England and Wales High Court (Administrative Court) Decisions

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

		Leeds Combined Court Centre 1 Oxford Row, Leeds LS1 2BG
		8 October 2010

His Honour Judge Langan QC:

Introduction

1. The claimant is held in HM Prison Wayland as a prisoner in Category C. The defendant is The Parole Board ('the Board'). By the claim form, which was issued on 10 June 2010, the claimant challenges the decision of the defendant dated 16 March 2010 not to recategorise him downwards to Category D. Permission to apply for judicial review of the decision was granted by His Honour Judge Grenfell on a renewed oral application on 10 September 2010. That permission was granted on a single, narrow ground, which related essentially to the reliance by the defendant on the evidence given by a particular witness. The submissions which have been made before me on behalf of the claimant have not strayed beyond the boundaries set by Judge Grenfell: indeed, if anything, the focus of the case as presented orally has been narrowed.
2. Mr Elliott appeared for the claimant. The Board was represented by Mr Evans. I am grateful to both counsel for their helpful submissions.

Narrative

3. The claimant was born on 2 July 1971. Prior to the commission of the offence for which he was most recently sentenced, he had been before the courts on a number of occasions. The common thread of his offending was that offences were committed when he was under the influence of alcohol, but none had been deemed serious enough to warrant a custodial sentence.
4. On 11 September 2007 the claimant, when heavily under the influence of alcohol, attacked his mother with a knife in the family home. She was slashed some 3 or 4 times, but managed to dial 999. When the police arrived the claimant was standing outside the home. He was arrested, charged with an offence under section 18 of the Offences against the Person Act 1861, and held in custody pending trial.
5. The claimant came up for trial at Harrow Crown Court. He accepted that he had attacked his mother and offered a plea to the lesser offence under section 20 of the 1861 Act. This was not acceptable to the prosecution, so the case effectively went to trial on the question of intent and the claimant was convicted of the section 18 offence on 15 April 2008.
6. There were included in the material which eventually came before the Board a psychiatric report and a pre-sentence report which were prepared for the Crown Court.
7. The psychiatric report was prepared by Dr Crystal Romily, a consultant forensic psychiatrist, following a 90 minute interview with the claimant on 31 March 2008. The claimant was at the time remanded in custody at HM Prison Wormwood Scrubs. The tenor of the report may accurately be gleaned from the following passage:

5. Mr Jones has anxious/avoidance personality traits and possibly some degree of social phobia; but it is difficult in the face of such heavy and chronic alcohol use to say anything definitive about his personality or other conditions. He describes himself as depressed but this is often a consequence of alcohol abuse and the secondary problems it brings.

6. Clearly the risk he poses to others if he resumes drinking is high. He has assaulted his mother numerous times, as well as having assaulted his uncle and a health professional who was visiting his uncle. These assaults have always taken place while he has been under the influence of alcohol.

8. The pre-sentence report was written by Mr Mark Tuvey, probation officer. His opinion was the same as that of Dr Romilly. He considered that there was "no doubt that, should Mr Jones continue to drink to excess, the risk of harm to both the public and his mother in particular will be high."
9. On 13 May 2008 the claimant received an indeterminate sentence for public protection. The judge specified 4 years as the determinate sentence which he would otherwise have passed; and, after taking time spent in custody into account, specified 1 year and 122 days as the minimum period which must elapse before release could be considered by the Board. This produced a tariff expiry date of 13 September 2009. It is apparent from the judge's sentencing remarks that he accepted the views which had been expressed by the professionals as to alcohol lying at the root of the claimant's offending.
10. The claimant was transferred from Wormwood Scrubs to Wayland on 4 July 2008. He has at all material times been a Category C prisoner.
11. In April 2009 the case was referred to the Board by the Secretary of State for Justice for consideration whether it would be appropriate to consider the release of the claimant.
12. The OASys assessment was completed on 21 May 2009. The claimant's risk of reconviction was rated as medium, his OASys score being 84 out of 168 (with a score of 5 points for alcohol misuse).
13. The Offender Manager Report was written by Mr Tuvey, who visited Wayland in order to interview the claimant. The Report is dated 17 July 2009. Mr Tuvey recorded that the claimant had attended a number of courses whilst in custody, including ETS (Enhanced Thinking Skills), Alcohol Awareness, and COVAID (Control of Violence for Angry Impulsive Drinkers Programme). The claimant had been assessed for P-ASRO (the Prison-Addressing Substance Related Offences Programme), but had been deemed unsuitable. As appears elsewhere in the papers, the unsuitability did not flow from anything to the claimant's discredit: it was simply that the claimant's offending had not been drug-related. Mr Tuvey said that the claimant had behaved well in prison, had received only one adjudication, and was an enhanced prisoner. Mr Tuvey's recommendation was in the following terms:

Mr Jones has been described by prison officers as a polite and well mannered individual who gives no cause for concern. In fact whenever I have spoken to Mr Jones I am left with the same impression of him. However, whilst in custody he does not have the same temptations as he would in the community especially around alcohol.

Mr Jones is the first to admit that alcohol turns him into a violent and aggressive individual. He told me that he will abstain from alcohol in the future as he is fully aware of the risks connected to alcohol abuse. My assessment is that prior to any release from custody, Mr Jones should first be tested in open conditions, where the temptation of alcohol will be more available.

14. The Offender Supervisor Report was written by Ms Nadine Gibbons, probation officer, on 5 August 2009 and was counter-signed by Mr Dan Roper, senior probation officer, on 17 August 2009. The writer expressed a concern that the claimant still had some way to go to understanding his motivation to commits acts of aggression and violence. He tended to blame alcohol, but had not "explored his underlying attitudes and beliefs." His commitment to remaining alcohol free in the future

will need to be tested in less secure conditions under greater pressure and with increased temptation before he can clearly demonstrate his commitment to abstinence.

The writer said that she had encouraged the claimant to apply for the RAPt (Rehabilitation for Addicted Prisoners Trust) course, which could be completed in 3 to 6 months, after which "further recommendations to a transfer to open conditions could be considered." The claimant's view was, however, that he had done sufficient work to address his alcohol problem.

The hearing before the Board

15. The hearing took place before a panel of three members on 8 March 2010. The claimant was represented by his solicitor. Unfortunately, neither the Offender Manager nor either of the persons concerned in the preparation of the Offender Supervisor Report was present. Instead, evidence was given by Ms Jeffcott, a senior probation officer who attended in place of the Offender Manager, and Mr Young, the newly appointed Offender Supervisor. The claimant also gave evidence.
16. It must have been plain from the outset of the hearing that, on the basis of the material to which I have already referred, the question of release was a non-runner. Although release remained formally in issue, the question on which the Board had to concentrate was whether the claimant should be moved from Category C to Category D.
17. On the question of recategorisation, Mr Young declined to express a view, giving as his reason that he had no personal knowledge of the claimant.
18. Ms Jeffcott was not so reticent. Although she had not met the claimant, she expressed a firm view as to what the outcome should be. Her evidence is summarised in this way in the decision of the Board:

Ms Jeffcott's evidence was that you should remain in closed conditions. She expressed her concerns that if you were at this stage moved to open you would quickly fail and be returned to closed. She considered that you should be reassessed to see whether you are suitable to undertake the P-ASRO and/or RAPt courses. She stated that your alcohol problem is both longstanding and serious and that she did not understand the reasons for your violence. She stated that you attribute your use of violence to alcohol, but failed to appreciate that alcohol was only the disinhibitor and not the cause of the violence. She considered the work that you have undertaken was not of a sufficient depth and she was not confident that you have internalised change or gained insight into the reasons for your violence.

She stated that it was difficult to state what your risk factors were until you had undertaken more work. She referred to a psychiatric report that had been commissioned at the time you were sentenced that offered a diagnosis of alcohol dependence syndrome and stated that it was difficult to know whether you had any personality issues because of the masking effect of the alcohol problems.

Ms Jeffcott's evidence was in stark contrast to the general tenor of the written reports and the panel was extremely concerned that you would have been unaware of the nature of her evidence prior to the hearing and would not be in a position to rebut the concerns she had expressed.

19. As will be apparent from what I have said earlier, Ms Jeffcott was mistaken about P-ASRO. She was also mistaken about RAPt. By the date of the hearing the claimant had either been assessed for or had undertaken the RAPt course: in any event, the outcome was that no further alcohol-related work was deemed necessary. The advocate representing the Secretary of State drew these errors to the attention of the panel.
20. The panel was plainly impressed by Ms Jeffcott's evidence, so much so that, of its own motion, it offered the claimant an adjournment so that he could deal with that evidence. After a consultation between the claimant and his solicitor, the solicitor stated unequivocally that his client wished to proceed with the hearing. As Mr Elliott accepts, the effect of this was to deprive the claimant of any case which he might otherwise have been able to raise on the basis of procedural unfairness.

The decision of the Board

21. The Board gave its decision in writing on 16 March 2010. It expressed its conclusion in these terms:

The panel is satisfied that it would be imprudent to ignore the cogent evidence from Ms Jeffcott that there has been an insufficient analysis of your risk factors and, in consequence, it is unclear as to whether you have undertaken the appropriate work to address them. Although alcohol is an obvious and significant factor, the panel is satisfied that it does not account for the totality of your offending and that there remain some unanswered^[1] questions.

In the circumstances, the panel concluded that you continue to pose an unacceptably high risk of committing an offence that could cause serious harm and that the level of this is such that it could not be managed safely in the community. The panel considered whether it would be appropriate to recommend that you should be transferred to open conditions. It was satisfied that as you have not fully addressed your risk factors a transfer to open conditions would be premature.

The next p

anel would benefit from a full psychological assessment.

Discussion

22. Mr Elliott says that the decision of the Board is perverse and irrational. Mr Evans submits that the hurdle which has to be surmounted by a party who asserts perversity and irrationality is a high one, which is a proposition from which Mr Elliott does not dissent. Mr Evans goes on, however, to take issue with Mr Elliott's analysis of the decision and says, in effect, that the claimant is attempting to mount what is in reality an appeal on the merits under the cloak of judicial review.
23. As I indicated at the beginning of this judgment, the focus of the case has progressively narrowed. This meant that the oral submissions of counsel were brief, and it is similarly possible for me to deal with those submissions shortly.
24. Mr Elliott's submissions on perversity and or irrationality are concentrated on what are said to be two flaws in the decision and the evidence on which it rested: the Board's undue reliance upon, indeed the wholesale uncritical swallowing of, Ms Jeffcott's testimony, which contained a serious error of fact; and the illogicality of her opinion.
25. It must be accepted that Ms Jeffcott's evidence was indeed infected by a factual error, namely, that the claimant would benefit from two specified courses, when in regard to one, he had been assessed as not requiring it; and as regards the other, he had either been so assessed or had undertaken the course. But, given that the error was very properly corrected by the representative of the Secretary of State, there is no reason to conclude that the Board proceeded on the basis that attendance on these course was still required. The question then becomes whether the error is to be regarded as the foundation, or principal foundation, for the opinion of Ms Jeffcott, in which case the Board could legitimately be criticised for acting upon that opinion.
26. In my judgment, one cannot regard the error as the foundation or principal foundation for the opinion expressed by Ms Jeffcott. As Mr Evans pointed out, Ms Jeffcott had an evidential platform for her view that alcohol on its own was not the only problem, or risk factor, which the claimant needed to address. That platform is to be found in the reports of Dr Romilly and of the Offender Supervisor to which I have already referred.
27. Even if one were to disregard Ms Jeffcott's evidence, the Board's decision would not be susceptible to a successful challenge. It is not suggested that the Board failed to consider the whole of the material in the dossier. Indeed, it expressly recorded in the decision that it had done so. Some of that material, particularly the Offender Supervisor Report, and a cautious approach (which must be the right approach) to moving to open conditions a prisoner who is still regarded as a medium risk and who may well have unresolved issues, combine, in my judgment, to provide ample justification for the decision.
28. The illogicality argument is a short one. It is along these lines: this man offended and thereafter continued to present a risk because he had an alcohol problem, alcohol has been taken out of the equation, and so the risk has gone or substantially gone. It seems to me that this is far too simplistic an approach. If one takes a holistic view of the case, it is apparent that there was a reasonably held view that alcohol did not tell the whole story. It was not illogical on the part of Ms Jeffcott to adopt that view, nor on the part of the Board to act upon it.

Disposal

29. It follows from what I have said that the claim must be dismissed.

Footnote

30. Although I have dismissed the claim, I have some sympathy for the claimant, given these matters: (1) he is well past his tariff expiry date, (2) his behaviour in prison has been excellent and he has done his best to go on the courses (some of which I have not mentioned in this judgment) which have been available to him, and (3) the written material before the Board was stale in the context of a relatively short sentence. I express the hope that his next review will be conducted (1) as helpfully suggested by the Board, with a psychological (or psychiatric) assessment, and (2) with a much shorter interval between completion of the dossier and the hearing.

Note 1   The text in fact reads ‘answered’, but everyone accepts that this is a typographical error.    [Back]