England and Wales High Court (Administrative Court) Decisions

IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT sitting at Birmingham Civil Justice Centre

		Dates of hearing: 7 and 9 September 2009 Date of draft judgment: 21 September 2009
		Date Of Judgment: 30 September 2009

1. The claimant, Mr Woods, is now aged 19. He was convicted of robbery and section 20 wounding /causing gbh and on 19 June 2006 was sentenced to 12 months and 18 months imprisonment, respectively, to be served consecutively, a total of 30 months. The court also imposed an extended sentence of three years. The circumstances of the wounding offence involved an unprovoked group attack on an individual, who had been held and repeatedly punched in the head and kicked. The robbery involved taking a mobile phone, cigarettes and a lighter from a victim, and was committed with a co-defendant who punched a victim in the face.
2. The claimant was not recommended for release at the halfway point of his sentence. He was released on 10 June 2008 at the end of the 30-month term and remained subject to the extended sentence.
3. On 11 September 2008 the claimant was sentenced to 6 weeks in custody for an offence of vehicle interference. On 15 September 2008, the Secretary of State for Justice (the first defendant) revoked the claimant's licence and ordered his recall to prison, where the claimant remains.
4. The Parole Board (the second defendant, referred to as PB) reviewed the claimant's detention, on papers, on 9 October 2008 and 18 March 2009. On neither occasion did it recommend the claimant's release. The claimant sought an oral hearing before the PB. That request was granted on 10 December 2008, and the hearing has been set down for 21 October 2009.
5. On 29 July 2009 the claimant issued these proceedings. On 13 August 2009, His Honour Judge McKenna granted permission for judicial review.
6. By letter dated 14 August 2009, the first defendant wrote as follows:

"The first defendant accepts that the reasons given for recalling the claimant to custody did not meet the requirements set out in the judgement of R (Sim) v Parole Board [2003] EWHC 152 Admin Accordingly, the first defendant invites the court to grant permission and to quash the decision of the first defendant to recall the claimant to custody."

7. The PB, however, still resists the claimant's application and maintains that the claimant should remain in prison pending its review and recommendation.
8. The claimant's application was listed for hearing on 7 September 2009. Only the claimant attended that day. I dealt with the matter but, before the order I was minded to make had been sealed, it became apparent that the PB had been told that the hearing had been listed for the following day. The matter came back before the court on 9 September. The first defendant did not attend either hearing. Both the claimant and the PB were represented on 9 September. At that hearing, the claimant and the PB both agreed that the court should treat the hearing on 9 September as a continuation of the hearing begun on 7 September and that neither party would take any point regarding the order which had been typed, but not sealed, following the first part of the hearing.

Delay in commencing proceedings

9. The claimant challenges the first defendant's revocation decision of 15 September 2008, and the PB's decisions dated 9 October 2008 and 18 March 2009. The application for judicial review was issued on 29 July 2009. The claimant has sought an extension of time for bringing these proceedings. The first defendant has not taken any point as to delay in commencing proceedings.
10. The PB does take the point, maintaining that the application has been made substantially out of time in relation to the first PB decision, and out of time in relation to its second decision. It is only in exceptional circumstances that the court should allow a claimant is to bring proceedings out of time. No explanation for the delay has been given, although the claimant has been represented by solicitors.
11. The first PB decision has, in effect, been overtaken by the second decision rendering the first decision somewhat academic. The claimant issued these proceedings just over four months after the date of the second decision, so that delay is slight. In my judgment, the question whether a person is unlawfully detained is so serious as to constitute exceptional circumstances. The prejudice to the PB is minor in comparison. In my judgment, the claimant's delay in commencing these proceedings should not prevent his seeking relief.

The key issue

12. The claimant is thus in the position where the first defendant accepts that he should not have been re-detained but the PB denies that his continued detention is unlawful.
13. The claimant's case is that, as his recall and re-detention were unlawful, then so are the subsequent decisions of the PB. He contends that the recall was unlawful, not only because of deficiency in procedure but also as a substantive question, ie that the proper and relevant test for recall had not been met on the evidence.
14. Mr Manknell, for the PB, has addressed the issue as follows, namely: in circumstances where the recall by the first defendant was erroneous, whether, the PB's duty is to release such a prisoner due to the error in the recall, or whether the PB has to make a decision as to whether to recommend release, based on all the circumstances. He relies particularly on the Court of Appeal decision in R (Gulliver) v The Parole Board [2007] EWCA Civ 1386. The issue should more precisely be stated as whether, given that the first defendant's decision to recall the claimant must be quashed; the PB is nevertheless required to consider whether to recommend the claimant's release. That is, is the detention lawful notwithstanding the unlawfulness of the recall decision?
15. The PB makes no submissions as to whether the decision to recall the claimant was correct or otherwise. It does, however, submit that the first defendant's letter goes too far in suggesting that the appropriate remedy is to quash the recall order; to do so in the circumstances here would be contrary to principles in established case law. The PB's case is that the correctness, or otherwise, of the first defendant's decision to recall the claimant cannot affect the nature of the decision which the PB must take in relation to release.

The legal framework

16. Section 255A of the Criminal Justice Act 2003 applies for the purpose of identifying which of sections 255B to 255D governs the further release of various categories of prisoner recalled under section 254. The claimant is an extended-sentence prisoner and so must be dealt with in accordance with section 255D. Section 255D(1) provides that the Secretary of State must refer the case of any such prisoner to the PB.
17. In Sim the court held that, when a prisoner was recalled to prison during an extension period, article 5(4) required his detention to be supervised by a judicial body. The Parole Board was required to direct release of such an offender unless it was positively satisfied that it was necessary for the protection of the public that he be confined. At paragraph 21, Elias J referred to principles derived from R (Giles) v Parole Board [2004] 1 AC 1 including: "(1) Nobody should be subject to arbitrary or disproportionate punishment; this requires that the re-detention following an earlier release from custody should be not only in accordance with domestic law but should also, to use the language adopted in Weeks … 'result from', 'follow and depend upon' or occur 'by virtue of the conviction'. In short, there must be a sufficient causal connection between the conviction and the deprivation of liberty in issue."
18. At paragraph 24, Elias J noted the principle that "any period of detention served once the minimum tariff period has been served should be designed to achieve the original objectives for which the sentence was imposed, and that there should be periodic reviews in accordance with article 5 (4) to ensure the continuing legality of the detention." In paragraph 35, he referred to paragraph 52 of Weeks, in connection with article 5(1)(a) : "The causal link required by subparagraph (a) might eventually be broken if a position were reached in which a decision not to release or re-detain was based on grounds that were inconsistent with the objectives of the sentencing court. In those circumstances, a detention that was lawful at the outset would be transformed into a deprivation of liberty that was arbitrary and, hence, incompatible with article 5."
19. In Gulliver the court considered the position of a prisoner who had been recalled to prison for an alleged breach of the conditions of his licence after he had been released on licence, and where the Parole Board had not directed his re-release from prison. The question for the court was what was the nature of the responsibility of the Parole Board, when considering whether to order the immediate release of a prisoner under section 254 (4) of the 2003 Act. In that case Sir Igor Judge, made more general observations. At paragraph 43, he noted that the Parole Board examined the material available to the Secretary of State when deciding to recall a prisoner, and said:

"The effect of this process is that the Parole Board exercises a degree of supervisory responsibility over the Secretary of State's decision and the process which led to it. Nevertheless, whatever its view of that decision, or the circumstances in which it was reached, it is with public safety in mind that the Parole Board must address and decide whether to recommend the release of the prisoner. It is not divested of that responsibility merely because of reservations about the original decision by the Secretary of State. At paragraph 44, he said: "The supervisory responsibility provides a valuable check on the original decision-making process. The recall order is examined by an independent body, the Parole Board. This provides a discouragement for the slovenly or the cavalier or the corrupt. It may very well be that in such cases, if they arise, the very fact that the process has been so characterised may lead the Parole Board to conclude that the risk to public safety is not established. Nevertheless, in the end the decision required of the Parole Board must depend on its assessment of public safety. I doubt whether it is possible to envisage any circumstances in which the Parole Board can recommend release, where it would otherwise refuse to recommend release on public safety grounds, merely because of deficiencies in the revocation and recall process" (the emphasis is mine.) In paragraph 45, he said "There may, of course, be exceptional cases where the revocation decision process is so subverted that the prisoner may seek a different or separate remedy, by way of judicial review or, indeed, habeas corpus. In such cases the court may be satisfied that the Parole Board may not be able to provide an adequate or sufficient remedy. If so, it will deal with the application accordingly. "

Discussion

20. The first defendant has chosen not to contest the proceedings and has invited the court to dispose of the claim against him on the basis set out in the letter to which I have referred. The PB seeks to persuade me that, notwithstanding the clear statement by the first defendant that it accepts that the decision to recall be quashed, the court should not make such a declaration, but should simply record that the recall decision was unlawful. It seems to me that the first defendant made his position clear, and must be taken to have understood the consequences of taking that position. The claimant is in my judgment entitled to a declaration that the recall decision be quashed, as the first defendant has accepted. The PB's concern in this regard highlights the key issue: the first defendant accepts that the decision be quashed yet the PB's case remains that the claimant should nevertheless remain in prison pending its review and recommendation.
21. It is clear from Sim that a distinction must be drawn between the punishment part of a sentence and the licence period beyond that element. Detention during the licence period will be lawful only if there is sufficient causal connection between the basis of the continuing detention and the purpose of the licence beyond the punitive part. Here, the extended licence was imposed to protect the public against serious harm being occasioned by the claimant by the commission of further violent offences. The revocation of the claimant's licence was based on the commission of a further offence, but one of dishonesty. There is no suggestion that there was, within that offending, a risk of serious harm from violent offending. It follows that the recall was not lawful and, as the first defendant has acknowledged, the recall decision must be quashed.
22. Section 255D(1) requires the first defendant to refer to the PB any prisoner who has been recalled. On a simplistic view, the right and duty of the PB to deal with such a prisoner pursuant to that section must be predicated on the assumption that such a prisoner has been lawfully recalled. So, it would follow that, if the recall was unlawful, then what followed was a nullity and the PB would have no standing to deal with the claimant, with the consequence that the subsequent decisions of the PB would themselves be unlawful.
23. Is that approach valid in the light of Gulliver? There are differences between that case and this. A minor difference is that the court, there, was not dealing with an extended sentence prisoner. A more significant difference between Gulliver and the present case is that, in Gulliver, there had been no concession that the recall decision should be quashed. There had, thus, in that case been no question that the first step – ie the recall - had been unlawful.
24. However, the court did consider the point with which we are concerned here. In paragraph 37 Sir Anthony Clarke MR referred to Richards J's judgment in Jackson in which Richards J had noted that it had, in that case, been common ground that, if the decision to recall was unlawful, then the claimant's imprisonment was unlawful from the date of the unlawful decision. Sir Anthony Clarke said that he considered that that concession had gone too far.
25. I also bear carefully in mind the judgment of Sir Igor Judge, which I have quoted above, and in particular where he expressed doubt that it was possible to envisage any circumstances where the Parole Board could recommend release, where it would otherwise refuse to do so, merely because of deficiencies in the revocation and recall process.
26. Gulliver gives firm guidance for the approach to be adopted given the circumstances in this case ie where there are deficiencies in the recall decision. In the light of that guidance, I must conclude that, even though the recall decision must be quashed, the PB nevertheless have the standing to deal with the claimant.

Supervening event?

27. As an alternative to his primary case, the claimant contends that the PB failed to take the correct approach when dealing with his case. He accepts the PB's proposition that, where a prisoner is recalled in error, but a supervening event makes it such that he represents a danger to the public, it cannot be right that the PB is under a duty to release him. There must be evidence in the intervening period that can reasonably form the conclusion that there is a real risk of serious harm by violent offending since the recall. There must be a relevant risk, not just a general risk. The claimant's case is that, here, there is no proper basis to say that there has been any change in circumstances. The PB's decisions do not point to any such change. The PB has analysed the case on the basis of a "static picture".
28. In its first decision dated December 2008, the PB set out the history and background, noting that the claimant had a number of previous convictions for offences including arson, assault occasioning actual bodily harm, robbery and vehicle interference. The report noted:

"OGRS indicates a 65% likelihood of reconviction within 12 months of release and 79% within 24 months. OASys is cited as indicating a medium risk of reconviction and a medium risk of harm.

The risk management plan focuses on substance misuse support, with a referral for education training and employment assistance. The supervising officer expresses concern about the proposed release address, on the basis that its location is in an area where Mr Woods would be surrounded by his pro-criminal peers and where he has in the past committed offences.

The assumption is that the [PB] will seek to re-release in all instances where it is satisfied that the risk can be managed. Having carefully considered all of the available information the panel was not so satisfied and it made no recommendation as to release."

29. In its report dated 18 March 2009, the second defendant again made no recommendation as to release. That report stated:

"Assessed since recall as presenting a high risk of reconviction and medium risk of harm, the OGRS 3 score suggests a 65% risk of general re-offending within one year. There is a raised risk of violent re-offending and he would be managed at MAPPA level 1in the community.

The case has come before a fresh panel for consideration. The panel had sight of a court result indicating that in October 2008 Mr Woods received a two-month sentence relating to the new charge against him. It also noted an updated risk management plan suggesting that Mr Woods has further work to undertake in prison linked to cognitive behavioural work and liaison with CARATs. However, the supervising officer indicated that some of this work could be undertaken in the community and in her view risk was now manageable in the community. He would reside at his parents' address. The panel noted that this location is close to previous acquaintances.

The panel also read with care a recall update report from the seconded probation officer at HMYOI Stoke Heath. Mr Woods is on the basic level of IEP due to some behavioural problems and he has accrued one adjudication, as recently as February 2009, for disobeying an order. The panel also noted security concerns and remarked that a risk-to-children assessment had been completed. In relation to other progress in custody since recall, Mr Woods has not been eligible to commence ETS but has completed some 1-1 sessions in relation to the substance misuse. Reports indicate his motivation is questionable, a view shared by the CARAT team, his counsellor but not by Mr Woods himself. The seconded probation officer does not offer a recommendation for release but outlines the disparity in views over engagement and motivation.

The panel read with care written representations from Mr Woods and the letters from various staff working with Mr Woods.

In reaching its decision the panel took account of the high risk of reconviction, the previous convictions and recent re-offending. It was concerned at the poor behaviour in custody and queried whether Mr Woods had gained the necessary skills and strategies to enable him to lead a law-abiding life. It was not convinced that release plans were yet sufficiently developed to assess him in his motivation to remain offence free. It therefore made no recommendation as to release."

30. In my judgment, the reports indicate that the PB properly took into account all the relevant considerations including the claimant's poor behaviour in prison, and the risk of future violent offending behaviour. The PB's approach was not simply to consider whether the risk of re-offending in general was unacceptable, as the claimant contends. The PB could reasonably conclude that there was a risk that the claimant would cause serious harm if released.

Procedural impropriety and delay

31. The claimant says that he had no knowledge of the PB's review carried out in March 2009, and contends that he thus had no opportunity to put forward representations to the panel making the decision. (There must be some doubt as to the accuracy of that assertion, given the statement in the report itself that the panel had considered the claimant's representations.) The claimant also complains that the PB appear to have relied upon matters (e.g. security information, prison adjudications and a risk-to-children assessment) although none of these had been disclosed to him; that made the deprivation of an opportunity to make representations even more serious.
32. I accept that the PB has a burdensome case load and that all prisoners have the same right to challenge their decisions. Their duties must be balanced against the claimant's rights. In my judgment there has been no breach of the claimant's Article 5 rights. He has had the benefit of two reviews of his case; there has not been culpable delay in dealing with those reviews. It appears that he has had an opportunity to make representations. He has been granted an oral hearing at the end of October, at which he will have the opportunity to put his case to the PB.

Conclusion

33. The claimant is entitled to a declaration that the decision to recall the claimant to prison be quashed.
34. The continued detention of the claimant nevertheless remains lawful as a result of the operation of section 255D. The claimant's claim for judicial review of the PB's decisions fails.
35. The claimant's Article 5(4) rights have not been breached.