England and Wales High Court (Administrative Court) Decisions

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

		CO/6988/2003 Royal Courts of Justice The Strand London WC2A 2LL
		18 February 2004

Wednesday 18 February 2004

MR JUSTICE COLLINS:

1. The claimant seeks to quash the decision of the Parole Board dated 1 October 2003 whereby it rejected the representations made by the claimant against his recall to prison.
2. On 10 July 1998 the claimant pleaded guilty to, and was sentenced for, three counts of rape and one of indecent assault. Those offences were committed against his step-daughter. They resulted in a total sentence of ten years' imprisonment, comprising concurrent sentences of ten years' imprisonment on each of the rape charges and four years' imprisonment concurrent on the indecent assault. That sentence was later reduced by the Court of Appeal to seven years' imprisonment.
3. The indecent assault was committed in late 1994 and the offences of rape between January 1996 and December 1997. The victim at that time was under 13.
4. The claimant was released from prison after he had served two-thirds of his sentence. He was released on licence. One of the terms of the licence was a requirement that he should comply with any requirements reasonably imposed by his supervising officer for the purpose of ensuring that he addressed his sexual offending behaviour problems. There were various other conditions: of residence, to keep in touch with his supervising officer, to follow reasonable instructions and to be of good behaviour -- the usual conditions imposed upon those released from sentences of imprisonment in circumstances such as these.
5. The claimant pleaded guilty to the offences. The pre-sentence report, which was before the Parole Board, stated as follows:

"During our interview [the claimant] was able to identify the separate incidents and described in some detail offence events without apparent inhibition. The exception to this was in his account of the indecent assault which apparently occurred on his wedding night to [the victim's] mother.... He said that he understood that he was supposed to have penetrated the victim's vagina with his fingers on that night whilst his wife slept. He added that he does not accept this but agreed that there would have been subsequent occasions of indecent assault and acknowledged that his abuse formed a pattern of behaviour."

The report went on to say that the claimant had wanted to emphasise that no threats or coercion had been used by him in relation to the charges of rape. The view was taken by the author of the report that the claimant presented a risk of similar offending if his behaviour was left unchallenged and untreated. Throughout the interview he had presented an extremely distorted attitude and thought processes about his sexual activities with the victim.

6. Once in prison the claimant's stance as to whether or not he was guilty of the offences fluctuated. He refused to take part in Sex Offender Treatment Programmes which involved a need to accept his responsibility for what he had done.
7. When the time came in 2001 for the claimant to be able to seek release by way of parole, despite what he had said about his innocence of the offences, he accepted that he was indeed guilty of them. He was interviewed by, among others, a member of the Parole Board who said in his report:

"[The claimant] was keen to point out at the very start of the interview that he fully accepts that he had committed rape against [the victim]. He will now do the SOTP willingly on that basis. He acknowledged that he had admitted the rapes at court, although he did believe that there was insufficient evidence to gain a conviction had he pleaded not guilty. Nevertheless, he wants to do everything he can to reduce the risk to others in the future, and realises that he must do the SOTP with full participation if he is to achieve that goal."

8. A report from the Probation Service referred to the pre-sentence report and indicated that that provided a good account of the claimant's attitude towards the offences and towards the victim at that stage. It went on to record that his level of responsibility for the offences had fluctuated during the sentence. It was stated that his attitude was that the victim was a willing partner. In the course of an interview in March 2001, he had maintained that he had not committed the three offences of rape. He claimed that he had carried out indecent assault, but he denied that he had ever had sexual intercourse with the victim. He denied the allegation of indecent assault on his wedding night. He said that he had pleaded guilty because of the pressure he was under at the time. He said that he had always denied the rapes.
9. The claimant had previous convictions and he had received a caution for a sexual offence. The previous convictions involved three offences of assault occasioning actual bodily harm, motoring offences and offences of dishonesty, but, other than the caution, no sexual offences.
10. The claimant's application for parole in 2001 was unsuccessful. However, the material to which I have referred was not before the Board which decided on the representations that he made against recall. Those representations resulted from section 39 of the Criminal Justice Act 1991, which provides by subsection (3) that a person recalled to prison may make representations in writing with respect to his recall and on his return shall be informed of the reasons for his recall; and by subsection (4) that the Secretary of State is required to refer to the Board such a person, and if the Board recommends his immediate release the Secretary of State must give effect to that direction. That is a provision which relates to long-term prisoners. The claimant was such a person.
11. The Parole Board is required to take into account directions given by the Secretary of State in relation to recall. It is provided that they shall determine whether:

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

(b) whilst on licence the prisoner failed to comply with one or more of his or her licence conditions, and that that failure suggested that the objectives 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

(d) the prisoner was 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 decided on its merits without discrimination on any grounds.

12. The material which was before the Parole Board on the claimant's application in 2001 was not, I understand, before this Board. However, the Board had before them the pre-sentence report, information about his sentencing and his convictions, and also a document which was not shown to the claimant or to those representing him until this morning. That was a document which described what happened when the claimant was required to attend a Sex Offender Treatment Programme. In summary, it indicated that he failed to co-operate, and indeed he appeared to have had a damaging effect on other members of the course. He refused to say anything about his previous offending. He stated that his solicitors had told him not to discuss that issue for legal reasons. He apparently had a tape-recorder with him. He requested that the result of his behaviour, which was that he would have to be withdrawn from the group because of his failure to participate, should be put in writing. It was that that resulted in his being recalled to prison.
13. That recall was in March 2003, almost a year ago. It is unfortunate that it has taken until now for this challenge to a decision made in October 2003 to be heard, although he is not due for release until, as I understand it, January 2005.
14. The reasons given by the Board for deciding that his representations against recall should fail are short. There is no particular vice in that. However, not only are they short, but they give very little information. So far as material they say as follows:

"[The claimant] was recalled for failing to comply with his licence condition to address his sexual offending behaviour problems. In his representations he admits this failure. In view of his history of sexual and violent behaviour the panel consider that his non-compliance with his licence condition renders the risk of further offending during licence period to be unacceptably high."

It went on to say that there was no need for an oral hearing because there were no concerns over the factual issues in the case.

15. The claim for judicial review was presented broadly on two grounds. The first was the deficiency in the reasons. The second was the argument that the claimant had denied his guilt, notwithstanding his pleas of guilty, and was maintaining that denial at the time of his release. Accordingly, it was not reasonable to require him to attend the Sex Offender Treatment Programme which required that he should talk about what he had done and recognise his offending when he had denied that he was guilty of the offences. It was submitted that it was not lawful for him to have been recalled because the breach of condition of the licence relied on was a breach of a condition which was imposed unreasonably. That being so, since the condition imposed a reasonable requirement to comply with treatment or to address his sexual offending, it could not properly be regarded as having been breached in all the circumstances.
16. In his written submissions Mr Southey put his argument on a relatively broad basis. He argued that it was wrong in principle to impose a condition upon someone who was being released, not early as a result of the grant of parole, but when he was entitled to be released because he had served two-thirds of his sentence. In those circumstances it was not reasonable to impose a condition which related to matters which were known on release and behaviour which had taken place before release. It may be that the claimant was regarded as a high risk of re-offending, but he was entitled to release under the law, and therefore to impose a condition which he could not reasonably be expected to keep was in effect to deny him his right to release.
17. The problem in Mr Southey's path is that the facts of this case do not support his submission. As it happens, in argument before me this case has gone in a somewhat different direction. Reliance is now placed on the failure to disclose to the claimant and his advisers the report on what happened when he was required to go on the programme, which led to the decision to recall for breach. Accordingly, he was not able to make any representations about that. The submission made was that that, coupled with the paucity of reasons, constituted a procedural deficiency and that accordingly the decision should on that ground be quashed.
18. In the circumstances it has not been necessary for me to reach any conclusion on the interesting arguments as to the extent to which considerations of risk are affected, if at all, by the fact that this was an automatic release following the serving of two-thirds of the sentence, rather than a discretionary release which would occur when half the sentence had been served or would occur in the case of a life sentence.
19. Suffice it to say that reliance was placed upon a decision of Sullivan J in The Queen on the application of Wilkes v Secretary of State for the Home Department [2001] EWHC Admin 210. That was a challenge to a condition imposed in much the same terms as the condition I have read in this case, but was limited to an attack upon the condition as such. Sullivan J rejected that on the basis that there was no reason why the condition should be applied in such a way that was unreasonable. So the condition itself was not bad. As he said, the real complaint was not directed at the reasonableness or lawfulness of the condition as such, but at the prospect that an unreasonable requirement would be imposed and that having happened there would be a revocation of the licence on the basis of non-compliance with that requirement. Sullivan J, not surprisingly, took the view that that unreasonableness was not something which in any way could be assumed and was not a proper basis for quashing the condition. However, in paragraph 36 of the judgment he said:

"[The condition] does not require the claimant to admit his guilt, nor does it require him to go on an SOTP notwithstanding the fact that he continues to deny his guilt. It enables the supervising officer to impose requirements for the purpose of ensuring that the claimant addresses his sexual offending behaviour problems. But any such requirements must be 'reasonably' imposed. It would plainly be unreasonable to impose a requirement that the claimant admits his guilt, or that he undertakes a programme which is available only for those who have admitted their guilt if he has not admitted his guilt."

That as it seems to me is clearly right. If a condition which requires reasonableness (as a condition such as this must) is sought to be enforced by a requirement that an individual does something which it is known that he cannot do consistent with, for example, his continued denial of guilt, then it may well be that that would be unreasonable and thus there would be no breach of the condition in his failure to comply with such a requirement. Whether or not a particular requirement is or is not unreasonable will depend upon the facts of an individual case. Here the claimant had from time to time admitted and denied his guilt, depending on what appeared to be in his interests at any given time. Equally it was far from clear that he had denied all sexual misbehaviour because it appeared, certainly at one time, that he was admitting indecent assaults, but denying rape. He also asserted that the victim had acted as a nymphomaniac and had lured him into committing such offences as he was prepared to admit.

20. In those circumstances, as it seems to me, it would indeed have been open to the Board to take the view that the requirement, even if it involved talking about what he had done and accepting his responsibility for the offending behaviour, would not have been unreasonable. It is quite wrong that a prisoner in these circumstances should be able to tell lies from time to time and thus try to avoid having to undertake some form of treatment which he found undesirable or which made him admit to himself that he had indeed been responsible for the actions which led to him being in prison. It is wholly reasonable in such circumstances for the view to be taken that he would constitute a high risk of re-offending. It must not be forgotten that, although the release is automatic, nonetheless for the balance of his sentence he is on licence. It is lawful for conditions to be imposed on that licence and those conditions will be such as are designed, so far as possible and so far as is reasonable, to ensure that there is no further offending by the individual in question.
21. I do not accept that the material before me establishes that the Parole Board was not entitled to regard the requirement which was breached as having been wholly reasonable. Indeed Miss Stern has submitted that no other view could sensibly be taken. I am not, I am afraid, prepared to go that far. It seems to me that if they had had an explanation for what had happened when the claimant had been required to go on the course, the Parole Board might have reached a different conclusion. As it happens, because the material in the previous application had not been before the Board that considered the recall, they were unaware of the extent of the further representations made by the claimant about his attitude to the Sex Offender Treatment Programme. They had had only the material relating to the offence itself, including the pre-sentence report, the claimant's representations in relation to the recall, and the document explaining what had happened in relation to the breach of the requirement.
22. The further material was put before me by the defendant. The submission was that, looking at all the material (even though it is accepted that there should have been disclosure of the relevant document), there is no point in quashing and ordering reconsideration because the result is a foregone conclusion.
23. The problem with that is that we do not know what weight was attached to the various matters by the Board. Since the central issue here was whether it was reasonable to impose that condition, having regard to the denial of guilt, the Board should, in my view, have dealt with that issue, however briefly, in the reasons which were given for the decision. That was manifestly central because the claimant was maintaining that it was impossible for him to comply with this course because of the denial and, further it seems, because his solicitor had given him advice about what he should do and should not do if he was so required.
24. Although there does not appear to be an enormous amount of merit in the claimant's position, nonetheless it is essential that he receives a fair hearing, particularly because as a result of that decision he will serve a substantial period in custody. I am told that a review of his position is imminent. It seems to me that in all the circumstances it would be sensible for that review to consider all the material which has been put before me in relation to the initial decision to recall, together with material which relates to what has happened since the claimant has been in custody so that the up-to-date position can be considered. Mr Southey accepts, as he must on the authorities, that if there is material relating to the claimant's behaviour since his recall to prison which justifies a view being taken that whatever may have happened in the past he is now a high risk and so his release would not be justified, then he could not complain of that. Whether or not there is any such material I do not know. I do not in any way assume that there is or that there is not. It is the relevance with which I am concerned, and it clearly would have relevance.
25. Accordingly, and not (as I emphasise) because I believe that the Board necessarily reached a wrong decision and that recall was not justified, but because the claimant has not had a fair consideration because of the failure to disclose that matter and because the reasons given do not disclose the way in which the Board dealt with the claimant's contention and the weight that should be attached to it, that he had denied his guilt, on that basis I propose to quash the decision and to require that in the course of its imminent review the whole matter is reconsidered by the Board.
26. Miss Stern, I do not think that I have said anything that would concern you in my general observations?
27. MISS STERN: My Lord, no.
28. MR SOUTHEY: My Lord, can I raise the issue of costs? Firstly, I seek an order for our reasonable costs to be assessed if not agreed; and secondly, I see an assessment for the purposes of the Legal Services Commission.
29. MR JUSTICE COLLINS: That order you will have anyway, the detailed assessment order. What about the other costs? I know it is the old story of one public body paying another but --
30. MISS STERN: My Lord, it is one public body paying another. It is the point that in this case I fully accept that I lost on the day, but I lost on the day on a point on a different basis.
31. MR JUSTICE COLLINS: On a very different basis.
32. MISS STERN: A very different basis and all the time that was spent on this case was really spent on the main point --
33. MR JUSTICE COLLINS: Well, it came here on the main point and I have not had to decide it, although I think my indications are fairly clear that I was not impressed on the facts with the argument. What do you say, that you should pay any or that you should pay only a proportion, or what?
34. MISS STERN: No, my Lord, we say that in the unusual circumstances the appropriate order would be no order for costs, particularly bearing in mind that further evidence went in on that main point and that really was the time taken in preparation.
35. MR JUSTICE COLLINS: There is some force in that, I think.
36. MR SOUTHEY: My Lord, I say this in response to that. We made specific inquiries, I have indicated, whether this document had gone forward before any papers were lodged.
37. MR JUSTICE COLLINS: It could have shortened things?
38. MR SOUTHEY: It would have shortened things considerably if we had known that this document had gone in. My learned friend would still have relied on the material which she submitted this morning to argue in any event the matter of discretion -- the order that we say should have been refused.
39. MR JUSTICE COLLINS: Yes.
40. MR SOUTHEY: So that material was still relevant to the issues as they developed.
41. MR JUSTICE COLLINS: Certainly.
42. MR SOUTHEY: In those circumstances, my Lord, particularly given, as I say, that the Legal Services Commission has limited funds --
43. MR JUSTICE COLLINS: I do not think the Parole Board would say that they have unlimited funds.
44. MR SOUTHEY: My Lord, yes, but the effect is essentially that other litigants are deprived of their assistance.
45. MR JUSTICE COLLINS: Well, we know the exigencies of the legal aid at the moment. I think what I shall say is that you shall have three-quarters of your costs.
46. MR SOUTHEY: Thank you, my Lord.
47. MR JUSTICE COLLINS: To be the subject of a detailed assessment if not agreed (or whatever the relevant provision is).