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
		31 March 2004

1. MR JUSTICE OWEN: The claimant, Alan Jarvis, is 19 years of age. On 10 February 2000 he was convicted at the Southampton Crown Court of the rape and indecent assault of a nine year-old boy and a further indecent assault of a ten year-old. He was sentenced on 31 March 2000, and for the offence of rape the sentencing judge ordered his detention under section 53 of the Children and Young Persons Act (now section 91 of the Powers of Criminal Courts (Sentencing) Act 2000) for an extended term made up of a custodial term of three and a half years' detention and an extended period of licence of two and a half years' duration under the provisions of section 58 of the Crime and Disorder Act 1998 (now section 85 of the 2000 Act). There were concurrent sentences for the offences of indecent assault.
2. On 20 October that year, the claimant again appeared at the Southampton Crown Court and was convicted of three further offences of indecent assault on boys and an offence of gross indecency with a boy. Three of the offences had been committed whilst on bail awaiting trial for rape. The claimant was sentenced to periods of detention all to be served concurrently with the sentence imposed for rape.
3. On 14 November 2001, the claimant was released on licence, having served 21 months -- that is to say half the three and a half year custodial part of his sentence in accordance with the automatic release provisions under sections 33 and 44 of the Criminal Justice Act 1991. But on 8 February 2002, he was arrested and charged with indecently assaulting an 11 year-old boy and was remanded in custody until 14 February. The claimant's probation officer and social worker recommended that his licence should be revoked, and it was indeed revoked on 13 February. The claimant then applied for release on licence. His application did not come before the Parole Board until 24 January 2003 for reasons that it is not necessary to explore for the purposes of this application. The hearing was then adjourned until 4 March 2003, but was further delayed by an application for judicial review by the claimant with the consequence that the Parole Board did not resume until 14 July. The final part of the hearing took place on 22 September, and on 1 October 2003, the Parole Board gave its decision, concluding that the claimant presented "a high risk of offending which cannot safely be managed in the community and release is not directed". That is the decision the subject of this application.
4. Following that decision, the effect of the sentence that remains to be served is that the claimant is due to be released on licence on 30 September 2004 at the end of the two-year extension period (section 33(3)(a) of the Criminal Justice Act 1991) -- the extension period having begun at the three quarter stage of the three and a half year custodial term (section 44(5) of the 1991 Act). The sentence will finally expire ten and a half months later on 15 August 2005, and the licence will remain in effect until the end of the sentence unless revoked.
5. The claimant now challenges the decision of the Parole Board on the basis that it "was unlawful as the panel took the wrong approach to its consideration of the question of re-release, and breached the claimant's rights to liberty guaranteed under Article 5 of the European Convention".
6. The challenge to the decision of the Parole Board is based to a substantial degree on the circumstances surrounding the arrest of the claimant on 8 February 2002 and on the manner in which his arrest was addressed by the Parole Board. When released on licence in November 2001 the claimant first went to live with his father, but the licence conditions were varied to enable him to live with his grandmother, whose home was very close to the Southampton General Hospital. The arrest related to an incident in the grounds of the Southampton General Hospital alleged to have taken place on 30 or 31 January 2002. Shortly after the revocation of the claimant's licence, the Crown Prosecution Service decided not to prosecute the claimant in relation to the matters the subject of his arrest. But at the subsequent hearing of the claimant's application for release on licence, on 24 January 2003, the Secretary of State sought to rely on a witness statement from a Detective Constable Bulfield, the officer who had investigated the complaint for which the claimant had been arrested. Her statement contained a summary of the account given by the complainant and two other children who were with him, and also stated that, in her opinion, it was "a genuine allegation". Objection was made to the admission of her evidence, but the Parole Board decided to admit it save for the expression of opinion by the officer.
7. The matter was then adjourned to give the claimant time to collate evidence to rebut the allegations. It was at that stage that the claimant issued proceedings for judicial review seeking to challenge the decision to admit the evidence from Detective Constable Bulfield with the consequence that the hearing of the application for release on licence had to be further adjourned to 14 July 2003. On that occasion the Secretary of State's representative made it clear that he was relying upon the fact that the claimant had been inappropriately associating with children as demonstrating that the danger to the public was not manageable in the community, but was not seeking to establish the claimant's guilt in relation to the allegation of indecent assault, and in the light of the position taken on behalf of the Secretary of State, the Parole Board decided not to hear the evidence of Detective Constable Bulfield and disregarded the evidence of the two other young witnesses. That approach to the evidence of Detective Constable Bulfield was agreed by the claimant's representative and is reflected in the Parole Board's decision letter, which states:

"On 14 July 2003 ... the panel did not hear evidence from DC Bulfield and disregarded the evidence of Masters Moss and Rafferty."

8. It is also to be noted that it was clear from the transcript of the claimant's interview by the police that he admitted being with the 11 year-old boy who had made the allegation of indecent assault unsupervised and that he had touched him albeit that he had said that he had merely patted the boy down to see if the boy had taken his mobile telephone.
9. I turn then to the challenge to the Parole Board's decision. The statutory provision under which the decision was made is contained in section 44A of the Criminal Justice Act 1991, which was inserted by section 60 of the Crime and Disorder Act 1998. Section 44A provides for the re-release of prisoners serving extended sentences. Subsection (1) reads:

"(1) This section applies to a prisoner serving an extended sentence within the meaning of section 85 of the Powers of the Criminal Courts (Sentencing) Act 2000 who is recalled to prison under section 39(1) or (2) above.

(2) Subject to subsection (3) below, the prisoner may require the Secretary of State to refer his case to the Board at any time.

(3) Where there has been a previous reference of the prisoner's case to the Board (whether under this section or section 39(4) above), the Secretary of State shall not be required to refer the case until after the end of the period of one year beginning with the disposal of that reference.

(4) On a reference-

(a) under this section; or

(b) under section 39(4) above,

the Board shall direct the prisoner's release if satisfied that it is no longer necessary for the protection of the public that he should be confined (but not otherwise).

(5) If the Board gives a direction under subsection (4) above it shall be the duty of the Secretary of State to release the prisoner on licence."

Thus, the Board may only direct the prisoner's release if satisfied that his confinement is no longer necessary for the protection of the public.

10. As I have already indicated, the Parole Board decided that the claimant presented a high risk of re-offending which could not safely be managed in the community. It is clear from the decision letter that the Board was not satisfied that his confinement was no longer necessary for the protection of the public. How then does the claimant seek to challenge the decision? He advances five specific criticisms of the decision, to which I shall return. But underlying the specific criticisms is the contention that the Parole Board's approach to the claimant's application for re-release was fundamentally flawed. Mr Lennon, who appeared for the claimant, took as his starting point the judgment of Elias J in R(Sim) v Parole Board and the Home Secretary [2003] 2 WLR 1374. He relies upon paragraph 21, which is in the following terms:

"What is undoubtedly the case, as decisions of the Court show, is that there are circumstances where Article 5 may be engaged in respect of persons recalled to prison during a licence period even where that detention is a consequence of, or arises out of, an earlier sentence of imprisonment imposed by a court [The judge then indicated the authorities which he had in mind] ... These cases were considered by the Court of Appeal in R (Giles) v Parole Board [2002] 3 All ER 1123 Civ 951; [2002] WLR, and it is not necessary that I should analyse them in detail here. The principles to be derived from those decisions can in my view be summarised as follows:

(1) Nobody should be subject to arbitrary or disproportionate punishment; this requires that the re-detention following an earlier release from custody should be not only in accordance with domestic law but should also, to use the language adopted in the Weeks v U.K (1987) 10 EHRR 293 case (para.42) 'result from', 'follow and depend upon' or occur 'by virtue of' the conviction. In short, there must be a sufficient causal connection between the conviction and the deprivation of liberty in issue.

(2) Where in the course of serving a sentence a prisoner embarks upon a period of detention (whether following release or not) which is not directly engaged by the original sentence, but raises new issues affecting the lawfulness of the detention, the continuing or fresh detention of the prisoner will have to be subject to continuing supervision as required by Article 5.4."

11. The proposition that "there must be a sufficient causal connection between the conviction and the deprivation of liberty in issue" was derived from the judgment of Simon Brown LJ (as he then was) in R(Noorkoiv) v Secretary of State for the Home Department [2002] 1 WLR 3284, as can be seen from paragraph 35 of Elias J's order. I accept that Elias J's analysis of the authorities accurately and succinctly summarises the position with regard to detention following a recall to detention following a licence period. Elias J continued at paragraph 22 of his judgment:

"The difficulty is to determine precisely when the period of detention will raise these new issues affecting its lawfulness. The European Court has held that when a person has completed the tariff or minimum period following a discretionary life sentence (Weeks v U.K (1987) 10EHRR 293; Thynne, Wilson and Gunnell v U.K (1990) 13 EHRR 666), or is subject to detention at her Majesty's pleasure (Hussain v U.K (1996) 22 EHRR1); or even a mandatory life sentence (Stafford v U.K (2002) 35 EHRR 32) these principles are applicable. They require that any period of detention served once the minimum or tariff period has been served should be designed to achieve the original objectives for which the sentence was imposed, and that there should be periodic reviews in accordance with Article 5.4 to

12. Mr Lennon submits that, on the instant facts, the causal connection between the conviction and the deprivation of liberty has been broken. He argues that it was plainly the objective of the sentence imposed on the claimant that, following the period of the sentence to be served in custody, he should be released and rehabilitated in the community under the extended period of licence. He submits that, in passing the sentence that he did, the learned judge was making an assessment of the risk that the claimant presented and that the Parole Board should only have refused to direct his release where there had been a demonstrable increase in risk leading to recall, and where such increase could not be managed in the community as the sentencing judge had intended.
13. He submitted that the incident involving the 11 year-old boy in the grounds of Southampton General Hospital did not demonstrate a significant increase in risk, and secondly, that the material before the Board, either in the form of reports or oral evidence, did not demonstrate any such increase in risk and that, accordingly, there was no basis upon which the Board could properly refuse to direct his release.
14. Ms Steyn, who appeared for the defendant, submitted that that argument was misconceived. First, she submits that the test for the Board when considering an application for re-release is that set out in section 44A(4), that being the test that must be applied in the light of all of the evidence put before the Board. Second, she submits that the proper discharge of the Board's duty under section 44A(4) cannot involve a comparative judgment of the risk currently presented by the claimant as against the risk that he presented at the point at which the learned judge passed sentence, for a number of reasons. First, there is no basis for it within the test contained in subsection (4). Second, the Parole Board is far better equipped than the judge to address the issue of risk following a hearing specifically directed to that issue with evidence from experts. As Turner J observed in R v Parole Board ex p Hart [2000] Prison Law Reports 118, "The Parole Board is uniquely qualified to make the decision which it is called upon to make".
15. Third, she relied upon the following paragraphs in the judgment of Elias J in Sim:

"37. In my judgment there is no infringement of Article 5.1 when a prisoner on licence is detained whether following breach of the terms of the licence or because other information raises fresh fears that he may commit further offences. There is not in those circumstances a severing of the causal link between the sentence for the original conviction and the subsequent detention. On the contrary, the sentencing judge will have appreciated at the time of imposing the original extended sentence that there is a possibility that further imprisonment may arise if there can be no effective supervision of the prisoner in the community, or if that supervision is failing to achieve its objectives. Such detention is linked to the original sentence; indeed, it is necessary to make the extended licence period effective. If the very principle of recall were unlawful, there would be no sanction for breaches of the licence which demonstrated that the risk of further offending could not be controlled by supervision in the community, and the objective of the sentence would thereby be defeated ...

44. Strictly, however, I do not have to determine that issue in this case. I say that because it seems to me clear that the judge imposing the extended sentence in this case must have been concerned about the risk of future sexual (possibly as well as violent) offences. It is equally obvious that the Parole Board in this case was concerned about the risks of sexual offences being committed in the future. This is demonstrated by the emphasis they put on the claimant's failure to undertake work to address his behaviour and also the reference to the effect on his behaviour of his drinking. It would be fully in accord with Article 5.1 to detain after recall for that reason since the detention would be achieving the objectives of the original sentence. Indeed, whenever the Parole Board takes the view that the supervision arrangements in the community have fundamentally broken down, they are necessarily imposing detention for the reasons given by the sentencing judge. They are in effect concluding that those risks which the judge considered justified the extended sentence, whatever they were, cannot be satisfactorily contained if the prisoner is allowed to remain within the community. They do not have to have evidence of behaviour which of itself is directly linked to the risk of committing further offences, although obviously such evidence would justify recall and detention since it demonstrates that the supervision is not proving successful. It will also suffice that the evidence shows that the conduct of the prisoner has been such that the licensing arrangements cannot be maintained. I agree with Mr Fitzgerald that not every misdemeanour by a prisoner on licence would justify his recall; the behaviour must be such as to show that the arrangements for supervision in the community cannot be sustained. That, however, is for the Parole Board to determine, and it is only if the evidence is not capable of sustaining their conclusion that the courts can interfere ...

48. For similar reasons I see no basis for the argument that the Parole Board should be satisfied to a high degree of the likelihood of re-offending. That is not what the section says. The question is whether continuing confinement is necessary for the protection of the public. It must be remembered that the sentencing judge has already identified the potential risk and the Board is frequently seeking to identify whether that risk can continue to be dealt with by supervision or whether those arrangements have broken down. In such cases the Board need only be satisfied that they have broken down to the extent that the protection of the public interest warrants recall. In other cases there may be information which will cause the Board to take the view that there is an unacceptable risk of re-offending, notwithstanding that the licence conditions have been complied with. The Board may properly conclude that the risk is unacceptable, notwithstanding that it is not high. No doubt the risk must be real or substantial as opposed to being merely fanciful or imperceptible. That is the test adopted in the case of prisoners serving a discretionary life sentence, albeit in relation to a different risk: see R v Parole Board ex p. Bradley [1991] 1 WLR 134. I see no reason why that approach should not be equally applicable here. I do not consider that any higher test is necessary."

16. But it is also relevant in this context to refer to paragraph 50 of Elias J's judgment in which he addressed the issue of burden of proof:

"I accept that the concept of burden of proof is an inappropriate term, but nevertheless it does seem to me that it is perfectly apposite to describe the position in terms of their being a presumption that the prisoner will be detained unless the Parole Board is satisfied to the contrary. Ms Steyn contended that there was not even such a presumption; it was simply a matter of the Board considering all the relevant material and giving it such weight as it considered appropriate. I was referred to the judgment of Sedley LJ in Karanakaran v Secretary of State for the Home Department [2000] Imm AR 271 at 302 in which he explained how adjudicators must adopt such an approach when considering the question of internal flight in asylum claims. I confess that I do not wholly understand this argument. I fully appreciate that it will only be in very exceptional cases indeed where the presumption is likely to determine the outcome of any detention case. In practice the Board will almost always have evidence which will enable it to reach a clear conclusion on the issue of future risk. Moreover, even if it simply repeats the formula for detention contained in the statutory language it will be plain that it had ample evidence to justify the decision to detain, and will often say so, as in this case. However, there is in my view a distinction between on the one hand the Board being required to order his release if satisfied that it is no longer necessary to detain the prisoner, which is how the legislation is framed; and on the other the Board being required to release unless satisfied that it is necessary to detain the prisoner, which is how Mr Fitzgerald says it ought to be framed in order to comply with Article 5.1. The logic of Ms Steyn's argument, as she was constrained to accept, is that either formulation would have precisely the same effect. I do not accept that. In my view there is a clear distinction between the two formulations, notwithstanding that in practice it is likely to be of little significance which is adopted. As the provision stands the default position is that detention will continue unless the Board is satisfied that this is not necessary. If after hearing all the evidence the Board remains genuinely unsure whether the prisoner needs to be detained or not, it must on the ordinary construction of section 44A continue his detention. On the alternative formulation the prisoner in that situation would be at liberty (albeit on licence)."

17. Ms Steyn submits that, in the instant case, and having assessed the evidence placed before it, the Board was not unsure as to the risk. It made a clear finding that the claimant presented a high risk of re-offending which could not safely be managed in the community, and that, in those circumstances, the presumption in favour of release articulated by Elias J does not come into play.
18. In my judgment, Ms Steyn's submissions are well-founded. The argument that the approach of the Parole Board was fundamentally flawed is misconceived. There was no requirement to carry out a comparative evaluation of the risk existing at the point at which sentence was passed and that existing at the date of the hearing before the Parole Board. The Board was obliged to consider whether, in the light of all the evidence placed before it, it was satisfied that it was no longer necessary for the protection of the public that the claimant be confined. As Elias J observed in paragraph 34 in Sim, where a prisoner on licence is detained following breach of the terms of the licence, or because other information raises fresh fears that he may commit further offences, there is no severing of the causal link between the sentence for the original conviction and the subsequent detention.
19. It follows that I reject the submission at the core of the claimant's case that the panel adopted the wrong approach in considering the question of re-release. But it is also necessary to consider whether the decision was in breach of Article 5 of the Convention.
20. There are five strands to the claimant's contention that the defendant was in breach of Article 5:

1. The Parole Board has paid no regard to the objectives and aims of the original sentence.

2. The continued detention could not be justified as the allegations were discredited and had resulted in a discontinuance by the CPS, and the Parole Board failed to restrict itself to considering risk in the light of the discontinued and much discredited allegation that led to the recall.

3. The Parole Board unlawfully based their decision on the fact of recall itself and the failure of the claimant to complete a treatment programme in prison after he had been recalled -- and on their view that the release package proposed by Social Services/Probation Department was insufficient.

4. The Parole Board erred in taking into account:

(a) inconsistencies as to the claimant's sexual motive for offending and the current extent of his attraction to young boys;

(b) the patting down of a young boy;

(c) the claimant's failure to undertake the SOTP since recall.

5. The Parole Board failed to have regard to the judge's sentencing remarks.

21. Those criticisms have to be considered in the context of the considerable body of evidence before the Parole Board. The Parole Board had before it:

(1) A report written by Mr Beck (the claimant's social worker) and Miss Pegler (his probation officer). They stated:

"It is our assessment that Alan is a young man with a sexual predilection for children who is currently greatly at risk of acting upon his sexual impulses and fantasies. In order to make any inroads into reducing the risk of his re-offending and subsequently causing significant harm to younger children he should undertake an intensive treatment programme within a safe and secure environment. He poses too great a risk of re-offending currently for this work to be safely undertaken with him in the community."

(2) A risk assessment stating that the claimant's level of risk was high and noting that he was 'warned by his supervising officers about spending increasing amounts of time with younger children on several occasions whilst on licence in the community'.

(3) A profile of the claimant which described him as 'very dangerous due to extremely unpredictable nature'.

(4) A report written by Claire Gregory, probation officer. She expressed her concern about his behaviour on licence of spending increasing amounts of time with younger children, about which he was warned on several occasions, and his unwillingness to address his sexual offending behaviour in custody. Her view was that he 'continues to present a high risk of re-offending and a high risk of causing serious harm'.

(5) Psychological reports written by Dr Indoe, a Consultant Clinical Psychologist, relating to the claimant which were written prior to his release on licence, and a subsequent letter. At that time, Dr Indoe stated that the claimant 'presents a moderate to high risk of re-offending' and he noted that the claimant could be said to 'have a preference for younger children and rape preference'.

(6) A psychiatric report from Dr Lock, a Consultant Forensic Psychologist instructed by the claimant's solicitors. Dr Lock noted that the claimant 'denied any homosexual feelings' and maintained that he was innocent of the four sexual offences of which he has been convicted in October 2000. Dr Lock stated that the claimant would 'present a considerable risk of re-offending' and described him as being in the 'high risk category'.

(7) A suitability for treatment assessment report, dated 14 August 2003, completed by Andrew Harpham-Salter and Lynne Strong. They concluded that the claimant is 'at very high risk of sexual re-offending' and 'currently lacks the internal controls to be safely managed within a community based sex offender treatment programme'. It was their view that the claimant was 'not currently suitable for the community-based Hampshire Sex Offender Groupwork Programme'.

22. In addition to that written evidence, the Parole Board heard evidence from a number of witnesses; including some of those to whose reports I have already made reference. It is necessary only to add that Dr Lock, the psychiatrist instructed by the claimant's solicitors, gave evidence and said that he considered that the claimant had regressed since he had seen Dr Indoe as he was now denying some of the offences of which he had been convicted. Dr Lock nevertheless suggested that the claimant could be managed in the community and that it would be better for him to be released in 2003 when a plan could be put in place, rather than in 2004 when there would not be anything in place.
23. It is clear that, in arriving at its decision, the Board took account of the following factors:

(1) The index offence and the further conviction for four further sexual offences, some of which were committed whilst the claimant was on bail.

(2) The fact that the allegation of indecent assault which had led to the claimant's recall had not been proceeded with.

(3) The report writers, and those who gave oral evidence to the panel, describing the claimant as being at high risk of re-offending.

(4) That since the claimant had been recalled to prison he had not undertaken any offence focused work. He had said that he did not want other inmates to find out that he was a sex offender, and did not wish to move from Aylesbury because he was comfortable there.

(5) The suitability for treatment assessment report indicated the claimant was not currently suitable for the community-based sex offender's treatment programme and that he was at very high risk of sexual re-offending.

(6) That there were inconsistencies in the claimant's own evidence as to the sexual motive for his offending and the current extent of his sexual attraction to young boys.

(7) Although the claimant accepted that he was of high risk of re-offending, he was ambivalent about the possible benefits of participating in a sex offenders treatment programme and he was unsure whether he would do any programme outside the constraints of the licence.

(8) If released it was likely that there would be room for the claimant at the Grange, but it might not be available for several weeks. It was unclear whether any one-to-one intervention would be possible, prior to the start of any community-based SOTP to address his sexual offending.

(9) The claimant had been told not to associate with children whilst he was on licence. Nevertheless, he confirmed that he had been involved with children whilst on licence and confirmed that he had touched an 11 year-old boy in the circumstances to which I have already referred.

That is the background against which the specific criticisms stand to be considered.

24. The first of the specific criticisms advanced on behalf of the claimant is that the Board paid no regard to the objective and aims of the original sentence. In my judgment, that argument is without any substance. The original sentence necessarily provided the context within which the Board was discharging its function under section 44A. The aim of the original sentence was perfectly clear, but the Board had to address a different issue on different material.
25. The second criticism is, in essence, the argument that the Board erred in its approach to its decision. As is submitted on behalf of the defendant, the claimant appears to contend that, simply because the allegation which led to the recall had not been pursued by the Crown Prosecution Service, the Parole Board should have released the claimant. That argument is plainly misconceived for the reasons that I have already set out.
26. Third, it is submitted that the Parole Board unlawfully based their decision on the fact of recall and on the failure of the claimant to complete a treatment programme in prison after he had been recalled. The decision was not based on the fact of recall. There was no issue as to the recall; it was not challenged in these proceedings by the claimant. The issue that the Board addressed, as is clear from the decision letter, is whether it was necessary to continue to detain the claimant, or whether the level of risk that he presented was manageable within the community.
27. The fourth criticism is that the Board erred in taking certain matters into account. I have already identified them when setting out the five strands to the argument. In my judgment, the Board was fully entitled to take such matters into account in the context of all the evidence put before it. All were relevant to the issue of risk.
28. Finally, it is submitted that the Board failed to have regard to the judge's sentencing remarks. It is correct that there was no express reference to such remarks, but the argument is essentially identical to the first of the specific criticisms and must be rejected for the same reason. The decision made by the Parole Board was made in the lawful discharge of its duty under section 44A. The decision was fully justified on the material placed before it. There was no breach of the claimant's rights under Article 5. This application must be dismissed.
29. MS IVIHY: Thank you, my Lord. Ms Steyn sends her apologies and I am instructed that we seek no order as to costs.
30. MR LENNON: I am grateful to my learned friend. My Lord, there is only one application from me. My client is legally aided and I would just ask for the usual order for detailed assessment.
31. MR JUSTICE OWEN: Of course you may have that detailed assessment. Mr Lennon, I am most grateful for your assistance. Thank you very much.