QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
London WC2A 2LL
B e f o r e :
|THE QUEEN ON THE APPLICATION OF LEE BAYLISS||Claimant|
|(1) THE PAROLE BOARD|
|(2) SECRETARY OF STATE FOR JUSTICE||Defendants|
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Daniel Squires (instructed by the Treasury Solicitor) appeared on behalf of the First Defendant
Steven Kovats (instructed by the Treasury Solicitor) appeared on behalf of the Second Defendant
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"This was a dreadful bit of driving. You killed your best friend but you killed her in circumstances where the way you were driving was patently obviously dangerous. That road is single-carriageway; it narrows; there are ample signs to tell you to slow down and there is an extremely obvious T junction with a brick wall facing you. No-one approaching that junction could have had any doubt at all that there was no way of going straight on. You started to brake only 30 yards before and there are tyre marks from there up to the moment of side impact, which was so severe that it left the car in the sort of condition that we see in the photographs, and your friend dead. It was not your car."
The learned judge went on to observe the record of the claimant, that he had 39 convictions for 108 offences, these involving dishonesty, motoring offences and breaches of various court orders. He highlighted that the claimant had been disqualified from driving 16 times, usually at the wheel of someone else's car, and that in 1997 he had been convicted of dangerous driving after a police chase. The learned judge went on to say:
"I am of the opinion that I think that there is a significant risk to members of the public of serious harm if you were to commit further specified offences. Well I think there is. It is as simple as that. The risk of people being killed on the road, in a car chase with someone in somebody else's car, driving whilst disqualified, is significant in your case."
The learned judge imposed a minimum period of 4 years, which meant that the claimant's tariff expired in April of this year.
"The lack of a firm risk management plan by his offender manager makes it difficult for me to recommend him for release on parole at this stage."
The external probation officer, in his report of 19th December 2007, said that the claimant had considerably entrenched offending behaviour and it would be optimistic to expect him not to resort again to criminality. The conclusion of the report was that it could be considered that were he to participate in the RAPt programme his ability to abstain from illegal drugs would be enhanced.
"For our part, we require to be satisfied that the level of risk of serious harm from re-offending is reduced to a level consistent with open conditions or release. We appreciate that there is not a present risk of violent or sexual offending. At present, however, and without formal assessment of risks and their reduction we are obliged to have regard to the OASys assessment of risk which indicates an incompatibility with either course."
The statutory framework
"the Board is satisfied that it is no longer necessary for the protection of the public that the prisoner should be confined."
"... whether the lifer's level of risk to the life and limb of others is considered to be more than minimal."
There was argument before me about the compatibility of that paragraph with Article 5 of the Europe Convention on Human Rights. Since the Parole Board, in its decision in relation to this claimant, did not invoke that test, I need say no more about it in this judgment. The directions of August 2004 also contain a paragraph relating to a Parole Board decision that a prisoner be transferred to open conditions. This reads that one of the main factors to be taken into account in making an order for transfer is the extent to which the lifer has made sufficient progress during sentence in addressing and reducing risk to a level consistent with protecting the public from harm, in circumstances where the lifer in open conditions would be in the community, unsupervised, under licensed temporary release.
Issues of statutory interpretation
"In other words in cases where there has been the imposition of a sentence of life imprisonment, imprisonment for public protection or an extended sentence pursuant to the provisions of Chapter 5 of the 2003 Act, the question that the Parole Board should ask when considering release is whether of not the offender continues to meet the criteria of dangerousness in section 229 of the 2003 Act, and not their usual and more general test as suggested by the Secretary of State in the directions."
"That it is no longer necessary for the protection of the public against a significant risk of serious harm from the commission of further specified offences that the prisoner should be confined."
The claimant's case
"We appreciate that there is not a present risk of violent or sexual offending."
Inasmuch as the Board relied on other assessments of risk, Mr Rule submitted that the OASys tests were out of date.
Consideration of the claimant's grounds
"[It] is empowered to direct your release if it is satisfied that it is not longer necessary for the protection of the public that you be confined."
The Board then went on to conclude, as indicated earlier, that it was not so satisfied and therefore did not recommended release. The Board set out in detail the background to the offence, the previous offending behaviour and referred to the deleterious effect of drugs in the offender's life. In that regard it noted that the claimant had undertaken work in relation to drugs, but had had an adjudication for possession of a controlled substance in 2007. It referred to the OASys assessments. It considered the oral evidence of the probation officers and it highlighted that the further work in closed conditions was derived from what they said. Then, in the concluding paragraph, the Board said that it required to be satisfied that the level of risk of serious harm from re-offending was reduced to a level consistent with open conditions on release. There was the mention, in paragraph 8, that there was no present risk of violent or sexual offending. Mr Rule said that the Board was well aware of what it was saying there, because of the submissions that he had made at the hearing. Notwithstanding that, it seems to me clear from the context of that passage and from the Board's consideration of the range of matters which it had before it, that it was referring to other violent or sexual offending, not offending constituted by death by dangerous driving.