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
		30th January 2006

Monday, 30th January 2005

1. MR JUSTICE GOLDRING: The claimant is a life sentence prisoner, having been convicted of murder. He was released on licence and recalled. It is not suggested the recall was inappropriate. There had been an incident as a result of which he was charged with an offence of causing grievous bodily harm with intent. He was subsequently acquitted. In this application for judicial review he seeks to quash the Parole Board's decision of 26th May 2005 refusing further release on life licence.

The legal framework

2. By Article 5(1) of the European Convention on Human Rights:

"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..."

3. By section 32(1) of the Crime (Sentences) Act 1997:

"(1) If recommended to do so by the Parole Board in the case of a life prisoner who has been released on licence under this Chapter, the Secretary of State may revoke his licence and recall him to prison.

(2) The Secretary of State may revoke the licence of any life prisoner and recall him to prison without a recommendation by the Parole Board, where it appears to him that it is expedient in the public interest to recall that person before such a recommendation is practicable.

(3) A life prisoner recalled to prison under subsection (1) or (2) above -

(a) may make representations in writing with respect to his recall; and

(b) on his return to prison, shall be informed of the reasons for his recall and of his right to make representations.

(4) The Secretary of State shall refer to the Parole Board -

(a) the case of a life prisoner recalled under subsection (1) above who makes representations under subsection (3) above; and

(b) the case of a life prisoner recalled under subsection (2) above.

(5) Where on a reference under subsection (4) above the Parole Board -

(a) directs in the case of a life prisoner to whom section 28 above applies; or

(b) recommends in the case of any other life prisoner, his immediate release on licence under this section, the Secretary of State shall give effect to the direction or recommendation."

4. In the case of Secretary of State for the Home Department ex parte Michael Albert Benson CO/623/88, the Secretary of State had declined to follow the Parole Board's recommendation of release on licence. An issue was whether the Secretary of State should have left out of account two incidents. What was said by Lloyd LJ (as he then was), with whose judgment Nolan J (as he then was) agreed, is agreed to set out the appropriate approach to be applied by the panel. At page 4E of his judgment Lloyd LJ said this:

"If risk to the public is the test, risk must mean risk of dangerousness. Nothing less will suffice. It must mean there is a risk of Mr Benson repeating the sort of offence for which the life sentence was originally imposed; in other words risk to life or limb."

5. As to the taking into account by the Home Secretary of two incidents, Lloyd LJ said this at page 12, letter D:

"Should the incidents have been left out of account altogether? Mr Collins argued that they should. As to the first incident, the prosecution declined to proceed on the grounds, so it was said, that the evidence against Mr Benson was tenuous. As to the second incident, Mr Benson was never charged with attempting to escape and his conviction of possessing unauthorised articles was quashed. It cannot be right, says Mr Collins, for the Secretary of State to act on mere allegation or on suspicion which proves to be wholly unfounded.

I do not go all the way with Mr Collins. There may well be cases where a charge cannot be proved on the criminal burden of proof, but may nevertheless afford material which the Secretary of State can and should reasonably take into account in reaching his decision. But it does not follow that every such allegation should be taken into account, no matter how remote in time and no matter how thin the evidence in support."

6. A little later he said this:

"But if in the view of the court the weight to be attached to the two incidents is so small that they ought to be disregarded altogether, then it is our duty to say so. That is, in my view, the position here. The second incident in particular seems to throw no light whatever on Mr Benson's continuing dangerousness, which is, as I have said, the only remaining relevant question. Suppose that Mr Benson was indeed planning to escape. How does that show that he is still a danger to life or limb?"

7. Miss Krause, on behalf of the claimant, submits that there are parallels between that case and this. In this case there was no, or no sufficient, causal connection between the incident and the index offence of murder. The panel could not rationally have so concluded. So to have done was contrary to the weight of the evidence which was all one way.
8. Miss Krause also submits, and she puts this as her primary submission, that the decision of the panel was disproportionate. She relies on the well-known observations of Lord Steyn in R(Daly) v Secretary of State for the Home Department [2001] 2 AC 532. Miss Krause particularly relies upon that part of Lord Steyn's speech in which he cited Lord Clyde's observation in de Freitas v Permanent Secretary of Ministry of Agriculture, Fisheries, Lands and Housing [1999] 1 AC 69, in which Lord Clyde referred to the three-stage test in deciding whether or not a decision was arbitrary or excessive. Lord Clyde referred to the third part of that test as "the means used to impair the right or freedom are no more than is necessary to accomplish the objective."
9. Miss Krause relies upon what is said by Lord Steyn in the following citation:

"... the doctrine of proportionality may require the reviewing court to assess the balance which the decision maker has struck, not merely whether it is within the range of rational or reasonable decisions. Secondly, the proportionality test may go further than the traditional grounds of review inasmuch as it may require attention to be directed to the relative weight accorded to interests and considerations. Thirdly, even the heightened scrutiny test developed in R v Ministry of Defence, Ex p Smith [1996] QB 517, 554 is not necessarily appropriate to the protection of human rights."

10. What I take Miss Krause to be submitting in this regard, in essence, is this: for the claimant's continued deprivation of liberty to be justified under Article 5, there must be a sufficient causal connection between the index offence and the deprivation of liberty at issue. It was a matter referred to in the case of Stafford v United Kingdom [2002] 35 EHRR 32, 1121. At page 1139 there is reference to the case of Weeks v United Kingdom and the judgment in that case dealing with life sentence licence:

"In short, there must be a sufficient causal connection between the conviction and the deprivation of liberty at issue."

11. Miss Krause puts it in this way. The claimant's Article 5 rights are engaged. As the case of Daly makes clear the decision reached cannot be arbitrary or excessive. No more must be done to impair the claimant's rights to freedom than is necessary. The court is required to review the balance which the decision-maker, here the panel, applied. Such an exercise on the facts found, or which the tribunal was entitled to find, reveals that the decision to revoke the life licence here was disproportionate. As she put it at one time, the panel over-rated the risk and over-reacted to it.

The relevant facts

12. The claimant is 30. On 2nd April 1992, when he was 16, he was convicted of murder. He was sentenced to be detained at Her Majesty's pleasure. The minimum term specified was 8 years. He was released on life licence on 7th August 2002. He was recalled on 1st December 2004. At that time he was living at 2 Ventnor Road, New Cross, London, South East 14.
13. The details of the conviction of murder are summarised in the decision of the panel in this way at paragraph 3:

"The offence for which you received your life sentence was the murder of a 61 year old man. The incident occurred on the 24th June 1991. You, and one other, attacked him with a weapon in Pepys Road, New Cross, London. You struck him on the head with what was said to be a 'rod like instrument'. There was a single blow which, a few days later, caused his death. The incident occurred because you and your co-defendant decided to rob him. You stole £180. Prior to the incident you had previous convictions for dishonesty and possession of an air pistol and, more particularly, a conviction for robbery when you were 15."

14. As the panel also stated, it is clear that drink played a part in the offence. All the reports say so. It was the claimant's case that he did not have the required intent for murder because he had drunk so much.
15. The recall is summarised in this way by the panel (at paragraph 4):

"You were recalled to prison because you were charged with causing grievous bodily harm with intent. The incident, as a result of which you were charged, occurred on the night of the 25th/26th November 2004 in the Live Bar club, Deptford, near your home. You subsequently faced trial at the Central Criminal Court and, on the 16th May 2005, you were acquitted.

The Panel considered all the evidence before it. The Panel had a summary of the case against you and your interview with the police. The Panel considered the papers with care including your evidence and the statements of those who supported you at your trial."

The documents before the panel

16. There was a life sentence report written by Miss Harris, a probation officer. She had interviewed the claimant on one occasion at Belmarsh. In paragraph 2.1 she states that:

"The Probation file indicates that from the time of his release and up until his remand in custody for the offence of GBH, Mr Wyles engaged well with his Licence supervision. I understand that at the time of his arrest Mr Wyles was due to reduce to bi-monthly reporting as a mark of his good progress."

17. She refers to the claimant telling her that he had managed to gain some stability by establishing a supportive relationship with his partner and gaining employment. She refers, in paragraph 2.3, to the child they have.
18. As to the incident on 26th November 2004, Miss Harris summarises the claimant's account:

"Mr Wyles states that although he consumed alcohol he did not drink to excess. He estimates that he drank approximately 3 pints of lager and two glasses of champagne. In further discussion around his use of alcohol he explains that in recognition of the negative impact of alcohol, having committed the offence of murder whilst drunk, he now takes a 'mature attitude' towards his use of this substance."

19. She then sets out in some detail his account. She says that he stated that:

"... as he had not been involved in the incident it did not occur to him to go to the police. He states that he did not believe that it was his responsibility to notify the police of the incident as there were staff at the bar that he assumed would take this action."

20. Miss Harris refers to the claimant feeling that he had been punished for acting as a good Samaritan in the situation that he faced. Under the heading "Risk Assessment" she states:

"The board will be aware that Mr Wyles was found not guilty of the offence of GBH. It could be a concern that Mr Wyles was drinking alcohol given that this was a contributory risk factor in his index offence. However, from the information provided by Mr Wyles he was taking steps to control his use. It does not appear that Mr Wyles' actions contributed to the assault which occurred. Given this information I assess that he remains a low risk of reoffending."

21. Under the heading "Conclusion" she states this:

"I cannot identify any behaviour, thoughts or actions of Mr Wyles that may have escalated the situation. Therefore, it is my opinion that Mr Wyles did not act in a way to jeopardise his Licence.

The lack of responsibility that Mr Wyles took in terms of his failure to contact the police following the incident has had clear implications upon him. I believe that this situation should act as a learning point for him and thus encourage him to work more openly with the police."

22. Miss Harris refers to the "stable environment" that he has to return to. She states that if released on licence he would be subject to weekly supervision. In short, her recommendation was that he be released once more.
23. In addition to that document and other documents, the panel had before it a summary of the case against the claimant regarding the incident and his interview with the police. It had other documentation which I have seen and have read.
24. Miss Krause rightly places much emphasise on what Miss Harris has had to say. However, it is clear that Miss Harris' risk assessment and her conclusion were based on her acceptance of the claimant's account. It was an account which the panel did not accept. The panel said this in paragraph 5 of its decision:

"The Panel considered the papers with care including your evidence and the statements of those who supported you at your trial. You were represented at the Panel hearing. You presented written reasons supporting your argument for your release. The Secretary of State was represented and lodged written reasons. The view expressed by the Secretary of State was to acknowledge your acquittal. It was, he submitted, a matter for the Panel to determine whether you still posed a risk sufficient to warrant your continued detention. The officer in the case, DC Bryant, attended and was able to inform the Panel of the background to this case."

In paragraph 6 the panel went on to say this:

"You accept that the decision to recall you was justified. You accept that even though you have been acquitted the test the Panel must adopt is different from that posed to the jury in a criminal trial. Having heard all the evidence the Panel cannot be sure that you caused grievous bodily harm with intent nor can it be sure, on a balance of probabilities, that you engaged in an intentional assault. Nevertheless the Panel has concluded that your conduct that night and over the following period was such that the risk you pose is sufficient to warrant your continued detention."

25. In paragraph 7 the panel referred to the reports before it indicating the risk factors in the case. It summarised them in this way: "alcohol, drugs, violence (the use of a weapon), relationships and impaired victim empathy". It referred to the prison reports before it. It referred to the various courses which the claimant had attended. As they are material to the conclusions it has reached I should briefly refer to them. The panel said this:

"The Panel is aware that you attended, amongst other things, courses run by AA, a Cognitive Skills course, Victim Awareness, Drug Counselling, Alcohol Awareness, Head Start and Alternatives to Violence. You also have certificates in Communication Skills, Anger Management and Straight Thinking. The Panel acknowledges that you have been on life licence for over two years without any previous cause for concern. You have a settled address and employment and your Home Probation Officer had been expecting to reduce your bi-monthly meetings to once a month."

26. As to the panel's findings regarding the incident this was said:

"On the night of the 25th/26th November you were celebrating your birthday. You have the care of your 13 year old child because her mother, your former wife has sadly died. You have a new partner. Shortly before the night of the 25th/26th November you became a father for the second time. You drank that evening. You contend it was a modest amount. The Panel does not accept your evidence on this issue. You attended the Live Bar and in the early hours of the morning an altercation occurred between you and a man called Robert Kilgour. On the evidence available to the Panel you witnessed an incident between Kilgour and Blue Jay Lloyd, your partner's younger sister. Undoubtedly there was a history of conflict between Blue Jay and Kilgour of which you were aware. You told the Panel that Kilgour was not a friend of yours. It was contended that there had been prior hostility between the two of you. You disputed that. Nevertheless you told the police that it was obvious to you that the bodily language of Kilgour and Blue Jay, to you, was 'intimidating'. You described the confrontation as 'heated'. You claim you went to Kilgour and Blue Jay 'foolishly to defuse' the situation. You told the Panel that the Club had security guards yet you did not seek any alternatives to the apparent violence which was unfolding before you. You told the Panel that 'you put yourself in a vulnerable situation'. There was an incident between you, Kilgour and Blue Jay during which a glass was broken and significant injuries were caused to Kilgour's face. He received 20 stitches. You sustained a cut to your hand. You told the Panel that you didn't realise that the glass had connected with his face.

The Panel has concluded that far from seeking an alternative to violence, reporting the matter to the police and explaining your version of the incident and your role in the events you effectively 'went to ground'. You immediately left the club. You could not be found by the Police. You claim that you went to your brother's at Blackfen without the intent to evade arrest. The Panel rejects that contention. The Police went to your house and spoke to Blue Jay who did not mention anything about what had happened. Moreover by your own account, you left your home and your 13 year old daughter and, neither she nor your parents, who live nearby (as they stated to the police), knew where you were. You returned the following week because you claim that you were made aware that the police were looking for you. The Panel is not persuaded that you acted appropriately in accordance with the spirit of your life licence. In particular you accept that you did not inform your Probation Officer of the incident and seek further guidance from her."

27. The panel set out its conclusions in this way in paragraph 10:

"Despite your evidence and representations of your solicitor the Panel does not accept your account as to the events following the incident in the night club. The Panel has come to the conclusion that, contrary to the views expressed by your Probation Officer... regarding your ability to deal with risk factors your conduct on the night of the 25th-26th November 2004 indicates that you used inappropriate strategies. You did not apply the acquired skills learnt in your period in confinement. You did not apply straight thinking, nor did you apply appropriate alternatives to violence or communication skills. You confronted violence and you accept you were wrong. You placed yourself in a situation which should have been avoided. The Panel has concluded that you did not deliberately inflict violence but what you did do clearly demonstrates a lack of proper cognitive skills and alternative pro-social strategies. The panel has concluded that your conduct casts doubt on your ability to relate openly to your supervising officer such that the Panel has considerable doubts that your life licence can, for the time being, be safely managed in the community. Accordingly the Panel has concluded that you will, if released, for the time being present a substantial risk to life and limb.

The Panel has concluded that you were disinhibited by the effects of alcohol which suggests that further work addressing alcohol issues is required including understanding the effect alcohol has in reducing the effectiveness of strategies to avoid violent confrontations. The Panel has thus concluded that you should develop further your relapse prevention strategies in respect of alcohol and violence."

28. Miss Krause emphasises that the claimant had spent two and a half years in the community. She submitted there was no, or no sufficient, connection between the index offence and the further incident to justify the panel's decision. The link, as she put it, must be more than tenuous. In paragraph 11 of her grounds she puts it in this way:

"The Parole Board's identified areas of risk in the Claimant's case are disproportionate when taken together with the events which provided the reasons for such identification. In other words, there was no risk resulting from the events of 26 November, or such minimal risk that the Parole Board's response can properly be said to be overbroad."

29. In her skeleton argument she put it in this way:

"In this case, the Parole Board purported to establish a link between events which the panel themselves recognised that even on the balance of probabilities did not engage the Claimant's violence and the index offence. This does not meet the test.

The panel reached the conclusion that there was a direct link between the alleged events (which even on the balance of probabilities did not engage the Claimant) and the Claimant's index offence because they decided that the Claimant's evidence as to the amount of drink he had had that night was not acceptable; yet there was no other evidence before them which could lead them to reach that conclusion. There were no contrary reports or even evidence of the Claimant being deceitful. The opposite in fact is true, namely that there was ample evidence to demonstrate the Claimant's law abiding life style, his work record, his responsible attitude to his life sentence and reporting restrictions, his mature attitude to his 'risk factors' such as drinking... and there is no evidence in the dossier or elsewhere to counter any of this. The panel either failed to apply the test correctly because they failed to apply the test strictly to the facts as they were or the panel found a link where there was none [and] therefore risk when there was no evidence of risk to life and limb."

30. In the penultimate paragraph Miss Krause submitted this:

"The Court is invited to reconsider the decision of the panel in light of the evidence before them and the test to be applied. The Court is invited to find that there was no evidence to support the finding that the Claimant's risk was too high to allow release and/or that the alleged incidents did not support a finding that the Claimant should continue to be incarcerated."

31. Miss Krause emphasises that the least possible interference with the claimant's liberty was all that could be justified. One course, she observes, which the panel could have adopted was a condition regarding alcohol on the claimant's licence. The response of a lengthy further custody was disproportionate, she submits, for something which did not rationally connect with the index offence. Moreover, the decision was irrational.

My conclusion

32. As it seems to me, what is fundamentally at issue is whether the panel was entitled to find a sufficient link between the index offence and the incident to lead it to conclude there was risk to life and limb if the claimant were granted parole. I put it in that way because it is not for me to decide the case on the merits. I agree with Mr Bourne on behalf of the defendant in that regard.
33. The panel found that the reports before it indicated, in short, as far as the original offence was concerned, the following risk factors: alcohol, drugs, violence, difficulties with relationships, impaired victim empathy. No one seriously contends that that was not a conclusion the panel could not have come to.

The panel's findings concerning the incident

34. I have to bear in mind that the panel heard the claimant give evidence. It heard representations from his legal representative. It had, too, information from a police officer regarding the later incident. Having heard all the evidence it did not accept the claimant's account in respect of a number of things. It made a number of findings of fact. First, he had more to drink than he claimed. It was more than a modest amount. Second, there was a heated confrontation. Third, the claimant was foolish to try and defuse the situation. Fourth, there were security guards whom he could have gone to. He did not. Fifth, the claimant went to ground. He was not truthful when he claimed otherwise. Sixth, he failed to contact his probation officer and tell her about the incident. He did not seek guidance from her.
35. I have to ask myself whether the panel was entitled to come to those findings of fact. It seems to me plain, they having heard the evidence, that they were. That means that the panel was entitled to have regard to those features when assessing the nature of any risk posed by the claimant. I have referred to the findings regarding continuing risk set out in paragraphs 10 and 11. Although reflecting an excessive use of jargon, no doubt in part because of the language in the reports before them, the basis of the panel's decision can be understood.
36. The index offence was one of violence and involved excessive drinking. The 2004 incident involved a violent situation. The excessive use of drink played a part in it. The claimant failed to apply the skills he should have learned in prison. He confronted a violent situation when that was not appropriate and he should have avoided it. He could and should have sought help. That would have been showing the "alternative pro-social strategies". Had he avoided the violent situation there would have been no confrontation. The claimant did not apply "straight thinking". By that, and the reference to cognitive skills, no doubt the panel meant he did not think clearly or intelligently. Had he not been affected by drink he would have acted differently. He went to ground. He failed to contact his probation officer. There remains a problem of drink which needs to be addressed in order to prevent a relapse.
37. In the light of those features expressed, the panel concluded there was considerable doubt as to whether his life sentence could be safely managed in the community and that he therefore did represent a substantial risk to life and limb. There was, on that basis, the panel found, a sufficient causal connection between the index offence and the later incident. It seems to me that so to conclude was neither disproportionate nor irrational. It was a decision within the area of discretion which the panel had.
38. However persuasively Miss Krause puts her case, it is not a decision with which I should interfere. In the circumstances I dismiss the application.
39. MISS KRAUSE: My Lord, there are two remaining matters. One is that of Legal Aid assessment of the claimant's costs, if I may?
40. MR JUSTICE GOLDRING: The answer is, yes.
41. MISS KRAUSE: I am obliged. There may be an application for costs, I do not know.
42. MR BOURNE: My Lord, no.
43. MISS KRAUSE: Thank you. My Lord, may I also apply for permission to appeal?
44. MR JUSTICE GOLDRING: You may certainly apply for permission to appeal, Miss Krause.
45. MISS KRAUSE: Very briefly. Because the subject matter is so important to the claimant, in any event, given his liberty is at stake, but also because we are likely to put the application in this way: the court, according to the text, is required to go behind a decision and assess whether the facts as found by the Parole Board constitute a sufficient link and not merely to leave it to the discretion of the decision-maker. I wonder if I could have permission to appeal on that ground?
46. MR JUSTICE GOLDRING: No, Miss Krause, you may not.
47. MISS KRAUSE: Thank you.
48. MR JUSTICE GOLDRING: Thank you very much indeed and thank you for your submissions. Thank you very much, Mr Bourne.