CO/6718/2007
Neutral Citation Number: [2008] EWHC 3192 (Admin)

IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE  COURT

Royal Courts of Justice
The Strand
London
WC2A 2LL

Tuesday  9  December  2008

B e f o r e:

MR  JUSTICE  PLENDER
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The Queen
on the application of

ANTHONY  HARLOW
	Claimant
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	THE  PAROLE  BOARD  FOR  ENGLAND  AND  WALES
	Defendant

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Ms F Krause (instructed by A S Law, Liverpool)
appeared on behalf of The Claimant

Mr P Patel (instructed by the Treasury Solicitor)
appeared on behalf of The Defendant
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J U D G M E N T
Tuesday  9  December  2008

MR JUSTICE PLENDER:  
1.  This is an application for judicial review.  I have to determine first a procedural issue and then a more substantive one relating to the continued detention of the claimant, Anthony Harlow.  

2.  The application is made for judicial review of a decision of the Parole Board dated 4 May 2007.  By an addendum to that application, counsel for the claimant, Ms Krause, seeks to add an argument based on Article 5(4) of the European Convention on Human Rights.  Mr Patel for the Parole Board objects to this proposed amendment of the grounds for seeking judicial review.  He submits that the written statement in support of the addendum, and the addendum itself, came to the attention of the Parole Board only on 2 December 2008 (less than one week ago).  It contains, says Mr Patel, serious allegations that need to be investigated.  Some of the allegations made in the witness statement clearly do not engage the responsibility of the Parole Board.  If there is to be delay after March 2009, the present case cannot proceed.

3.  In response to this objection, Ms Krause submits that it is a rule of discretion rather than law which would prevent the claims for both a declaration and damages continuing at this stage.

4.  I am impressed by the point made by Mr Patel that the witness statement and addendum coming so recently to the attention of the Parole Board placed the Parole Board under a disadvantage to which it ought not to be placed in judicial review proceedings.  It is true that by Rule 54 of the Civil Procedure Rules applications must be made as soon as possible.  Nevertheless, they are to be made in the form specified in Rule 54 which is designed to give to the defendant an opportunity properly to present his case.  Where less than one week's notice is given of an addendum which raises a point under Article 5(4) of the Convention, as distinct from the point raised under Article 5(1)(a), it is not consistent with the interests of justice that the hearing should proceed and the Parole Board be placed at that disadvantage.  Accordingly, I do not give permission for the proposed amendment to be made and to be considered by me at this hearing.  I therefore consider the case made on behalf of the claimant as it was expressed on the basis of Article 5(1)(a) of the Convention.

5.  This case is an unusual one and in many respects a regrettable one.  In 1986 the claimant was sentenced to four discretionary life sentences for unlawful possession of a firearm.  The facts were that he discharged a firearm on four occasions, although on none of those occasions was harm caused to any individual.  On one occasion he discharged the firearm in the direction of a man standing at his front door; on two occasions into the home of a woman with whom he appears to have had a grudge; and once into a public house.  Sentencing him, the judge made the following prescient comments.  He said that he proposed to sentence him to life imprisonment and added:

		"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."

6.  The regime and purpose of life imprisonment is precisely as the judge put it: so that the length of sentence is kept continually under review and the offender is released as soon as it is judged safe that he shall be. 

7.  The three-and-a half year tariff to which the claimant was sentenced expired in 1989.  We are now 19 years past the end of the tariff.  In such cases there applies the principle expressed in Regina (Walker) v Secretary of State for Justice; (Parole Board intervening) [2008] 1 WLR 1977 as follows:

		"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 ....'"

8.  In the light of that language it is not surprising that, when considering the case of the claimant, the Parole Board concentrated upon the question of whether there was sufficient evidence of a reduced level of risk such that the claimant could be safely managed other than in closed conditions.  Having considered the claimant's case most recently on 4 May 2007, the Parole Board came to the conclusion that there was insufficient evidence that the risk presented by the claimant had reduced to such a level that he could be safely managed in closed conditions.  

9.  That language gave Ms Krause the opportunity to present, as she did forcefully, the submission that the Board had concentrated on the wrong issue (or at least an issue different from that which I would have to consider).  The Board concentrated on the evidence that was lacking, that is to say an absence of evidence of a significant risk of violence reducing.  It did not concentrate on the current evidence of danger.  Ms Krause referred me to Regina (Jeffrey Lee and Nicholas Wells) v Secretary of State for Justice [2008] EWHC 2326 (Admin), where Moses LJ said:

		"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.

10.  In the light of this material it appears to me plain that the Parole Board, had it chosen to do so, could have expressed its decision letter not in terms of a double negative, but in terms of a positive.  It could have said that, having reviewed the evidence before it, it was satisfied that the claimant presented a continuing danger.  The Parole Board expressed its conclusion more guardedly.  It had regard to the evidence of danger constituted by the claimant, for which he was subject to four terms of three-and-a-half years' imprisonment, and to the absence of evidence of a reduction of violence.  In short, there was an absence of just the kind of evidence which is contemplated in paragraph 10 of the judgment in Walker which I quoted earlier in this judgment.

11.  It cannot be anything other than a source of disquiet and regret that the claimant, who could have been released from prison 18 years ago, continues to be detained on the basis of an assessment that he presented a risk and has so conducted himself in the last 18 years that the Parole Board is unable to conclude that it is no longer necessary for the protection of the public to confine him.  The good wishes expressed to him by the sentencing judge have not been reciprocated by the claimant, whose continued detention appears to be the consequence of a persistent, if not a chronic, inability to manage his life in the specific manner which would undoubtedly result in his release.  The fact that on three occasions he has absconded from prison is not a basis in itself for concluding that he presents a danger to the public, still less that his release would present a threat to life and limb.  What is conspicuous in the decision of the Parole Board is that they do not rely on his absconding as a reason for detaining him.  The test remains of the determination of the existence or otherwise of a threat to life and limb, not a nuisance or even the commission of minor offences by the claimant in the future.

12.  For these reasons I refuse the present application for judicial review.  I do so upon the ground that it would not be right in the exercise of my discretion to allow the claim for judicial review to proceed on the basis that the letter of 4 May 2007 was infelicitously expressed, even if I were to conclude that this is the case.  The catalogue of events of violence disclosed by the dossier and drawn to my attention by Mr Patel is amply sufficient to show that the Parole Board acted within the bounds open to it in concluding that the claimant had failed to show that his release could have been achieved without exposing the public to the risk of life and limb -- in other words, serious violence at his hands.

13.  I am conscious that this decision will not fail to cause further disappointment to the claimant.  I am reassured by the news conveyed by Mr Patel that the next hearing before the Parole Board will follow some time after March 2009.  There must be periodic reviews of this case, which will continue to be troubling for so long as the claimant's behaviour is also troubling.

14.  MS KRAUSE:  My Lord, there is an application for detailed assessment of the claimant's community costs?

15.  MR JUSTICE PLENDER:  Mr Patel, there is no objection to that, I presume?

16.  MR PATEL:  No, I have no objection to that.  The appropriate order would be no order as to costs. 

17.  MR JUSTICE PLENDER:  The claimant will have his detailed assessment, and there will be no order for costs against the Parole Board.