England and Wales High Court (Administrative Court) Decisions

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

		Royal Courts of Justice Strand, London, WC2A 2LL
		12 March 2010

Mr Justice Silber:

I. Introduction

1. Andrew Rowe ("the claimant") is a long-term prisoner who has an oral hearing before the Parole Board fixed for 16 March 2010. The issue raised on this application is whether in advance of that hearing, the Parole Board should be ordered "to take reasonable steps to obtain the views of (i) the police/ MAPPA and (ii) the security services as to the current risk that the claimant poses as relevant to the assessment of that risk". I should explain MAPPA was brought into being in 2001 as multi-agency arrangements bringing together the Police, Probation and Prison Services to manage the risk of serious offenders released from prison.
2. During the course of the hearing, Mr. Dan Squires counsel for the claimant accepted that a letter or letters from the Parole Board to the relevant bodies requesting this information would suffice and that is the relief which he is now seeking.
3. The Parole Board disputes that it should take such steps. The First Interested Party, which is the Secretary of State for Justice, supports the Parole Board while the Second Interested Party who is the Secretary of State for the Home Department has played no part in the proceedings.

II The Facts

4. Andrew Rowe ("the claimant") was convicted on 23 September 2005 of two offences contrary to section 57 of the Terrorism Act as he was found to have possessed articles "in circumstances which give rise to a reasonable suspicion that his possession is for a purpose connected with the commission, preparation or instigation of an act of terrorism". He was initially sentenced to 15 years imprisonment but his sentence was reduced to 10 years imprisonment on appeal.
5. He has been in prison since October 2003 and it is common ground that the Secretary of State was obliged if recommended to do so by the Parole Board to release the claimant on licence after he had served one-half of his sentence (see section 35(1) and section 50(2) of the Criminal Justice Act 1991 ("the 1991 Act")). No such recommendation has been made in the claimant's case and the claimant remains in custody and so it is now the duty of the Secretary of State to release the claimant on licence when he has served two-thirds of his sentence (section 33(2) of the 1991 Act). This automatic release date for the claimant is on 23 June 2010 but the claimant is now seeking a recommendation for his immediate release.
6. An oral hearing before the Parole Board of the claimant's case is listed for 16 March 2010. This oral hearing had been originally scheduled to take place on 4 February 2010 but it was adjourned at the request of the claimant's solicitors because their counsel was then unavailable.
7. The hearing of the Parole Board will not only determine whether the claimant can be released before his automatic release date but also the conditions which will be imposed on his licence when released from custody. The reason for that is that by section 37(1) of the 1991 Act, it is provided (subject to provisions which do not apply) that where a prisoner in the claimant's position is released on licence "the licence, shall, subject to.. any revocation.. remain in force until the date on which he would (but for his release) have served three quarters of his sentence".
8. The claimant will have served three-quarters of his sentence on 23 April 2011. By section 37(5) of the 1991 Act as amended by section 50(3) of that Act, it is provided that the Secretary of State shall not include on release, or subsequently insert a condition in the licence of a long-term prisoner or vary or cancel any such condition except "in accordance with the recommendations of the [Parole] board". Thus the Parole Board will have to fix those conditions at the hearing fixed for 16 March 2010.
9. On 4 February 2010, Sir Christopher Pitchers, who is a former distinguished High Court Judge and who was the Panel Chair, made directions as to the evidence that the Parole Board considered necessary for the oral hearing. On 8 February 2010, Sir Christopher made a further direction requiring the Senior Probation Officer Ms Kate Smith to attend the oral hearing as a witness and to prepare a report regarding the position of MAPPA.
10. On 12 February 2010, the claimant's solicitors wrote to the Parole Board pointing out that following the comments of Professor Bates-Gaston and Professor Eastman to which I will refer in greater detail in paragraphs 18Aand 18B below, there was clear limitations on the use of psychological and similar assessments in terrorism cases. It was said that the current views of the risk of terrorism activities posed by the claimant were likely to be critical in this case but that no such evidence was available.
11. The claimant's solicitor asked the Panel chairman to direct that two kinds of evidence be disclosed to them in good time before the hearing. The first category was the MAPPA meeting minutes over the last three years and up to date so that the details of the police's current view regarding the claimant's risks could be ascertained and be the subject of submissions. The second was the Security Service's assessment of the claimant's current risk on a similar basis.
12. The Panel Chair Sir Christopher Pitchers, who is a retired High Court Judge refused the request in 16 February 2010 in the following terms:-

"3. The panel will consider the written material accompanying the same letter. However, I will make now a general point which I would have made at the outset of the hearing. There is no doubt that the assessment of risk in terrorist cases and, the other side of the same coin, the demonstrating of reduction of risk by a prisoner in such cases, is a complex and difficult task. There will undoubtedly be other cases, particularly where the prisoner is serving an indeterminate sentence, where detailed and fully argued submissions will be necessary on both sides. However, in this case, the issue is much narrower, namely whether Mr Rowe should be released slightly early or only on his sentence expiry date. The extent to which the panel will want to hear argument and later deal with the matter in their written reasons will be governed by the much narrower focus of the hearing.

4. It is largely for this reason that I am not prepared to direct the production of MAPPA minutes nor seek the security services assessment of the risk that, in their opinion, Mr Rowe presents. The panel will proceed on the evidence that it has and will certainly not make any adverse assumptions in the absence of any evidence of concerns from those bodies. There is a further practical consideration. Where any material might be highly sensitive, I would not make any such direction, even for disclosure to the panel alone in the first instance, without giving those authorities the opportunity to make full representations, orally if they wished, as to what if anything should be disclosed. It is unlikely that such representation would be made, within the time-scale now available".

13. It is this refusal to comply with the request of the claimant, which is the subject-matter of the present challenge, but to continue with the chronology on 17 February 2010, the claimant's solicitors wrote to the Parole Board asking for the question of disclosure to be reconsidered explaining that the claimant could not have a fair hearing without this information on risk being made available. The Parole Board replied on the same date stating that Sir Christopher had nothing to add to his decision of 16 February 2010. A letter before action was duly sent by the claimant's solicitor and the present proceedings were commenced claiming the relief to which I have referred.
14. An order was made for a rolled-up hearing by Owen J on 26 February 2010 and at the outset of the hearing, I gave permission for the claims to proceed. The matter came in front of me first on 4 March 2010 when the hearing was adjourned because the Secretary of State for Justice indicated that further material would be provided and which was duly provided as I explain in paragraphs 24 to 26 below. I was assisted by excellent submissions from all counsel and I would have liked to have reserved my judgment for longer but that was not possible because the hearing was due to take place so soon after the end of submissions.
15. It is accepted that the claimant cannot rely on article 5(4) of the European Convention on Human Rights in respect of the date of the claimant's release (see R (on the application of Black) v Secretary of State for Justice [2009] 2WLR 282) or of the terms of the claimant's parole. Instead Mr Squires relies on common law principles. The case for the claimant is that it is a well established principle of public law that a decision-maker must "ask himself the right question and take reasonable steps to acquaint himself with the relevant information to enable him to answer it correctly" (per Lord Diplock in Secretary of State of State for Education v Tameside [1977] AC 1014, 1065).
16. Mr Squires contends that what is "relevant information" in this case has to be considered in the context of the first question which the Board must ask itself pursuant to the Secretary of State's direction and that is what is the risk to the public of a further offence being committed by the claimant between the hearing date of 16 March 2010 and his automatic release date of 23 June 2010 if he were released and then to consider "whether any such risk is acceptable".
17. In addition, irrespective of whether the claimant is released in March 2010 or June 2010, the Board has to ask itself a second question which is what licence conditions are needed to manage any risk he poses after release. Mr Squires says on each of these issues, the views of the police and the security service are not merely relevant information but they are of critical importance in answering the questions being asked.
18. A Mr Squires attaches importance to the need to appreciate that those involved in terrorist offences pose different risks from those convicted of other offences. He refers first to the views expressed in relation to those convicted of terrorist offences by Professor Bates-Gaston and accepted in a previous decision of the Parole Board concerning Mr NM. Her views were in respect of potential offending of Irish terrorists that:-

"In my experience in Northern Ireland, the key to public protection is appropriate and timely security information on factors like current and future associates, family involvement in a political cause or grievance, ongoing sectarian violence and a number of protective factors like family support, employment, an agreed release plan, including location if remaining in the U K and supervision and surveillance on release".

19. B Mr. Squires refers to a report from Professor Eastman, a psychiatrist, dated 19 October 2006, on the use of "Medical, Psychiatric and Psychological Evidence in the assessment of Terrorist Offenders not Suffering from Mental Disorder" in which he stated that:-

"It is clearly evident from reading "the average prison or parole dossier" that all of the course and "offender programmes" which are potentially available to prisoners imprisoned for terrorism offences …fail to "fit" a prisoner of that type. They are designed for "ordinary criminals" …and not for political/terrorism offenders who are influenced heavily, and probably predominantly, by political background and beliefs and other contextual matters that are likely to be wholly unfamiliar to the complier of the report…"

20. Mr Squires contends that in the case of terrorism-related offenders, it is necessary for the Parole Board not merely to look at questions of anger management or thinking skills as one might in the case of another prisoner but instead it has to focus on questions such as whether he was likely to re-engage in a terrorist network, whether the network was active and whether they were likely to be receptive to his re-involvement. Such information forms part of the claimant's request to the Parole Board. The case for the claimant is that the information which Sir Christopher Pitchers refused to request was "relevant information".
21. Another way in which Mr Squires puts his case is that the Parole Board failed to take all reasonable steps to obtain the relevant information. He says that what is "relevant" and what are "reasonable steps" depends on how important the information is to the question which the decision-maker has to answer and what is at stake for the person who is the subject of the decision. Mr Squires contends that the information that is being sought is of critical importance both in terms of when the claimant should be released but also in relation to the terms of the licence. He stresses that it is a matter of substantial importance as to whether the claimant is detained for an additional 3 ½ months until 28 June 2010 as such detention would constitute a significant interference with the claimant's liberty. His case is that it is not an unreasonable step in the light of these factors for the Board to direct the Police, MAPPA and the Security Service to provide relevant assessments and evidence on risk. The Security Service would have access to information held by other bodies relating to the security risk posed by the claimant on release.
22. The case for the Parole Board supported by the Secretary of State for Justice is that sufficient material has been disclosed including in the disclosure made on 5 March 2010 which I will explain in paragraphs 24 to 26 below or what will be disclosed by Ms Smith. So it is submitted further disclosure should not be ordered. In any event, deference ought to be given to the decision of the Parole Board which is a specialist body and so it is contended that relief should be refused.
23. It was also contended that the application of the claimant was premature and that it should be dismissed on those grounds. I accept that if the claimant is unsuccessful on his present application, he could seek to quash any decision of the Parole Board made at the hearing on 16 March 2010 but it seems preferable to me for these matters to be resolved if possible in advance of the hearing. Such a course might avoid a later challenge, which could lead to a further hearing in front of the Parole Board and that would lead to further delay and additional costs which might well be avoided by resolving these matters if possible at the present stage.
24. I will deal with the claimant's claims first in respect of the material sought for consideration of the date of his release for parole and then separately with the terms of his licence conditions after release.

III The Release Date

25. When the matter came in front of me on 4 March 2010, counsel for the Secretary of State for Justice helpfully explained that his client was prepared to make available in the unusual circumstances of this case, an Executive Summary of the Minutes of the MAPPA meetings that had taken place concerning the claimant. This document was duly circulated on 5 March 2010 and it was explained that an Executive Summary such as that was not routinely created but that it has come into existence only because the Secretary of State's legal team has requested it considering that it would be sensible in the light of the expedited timetable for this judicial review challenge to be able to assist the court so far as possible in relation to information which might be relevant to the subject of the challenge.
26. The Executive Summary of the MAPPA Meeting Minutes did not contain details of the risk assessment of individual agencies or the risk management plan because it was explained that if a party wished to obtain a copy of such material, they needed to apply directly to the agency concerned and that is what is now being sought. The Executive Summary did, however, contain a summary of meetings that had taken place concerning the claimant. It was pointed out that an appropriate person had been trained to employ a new risk assessment tool for Terrorism Act offenders such as the claimant and that on this assessment, the claimant:-

"scored as very high risk but there was no appearance of political or religious motivation. The assessment disclosed was a general trend of anti-social criminal behaviour on the claimant's part. It was said that his capability puts him in a different category with knowledge and experience of conflict and weapons".

This assessment appears not to be based on current intelligence from the Security Services.

27. The Executive Summary also stated that a psychologist carried out various tests and that the claimant had an overall IQ of 117 which was described as "a university graduate level". There was then a current risk assessment explaining that:-

"Current risk assessments

(a). Serious harm to others

Mr Rowe is currently assessed as posing a high risk of harm to the public. The nature of this harm is that he will engage in actual or threatened aggressive and violent behaviour, which may include the use of weapons, resulting in serious physical, psychological and emotional harm. Given the attitudes that Mr Rowe has expressed towards women and authority figures, it may be that risks are heightened towards these groups in particular.

(b) Re-Offending

Mr Rowe is currently assessed as posing a high risk of general re-offending based on the number and nature of his previous convictions and the minimal work he has completed to date on his offending behaviour since sentence.

His OGRS (Offender Group Reconviction Scale), based on static factors, indicates a probability of him re-offending as 26% within 12 months of release, and 42% within 24 months of release (low risk).

Including dynamic factors within the OAYys (Offender Assessment System) assessment, Mr Rowe is assessed as posing a medium risk of re-conviction (with an Oays General offending Predictor score of 26 in 12 months and 39 in 24 months – medium risk – and an Oasys Violence Predictor score of 22 within 12 months and 35 within 24 months – medium risk.)"

28. Mr Squires contends that even in the light of that information, he is still entitled to the further material which he seeks. It is appropriate to explain how the Parole Board is obliged to decide if a prisoner should be released on parole.
29. The answer is to be found in the Directions given to the Parole Board under section 32 of the 1991 Act in May 2004 by the Secretary of State for the Home Department and they state that:-

"In deciding whether or not to recommend release on licence, the Parole Board shall consider primarily the risk to the public of a further offence being committed at a time when the prisoner would otherwise be in prison and whether any such risk is acceptable. This must be balanced against the benefit, both to the public and to the offender, of early release back into the community under a degree of supervision which might help the rehabilitation and so lessen the risk of re-offending in the future the Board shall take into account that safe-guarding the public may often outweigh the benefits to the offender of early release".

30. In my view, there are powerful arguments against making any further order for disclosure of the material sought by the claimant especially bearing in mind that, for reasons which, I will explain, I will make a direction to ensure that information is sought for the Parole Board on the security risk that the claimant poses. In other words, I stress that I am assuming that as a result of that direction the Parole Board has adequate material to deal with the present security risk posed by the claimant and that is obviously a very important factor for the Parole Board in determining whether somebody like the claimant with a serious conviction for a terrorist offence should be released before his automatic release date.
31. There are a number of factors which individually and cumulatively have persuaded me that no further relief is required save to the limited extent that which I will seek an assessment of risk posed by the claimant from the Security Services. First, the Panel Chair has explained why he is not prepared to accede to the request that was made by the claimant's solicitors for MAPPA meeting minutes over the last three years and the Security Services' assessment of the claimant's current risk.
32. As a starting point, substantial deference is due to the Parole Board because as Wall LJ explained in R (on the application of Brooks) v Parole Board [2004] EWCA Civ 80:-

"74. Furthermore, in my judgment, it is not for this court to tell the [Parole] Board how to go about its business save in so far as it may decide that any particular decision reached by the Board is unfair or otherwise offends the criteria rendering it susceptible to judicial review. The Board is chaired by a judge.. and two experienced members one of whom is a psychiatrist. In the wider public interest of protecting innocent members of the public they must, in my judgment, be given a wide discretion over the evidence they receive, provided always that their procedures are fair and the reasons for their decision are sound".

33. In this case, I am very conscious of the wide experience which Sir Christopher has on parole issues and that fortifies the need for deference. Another factor influencing my decision is that Ms Kate Smith, who has been asked to attend the hearing, took part in the MAPPA process and she might be able to assist the Board with information about it. As Mr Pievsky points out "no doubt that is one of the reasons why she has been asked to attend the hearing". The Parole Board will also have a dossier on the claimant. Furthermore it will be noted from the Executive Summary that so far as general offences are concerned, the claimant is regarded as being a "high risk of harm to the public", and this relates to predicted aggressive and violent behaviour. In addition, as I have explained, I will be ordering that a letter should be sent to the security services asking for the security risk of releasing the claimant.
34. In my view, the decisions and reasons given by the Chair for refusing further disclosure in relation to the date of release were decisions open to the Parole Board, especially as the Chair stated that he would not draw any inference contrary to the claimant from the absence of the documents sought. In reaching that conclusion, I have not overlooked Mr Squire's submission that there might well be something positive and of assistance to the claimant in the remaining documents. Bearing in mind that I am going to order that a letter should be sent to the appropriate part of the security services asking for the security risk posed by the claimant, I do not think that in the light of the material available, the decision of the Parole Board can be impugned in relation to the fixing of the release date of the claimant.
35. I am fortified in reaching that conclusion by the fact that if this conclusion turns out at or after the Parole Board hearing on 16 March 2010 to have been unfair to the claimant, it would always be open to him to seek to challenge the subsequent decision. For those reasons I am unable to accede to the claimant's claim to obtain further material in so far as it is based on the need to have it in order to ascertain if the claimant should be released on parole before his automatic release date. I must stress that this decision is based as it has to be on the particular facts of the present case.

IV Licence Conditions

36. As I have explained in paragraphs 7 and 8 above, whenever the claimant is released, he will be subject to a licence which, subject to any revocation will remain in force until 23 April 2011 when he will have served three-quarters of his sentence. The terms of the licence will be decided by the Parole Board at its hearing on 16 March 2010 because, as I have explained, the Secretary of State shall not include on release, or subsequently insert, a condition in the licence of a long-term prisoner such as the claimant or vary or cancel any such condition except "in accordance with the recommendations of the Parole Board" (section 37(5) of the 1991 Act as amended by section 50(3)).
37. For obvious reasons, the appropriate licence conditions for those convicted of terrorist offences will have to be determined in the light of among other factors, the nature of their previous offending. In the case of the claimant as a convicted terrorist, a factor of very great significance must be the security risk which he would pose on release. This overlaps in the case of the claimant with the investigation than that which has to be considered before deciding whether the claimant should be granted parole. While security risks might prevent the Parole Board ordering release before the automatic date, they are also of vital importance in deciding what conditions are needed to protect the public after the release of a convicted terrorist.
38. To her witness statement in these proceedings, Ms Natalya O'Prey the Deputy Head of Casework of the Parole Board has attached a PAROM1 report from Ms Smith, who the Senior Probation Officer to whom I referred in paragraphs 9 and 32.  That report contains a possible risk management plan relating to the claimant suggesting a series of conditions and requirements to manage "the specific risk". Those conditions will fall to be considered by the Parole Board at the hearing on 16 March 2010. The conditions are less onerous than those in control orders but they do have some similarities but they are based on the assumptions that the person who is subject to them might still have terrorist aspirations or connections which would appear to be "the specific risk" to which the report refers.
39. The conditions which might be imposed on the claimant include, for example, a 12 hour curfew along with obligations to declare all bank accounts to which the claimant is a signatory to the authorities, not to own or possess more than one mobile phone or SIM card, to provide the supervising officers with details of it, not to possess directly or indirectly use any computer, direct storage device or other electronic device capable of connecting to the internet or have access to any e-mail or other on-line message service or community without the prior approval of the claimant's supervising officer, to notify his supervising officer of any developing personal relationship with men, women or children, not to contact or associate with a number of people including the claimant's wife without the prior approval of his supervising officer, an obligation to provide the supervising officer with details including make, model, colour and registration number of any vehicle he owns or has use of prior to any journey in it taking place.
40. Mr Ruck Keene accepts that in the decision under challenge, the Panel Chair does not refer to the fact that the Panel would be considering the imposition of licence arrangements and indeed it assumes that the only issue was whether the claimant could be released before the automatic release date. Indeed, as I have stated, the Chair stated that the extent to which the Panel would want to hear arguments and deal with matters in their written reasons would be governed by the "much narrower focus of the hearing" which was the limited period during which the claimant will be required to serve if he is not granted parole but remains imprisoned until his automatic release date.
41. The Chair then proceeded to explain in his reasons for refusing the request from the claimant's solicitors for disclosure that it was "largely for this reason that he would not direct production of MAPPA minutes nor seek the security services assessment that, in their opinion Mr Rowe presents".
42. The position is that in responding to the request from the claimant's solicitors, the Chair merely focussed on the issue of whether the claimant should be released in March 2010 or June 2010 but not on the very important issue of his licence conditions. It is noteworthy that the licence conditions will affect the claimant's life for 10 months if he is released on his automatic release date or for 13 months if he is released after the hearing on 16 March 2010 and this shows the significance of them especially in the light of the onerous nature of the proposed conditions. The public will also be affected during that period and I am required to make a fact-sensitive decision on the importance of security risks in considering whether this particular claimant should be released before his automatic release date and also the on licence conditions which should be imposed after his release.
43. I am driven to the conclusion that this very distinguished Chairman did not consider when refusing the order for disclosure the relevance of the Security Services' assessment for the purpose of determining the claimant's licence conditions as opposed to the date when the claimant will be released and in consequence his decision on that aspect of the case will have to be quashed. In reaching that conclusion, I have not overlooked the fact that it was stated that the Panel would "certainly not make any adverse assumptions in the absence of any concerns from these bodies" but, as Mr Squires correctly points out, it might well be that the Security Service assessment might be of assistance to the claimant in showing that although at one stage he was a security risk, that risk has diminished. Such a finding would be of great significance in assessing the security risk which the claimant posed and the nature of the licence conditions imposed. In reaching that conclusion I have taken account of the deference which Wall LJ has explained that I should give to the decision of the Parole Board
44. In the ordinary way, I would have quashed that part of the decision refusing to direct the production of an assessment by the security services of the risk which the claimant would pose on release and require him to take the decision again. That would inevitably lead to a delay and as is accepted by counsel to the need to adjourn the hearing fixed for 16 March 2010. There would then be a substantial delay before the adjourned hearing could take place because as is widely known, the Parole Board is overrun with work.
45. Two factors individually and cumulatively lead me to the conclusion that I should go further than merely quashing the order but should instead I should make an order that a request should be made of the security services relating to the security risk that the claimant will pose on release. First in my view on the particular facts of this case, I consider that the Parole Board would have been bound to conclude if the matter had been remitted to them that in the light of the material in this case a security service assessment of the risk posed by the claimant was necessary at least for the purpose of deciding on the appropriate licence conditions. The claimant had after all been convicted of a serious terrorist offence and the Parole Board would need to know whether he is likely to have retained connections with other terrorists or to retain and urge to help them.
46. Second, I am, however, mindful of the overriding objectives of the CPR which among other things require me to deal with the case justly including so far as is practical and ensuring that matters are dealt with expeditiously and fairly (CPR Part 1.1(2)). That leads me to the conclusion that rather than requiring the Parole Board to reconsider the matter, it would be both simpler and fairer to make the appropriate directions. I repeat that if the Parole Board had been asked to reconsider the decision under challenge on this application, this would have led to the hearing fixed for 16 March 2010 being adjourned.
47. After I circulated a draft of this judgment, counsel agreed that I should order that:-

"The Defendant shall by midday on 12 March 2010 write to the First Interested Party in the following terms:

'A panel of the Parole Board will consider the case of the above-named prisoner at an oral hearing at HMP Belmarsh on Tuesday, 16 March next. He is seeking early release from his sentence and consideration of the conditions of his licence whether imposed following early release on parole licence or after his automatic release on 23 June 2010. I am directed by the Order of Mr Justice Silber sitting in the Administrative Court dated 12 March 2010 to write to you requesting the Security Service's current assessment of the security risk that Mr Rowe presents, in particular, detailed assessment of the risk of terrorism activities, if any, that Mr Rowe would pose on release.

In view of the very short time before the hearing, I would be grateful for a very speedy response'."

48. Of course, it will be up to the Security Service how they reply and then up to the Parole Board to decide how to use any information supplied.