QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
B e f o r e :
|THE QUEEN ON THE APPLICATION OF SEAN HENRY||(CLAIMANT)|
|1. THE PAROLE BOARD|
|2. SECRETARY OF STATE FOR THE HOME DEPARTMENT||(DEFENDANTS)|
Smith Bernal Wordwave Limited
190 Fleet Street London EC4A 2AG
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(Official Shorthand Writers to the Court)
MR P NICHOLLS (instructed by the Treasury Solicitor) appeared on behalf of the FIRST DEFENDANT
MR A CHOUDHURY (instructed by the Treasury Solicitor) appeared on behalf of the SECOND DEFENDANT
Crown Copyright ©
MR JUSTICE SULLIVAN:
"6. ... notwithstanding that a number of the risk factors present have now been reduced by the work you have done, in particular, your initial attitude to the use of weapons and violence, your attitude to authority and the use of unlawful drugs, report writers are of the view that a number of aspects remain yet to be finally addressed before the risk of reoffending you would present if released again now, can be said to have reached a sufficiently low level.
"7. There is a need to demonstrate a sufficient degree of trust that previous problems have been overcome, in particular a consciousness of the need to retain closer ties with the probation service after release, and to become more circumspect in the choice of acquaintances and to establish a satisfactory resettlement plan when release is imminent."
"Since I wrote this report Sean has been transferred to HMP Lewes. He was found in possession of heroin, and of urine, which was intended to adulterate any sample which he may have been required to produce for the purposes of a mandatory drug test. This raises serious concerns that in the future he might possibly resort to violent behaviour in order to obtain heroin, and it would not be right to release him from prison while this is a realistic risk. I therefore change my recommendation and suggest that, although his successful progress before the current relapse should be held to his credit, Sean should demonstrate that he has successfully addressed his drug use before he is again considered for release."
The Decision Letter.
"The Crime (Sentences) Act 1997 requires the Parole Board to direct your release only if it is satisfied that it is no longer necessary for the protection of the public that you be confined. The panel of the Board who considered your case on 29 July 2003 was not so satisfied and has therefore not directed your release at this stage. This decision is binding upon the Secretary of State."
"7. None of the reports recommend open or release on licence. The panel was invited by Mr Stokoe to consider that your involvement with Class A drugs did not pose a threat to life or limb. The panel did not agree because:
"(i) the index offence was linked to your involvement with violent criminal associates;
"(ii) the Board had, only recently, expressed concern about your choice of acquaintances and observed that you needed to demonstrate that you had overcome other problems such as your use of drugs and your attitude to authority;
"(iii) despite this, you were prepared to involve yourself with someone involved in drug supply. You had also shown yourself willing to commit a serious crime - the possession of Class A drugs.
"8. The panel could not therefore be satisfied that on release you would avoid criminal associates, the risk of offending, and given your history, the risk of violence. The risk to life and limb remains too high for release.
"9. The panel also concluded that the risk you pose to the public is currently too high for open conditions.
"10. Mr Stokoe argued that the burden fell on the Secretary of State to demonstrate that your risk was such as to warrant continued detention. The panel took the view that in this case the onus is on you to show that you are prepared to respect authority, obey the law and demonstrate that you are safe to release."
The Statutory Test.
"6. The Parole Board shall not give a direction ... unless -
" ... (b) the Board is satisfied that it is no longer necessary for the protection of the public that the prisoner should be confined."
The Challenge to the Decision Letter.
" ... is concerned with the assessment of risk, a more than minimal risk of further grave offences being committed in the future ... ultimately, the burden of proof has no real part to play."
The Defendants' Response.
" ... took the view that in this case the onus is on you to show that you are prepared to respect authority, obey the law and demonstrate that you are safe to release." (My emphasis.)
"The panel could not therefore be satisfied that on release you would avoid criminal associates, the risk of offending, and given your history, the risk of violence. The Panel had failed to reach a positive conclusion that on release, the claimant would not avoid criminal associates, et cetera."
"Mr Henry acknowledges his own failure and is sufficiently realistic to be aware that his release is unlikely although he says he will ask his solicitor to 'go for it'. However, he must also be aware that in terms of risk to the community, he cannot be considered positively."
"The applicant complains that the test applied by the Parole Board and the Secretary of State in considering whether the applicant should be released is too onerous and such as to constitute a violation of paragraph 1(a) of Article 5 (Art. 5-1-a) of the Convention which provides
"1. Everyone has the right to liberty and security of person. No one shall be deprived of his liberty save in the following cases and in accordance with a procedure prescribed by law:
"a. the lawful detention of a person after conviction by a competent court."
"The Commission recalls that an indeterminate term of detention for a convicted young person, which may be as long as that person's life, can only be justified by considerations based on the need to protect the public ...
"The Commission further recalls that before any term of re-detention complies with paragraph 1(a) of Article 5 (Art. 5-1-a) there must be a sufficient causal link between the subsequent detention and the original conviction, that is that the decision to re-detain, or a subsequent decision not to release, must be based on grounds consistent with the objectives of the sentencing court ...
"The Commission notes that the criterion for determining whether any period of re-detention is justified is that of dangerousness, meaning an unacceptable risk of physical danger to the life or limb of the public ... the Commission considers this criterion to be manifestly consistent with the objectives of a sentence of detention at Her Majesty's pleasure, namely considerations of the need to protect the public.
"Whilst a test which in terms requires the Parole Board to satisfy itself that the applicant no longer represents a danger to the life or limb of the public gives rise to a different presumption from a test which in terms requires the Parole Board to release the applicant unless it is established that he continues to represent a danger, namely in the former case that the applicant is to be considered to represent a risk unless the contrary is proved, the Commission does not consider that such a test may be said to be based on grounds inconsistent with the objectives of the sentencing court so as to constitute a violation of Article 5-paragraph 1(a) ... of the Convention.
"It follows that this part of the application is manifestly ill-founded ... "
"(e) the lawful detention of persons for the prevention of the spreading of infectious diseases, of persons of unsound mind, alcoholics or drug addicts or vagrants ... "
"(a) the lawful detention of a person after conviction by a competent court."
" ... the mandatory life sentence is imposed only on those who have been proved to have taken a life or lives, as adults, with the intention of doing so or of causing serious physical injury and whose responsibility for their conduct was not found to be diminished ... the discussion inevitably takes place with reference to a person who is shown to have resorted to violence once, with fatal consequences to another."
"I doubt whether there is in truth a burden on the prisoner to persuade the Parole Board that it is safe to recommend release, since this is an administrative process requiring the board to consider all the available material and form a judgment. There is, inevitably, a balance to be struck between the interest of the individual and the interest of society, and I do not think it objectionable, in the case of someone who has once taken life with the intent necessary for murder, to prefer the latter in case of doubt. In any event, this is a defensible process: material going to show that a prisoner is not dangerous will be before the board, and if the board is thought to show an exaggerated degree of caution it can be challenged."
"46. I observe that the European Commission on Human Rights in Comerford asked itself whether the test applied by the Parole Board was inconsistent with the objectives of the sentencing court. In that case it was dealing with an offender who had been convicted of murder and given what was in effect a sentence of life imprisonment. The House of Lords in Lichniak was dealing with a similar situation. One can see that in those circumstances, where the sentencing court has imposed an indeterminate sentence of imprisonment, its objectives may well be seen as wishing to ensure that a person who has committed such a serious crime is not to be released unless and until it can be shown that he no longer presents a danger to the public. But as Elias J pointed out, the objective of an extended sentence under s85 is very different:
'In such cases the object of the sentence is not to subject the prisoner to detention for the extended licence period, and indeed frequently when such sentences are imposed there would be no power at that stage to detain the prisoner in custody for that period. The aim of the sentence is to manage the risk in the community rather than in prison, albeit that it is recognised that it may be necessary to resort to further detention if that aim fails. The offender is not on licence as an alternative to prison; rather he is on licence as an alternative to liberty ... '
"47. Once the prison sentence imposed by the court has been served, one cannot say that the sentencing court had it in mind that the offender should be detained unless it was shown that he was no longer a danger. The presumption implicit in the sentence passed is that during the extension period the offender need not be in custody. Consequently, I cannot accept that the approach in Comerford and Lichniak has the result contended for by the appellants."