QUEEN'S BENCH DIVISION
Manchester M3 3FL
B e f o r e :
| THE QUEEN (on the application of K)
|- and -
|THE PAROLE BOARD
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Richard Smith (instructed by Treasury Solicitors) for the Defendant
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Mr Justice McCombe :
"You will have an opportunity to see those reports and then make written representations in support of your application about 4 months before your PED [parole eligibility date]. About 3 months before your PED, a member of the Parole Board will visit your establishment to discuss your case with you and the Parole Board will then meet to reach a decision…"
It will be seen that there is no reference there to any possibility of inviting the Board to hold an oral hearing. Nothing is said about any assistance that might be available to an applicant in making his representations. The document contains a clear representation that the applicant will be visited by a member of the Board to discuss the case.
"It is my view that [K] is highly likely to return to being involved in anti-social and offending behaviour at this time, despite the progress he has made at Sutton Place. I do not believe that [K] will be able to resist the pressure to become involved in gang related activities and that he does not have enough support in the community or at home to help him do so. There would need to be a structured and intensive package of support and supervision to help [K] make a successful transition back into the community."
"Given the excellent progress made in relation to specific offence focused work and victim empathy, and engagement with MMAGS [Manchester Multi-Agency Gang Strategy] it is my assessment that [K's] risk of harm to the community has reduced and could effectively be managed in the community. Therefore I am supporting [K's] application for Parole."
He also said in the same report that he had discussed the matter with Mr. Walker and with another probation officer, who had been involved with K's case in the past in Manchester, and both were reported as supporting Mr. Shaeheen's recommendation. In a witness statement recently made in these proceedings, Mr. Walker disagrees with this comment: see paragraphs 4 and 5 of that statement. However, that witness statement was not of course before the Board when it considered K's case. On the face of it all relevant reporting officers were supporting K's application.
"My parents did not attend any of the review meetings leading up to my parole. My dad could not attend as he was in custody. Indeed my dad has not visited in all the time that I have been at Sutton Place. My mother was unable to attend as she had to work 8am until 6pm. Social services agreed that they would provide financial assistance so that my family could visit but they did not ever pay any money out.
When I first got sentenced no one knew how long I would have to serve. Eventually LASCH [Local Authority Secure Children's Home] staff told me that I could apply for parole and that if I was unsuccessful on the first occasion I could reapply each month thereafter.
At first I was told that it would be unlikely that I would be successful in applying for parole. As my behaviour and conduct improved, the staff at LASCH and at the Youth Offending Team thought that I deserved a chance and that I had made significant improvements while I had been at the LASCH.
I was told that reports about me had been written by the staff at the LASCH and the YOT. A link worker called Sue showed me the LASCH report and later my link worker Richard went through the whole dossier in about one hour. I wrote my letter to the parole dossier on the evening after I had been through the dossier. I had no assistance in writing the letter and I simply wrote down my thoughts.
In regards to the dossier, I did not understand all of the language used in the reports and I am not sure if I understood all that had been written about me. I did not understand the technical or more complex points in the reports. I thought that it was confusing as one of the reports seemed to say that I was doing really well but yet I shouldn't be let out.
No one talked to me about my right to an oral; hearing. I was told that I should expect a visit from someone at the Parole Board but no one ever came to see me. I was not given any explanation as to why this did not occur."
"Before I came into custody, I was an aggressive person and didn't care very much for the things around me. I didn't think about how others were feeling and what they were going through, I was a self-centred person who thought no-one could stop me, but later on after being in custody, things changed. I looked back on my previous offences and thought how cowardly I behaved, so I wanted to change. I found that I was capable of doing and there's where I achieved my GCSE's 18 months early.
I thought that if I changed I could get farrer in life and thought of my ambitions, which was becoming a mechanic and becoming a success in life. I got support staff and other agencies which showed me the real me I thought that I desperately needed to change to succeed in a positive way on life. I changed my attitude towards staff and other peers. I became more of a positive role model towards others and put my life to one straight positive road to succeed positively in life. I also got into education more and got interested even more. My anger has now been controlled by myself and have become less influenced to negative behaviour.
Whilst being in here I've thought about my offences and my victims. I've thought very deeply and felt very sorry and felt like I've been a coward towards my victims and the community around Manchester. I have wrote a letter apologising to my victims and feel ashamed of what I've done. I've thought about how they fealt and what it would be like if it happened to me. I feel very sorry for this and feal very foolish for what I've done. The offences which I did made me feel like a bully and I'll give all my apologies to my victims and since been in here its give me time to think deeply about my actions.
If I was released I would intend to stay away from crimes by having associates also would like to go to school to keep myself out of trouble and get farrer in life. I would also ask if associates weren't allowed on my premises or to be allowed with them.
I would like to have another chance into the community which I'm willing to do all supervision order and YOT appointments and all licence conditions.
I want to stay way from crime to be a better person and achieve something in life. I want to go to college and do a mechanics course and to do this I'm willing to obey all licence conditions and keep myself out of trouble. I'm willing to have a strict curfew and would take all supports from all agencies."
"The Board gave all the information careful examination. It is apparent that during his time detained in the Secure Home [K] has been advantaged by the support and supervision of the environment as well as by the educational, social and other opportunities of which he has made excellent use. His risk is further contained by his intelligence, inter-personal skills and insight which can flourish while he is in the Safe Centre. However, [K] is still a child of almost 15 and is extremely vulnerable in the community. There is a strong possibility that if he is released at PED all the excellent work he has achieved will soon be ruined by gangland peer-pressure. He would be returned to a family in which the male members are pro-criminal role models and the female members appear to have limited control over [K's] behaviour and associates. [K] is at a high personal risk of intimidation and possible physical harm from other gang members and is, as yet, ill-equipped to resist or flee that socio-environmental pressure.
The Board concluded that by remaining detained in a secure environment [K] can continue to build on the progress he has made in gaining educational qualifications, thinking skills and maturity, all of which should equip him on his release next year to make positive informed choices for his future. The Board commends [K] for his positive response to this sentence and can identify his potential for success in life. To protect his chances of sustaining the positive change and to protect the public from the likelihood of his reversion to crime during the period he would otherwise be detained, the Board refused parole. The short term benefits of early release are outweighed by the longer term dangers it would attract."
"(i) The Defendant failed to give the Claimant a fair hearing in that (a) it did not take into account his representations and (b) he was not given the assistance of an adult in the consideration of his application for parole, (c) he was not given the opportunity to have an oral hearing,
(ii) The Defendant's decision to refuse the Claimant parole was irrational and/or based on a mistake of fact in that it predicated on the Claimant remaining at the Safe Centre if parole was refused, and
(iii) The Defendant erred in approaching the Claimant's for parole in welfare grounds as opposed to those grounds which are mandated in the Secretary of State's Directions to them."
"(1) (a) The Parole Board is to continue to be, by that name, a body corporate and as such is –
(a) to be constituted in accordance with this Chapter, …
(3) The Board must, in dealing with cases as respects which it makes recommendations under this Chapter or under Chapter 2 of Part 2 of the 1997 Act, consider—
(a) any documents given to it by the Secretary of State, and(b) any other oral or written information obtained by it;and if in any particular case the Board thinks it necessary to interview the person to whom the case relates before reaching a decision, the Board may authorise one of its members to interview him and must consider the report of the interview made by that member.
(6) 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 Chapter or under Chapter 2 of Part 2 of the 1997 Act; and in giving any such directions the secretary of State must 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."
"(1) This section applies to a prisoner who is serving an extended sentence imposed under section227 or 228.
(2) As soon as—
(a) a prisoner to whom this section applies has served one-half of the appropriate custodial term, and(b) the Parole Board has directed his release under this section,
it is the duty of the Secretary of State to release him on licence.
(3) The Parole Board may not give a direction under subsection (2) unless the Board is satisfied that it is no longer necessary for the protection of the public that the prisoner should be confined."
"In deciding whether or not to recommend release on licence the Parole Board shall 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 and 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."
Paragraph 2 of the directions goes on to specify particular matters to which the Board must have regard in addressing its task in any particular case. It is clear from the terms of its decision in this case that the Board had many of those specified points well in mind in refusing to direct K's release.
"The court must constantly bear in mind that it is to the decision maker, not the court, that Parliament has entrusted not only the making of the decision but also the choice as to how the decision is made."
"What does fairness require in the present case? My Lords, I think it unnecessary to refer by name or to quote from, any of the oft-cited authorities in which the courts have explained what is essentially an intuitive judgment. They are for too well known. From them, I derive that (1) where an Act of Parliament confers an administrative power there is a presumption that it will be exercised in a manner which is fair in all the circumstances. (2) The standards of fairness are not immutable. They may change with the passage of time, both in the general and in their application to decisions of a particular type. (3) The principles of fairness are not to be applied by rote identically in every situation. What fairness demands is dependent on the context of the decision, and this is to be taken into account in all its aspects. (4) An essential feature of the context is the statute which creates the discretion, as regards both its language and the shape of the legal and administrative system within which the decision is taken. (5) fairness will very often require that a person who may be adversely affected by the decision will have an opportunity to make representations on his own behalf either before the decision is taken with a view to producing a favourable result; or after it is taken, with a view to procuring its modification; or both. (6) Since the person affected usually cannot make worthwhile representations without knowing what factors may weigh against his interests fairness will very often require that he is informed of the gist of the case which he has to answer. "
"The common law duty of procedural fairness does not, in my opinion, require the board to hold an oral hearing in every case where a determinate sentence prisoner resists recall, if he does not decline the offer of such a hearing. But I do think the duty is as constricted as has hitherto been held and assumed. Even if important facts are not in dispute, they may be open to explanation or mitigation, or may lose some of their significance in the light of other new facts. While the board's task certainly is to assess risk, it may well be greatly assisted in discharging it (one way or the other) by exposure to the prisoner or the questioning of those who have dealt with him. It may often be very difficult to address effective representations without knowing the points which are troubling the decision-maker. The prisoner should have the benefit of a procedure which fairly reflects, on the facts of his particular case, the importance of what is at stake for him, as for society."
1. States Parties shall assure to the child who is capable of forming his or her own views the right to express those views freely in all matters affecting the child, the views of the child being given due weight in accordance with the age and maturity of the child.
2. For this purpose, the child shall in particular be provided the opportunity to be heard in any judicial and administrative proceedings affecting the child, either directly or through a representative or an appropriate body, in a manner consistent with the procedural rules of national law."
In my view, the Convention must there be envisaging that the opportunity to be heard must be rendered effective by the provision of appropriate adult assistance where possible. It is not in my view necessary to specify what the nature of such assistance should be; that too may vary from case to case. However, I would have expected minimum standards of fairness to afford a possibility for the dossier to be gone through scrupulously by an adult with the child; for the strengths and weaknesses of the child's case to be identified. Assistance should be offered in formulating and reviewing any written representations, including representations asking for an oral hearing if that appears desirable. The final product should also be looked at by an adult and advice given where appropriate before any document is delivered to the Board.