England and Wales High Court (Administrative Court) Decisions

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

		CO/1311/2005 Royal Courts of Justice Strand London WC2
		27th May 2005

1. MR JUSTICE STANLEY BURNTON: In October 1997 the claimant was sentenced to 12 years' imprisonment for a serious offence of robbery involving four men armed with guns and machetes, of whom he was one. He pleaded guilty. He had previously absconded while on remand for another offence of burglary. He had begun to use heroin and had run up substantial debts. One of his co-accused was his source of drugs, and it seems that he had threatened the claimant that his supply of drugs would be withdrawn if he refused to participate in the robbery, for which he received the sentence to which I have referred.
2. As a long-term prisoner, the claimant was eligible to be released on licence after serving half of his licence, if the Parole Board so recommended. It did so. He was released on parole licence from 13th October 2003. His release was supported by his probation officer's and other prison reports. The conditions of his licence included a condition that he should be of good behaviour and not commit any offence.
3. On 28th January 2004 the claimant was arrested as he parked a van in Birmingham. The van was not his. According to him he was doing casual driving work for a acquaintance. The van was searched and some 40 kilograms of cannabis found in it, stored in sealed boxes of garden pottery. The claimant denies that he knew of the hidden consignment of cannabis. He was charged with possession of a controlled drug with intent to supply. He entered a plea before magistrates on 30th January 2004 of not guilty. He has since been charged with the more serious offence of conspiracy to supply a controlled drug, namely cannabis. His trial, and that of his five co-defendants, is due to start on 6th June 2005, that is to say in about a fortnight.
4. On 30th January 2004, his probation officer recommended his recall back to prison on the basis of his arrest, the charge, and the large quantity of cannabis involved. The Home Secretary accepted that recommendation, stating in his reasons that he was in breach of the condition of his licence requiring him not to commit any offence.
5. The claimant made representations against the decision of the Home Secretary to recall him to prison. In his solicitors' letter of 2nd March 2004, he denied that he had been in possession of any amount of proscribed drugs. The letter is less than clear as to whether he was denying that there were drugs in the van, or simply denying his knowledge of their presence. The letter said that, should the Parole Board wish to dispute any of his representations, his solicitors requested an oral hearing:

"... in order to fully test the veracity of any statement made either by our client or any other person or body."

6. The Parole Board did not grant an oral hearing and did not specifically address the request for one. It rejected his representations on 16th March 2004.
7. In its reasons the Board referred to his release, and the fact that he had been fully co-operative with his licence until 19th January, when he failed to report because he had been arrested and was subsequently charged with the offence to which I have referred. He had made representations on the basis that he had not breached his licence as he had not been convicted of an offence. The Board's reasons stated:

"The Board does not agree. It is satisfied that there is prima facie evidence to warrant the bringing of a serious charge, namely possession of drugs with intent to supply.

"The Board is further satisfied that this has undermined the purpose of the licence in particular the requirements to be of good behaviour and the Board rejects the representations."

8. The claimant was subsequently granted conditional bail by the Crown Court on 7th July 2004. The only objection to bail was that there was a substantial risk that, if he were not in custody, he would abscond and would not surrender to his bail for his trial. It was not contended by the prosecution that there was a risk of his reoffending. However, by reason of the revocation of his licence, the grant of bail was ineffective. He has remained in custody.
9. On 9th July 2004 the claimant's solicitors wrote to the Parole Board asking it to review his release on licence having regard to his grant of bail and the postponement of the date for his trial, then expected to start on 10th January 2005. His probation officer, in the Breach Notification Form, stated:

"I find myself in considerable difficulty concerning a recommendation to the Parole Board. I cannot comment on Mr Broadbent's guilt or innocence in this matter, but do accept that it must seem unfair that he is to be kept in custody until January 2005 for an offence for which he may be found non-guilty. This is an unusual situation and I would ask for advice from the Parole Board."

10. The claimant's solicitors letter of 9th July 2004 was sensibly treated by the Home Office as a request to the Home Secretary to refer his case back to the Parole Board. By a letter dated 26th July 2004 the Home Secretary informed his solicitors that he declined to do so, on the basis that there was no "new significant information". Proceedings for judicial review of the Home Secretary's decision were begun, but by a letter dated 23rd November 2004 the Home Secretary accepted that the Parole Board had not been aware (and indeed it could not have been aware) of the (subsequent) grant of bail when making its decision. The Home Secretary therefore agreed to retake his decision. However, on 7th December 2004 the Home Secretary again decided not to refer the claimant's case back to the Parole Board.
11. The Parole Board reviewed the claimant's case on 4th January 2005. It had before it his solicitors' letter of 21st December 2004, in which he again denied knowledge of the presence of cannabis in the rear of the van which he had driven. The letter contains more information as to the circumstances of the alleged offence than previous correspondence. Again, his solicitors included a paragraph in which they requested an oral hearing before any further decision was made, in order fully to test the veracity of any disputed statement of their client or of any other person or body.
12. The Parole Board decided that the claimant was not suitable for release. In their decision they referred to the offence for which the claimant received a sentence of imprisonment; its connection with drugs; his previous convictions; his successful progress, including withdrawal from drugs in prison; his arrest and charge. They stated that Mr Broadbent had continued to deny the offence for which he was charged in January 2004, but that he had insisted on going ahead with his parole application rather than seeking a deferral until the outcome of the pending court case was known. The Board stated:

"The main risk factor relates to the uncertainty in respect of his arrest and charge for the alleged new offence. In addition, Mr Broadbent has shown in the past a propensity for being negatively influenced by others, acting impulsively and not thinking through the consequences of his actions. The Panel noted he declined to take up support and advice offered by probation to assist employment, when his original plans did not materialise. This may suggest over confidence or an example of not being able to see the consequences of his decisions."

13. Then they referred to the courses that he had undertaken, and the reports on him as a result of that. The FPO, they stated, remained positive about his potential to co-operate with supervision, but that:

"... due to the serious charges having been made against Mr Broadbent, she [that is his FPO] cannot recommend parole until the current uncertainty in the respect of his guilt or innocence is resolved."

14. The decision concluded:

"The Panel have carefully considered the information available, noting the very serious nature of the index offence, and the factors, which contributed to the offence being committed. The Panel have also taken account of the progress Mr Broadbent made and the support he received from report writers, and his co-operation during the three months under community supervision.

"The Panel have noted the reasons for his licence being revoked and acknowledge the uncertainty arising from the delay in the case being heard in court. The Panel note that the serious nature of the charges against Mr Broadbent has prevented adequate planning for supportive and supervised release. However the behaviour and circumstances which led to the charge being preferred indicate that the risk of further offending is too high to be acceptable."

15. On 1st February 2005 the claimant's solicitors sent a letter before action to the Parole Board stating that they were instructed to challenge the decision of 4th January 2005. By a letter dated 11th February 2005 the Parole Board refused to review its decision, stating that the Parole Board had considered the claimant's solicitors' letter of 21st December 2004 when making the decision of 4th January 2005, although it was not referred to in their reasons.
16. The Parole Board's letter stated that the claimant could expect to be released on his non-parole date in January 2006. They pointed out that the claimant's supervising probation officer had stated that he was proposing to ask the Parole Board to defer its decision until after the result of the pending trial, but that the claimant had asked them not to do this. He wanted a quick decision so that he no longer faced uncertainty. That apparently was the reason for the decision being made on 4th January 2005 rather than it being deferred until after the trial.
17. In the present proceedings the claimant seeks judicial review of the decisions of the Parole Board of 4th January and 11th February 2005. He seeks a mandatory order requiring the Parole Board to recommend his release on licence. Alternatively he seeks orders directing the Parole Board at his next hearing to take into account the fact that he has been granted bail, and the comments made by Newman J in earlier judicial review proceedings (proceedings which were subsequently withdrawn). Lastly, he seeks an order that the Parole Board permit the claimant's solicitor to attend an oral hearing to make oral representations on his behalf.
18. This relief must be considered in the light of the fact that the trial of the claimant is also due to start on 6th June 2005, which is the date fixed for the meeting of the Parole Board panel which is to consider his case. There is no point now in an order quashing the earlier decisions of the Parole Board, since it is in any event about to reconsider the continuation of the claimant's detention. On the other hand, the claimant has an understandable interest in his release, and in the next hearing of the Parole Board being fair and lawful.
19. Section 32(6) of the Criminal Justice Act 1991 empowers the Home Secretary to give to the Parole Board directions as to the matters to be taken into account by it in discharging its functions under that part of the Act. The Home Secretary has given directions to the Parole Board under that provision relating to the release of determinate sentence of prisoners, such as the claimant. Those directions require the Parole Board:

"In deciding whether or not to recommend release on licence ... [to] ... consider primarily the risk to the public of a further offence being committed at a time when the prisoner would otherwise be in prison and whether any such risk is acceptable. This must be balanced against the benefit, both to the public and the offender, of early release back into the community under a degree of supervision which might help rehabilitation and so lessen the risk of re-offending in the future. The Board shall take into account that safeguarding the public may often outweigh the benefits to the offender of early release."

20. Paragraph 2 of those directions lists specific matters to be considered by the Parole Board before recommending release on parole licence. It is unnecessary to set those out or otherwise to refer to them, save insofar as I do below.
21. The claimant contends that he is entitled to an order directing the Parole Board to recommend his release because its decisions, which are the subject of these proceedings, were unlawful, and because, on the material before the Board on 4th January 2005, the only decision it could lawfully and rationally have made was to recommend his release.
22. He has three principal complaints. First, that the Parole Board had before it only the facts of the charge of conspiracy or possession of a proscribed drug and his denial of his guilt of the offence or offences charged. In view of the otherwise favourable reports on him, he contends that the only matter that could have led to the conclusion that there was a risk of reoffending was the fact that he had been charged and was due to be tried for those offences. He denied the charge. The Parole Board, he contends, did not have any of the evidence before it on which those charges were based. It did not find that he had committed the offence with which he was charged. In those circumstances there was no material upon which the Board could rationally conclude that the charge and his pending trial were evidence of the risk of reoffending.
23. Secondly, he complains that the Parole Board did not take into account the grant of bail and the fact that the prosecution, when the question of bail arose before the circuit judge, did not suggest that there was a risk of reoffending if the claimant were at liberty. Thirdly, he complains that the Parole Board did not address or grant his solicitors' request for an oral hearing.
24. For the Parole Board it is contended that in the circumstances of this case it was competent for it to make its decision on the basis of the charge and the pending prosecution alone. The fact that the prosecution was being pursued showed that there was good evidence that the claimant had committed the offence charged. It is disputed that the Board was required to take into account the grant of bail, but it was accepted that the Board had failed to address the request for an oral hearing, and that its decision was vulnerable on that ground.
25. The major issue argued before me is whether the Parole Board was entitled to proceed on the basis of the charge and pending prosecution alone, without regard to any of the evidence upon which the charge and prosecution are based, or other considerations, in deciding not to recommend release. For the Parole Board, Mr Sachdeva stressed the practical difficulty of the Board if it had to consider the voluminous documents that might lie behind the multi-hander prosecution in this case. In addition, he referred to the evident difficulties and the possible injustice of a hearing in which the prosecution evidence might be tested, and perhaps more importantly the prisoner's, in advance of his criminal trial.
26. Nonetheless I am clear that the fact of a charge and a pending prosecution alone cannot without more justify a conclusion that there is a risk of reoffending. If it were, the Parole Board would be delegating to the prosecution authority the assessment of the conduct of a prisoner and the evidence or facts said to give rise to a risk of reoffending. Moreover, if the fact of a charge and a prosecution for the offence was sufficient, it is difficult to see how the Board could give to the prisoner the fair hearing to which he is entitled, as envisaged by the House of Lords in R (Smith and West) v The Parole Board [2005] UKHL 1.
27. That is not to say that the Parole Board is required in every case to consider all of the evidence on which a prosecution is based, or indeed any of it, or that it must necessarily make a finding as to whether the prisoner did or did not commit the offence charged. There will be cases where the undisputed facts are sufficient for it to conclude that there is a risk of reoffending.
28. In the present case, there were before the Board facts in addition to the charge and prosecution alone, and certain facts were undisputed: that the claimant was driving the van and that in it a large and valuable quantity of cannabis was hidden. The Parole Board is entitled to consider whether someone dealing with that quantity of drugs would entrust its custody to someone who was ignorant of its existence and who, presumably, if he discovered it, might surrender it to the police. It is also entitled to have regard to the claimant's past association with drug dealers.
29. In an appropriate case, however, the Board will have to consider the evidence upon which a charge is based, as did the panel whose decision was considered in R (Brooks) v The Parole Board [2004] EWCA Civ 80. The Board must have regard to the prisoner's representations, including, of course, his denial of guilt if he does deny the offence, and in an appropriate case grant him an oral hearing and give him the opportunity to give evidence to them, applying the principles laid down by the House of Lords in Smith and West. It goes without saying that if the prisoner can show that the charge against him is without foundation the Board must take that into account.
30. Turning to the question of bail, the fact that the prosecution did not rely on the risk of reoffending is of little, if any, weight. It is the Parole Board, not the prosecution in the pending trial, who must assess that risk. Moreover, in the present case no assessment was made by the Crown Court judge, since the question whether there was a risk of reoffending was not raised, but even if he had that would not relieve the Parole Board, which may have different material before it, from the duty to make its own assessment. In doing so, doubtless it will have regard to the fact that its decision has practical effect if the prisoner would otherwise be at liberty on bail. It is entitled to have regard to a judicial decision, but it must make its own decision under a different jurisdiction on what may be different information and facts.
31. If the Parole Board proceeded upon an incorrect basis in January 2005, and considered that it was sufficient that the claimant had been charged and that a trial was pending, which I assume but do not find, it does not follow that this court should direct it to recommend his release. If there were not an imminent new Parole Board hearing, the court would quash the decision of January 2005 and direct the Board to make a fresh decision in accordance with the law. That might well involve the Board examining material that was not before it in January.
32. It would also require the Board to address the claimant's solicitors' request for an oral hearing. A flawed hearing entitles an aggrieved party to a new, fair and lawful hearing. Only where the outcome of the hearing is indisputable on the material that should have been before the Tribunal can the court consider a mandatory order such as that sought by the claimant in this case. There can be no question of such an order here. If, as the claimant's submissions imply, the Board should have considered the evidence behind his charge and held an oral hearing, he is entitled to a hearing at which that evidence is considered, not to a hearing at which it is excluded.
33. As far as the forthcoming Parole Board hearing is concerned I do not have before me the material that is to be before the Board. I cannot assume that it would be the same as that which was before the Board in January 2005. If the Board proposes to proceed to a substantive hearing, it will consider whether the material before it is capable of giving rise to a determination that there is a sufficient risk of reoffending. As I have said, the fact of a pending trial is not of itself sufficient. The Board must consider in advance the claimant's solicitors' request for an oral hearing. In that regard, it is entitled to take into account that the claimant does not request that he be present personally. It follows that, provided the claimant's solicitors are sufficiently informed of the matters of concern to the Board such that they can make adequate written representations, the assistance which the solicitor who it is proposed is to attend at the oral hearing would be able to give to the Board may be relatively limited.
34. It is for the Board to decide whether, in all the circumstances, having regard to the material before it, which is not before me, fairness requires the claimant's solicitor to be present and to be able to present his case and to comment on the material of concern to the Board. However, the Board has a discretion to adjourn its consideration of the claimant's case until after the trial.
35. As I have already indicated, it may be unfair and inappropriate to investigate the facts which are the subject of that trial at a Parole Board hearing, particularly one when is contemporaneous with the trial itself. The Parole Board has a discretion to postpone its decision until after the trial.
36. I made it clear during the course of argument how, if the discretion were mine, I would propose to exercise it. If the Parole Board does defer its decision, and the claimant is convicted, the question of release on licence will become moot, because in any event the risk of reoffending will be obvious. If he is acquitted the Board will have to consider whether the evidence nonetheless justifies a conclusion that there is a sufficient risk of reoffending to preclude its recommending his release on licence. If it is considering his release, it will have to consider the matters which it is directed to consider in paragraph 2 of the applicable release directions given by the Home Secretary.
37. The position will be clearer after the trial than it is now, and the likelihood of a satisfactory consideration of his case, in my judgment, will be greater.
38. Having regard to the imminent Parole Board proceedings and criminal trial, in my judgment it is inappropriate to grant any relief in respect of the Parole Board's decision in January 2005, or its reiteration in February 2005. Accordingly, the claim for judicial review will be dismissed.