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 WC2A 2LL
		7 February 2008

1. MR JUSTICE STANLEY BURNTON: This is an application by Scott Alvey for judicial review of the decision of the Parole Board, communicated in a letter of 17 May 2007, refusing him early release. In addition, the Parole Board directed that certain additional conditions should be included in his non-parole licence.
2. The claimant is a prolific offender. In the main, his offences have been offences of dishonesty, although there are some other offences of which he has been found guilty, either on his own plea or otherwise: an affray, and most recently an assault against a police officer. He has been the subject of probation orders on numerous occasions. He proceeded up the ladder to custody in a Young Offenders Institution, and most recently received a sentence of four years and nine months for four offences of burglary, possession of an offensive weapon, going equipped to steal, assaulting a police officer and failing to surrender. The offences in the main are acquisitive offences of burglary, theft, deception and the like.
3. His offending commenced before he became a drug abuser, but has for most of the period of his offending, which began in 1993, been connected with the abuse of drugs. He has a long-term history of heroin dependency, and his offending has in the main been connected with his need to acquire drugs to feed his dependency. He is, however, determined to turn away, so far as he can, from drug abuse and the offending that is associated with it.
4. He was the subject of reports before the Parole Board, reports from the prison and from probation officers, which recommended or supported his release before the compulsory licence period into an environment, including accommodation, where he would be supported with a view to his becoming drug-free and working as a normal citizen. It is not irrelevant that he has reached the kind of age, namely 31, when people who have been involved for significant periods during their relative youth in offending and drugs may see that the future for them is very bleak indeed if they continue to abuse drugs, and may make a determined attempt to turn away.
5. The Parole Board, as I have indicated, determined that it was inappropriate to release him as recommended by those reports, and it is because of their refusal to do so that this judicial review arises. It is one with which I have some sympathy having regard to the fact that there is every indication that the claimant does indeed wish to, if I may use the overused metaphor, turn over a new leaf. This is also an application which has been most ably argued on both sides.
6. The reports before the Parole Board (apart from the list of his antecedents of course) of the claimant included a prison assessment which was positive. It referred to his history, one part of which is significant for present purposes. He had arrived originally at HMP Lincoln in March 2005. He had progressed sufficiently by August 2006 to be transferred to open conditions, that is Category D. He was for that purpose sent to Sudbury. His time at Sudbury was curtailed after a relatively short period according to the chronology and the Prison Assessment Report after only a month. The reason appears from the papers to be this: that in the open conditions of Sudbury, there were other prisoners, I assume, who had access to drugs and were abusing drugs, and as a result of his being with them or with visitors who similarly had access to drugs, he was exposed again to drugs. He succumbed to the temptation, realised that he was at risk and asked to be transferred back to closed conditions in order to remove himself from the environment which he had found at Sudbury.
7. I say it is significant for these reasons. The request to be transferred shows an appreciation of his vulnerability and is consistent with his desire to escape from his dependency, and therefore from his offending. On the other hand, the fact that he needed to and indeed had taken drugs while at Sudbury is an indication of that very vulnerability and was of course relevant to the assessment of the risk he would pose on return to the community. It is perhaps worth identifying that risk quite expressly. The risk would be that he would again take heroin, again become dependent, again abuse drugs, and would have to steal and commit possibly other offences in order to feed the revived drug habit and would again become, unless again arrested, a prolific offender. That was an obvious risk which was considered in the reports to which I shall refer and also by the Parole Board.
8. The prison report written at Blundeston to which he had been transferred on 23 January was itself dated 2 February 2007. It is perhaps irrelevant to this judicial review, but by way of background it is pertinent that it follows that the authors of the report had the opportunity to observe him for something less than a month. The report was, however, a positive report. So far as release is concerned, it stated:

"He sets his sights on the EMMAUS Programme. If he gets on this there will be few problems. He knows himself that he needs to get out of his home area and get good support from CARATS to be successfully released with no re-offending issues."

9. On the question: "What do you consider the possible effect of a continued stay in custody?", he stated:

"He will carry on as he has done up to now. He is aware of his weaknesses and readily asks for help."

10. So far as accommodation was concerned, the report advised it should be "outside of home area, within an EMMAUS community".
11. Box 33, "Please give any other relevant information", was answered as follows:

"He has a worry about getting parole or getting to the LED, and not having enough support to keep him on the straight and narrow. He even states that if no support is there if granted parole he will turn it down. He places a great deal of his hope on the EMMAUS programme at this point. He has conducted himself in a mature and sensible way through all my dealings with him, and I take him to his word when he says this."

12. The Emmaus community is either a religious community or a community which is motivated by religious considerations, which would provide the claimant, were he accepted into it, as I understand it, with accommodation, work and support. The seconded officer's parole assessment report was based on one interview with the claimant, and of course on prison probation records, including the pre-sentence report, which had led to a long-term sentence which had been imposed and led to his being in custody at the relevant time. The probation officer, Christine Mitchell, has also had the opportunity to discuss the claimant with wing staff and seen his record of behaviour, and she had consulted the CARATS team staff and the home probation officer and had seen her report. She had not previously known the claimant. She referred to his antecedents. The sentence of four years, nine months imposed for the offences to which I have referred, according to her report, was also passed with 24 other similar matters being taken into consideration, so that, as I have indicated, he was, until sentenced, and had been for some time, a prolific offender. She referred to the Emmaus Project, stating:

"[It] includes supported accommodation and employment within the Emmaus community and could provide a suitably supported and regulated environment within which Mr Alvey could develop the skills required for independent living."

She referred to his behaviour and progress in custody, including what had occurred at Sudbury, and stated that he presented himself as:

"... a man desperate to address his drug addiction and avoid relapse on release. He completed the P-ASRO course at an early stage in his sentence at HMP Lincoln ... in open conditions he used the skills he had learnt to remove himself from the 'high risk situation' he had found himself in as a result of the availability of drugs."

13. At that time he had asked to repeat the P-ASRO course and was to be assessed for that. He was awaiting the relapse prevention course. He was an "enhanced" prisoner, co-operating with compliance drug testing, and test results had indicated that he had remained drug free presumably since his transfer out of Sudbury.
14. Under "Risk assessment", Ms Mitchell said:

"The risk of further offending is dependent on Mr Alvey's ability to remain drug free. He is manfully aware of the harm he has caused and is anxious not to return to drug use and re-offending. He has completed the P-ASRO course but is aware that he does not have the internal controls to refrain from drug use should certain triggers be in place, as was demonstrated in his inability to succeed in open conditions. His desire for a placement in the Emmaus project would appear to be because external controls and occupation would be inherent in this type of placement. He is now exploring the possibility of residential rehabilitation which in my view is a more realistic option in that, if accepted for such a placement, he would have the opportunity to develop the internal control he will need if he is to remain drug free in the long term and develop a healthy and productive lifestyle.

I consider that continued work to address his addiction in a sheltered and supportive environment is now necessary to assist Mr Alvey in making the changes that he is motivated to make and reduce the risk of relapse and further offending. Ideally this would be residential rehabilitation, but if for any reason this is not available, I would support the Home Probation Officer's proposed supervision plan if sheltered and supportive accommodation is available.

Conclusion and Recommendation

In view of Mr Alvey's demonstrated needs I consider that the maximum possible licence period is required to deliver the Supervision Plan, and support the changes made. Whilst Mr Alvey could repeat the P-ASRO course if he remains in prison, indeed he may well have had the opportunity to repeat this before his parole eligibility date, I consider that there are opportunities in the community in terms of protracted supervision and involvement with drug agencies which may not be available to Mr Alvey should he remain in custody. It is also of significance that, if granted release on Parole Licence, Mr Alvey could proceed directly to a suitable placement without waiting for a bed to become available as would be likely if he were released on his non-parole date.

Mr Alvey has demonstrated his motivation by good custodial behaviour and continuing to address his addiction. I therefore support this application should a suitable placement be available. The Parole Board will be aware however that Mr Alvey has demonstrated his weakness by his return to closed conditions when faced with temptation."

15. So Ms Mitchell was supportive, but her support was tempered by the warning contained in that last paragraph of her report, which was based largely upon what had occurred in Sudbury.
16. The Home Probation Report by Lesley Annison was dated 19 March. Like Ms Mitchell's report, it was based on one interview with Mr Alvey and a review of documentation and discussion with Ms Mitchell herself. The report dealt with Mr Alvey's history. Paragraph 9 was as follows:

"There was one area in the [post-programme] report which indicated that Mr Alvey's progress on the programme was not as good as would have been hoped. This was in the area of impulsiveness. Mr Alvey's score in this area remained quite high which suggests that he still feels likely to act and behave impulsively. It is my understanding from speaking to the seconded probation officer, Mrs C Mitchell, that Mr Alvey has requested to undertake the P-ASRO again, which is an indication that Mr Alvey is aware of his own limitations and anxious to address his weaknesses and build on his strengths."

17. Subsequently in the report, she referred to Mr Alvey's need to build up his own level of self-control so that he could deal with drug temptations without reliance on external control.
18. She referred to Emmaus in paragraph 14:

"Mr Alvey tells me that he has applied to, and been accepted by, Emmaus Trust to live at Langley House in Dorset. I have not, however, had confirmation of this. My concern with Mr Alvey is that he appears to have placed all his hopes on Emmaus and has not considered an alternative should this not work out. Mr Alvey's problems with being in open conditions for a short time, and the fact that he has requested to take the P-ASRO again, would indicate that he is not yet ready for full independent living and would need support on his release. It is my understanding that Mr Alvey was requesting an appointment with the Nacro representative within HM Prison Blundeston to discuss other options regarding accommodation."

19. Under "Risk assessment", Ms Annison referred to the claimant's history and his progress in custody, and said:

"These improvements combine to significantly reduce the risk of further offending. However, there are still some concerns. Mr Alvey's experiences at a Category D institution indicate that he still has some difficulty in utilising internal controls against re-offending, relying instead on external controls such as removing himself from the situation. Whilst it is a credit to him that he has developed this level of self awareness and the good judgment to take action where necessary, in the community he is likely to face situations that cannot be avoided and will be reliant on his own self-control and willpower. Mr Alvey does not appear to have confidence in his ability in this. It is my assessment, therefore, that the risks are manageable in the community, provided Mr Alvey has sufficient support to enable him to develop his internal controls."

20. She referred to a resettlement plan. It was clear that Mr Alvey's return to his home area of Mansfield would set him up for failure since he would go back into an environment where he would mix with acquaintances who themselves were involved in drugs and offending. Ms Annison stated that Mr Alvey was not confident of his ability to maintain a drug and offence-free lifestyle if returned to Mansfield. Ideally residential rehabilitation would be the preferred option, but at they very least he would need some form of supported housing which would help him to develop his social skills whilst he works towards independent living. She continued:

"Given Mr Alvey's continuing issues with self control and thinking skills, I would expect him to undertake an accredited programme such as the Cognitive Skills Booster programme to reinforce the skills he has developed on programmes undertaken whilst in custody.

I would expect a condition of residency to be included in the licence to ensure that he is placed in suitable accommodation with the required level of support."

21. The supervision plan that she envisaged would include the following:

"• ACCOMMODATION: Mr Alvey to reside in supported accommodation until such time as both he and his Supervising Officer agree that he is able to cope with independent accommodation.

• SUBSTANCE MISUSE: Mr Alvey to engage with CJIT or equivalent service to maintain absence from drugs.

• EMPLOYMENT: Mr Alvey to actively seek gainful employment and/or training opportunities with support from his supervising officer.

• THINKING/DECISION MAKING SKILLS: Mr Alvey to improve his thinking/decision making skills by attending an accredited programme such as Cognitive Skills Booster or equivalent."

22. In her conclusion and recommendations she referred to his progress, but said:

"However, he still appears to lack the ability to consider alternatives and work out contingency plans should he meet with obstacles and this does give some cause for concern.

The progress he has made, particularly in addressing his substance use and remaining drug free would indicate that the risk of re-offending is substantially reduced from when he was first sentenced. His failure to cope with open prison conditions suggests he still needs a significant level of support and imply that he is not yet ready to cope with this alone. His accommodation on release would, therefore, be a major factor to be taken into account.

...

Having interviewed Mr Alvey, my assessment is that he has achieved as much as he is able to in a custodial setting. He seems to lack confidence in his own ability to cope with life in the community, but it is clear that he needs to progress with support to develop his confidence. I believe he would benefit from the supervision on a lengthy licence that early release would provide, as this would enable him to make the additional progress he needs whilst still have the support he requires before he is expected to cope on his own.

I would therefore support Mr Alvey in his application for early release on parole, provided suitable accommodation with the appropriate level of support has been secured prior to release. I would recommend additions to the standard licence conditions to the effect that he remain in such accommodation until his Supervising Officer approves any proposed move, that he engage with community based drugs workers as directed by his Supervising Officer, and that he undertakes a programme such as the Cognitive Skills Booster to further develop the skills he has acquired whilst in custody. I would not be able to support Mr Alvey's release at this stage if he were anticipating residing in independent accommodation without additional support."

23. Lastly, there was a letter from the Prolific Offender Unit at Mansfield asking for conditions to be incorporated in the claimant's licence, namely that he should participate in the Prolific Offender Project and otherwise co-operate with his Supervising Officer, and also provide samples for drug testing.
24. The Parole Board had those reports before it, but it also had the reports of the risk assessments that had been made in standard form under the OASys System and OGRS (Offender Group Reconviction Scale). The letter of 17 May 2007 stated that the Parole Board considered the claimant to be not suitable for early release, and that certain additional conditions should be included in his non-parole licence, namely a condition that he reside as directed and not to leave to reside elsewhere without obtaining the prior approval of his supervising officer, and to reside as directed by his supervising officer, and to comply with any requirements specified by his supervising officer for the purpose of ensuring that he addresses his drug and prolific offending behaviour problems (Cognitive Skills).
25. The reasons given for the decision were brief. The Panel referred to his offending pattern, and in their recital of the history said this:

"He co-operates with staff and gets on well with others. There have been no adjudications or positive drug tests. Mr Alvey completed P-ASRO, with a good report, in February 2006. He gained Cat D in August 2006 but asked to return to closed conditions the following month, as he was unable to deal with pressures relating to drugs present within an open prison. On release he hopes to reside in a Langley House hostel (associated with Emmaus Trust) although the field probation officer has been unable to obtain confirmation. The probation report writers support release on the basis of suitable supportive accommodation being available. They acknowledge that at this stage there is no confirmation that any such resettlement plan is in place.

The Panel took account of the index offences and Mr Alvey's history of burglary and other offending. It noted that OGRS places him, it is reported, in the 99% risk category. There is some static risk of violence and a low/medium risk of other offending. OASys indicates a high risk of reconviction and an immediate risk of harm to the public. It is acknowledged that Mr Alvey has made some progress addressing his drugs relating offending. However he was not able to handle open conditions and his resettlement plans remain unconfirmed. The Panel concluded, in the light of Mr Alvey's record as a prolific offender, that risk remains too high to be safely managed in the community. Parole is denied and additional conditions are imposed at NPD to assess the management of risk."

26. The law relating to judicial review of this kind may be shortly stated. It is not for this court to substitute its own decision, however strong its view, for that of the Parole Board. It is for the Parole Board, not for the court, to weigh the various considerations it must take into account in deciding whether or not early release is appropriate. The weight it gives to relevant considerations is a matter for the Board, as is, in particular, its assessment of risk, that is to say the risk of re-offending and the risk of harm to the public if an offender is released early, and the extent to which that risk outweighs benefits which otherwise may result from early release, such as a long period of support in the community, and in some cases damage and pressures caused by a custodial environment.
27. The Panel must give reasons for its decision, but it is not required to address every matter which it considers provided it is clear that it addressed the substance of the issues required to be addressed in a particular case, and that its reasons demonstrate why early release has not been ordered, and are sufficient to demonstrate the lawfulness of the decision.
28. The grounds for the application for judicial review set out the history of this matter, and set out in paragraphs 14 to 17 the legal grounds relied on for an order either quashing the decision of the Parole Board or at least a declaration as to is irregularity. Having referred to the last two paragraphs of Ms Annison's report, the grounds stated this:

"14. In the circumstances the claimant contends that the Parole Board have erred in their approach to their task in that they have taken the claimant's previous antecedent history as being effectively conclusive as to the question of risk. The claimant contends that the Parole Board have refused relief on the basis that he had hoped to reside with the Langley House Hostel associated with the Emmaus Trust, but this had not been confirmed. The Parole Board noted that the probation report writers supported release on the basis of suitable supportive accommodation being available. The appellant however concluded that at the time of writing there was no confirmation.

15. The claimant contends that the Board have misdirected themselves as to their own powers in this respect. The claimant submits that it would have been open to the Board to have ordered his release subject to the condition of suitable residence being place[sic]. The claimant submits that they have allowed the question of residence to take precedence over the question of risk."

29. Those contentions, which depend on an assessment of the reasons given by the Board, are contentions I am unable to accept. It is quite clear that the Parole Board did not take the claimant's previous antecedent history as being conclusive. They had regard to the Offender Group Reconviction Scale and the OASys assessment, and had regard also to his experience in Sudbury Open Prison. It is also clear that they had regard to the probation officers' reports which were expressly referred to. It was for the Parole Board to decide whether the indications of risk before them were such as to justify departing from the probation officers' reports and the prison report so far as the recommendations were concerned. It was for them to assess risk. That they did so in a manner which was negative so far as the claimant is concerned does not mean that they treated his antecedent history as being conclusive.
30. It is right that they might have adjourned their deliberations to ascertain whether or not suitable supportive accommodation could be made available at some later date, and it is right that they refer to the lack of confirmation of his resettlement plans in the reasons given for their decision, but it is, in my judgment, quite clear that it was the risk of re-offending which was the motivating force for the decision that, having regard to what had happened in open conditions and the general contents of the probation report writers' reports, the risk was not such that the Parole Board found it possible to come to the conclusion that early release was appropriate. It would have been, in their view, inappropriate, even had the resettlement plan been more concrete than in fact it was. It follows that I am unable to accept those grounds.
31. In paragraph 16, the grounds are as follows:

"In conclusion the claimant contends that the Parole Board's decision has been arrived at by procedurally unfair means in that they have misdirected themselves as to the evidence and as to their own powers. The claimant contends that it is evident that the Board could have ordered release on licence subject to there being confirmation of suitable accommodation but instead they have allowed the question of the unconfirmed accommodation situation to be determinative as to the issue of release and future risk."

32. I have considered some of the contents of that paragraph already. I am bound to say that there is a degree of confusion in paragraphs 14, 15 and 16. The question for the claimant was not whether the Board could have ordered his release -- there is nothing to indicate that they were unaware of their power to do so or unaware of their power to defer a decision until accommodation was available, and there is nothing to indicate that they were unaware of that power -- the question is whether they acted irrationally in deciding not to do so, or they gave inadequate reasons for their decision, or they failed to take a material matter into account or took into account immaterial matters.
33. Leaving aside one matter to which I shall refer shortly, I have come to the conclusion that the Board did not unlawfully fail to consider the possibility of deferring their decision, because it was risk which was the determinative factor in their decision.
34. Lastly, the original grounds contended that the Parole Board had erred in their approach and as such their decision was both irrational and unreasonable. It seems to me that that takes the matter no further. Unless it has been shown there has been some legal error in their approach -- the legal error which I take it to be suggested there is treating the record as conclusive -- that paragraph adds nothing.
35. So far as irrationality is concerned and unreasonableness, which must be considered as having a similar meaning, it is impossible to say that the decision is irrational in the sense that no properly advised panel could have come to that conclusion in the circumstances of this case. The hurdle must be a significant hurdle where, as here, there was substantial material before the Panel showing that there was indeed a high risk, and as has been stated there has been failure to cope with open conditions in the past. It seems to me that, in the broad sense, the suggestion of irrationality or Wednesbury unreasonableness, even applying a heightened scrutiny of the decision as is appropriate where liberty and retention in custody are concerned, is unarguable.
36. Mr Armstrong put the case somewhat differently and more cogently and more persuasively. He submitted that the Panel had failed to deal with two important matters. The first is the benefit to the claimant of his early release -- a matter which the Parole Board is expressly required take into account: see the directions to the Parole Board under section 32(6) of the Criminal Justice Act 1991 issued in May 2004. Indeed, the benefits that may arise from appropriate early release may go beyond the benefit to the individual prisoner himself, and manifestly if early release and support in the community results in an offender ceasing to offend, that is of immense benefit to the community as well as to the offender himself.
37. The second matter to which he referred was the failure of the Panel to address specifically the conditions suggested by the probation officers.
38. It is right that the benefit to the claimant is not expressly addressed in the decision. It does not follow from that, however, that it was not taken into account. They had considered and referred to in their decision the probation officers' reports, and it was the substance of the probation officers' reports that there was benefit to be derived from early release. Their conclusion was, however, that the risk of re-offending was too great for those recommendations to be accepted. It follows, in my judgment, that implicitly they did consider the question of benefit. Moreover, this ground is one I consider having regard to the fact that it was not expressly pleaded in the grounds and therefore there has not been an opportunity for evidence to be adduced on it. No point has been taken on the part of the Parole Board, and indeed the court will of course look cautiously, indeed critically, at ex post facto reasons, but the court must appreciate that there has been no opportunity to provide such explanation and is unable to say whether or not it would have been taken into account had it been proffered.
39. So far as the additional conditions recommended by the supervising probation officer are concerned, I have referred to them, but it seems to me that they are all, apart from the recommendation that he seek work, encapsulated into the additional requirement that the claimant comply with the requirements specified by the supervising officer for the purpose of ensuring that he address drug and prolific offending behaviour problems. Looking at the matter as a whole, therefore, I am unable to conclude that that was a matter which they failed to consider.
40. I stated at the beginning of this judgment that this was an application with which I had some sympathy, and indeed substantial sympathy, but it is a different thing for me to conclude that there was any irrationality or unlawfulness in the decision. I am unable to do so, and in those circumstances the application is dismissed.
41. MR ARMSTRONG: My Lord, I am grateful I seek only a legal aid assessment.
42. MR JUSTICE STANLEY BURNTON: Of course. Thank you both very much. As I said, I thought the submissions were of a high standard.