his reasons for revoking the claimant's licence, because the claimant's alleged behaviour towards his ex-partner and his alleged failure to live at the hostel were regarded by themselves as sufficiently serious to justify his recall to prison. But no evidence was filed to the effect that that was the thinking of the official who made the decision in the name of the Secretary of State, and I therefore discount that possibility.

10. On 4 December 2003, the claimant's solicitors asked the Parole Board to reconsider its decision on the ground that it had erroneously referred to the claimant having been summoned for the offence of driving whilst disqualified (which is an imprisonable offence), whereas he had in fact been summoned for the offences of driving without insurance and driving otherwise than in accordance with a licence (which are not imprisonable offences). On 14 January 2004, the Parole Board reconsidered its decision in the light of that letter. It noted the error which had been made previously, but concluded:

“These admitted offences continue a pattern of prolific and entrenched offending since 1979 – a pattern seemingly interrupted only by terms of imprisonment. His continued disregard for the laws related to the driving of motor vehicles indicates that there is an unacceptable risk of further offending. He has clearly failed to be of good behaviour as required by his licence and the Panel considered that he was unlikely to fully comply with his licence in future. His representations are therefore rejected.

It should be noted that the Secretary of State's directions refer to the risk of further offences. Such offences are not restricted to those which if proven, are imprisonable.”

11. The reference to the Secretary of State's directions is a reference to directions given by the Secretary of State to the Parole Board, pursuant to section 32(6), as to the matters to be taken into account by the Parole Board in discharging its functions under Part II of the Act relating to the early release of prisoners. The relevant passage in the directions, headed “Representations against recall”, read:

“When a prisoner's licence has been revoked and the person has been returned to custody, he or she will be served with the papers on which the decision to recall was taken and informed of the rights to make representations under Section 39(3) of the Criminal Justice Act 1991. When considering a prisoner's representations, the Parole Board shall determine whether:

(a) the prisoner's liberty would present [an] unacceptable risk of a further offence being committed. The type of re-offending involved does not need to involve a risk to public safety;

(b) whilst on licence, the prisoner failed to comply with one or more of his or her licence conditions and that failure suggested that the object[ive]s of prison supervision had been undermined; or

(c) the prisoner had breached the trust placed in him or her by the Secretary of State either by failing to comply with one or more of his or her licence conditions, or any other means; and

(d) the prisoner is likely to comply with licence conditions in the future, taking into account in particular the effect of the further period of imprisonment since recall.

Each individual case should be considered on its merits, without any discrimination on any grounds.”

In deciding to reject the representations made on behalf of the claimant, the Parole Board plainly had in mind both (a) and (b) – “there is an unacceptable risk of further offending” and “[h]e has clearly failed to be of good behaviour as required by his licence”. The Parole Board plainly had (d) in mind as well – “he was unlikely to fully comply with his licence in future”.

The wrong approach

12. It is tempting to say that the claimant is remaining in prison, serving a sentence equivalent to the balance of his previous sentences, for relatively minor road traffic offences. That would not be the correct analysis, and to be fair Miss Nixon did not suggest otherwise. The recall to prison of a prisoner sentenced to a determinate sentence is no more than a requirement that he serves the sentence which the original sentencing court thought to be the appropriate sentence for the offences for which he was being sentenced: see R (Smith) v The Parole Board (No. 2) [2004] 1 WLR 421. The claimant is therefore not serving a sentence for the minor road traffic offences which he committed. Although those offences triggered the Parole Board's decision not to order his release from prison, he remains in prison as a result of the sentences imposed for his original offences.
13. The same is true of the fact that the claimant could not have been sentenced to terms of imprisonment for the road traffic offences which he committed because they were non-imprisonable offences. It may be tempting to say that the claimant is now serving a sentence equivalent to the balance of his previous sentences for offences for which he could not be sent to prison. But the fact remains that, although those offences triggered the Parole Board's decision not to order his release from prison, the sentences he is serving are the ones imposed for his original offences.

An unacceptable risk

14. Miss Nixon contended that when para. (a) of the Secretary of State's directions required the Parole Board to determine whether “the prisoner's liberty would present [an] unacceptable risk of a further offence being committed”, the directions contemplated the risk of the prisoner committing further serious offences or offences for which he could not be sent to prison or offences of the kind for which he had been sent to prison in the past – in the claimant's case, offences of a sexual or violent nature. Thus, even if his recent driving offences could be characterised as a “continued disregard of the law related to the driving of motor vehicles”, an unacceptable risk of further offending of the kind contemplated by the directions had not been established.
15. I cannot go along with this argument. The Parole Board was entitled to conclude that his disregard of the law relating to the driving of motor vehicles was not limited to a single occasion. He had driven a car without insurance and without observing the conditions of his provisional driving licence (a) on the occasion for which his supervising officer had warned him on 8 November 2002 and (b) on 23 May 2003. Indeed, the language of his solicitors' letter of 8 September 2003 suggests that the claimant was breaking the law in this respect regularly – “Mr Morecock fully accepts that he has driven a motor vehicle as an uninsured driver and as a provisional licence holder”. And when all that is considered against the background of two previous convictions for driving without insurance (albeit in 1979 and 1985), it was open to the Parole Board to describe his disregard for the laws relating to the driving of motor vehicles as “continued”.
16. Nor do I think that the directions contemplated the risk of a prisoner only committing further serious offences or imprisonable offences or offences of the kind for which he had been sent to prison in the past. If that was what the directions contemplated, they could have said so. It is said that the directions could not have contemplated the possibility of a person having to remain in prison following his recall to prison – possibly for a very long time – simply because there was a real risk that he might commit an offence of a minor kind (perhaps even one which is not imprisonable). But there are, I think, two answers to that point. First, the directions go on to say that “[t]he type of re-offending involved does not need to involve a risk to public safety”. That strongly suggests that no limitation was being placed on the type of re-offending which the prisoner is thought to be at risk of committing. Secondly, a prisoner can be required to remain in prison even where he has not committed an offence at all: see para. (b) of the directions. In those circumstances, it would be extremely odd if para. (a) of the directions only contemplated a real risk of a prisoner committing serious offences or imprisonable offences or offences of the kind for which he had been sentenced to prison in the past.
17. Miss Nixon made the point that the fact that the claimant had committed driving offences while on licence did not necessarily mean that he would commit similar offences if he was released. That is so, but the question is whether it was reasonably open to the Parole Board to conclude that there was an unacceptable risk that the claimant would commit driving offences on his release on licence. In my view, it was reasonably open to the Parole Board to come to that conclusion in view of (a) the commission of driving offences by the claimant when he was on licence at a time when he knew that he could be recalled to prison if he committed a criminal offence or broke the conditions of his licence, and (b) the relatively short time in the past between the claimant's release from prison and his commission of further offences. That latter consideration was part of the Parole Board's reasoning: note its reference to the claimant's pattern of offending “seemingly interrupted only by terms of imprisonment”.
18. This last point was also made in the context of para. (d) of the Secretary of State's directions. The fact that the claimant had committed driving offences while on licence did not necessarily mean that he was not likely to comply with the conditions of his licence in the future. But the question is whether it was reasonably open to the Parole Board to conclude that the claimant was unlikely to comply with the conditions of his licence. Since his licence required him to be of good behaviour and not to commit any offences, he would not be complying with the conditions of his licence if he committed driving offences. For the reasons I have already given, it was reasonably open to the Parole Board to conclude that he was likely to commit driving offences on his release from prison.
19. I have not overlooked the fact that as part of its consideration of para. (d) of the Secretary of State's directions, the Parole Board is required to take into account in particular the effect of the further period of imprisonment on the prisoner since his recall to prison. The Parole Board did not expressly refer to that consideration in its reasons. But the Parole Board is not obliged to spell out the obvious, and if a person has spent 7½ months' imprisonment since his recall to prison (as the claimant had when the Parole Board reconsidered his solicitors' representations), it is obvious that that could shape a prisoner's resolve to behave differently if he is released on licence. Miss Nixon did not suggest that the Parole Board did not take that consideration into account, and in my view it was reasonably open to the Parole Board to reach the conclusion which it did despite this consideration.
20. At the end of the day, the challenge to the Parole Board's decision is that it was irrational for the Parole Board to deny the claimant his release from prison on licence – which could result in him remaining in prison for some years – simply because of a fear (albeit a well-founded one) that he might commit driving offences for which he could not be sent to prison. For the reasons I have given, I do not believe that the Parole Board's decision can be characterised as an irrational one.

Inconsistency

21. It is undoubtedly the case that the Parole Board's reasons for rejecting the claimant's solicitors' representations for his release were completely different from the Secretary of State's reasons for recalling him to prison originally. Miss Nixon disavowed any suggestion that the Parole Board was looking for a basis on which his original recall to prison could be justified. But she argued that it was unreasonable for his solicitors' representations to be rejected on a basis which was inconsistent with the original reasons for his recall to prison. That argument was said to be supported by an observation of Hale LJ (as she then was) in Rodgers v The Governor of HM Prison Brixton [2003] EWHC 1923 Admin She said at [26]:

“It is a general principle that it is incumbent upon decision-makers to give the right reason at the right time. A citizen should not have to start proceeding in order to discover why something has happened to him. Later additional justifications should be approached with caution and should not [be] accepted if these are inconsistent with the earlier one.”

22. The facts of that case are important. A prisoner was released on licence in November 2001, but the licence erroneously stated that it was due to expire in February 2002. It should have stated that it was due to expire in February 2005. In September 2002 the prisoner committed offences for which he was sentenced to two months' imprisonment. By then, he had been informed that his licence had expired and that he was no longer under supervision. Following his conviction, his case was referred to the Parole Board. The Parole Board recommended his recall to prison pursuant to section 39(1), which empowers the Secretary of State to revoke the licence of a prisoner who has been released on licence and to recall him to prison if recommended to do so by the Parole Board. The Secretary of State revoked his licence for breach of condition 5(vi): the prisoner's conviction meant that he had failed to be of good behaviour, he had committed offences and he had taken action which jeopardised the objectives of his supervision. But condition 5(vi) only applies while a released prisoner is under supervision. The prisoner had ceased to be under supervision when he had committed the offences which allegedly had given rise to the breach of condition 5(vi). Accordingly, when the Parole Board a few months later rejected representations made on behalf of the prisoner for his release from prison, it did so on the basis that he presented an unacceptable risk of further offences being committed. This was a different ground from that on which the Secretary of State had based his original decision. The original decision to recall was based on the breach of a condition which applied whilst the prisoner was under supervision and related to criminal offences committed before then. The subsequent decision of the Parole Board not to release the prisoner was based on its concern about his behaviour in the future.
23. The challenge in that case was to the lawfulness of the Secretary of State's original decision to recall him to prison and to the legality of his continued detention. The Divisional Court found that the Secretary of State's original decision was unlawful, and it followed that his continued detention was unlawful as well. The core of its reasoning is at [30] of the judgment of Hale LJ:

“The Secretary of State in this case was not able to recall for breach of condition 5 ….. He cannot accuse somebody of breaching a condition of his supervision when his own agents have not only once, but twice, told the person that he is no longer under supervision. He could have recalled for unacceptable risk, but, in doing so, he had to say so at the time and explain why. In my judgment, therefore, the decision was unlawful and must be quashed.”

That was the context in which the observations which Hale LJ made at [26] have to be seen. The Secretary of State could not rely on the Parole Board's subsequent reasoning for rejecting the representations for the prisoner's release when that reasoning was not the reasoning for recalling the prisoner to prison in the first place.

24. In the present case, the challenge is not to the original decision of the Secretary of State to recall the claimant to prison. The challenge is to the Parole Board's decision rejecting the representations for his release. It is true that its reasons for rejecting the representations for his release were different from the Secretary of State's reasons for recalling the claimant to prison in the first place. But there is no question of the Parole Board now seeking to justify its decision on a different basis from that which it had in mind when it made its decision.
25. But should the Parole Board be required to release a prisoner when the Secretary of State's original reasons for recalling the prisoner no longer stand, even though the Parole Board considers that his release would be inappropriate? The answer must be no. The Parole Board operates as an independent check on the exercise by the Secretary of State of his powers, and it would be surprising if the Secretary of State's reasoning prevented the Parole Board from considering the case afresh on the evidence before it. Indeed, in R (Sim) v The Parole Board [2004] 2 WLR 1170, the prisoner was recalled to prison by the Secretary of State principally because it was alleged that he had indecently exposed himself to two teenage girls. By the time representations for his release were considered by the Parole Board, it was accepted that the prisoner had not committed the offence of indecent exposure. Nevertheless, the Parole Board refused to release him in the light of the risk which he presented to the public, as evidenced by such matters as his attitude towards his offences and his continued use of alcohol. The Parole Board's decision was upheld by the High Court and the Court of Appeal.

Conclusion

26. For these reasons, this claim for judicial review must be dismissed. I wish to spare the parties the expense of coming to court when this judgment is handed down. I was informed at the hearing that if the claim was dismissed, the Parole Board would not be asking for its costs. Accordingly, I merely order that the claimant's costs be assessed pursuant to the Community Legal Service (Costs) Regulations 2000. If the claimant wishes to apply for permission to appeal, that application should be made to me on paper within 7 days of the handing down of this judgment, and I will consider it quickly without a hearing so as to enable any notice of appeal to be filed within the time limit of 14 days.
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MR JUSTICE KEITH: For the reasons given in the judgment handed down today, this claim for judicial review must be dismissed. I make no order as to costs, save that the claimant's costs be assessed pursuant to the Community Legal Service (Costs) Regulations 2000.

In order to spare the parties the expense of coming to court when this judgment was to be handed down, I give directions in paragraph 6 as to how permission to appeal should be applied for.