England and Wales High Court (Administrative Court) Decisions

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

		Royal Courts of Justice Strand London WC2
		12 November 2004

Friday, 12 November 2004

1. MR JUSTICE OWEN: On 1 May 1998 the claimant was sentenced to 8 years' imprisonment at the Crown Court at Isleworth for offences of robbery and indecent assault. At that time he was the subject of a report prepared by a psychiatrist, Dr Sarah Lack. She concluded that the claimant suffered from paranoid ideation; and it would appear that during his time in prison he has continued to suffer from paranoia. The claimant was released on his automatic release date, 24 June 2003. It was a condition of his licence that he be of good behaviour and not commit any offence or take any action which would jeopardise the objectives of his supervision. The licence also provided:

"If you fail to comply with any requirement of your probation supervision ..., 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."

2. Following the claimant's release he was required to live in a probation hostel. It appears that whilst resident in the hostel he continued to exhibit symptoms of paranoia. It is alleged that he complained of staff laughing at him and looking at him in a manner that he found offensive. He is also said to have threatened to damage the hostel office. It was this behaviour that led to a recommendation, by the Probation Service on 11 July 2003 that his licence be revoked. The probation report submitted to the Parole Board in support of the recommendation contained the following passage:

"The hostel has taken a number of special measures in attempting to manage Mr Irving safely and staff have been spending considerable time with him, trying to reassure him about his thoughts as well as protecting colleagues. A number of hostel procedures have been changed to protect staff, particularly those on whom his paranoia appears to have focused. On several occasions this has meant instructing those staff not [to] attend the workplace. However these measures are neither desirable for the staff affected, nor sustainable any further.

This aspect of Mr Irving's behaviour was known prior to his discharge, but it was hoped that, after his release into the community, it might lessen. Regrettably this has not been the case. Duty staff have reported Mr Irving complaining, on a daily basis, about other staff members talking or laughing about him. Mr Irving has been escorted by staff when attending the Benefit Office, Doctor's or travelling to his family home and on those occasions he has also expressed paranoid thoughts about members of the public and benefit office staff. I believe there is a significant and increasing risk that these powerful thoughts may overcome Mr Irving and result in an act of violence towards those he has identified. In the current circumstances this is likely to be a member of hostel staff.

I do not think it is safe for hostel staff, or the wider public, for Mr Irving to continue living at Ealing Hostel."

3. Following the claimant's recall, his solicitors contacted his home probation officer and a police officer who had attended the Multi Agency Public Protection Panel held in his case. It appears that the probation officer stated that he was concerned that Mr Irving was being recalled on matters known at the time of his release. The police officer also apparently stated that he had reservations regarding the recall of the claimant, as he considered that it was based on matters that were known to everyone at the time of release. It was his view that the claimant was being recalled because there was nowhere else suitable for him to be accommodated, rather than because of anything that he had done.
4. The claimant's solicitors prepared a witness statement dealing with the contact that they had had with the home probation officer and the police officer. That witness statement was submitted to the Parole Board with a request for an oral hearing.
5. In a letter dated 11 February 2004 the Parole Board decided that an oral hearing was not required. Following the decision of the Parole Board not to hold an oral hearing the claimant's solicitors made representations to the Board arguing that the recall was not justified. They argued that the claimant had not breached any of the conditions attached to his licence, observing that it was not a condition of his licence that his mental illness should reduce before release, and that his paranoia was known about at the time of release.
6. Those representations were rejected by the Parole Board in a decision dated 6 May 2004, the Board concluding:

"... the Panel noted that the fears that existed at the time of Mr Irving's release have now manifested themselves in actions that have required the hostel to take special procedures including instructing the staff affected not to attend the workplace for their safety. The Panel considers the manner in which Mr Irving's behaviour manifest itself does jeopardise the objectives of his supervision, namely to protect the public, prevent him from reoffending and securing his successful re-integration into the community."

7. Proceedings for judicial review were then brought challenging the claimant's recall. By consent, it was ordered that the decision of the Parole Board be quashed. The schedule of reasons for that consent order stated inter alia:

"Upon receipt and consideration of the Claimant's grounds, the Secretary of State for the Home Department agreed to re-refer the Claimant's case to the Parole Broad for further consideration on the basis that there was material that had not been disclosed to the Claimant, and the decision was procedurally flawed."

8. Following the quashing of that decision, further representations were made to the Parole Board, dated 14 July 2004, by which it was contended that the claimant could not lawfully be recalled to prison merely because he exhibited symptoms of a mental illness that was known about at the time of his release. The representations again sought an oral hearing.
9. By a decision dated 21 July 2004 the Parole Board decided to defer the consideration of the claimant's case so that his release planning could be clarified. But the reasons given by the Parole Board stated inter alia:

"[The Board] does not accept the submission that it is not lawful to recall a prisoner where risk arises from a known mental disorder that was understood at [the] time of release to be likely to manifest itself in the community.

It also did not consider that it would be materially assisted in its understanding of the facts by conducting an oral hearing."

10. The application before me is a challenge to that decision. But it has to a degree been overtaken by events in that the Parole Board have now considered the representations against recall, and in a decision dated only two days ago, 10 November, rejected them. But the same point that arose in relation to the decision to defer consideration of the representation also arises in relation to the decision of 10 November. Both counsel therefore sensibly invited me to treat the application as a challenge to the decision of 10 November, and I indicated at the outset that I would do so.
11. For the purposes of this hearing it is necessary only to refer to paragraphs 9 and 10 of the decision of 10 November:

"9. On release Mr Irving behaved in such a way as to give rise to the belief that others were at risk of harm from him. In behaving as he did, he breached condition 5(vi) of his licence which required him to be of good behaviour and not take any action that would jeopardise the objectives of his supervision. Mr Irving had behaved in a similar way in the past and Dr Lack's report makes clear the link between this behaviour and the likelihood of violence. The probation officer requesting recall believed that Mr Irving's risk had increased. The panel, having considered the facts, concludes that this belief was justified and that Mr Irving did pose such a risk. His recall was therefore justified.

10. The panel does not accept the argument adduced on Mr Irving's behalf that because his paranoid ideation (and, by implication its relationship to his risk of behaving violently) was known before release, it could not be used to justify his recall. Mr Irving's behaviour on release posed a clear risk to others. That risk remains and there is currently no release plan in place beyond the short term that could manage that risk for the duration of the licence period. Irrespective of any duty of social services to house Mr Irving, there is no evidence that they would be able to do so in a manner sufficient to manage this risk."

12. The proposition central to the claimant's case is that for the Parole Board to find that there is an unacceptable risk of a further offence being committed, the risk presented by a prisoner has to be greater than that present at release. It is submitted on behalf of the claimant that in the claimant's case it was unlawful for the Parole Board to recommend his recall where the risk that he presented arose from a known mental disorder that was understood at the time of release to be likely to manifest itself.
13. It is necessary, first, to consider the statutory framework which is to be found in the Criminal Justice Act 1991. Section 32, by which the Parole Board was constituted provides:

"(2) It shall be the duty of the 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."

Section (6) provides:

"The Secretary of State may also give to the 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."

The Secretary of State has issued directions under section 32(6). They provide inter alia that the licence period is an integral part of the sentence. The directions also set out the objectives of supervision, namely, to protect the public, to prevent reoffending and to ensure the prisoner's successful reintegration into the community. Under the section of the directions headed "Representations against Recall" the directions provide:

"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 Broad shall determine whether:

(a) the prisoner's liberty would present 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 objects of probation 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 licence conditions, or any other means; and

(c) 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."

The directions continue:

"Each individual case should be decided on its merits, without discrimination on any grounds."

14. The Parole Board was obliged as a matter of law to act in accordance with the Secretary of State's directions and accordingly to consider whether the claimant represented an unacceptable risk of reoffending. If so, it was obliged to order a recall.
15. The contention made on behalf of the claimant that the Board is only entitled to confirm a recall on the basis of a determination that the risk posed by the prisoner has increased since his release under the automatic release provisions is, in my judgment, unsustainable. It would require the Parole Board to disregard its clear statutory functions and duties; it would mean that a person could be left at liberty even when assessed as presenting an unacceptable risk.
16. The Board was obliged to consider whether the risk presented by the claimant was unacceptable, not whether it had increased since his release. In making its assessment, the Board was obliged to consider all the information before it. It cannot conceivably have been the intention of Parliament that the role of the Board should be limited in the manner for which the claimant contends.
17. Accordingly, the claimant's principal submission fails. There was, in my judgment, no error of law on the part of the Board either in its decision to defer consideration of his representations in July, or in its decision dated 10 November.
18. Secondly and in any event, the claimant's case is not made out on the facts. The basis for the decision was succinctly summarised in the document dated 21 July 2004 and repeated in the decision of 10 November, first, that the claimant displayed paranoid thoughts and feelings towards women staff who he thought were laughing at or belittling him; second, the claimant's conduct was such that staff were in fear for their safety; third, hostel procedures had had to be changed to offer staff appropriate reassurance, but such measures could not be sustained in the long term; fourth, the claimant was considered to be too high a risk for his residency at the hostel to be further viable. In consequence, the Board concluded that the claimant posed an unacceptable risk to the public. But in doing so they also set his behaviour since release against the background, which can be summarised in the following terms: 1. The claimant had a long history of offending, including whilst on a probation. 2. The index offences included an unprovoked attack on a psychiatric nurse who was indecently assaulted and forced to commit oral sex. 3. The report of a senior probation officer (to which I have already made reference) stated that the claimant had said that he felt like "smashing the office up", and that staff upon whom the claimant focused had had to be instructed not to attend the workplace in order to protect them. 4. The psychiatric report of Dr Sarah Lack, dated 13 April 1998, which concluded that the claimant presented a very serious danger to the public and in particular to women.
19. It is clear, in my judgment, that the decision of the Parole Board was based upon a careful consideration of his behaviour since release set in the context of the whole of the relevant history. Importantly, and as was submitted on behalf of the Secretary of State, his behaviour in the community since release was a new factor, which was neither quantified or quantifiable at the time of his automatic release. As the senior probation officer observed in his report to the Board:

"I believe there is a significant and increasing risk that these powerful thoughts [the paranoia] may overcome Mr Irving and result in an act of violence towards those he has identified."

Accordingly the factual premise upon which the claimant's principal submission was based, is not made out.

20. It was also submitted on behalf of the claimant that a scheme for the early release of prisoners comes within the ambit of Article 5 of the ECHR and hence engaged Article 14. Mr Southey relied in support of that submission on the decision in R (on the application of Clift) v Secretary of State for the Home Department [2004] 1WLR 2223 at 18. It is acknowledged on behalf of the Secretary of State that Article 5(4) when read together with Article 14 might be breached in very limited circumstances where the provisions determining the procedure for early release contended to be both arbitrary and discriminatory. However, in such a case, Article 14 was applicable because the provisions under consideration were found potentially to be a breach of Article 5(4). As Miss Stern submitted, there can be no such contention in this case in the light of the decision of the Court of Appeal in R v Smith v Parole Board [2003] EWCA Civ 1269. It follows that, in my judgment, the claimant is not assisted by his reference to Articles 5 and 14 or to the disability discrimination Act 1995.
21. Finally, Mr Southey acknowledged that the claimant's challenge to the refusal to hold an oral hearing falls away in the light of my conclusions on the principal issue. This application therefore fails.
22. MR SOUTHEY: My Lord, firstly, can I ask for assessment for the purposes of the Community Legal Service? Secondly, I would ask for permission to appeal. I raise that because, somewhat surprisingly in some respects, the issue of increased risk although it has been touched upon in one judgment of Collins J - it was in fact quoted in the grounds - this is the first case that has actually looked at that issue. That issue is, in my submission, an issue of some importance for all involved in the parole early release system.
23. I am conscious of your Lordship's remarks as to whether it has application on the facts. The point I would make is that, although I obviously conceded and would accept this is the case, the arguments about oral hearing, for example, must depend on that primary submission as to increased risk; even were I to succeed on the argument about increased risk, then the oral hearing argument would at least have some merit. So even if you are correct on the facts that the Parole Board concluded that there was an increased risk, the direction would still be merely because it would have influenced its consideration of the oral hearing. So the facts may ultimately have been different.
24. MR JUSTICE OWEN: As I say, you will have to make your application elsewhere.
25. I am told there is no legal aid certificate on the file, so may I have the undertaking of those instructing you to file the legal aid certificate within seven days?
26. MR SOUTHEY: My Lord, yes.