England and Wales High Court (Administrative Court) Decisions

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

		The Court House 1 Oxford Row Leeds LS1 3BG
		29 October 2010

JUDGE LANGAN

Introduction

1. The claimant is a serving prisoner and was at the time of the decision which is the subject of these proceedings held in Category C. He had been sentenced to imprisonment for public protection ('IPP') and was past his tariff expiry date. The defendant ('the Board') refused to direct that the claimant be released on licence, although it did recommend that he be transferred to an open prison. The claimant challenges the decision as to release on licence as (1) erroneous in law; (2) unsupported by sufficient reasons; (3) irrational; (4) resting on inadequate information, so that the hearing before the Board should have been adjourned; and (5) contrary to article 5(4) of the European Convention on Human Rights.

Narrative

2. The claimant was born on 10 July 1967 and is therefore 43 years old.
3. Prior to his receiving the IPP sentence, the claimant had been before the courts on two occasions. His first conviction was in 2002 for common assault committed against his first wife. The second conviction was in May 2005 for intimidating a witness in relation to investigations into the offences for which his now in prison
4. Those offences were committed in April 2005. The claimant was at the time estranged from his second wife. He entered her house surreptitiously whilst she was letting her cat out. When she returned, he grabbed her, put his hand over her mouth, pulled her jeans down and attempted to penetrate her anally. He was unsuccessful, but he then forced her upstairs to her bedroom where he raped her vaginally.
5. The claimant contested the resulting charges of rape and attempted rape, but was convicted by majority verdicts at Bradford Crown Court on 21 September 2005. The judge imposed a sentence of IPP with a minimum term of 2 years and 226 days.
6. The minimum term expired on 5 May 2008.
7. The claimant had his first review by the Board on 22 May 2008. The panel observed that the claimant had made good progress in addressing his risk, but noted that the probation officers who had given evidence at the hearing had been of the view that further work needed to be done in closed conditions. They therefore declined either to direct release or to recommend transfer to an open prison.
8. The next review was set for 29 April 2010.
9. The written material which was available to the Board included reports from two probation officers, his Offender Manager (based in the prisoner's home area and his Offender Supervisor (based at the prison).
10. The claimant's Offender Manager is Mr Steve Hymas. His report was dated 8 July 2009. He recounted that the claimant had used his time in custody well and had completed many courses whilst in prison, including Enhanced Thinking Skills, the Sex Offender Treatment Programme, and the Healthy Relationships Programme. He had "an exemplary record" in prison, which included being the listener co-ordinator, wing representative and games representative. Mr Hymas was of the view that the claimant had "made every effort to address his offending and problem behaviour" and recommended his release on licence. He noted that the claimant was planning to live with his parents in Flamborough, but it was "anticipated that a period of resettlement into a probation approved premises will be restricted by a curfew and adherence to licence conditions monitored."
11. The claimant's Offender Supervisor is Mr Gary Moore. His report was dated 9 June 2009. He praised the claimant's conduct in prison, but his report was confused as to what should happen next, at one point recommending a transfer to open conditions, but later making a recommendation that the claimant should now be released.
12. At the hearing before the Board, evidence was given by Mr Moore, Mr Hymas and the claimant. The claimant was represented by his solicitor, Ms Katy Cowans.
13. According to the Board, Mr Moore "painted a glowing picture of [the claimant's] prison performance." He cleared up the ambiguity in his written report by stating that he thought that there was no further work which the claimant needed to complete and that it would be reasonable to release him. He did not think that either open conditions or approved premises were necessary.
14. Mr Hymas also said that there was no need for a hostel or open conditions. He regarded the claimant as "a high risk of serious harm, to known adults and he regarded [the claimant's] risks as to lie in a combination of alcohol use and problems in intimate relationships." Mr Hymas had not visited the parental home in Flamborough. Ms Cowans' recollection, which is not challenged on behalf of the Board, is that Mr Hymas confimed that the claimant could be released with a direction to reside as directed by his Offender Manager, that there were plenty of approved premises in and around Leeds (which is Mr Hymas's own probation area), and that two weeks at the most would be required to make arrangements.
15. Ms Cowans also recalls that in her closing speech she invited the Board "to consider making a general direction as to residence in the standard terms of a parole licence if they were not content to specify the parents' address on the evidence they had heard."
16. The decision of the Board was given in writing on 5 May 2010. The following passages from the decision are material for present purposes.

1. Decision of the panel:

The Parole Board is required to direct your release only if it is satisfied that it is no longer necessary for the protection of the public that you be confined. The panel of the Board that considered your case on 29 April 2010 was not so satisfied and has not directed your release. The panel was however able to conclude that you have completed all core risk reducing work which needs to take place in closed conditions and are now in need of testing and consolidation of the work in open conditions. The Panel recommends your transfer to open conditions…

6. Assessment of current risk of re-offending and serious harm:

An OASys assessment placed you at high risk of causing serious harm to known adults and in the low risk band for reconviction. OGRS considered you to pose a 13% risk of general offending within a year, and a 23% risk within two years. Risk Matrix 2000 indicated a medium risk of sexual or violent offending and a high risk of harm…

7. Plans to manage risk:

The risk management plan has not been fully formulated as the proposed release address has not been visited by probation and would require, in any case, a transfer to a new Offender Manager. Approved premises have not been identified and waiting lists are lengthy. It is unclear whether a risk assessment would merit a hostel placement.

8. Conclusion:

The panel was required to consider your release and to do so would have to conclude that all your core risks had been reduced to a risk less than minimal by work undertaken. If it did not conclude that that point had been reached it could consider whether the required work on risk reduction was completed to a level that left only testing and consolidation for completion in open conditions. It also needed to be clear about whether your risks could be managed in open conditions. The panel concluded that you had completed all core offending work on the sexual elements of your offending and the nature and origins of your offence through the Sex Offender Treatment Programme and the domestic violence element through successful completion of [the Healthy Relationships Programme]. The panel noted that there were uncertainties surrounding the proposed release plan to your parents' home which had not been assessed and had not contributed to risk reduction in the past. Thus your risk had not been reduced to a less than minimal level and release could not be directed. The panel felt that to return immediately to your parents' home which had been your retreat in times of stress in the past might prove less than helpful. It would be useful for the next panel to have a full risk analysis of the release address. There was no indication of any risk of abscond and the panel were happy to recommend a move to open conditions and hope that you can continue your exemplary progress through the rehabilitation and support available in Category D conditions.

17. The claim for judicial review was issued on 9 July 2010, Permission to proceed with the claim was granted by His Honour Judge Grenfell on the papers on 27 August 2010.

Discussion

Preliminary

18. I will deal in turn with each of the five grounds which were relied upon by Ms Stone on behalf of the claimant. Ground (5) was not relied upon in the claim as originally formulated, so that permission to add that ground is required. As the ground is closely linked to an existing ground, ground (4), and as the Board has had ample notice of the proposed introduction of the new ground, I grant permission.

Ground (1): error of law

19. By statute the Board may not direct the release of a prisoner serving an IPP sentence unless it "is satisfied that it is no longer necessary for the protection of the public that the prisoner should be confined."^[1]
20. Ms Stone's first submission was that, as is demonstrated by the use of the phrase "less than minimal" in relation to risk at two places in paragraph 8 of the decision, the Board was setting the bar to release at a level higher than was justified. The Board was applying a test which, in Ms Stone's words, "imposed an unreasonably high threshold for release which was extraneous to the statutory test and for which there is no warrant in the case law."
21. I do not regard this criticism as well-founded. The first two sentences of paragraph 1 of the decision constitute an assertion by the Board that it has in fact applied the statutory test and, unless something later in the decision clearly demonstrates that it has not done so, the case on error of law is not made out. In my judgment, the use of the phrase which is the subject of criticism is not such a clear demonstration. I accept that the words "less than minimal" are problematical. As a matter of analysis, the only risk that could be less than minimal would be a nil risk, if there is such a thing. But, as the trawl through the cases carried out by both Ms Stone and Mr Manknell showed (it is not a trawl which I propose to repeat), there is no particular formula which has to be used: and, as I have indicated, the formula in fact criticised does not appear to me to undermine the decision.
22. Mr Manknell said that Ms Stone's submission amounted to "playing with semantics." He perhaps put the matter rather more robustly than I would have expressed it: but in essence I agree with him.

Ground (2): inadequate reasons

23. In her oral submissions under this heading, Ms Stone began by raising two points. First, the Board had given no adequate explanation of its conclusion that the claimant required testing and consolidation in open conditions, and had not given any reason for rejecting the opinion of Mr Hymas and Mr Moore. Second, the Board had failed properly to carry out an exercise in which it balanced the risk to the public and the benefit to the claimant which would result from his being released into the community. On further reflection, Ms Stone accepted that she could not elevate the second point into an error of law on the basis of which the decision could be quashed. There remained, however, the first point.
24. The Board is under a duty to give reasons for its decisions.^[2] It is not, however,

required to address every matter which it considers provided it is clear that it addressed the substance of the issues required to be addressed in a particular case, and that its reasons demonstrate why early release has not been ordered, and are sufficient to demonstrate the lawfulness of the decision.^[3]

The Board does not have to "set out its thought processes in detail", nor does it have "to mention every factor" which has been taken into account.^[4]

25. What is required of the Board is, in my judgment, no more than this: that it should convey to the prisoner who is not going to be released on licence the reason why it has concluded that it cannot direct release. Provided that the 'why' is clearly expressed, the chain of reasoning which led to the conclusion need not be set out. The 'why' here is clearly expressed in paragraph 1 of the decision: that the claimant needed testing and consolidation in open conditions. That may or may not be rational, but rationality is a separate ground of challenge. What matters is that it is clear. There was, further, no need to set out as part of the reasons the basis on which the views of the witnesses were rejected. It is for the Board to form its own view, and it plainly thought that there was a continuing risk which outweighed the opinion expressed by Mr Hymas and Mr Moore.

Ground (3): irrationality

26. Ms Stone raises two points under this heading. First, the decision is said to be irrational because the conclusion that the claimant required testing and consolidation in open conditions was not based on anything which was contained in the evidence. Second, it was irrational to refuse to direct release to approved premises.
27. In my judgment, the first point is not made out. This was not a 'no risk' case, and – assuming that Ms Stone's second criticism were not in play –the Board was entitled to conclude on the whole of the material before it that to direct immediate release would be to take a step too far.
28. I have much greater anxiety about the second point, on which Ms Stone made commendably brief, but what were in my view powerful, submissions. On the findings of the Board, immediate release to the parental home was not possible, because the home conditions had not been investigated and because the Board had reservations that for the claimant to reside there might "prove less than helpful." There is, however, absent from the decision any proper consideration of the question whether such risks as the claimant continues to present could be managed in approved premises.
29. Mr Manknell answers this criticism by saying that it does not impugn the Board's primary conclusion about the need for testing and consolidation in open conditions. He also says that the Board's position was clarified in a way which disposes of the criticism in a letter of 25 May 2010. I have to say that whilst this letter does expand to a degree on the reasons given in the decision, it contains nothing which directly addresses the point now under consideration.
30. I accept that the irrationality hurdle is a high one but, notwithstanding this, I have come to the conclusion that Ms Stone's second point is a sound one. The Board in fact was mistaken as to the evidence that had been given. It is said in the decision that "approved premises have not been identified and waiting lists are lengthy." Mr Hymas had actually told the Board, according to the unchallenged recollection of Ms Cowans, that there were plenty of approved premises in and around Leeds and that a place for the claimant could be found within two weeks. In my judgment, the result of the error as to the evidence of Mr Hymas was that the Board simply closed off for consideration a matter which should have been investigated, namely, whether release with a condition to reside as directed by the Probation Service would strike the appropriate balance between risk and benefit. For that simple reason, it seems to me that to proceed straight from the unsuitability (or the unproven suitability) of the parental home to the conclusion that the claimant should remain in prison was something which has to be characterised as irrational.
31. The Board went on to say that it was "unclear whether a risk assessment would merit a hostel placement." I am not quite sure what this means, but it does nothing to cure the defect which I have just been considering; and it may indicate that there were further matters which should, and would, have been examined if the Board had given proper consideration to the approved premises option.
32. It follows that, for the reasons given in the preceding paragraphs, I have come to the conclusion that the decision under review cannot stand.

Ground (4): adjournment

33. The point made under this heading is that the Board should have adjourned the hearing so as to obtain a full assessment of conditions at the parental home.
34. In my judgment, there is nothing in this point. It is difficult for a party who has been legally represented at a hearing, and whose advocate has not requested an adjournment for the purpose of obtaining further information, to complain that the Board should of its own motion have adjourned the proceedings.^[5] I cannot conceive of the court's being prepared to uphold such a complaint other than in highly exceptional circumstances, and I do not think that the circumstances of this case were exceptional.

Ground (5): article 5(4)

35. Article 5(4) of the European Convention on Human Rights provides:

Everyone who is deprived of his liberty by arrest or detention shall be entitled to take proceedings by which the lawfulness of his detention shall be decided speedily by a court and his release ordered if the detention is not lawful.

36. Ms Stone expressly links ground (5) to ground (4), her point being that the proceedings related to the lawfulness of the claimant's continued detention, and the absence of a report on the parental home rendered those proceedings unfair.
37. This is not, in my judgment, a good point. As is clear from the authorities cited by Mr Manknell,^[6] it is for the Board to decide on the adequacy of the material which is before it, and the court will intervene on the basis of inadequacy of material only in an extreme case. This is not such a case.

Disposal

38. As Ms Stone has made good one of the grounds of challenge which she advanced at the beginning of the hearing, the decision of the Board will be quashed. There should be a rehearing, which I hope will be at an early date, before a differently-constituted panel.

Note 1   Crime (Sentences) Act 1997, section 28(6)(b). Section 28 applies to certain life prisoners: section 28(1A); and the effect of section 34(1),(2)(d) is that a life prisoner for the purposes of section 28 includes a prisoner serving a sentence of IPP. The legislative history is complex: see Secretary of State for Justice v James [2009] UKHL 22, paragraph 104 (Lord Judge).    [Back]

Note 2   The Parole Board Rules 2004, rule 20.    [Back]

Note 3   R (Alvey) v The Parole Board [2008] EWHC 311 (Admin), paragraph 27 (Stanley Burnton J).    [Back]

Note 4   R (Gordon) v The Parole Board, unreported, 7 November 2000, paragraph 40 (Smith J).    [Back]

Note 5   See R (Emirsoylu) v The Parole Board [2007] EWHC 2007 (Admin), paragraph 21 (Ouseley J).    [Back]

Note 6   Secretary of State for Justice v James [2009] UKHL 22, paragraphs 21 (Lord Hope of Craighead) and 134 (Lord Judge): R (Salter) v Secretary of State for Justice [2009] EWHC 1497 (Admin), paragraph 54 (Hickinbottom J).    [Back]