QUEEN'S BENCH DIVISION
B e f o r e :
|on the application of|
|- v -|
|THE PAROLE BOARD FOR ENGLAND AND WALES|
Wordwave International Ltd (a Merrill Communications Company)
190 Fleet Street, London EC4
Telephone No: 020 7421 4040
(Official Shorthand Writers to the Court)
appeared on behalf of The Claimant
Mr P Patel (instructed by the Treasury Solicitor)
appeared on behalf of The Defendant
Crown Copyright ©
Tuesday 9 December 2008
MR JUSTICE PLENDER:
"I do that, Harlow, not contemplating that you will spend the rest of your life in prison. I do not do it for that reason. I do it, if I may put it in this rather strange way, out of humanity to you, so that your case may be kept under continual review, as it would be. If I had to determine a fixed length of imprisonment, in order to protect the public, it would be so long as to deny you any hope at all, and it may well be unjust to you. I hope you can understand that. At least if I sentence you in the way I do, it will be somebody's responsibility -- which I believe and hope they will dutifully carry out -- to keep the length of time which it is appropriate for you to spend in prison under continual review, so that you may be released from the sentence as soon as it is judged safe that you should be."
"10. Pursuant to section 32(6) of the 1991 Act (now section 239(6) of the 2003 Act), the Secretary of State has issued directions to the board in relation to the release and recall of life sentence prisoners. Direction 6 provides:'In assessing the level of risk to life and limb presented by a lifer, the Parole Board shall consider the following information, where relevant and where available, before directing the lifer's release, recognising that the weight and relevance attached to particular information may vary according to the circumstances of the case .... (d) whether the lifer has made positive and successful efforts to address the attitudes and behaviour problems which led to the commission of the index offence .... (h) the lifer's awareness of the impact of the index offence, particularly in relation to the victim or victim's family, and the extent of any demonstrable insight into his/her attitudes and behavioural problems and whether he/she has taken steps to reduce risk through the achievement of life sentence plan targets ....'"
"45. .... This court must thus determine, on the evidence before this court, whether this is a case where the evidence shows that, by reason of failures in the system, it is not possible to determine whether he is dangerous or not. I appreciate that there will be an overlap evidentially: the Parole Board may not be satisfied because of absence of material, of the conditions which alone permit release for the purposes of section 28(5). But that evidential overlap should not deflect this court from determining the different question as to whether the continued detention can no longer be justified by the original decision that the prisoner was dangerous."
I appreciate, of course, that the circumstances in Lee and Wells were distinct from those in the present case, but, contrary to the submissions made by Mr Patel on behalf of the Parole Board, I find a significant difference between the manner in which the Parole Board expressed its decision of 4 May 2007 and the final part of the passage I have cited from the judgment of Moses LJ. The Parole Board did not express its decisions on the ground that it had before it positive evidence of the continuation of the risk presented by the claimant. Nevertheless, having reviewed the evidence and the dossier before it, the Parole Board concluded that there was insufficient evidence to the contrary. Mr Patel directs me to the contents of some of the evidence in the dossier. It includes evidence that in 1998 the claimant knifed a prison officer, for which he was sentenced; that in 1989 he uttered threats to take somebody hostage; that in 1993 the Governor reported the claimant to be "menacing at times"; that in 1996 he smashed up a cell; that in 2005 he was placed on segregation for failing to go on labour; that since January 2006 he has been the subject of ten adjudications (seven for possession of drugs and one for damaging property); and that as recently as May 2006 he had uttered threats to staff.