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
		11 February 2011

His Honour Judge Langan QC:

Introduction

1. The claimant is a serving prisoner. The defendant is The Parole Board ('the Board'). In these proceedings the claimant challenges the decision of the Board, issued on 13 April 2010, not to direct that he should be released on licence. The claimant was at the time of the decision held in HM Prison Whatton as a prisoner in Category C, but he has since been reclassified to Category D and is now held in HM Prison North Sea Camp. The claim form was issued on 5 August 2010, and on 13 October 2010 I granted permission to apply for judicial review and extended the time for commencement of proceedings.
2. The decision is impugned on the basis that the Board failed to give adequate reasons for its decision and, in particular, for its conclusion that the risks presented by the claimant were too high to be safely manageable in the community.

Narrative

3. The claimant was born on 26 January 1972.
4. On 10 January 2005 the claimant was convicted after a trial of two offences of rape and one offence of indecent assault by digital penetration. The offences have been rightly described as horrendous. They were committed in the early hours of 8 May 2004. The victim was in Manchester city centre and in a state of intoxication. Wrongly believing that the claimant was a taxi driver, she got into his car. The sexual assault began almost at once and, notwithstanding her pleas to him to stop, the claimant drove her to an empty car park where the first rape took place. Later, he made her undress and raped her on a grass verge. It is unnecessary for me to go into any further detail, and it would certainly not assist the claimant's case if I were to do so.
5. The claimant was sentenced to 12 years imprisonment, with a 3 year extension of his licence. He became eligible for parole on 5 June 2010. His non-parole release date is 4 June 2012.
6. The claimant has been an exemplary prisoner. That phrase is often used: in this case it can be used without qualification. While in custody, he has accepted his guilt, addressed the issues arising from his offences, and has completed all the programmes on which he has been placed. It is not suggested that there are any further courses which he could usefully undertake while in custody.
7. The material which was before the Board included two reports from probation officers: Mr Christopher Kania, who is the claimant's Offender Manager in his home area; and Mr Ken Roworth, the seconded probation officer at Whatton.
8. Mr Kania identified particular risk factors which attached to the claimant: emotional well-being; relationship difficulties; alcohol misuse; and sexual motivation (the claimant "sometimes struggled to accept the role of sexual motivation in his offending"). Looking at matters more generally, Mr Kania observed that, although the claimant's risk of reoffending had been variously graded as low or medium, the risk of harm from reoffending to members of the public, particularly adult females, was high. He said:

The impact on the victim was significant and had a long lasting emotional and psychological impact. Should [the claimant] commit another such offence the impact would be substantial. Although [he] has made real progress in terms of his thinking and behaviour and already gone some way to address the areas of crimogenic need outlined above, he still needs to be tested in the community. His risk will remain assessed as high until after a period of time where his behaviour has been tested without the restrictions of custody.

9. Mr Kania identified a battery of components of a supervision plan which would be in place upon the claimant's release. These were: a hostel referral (with curfew, a sign-on time during the day, and alcohol testing); assessment for a future treatment pathway; further victim empathy work; assistance with employment or educational schemes; work to minimise alcohol misuse; and disclosure of any new relationship to the Offender Manager.
10. Mr Kania, after discussing the case with his manager and district manager, concluded his report in this way:

[The claimant] has progressed through the prison regime and is about to be moved into open conditions. He has completed all offence focused work available to him in the prison setting. Any further Accredited Programme work must now be completed in the community.

[He] will remain high risk due to the serious nature of the offence and the fact that he has not yet been tested in the community. It will also allow for the necessary risk management arrangements [to] be put in place, for example an Approved Premises placement.

My recommendation is therefore [that the claimant] is released and continues the positive work he has already achieved in custody.

11. Mr Roworth concurred with the view that "with the imposition of a robust management plan [the claimant] can be managed safely in the community." Mr Roworth did, however, on the basis of his interview with the claimant, observe that the claimant was "slightly [underplaying] the sexual element of his offending and certain lifestyle issues."
12. The panel which considered the claimant's case had before it the usual full dossier and an exceptionally well drafted written submission from the solicitors who act for the claimant.
13. In the course of its written decision the panel said this:

The Panel takes account of the seriousness of the index offences and agrees that the risk would be exacerbated by a return to alcohol misuse, particularly if combined with feelings of low self esteem and sexual frustration, through a failed relationship or lack of a relationship, and remains that he remains a high risk of causing serious harm.

The panel expressed its conclusion in these terms:

In reaching its decision the Panel gives [the claimant] credit for his good behaviour in custody and for the progress he has made in beginning to address his offending behaviour. Both probation officers support release. The index offences were of the most serious nature with a long lasting serious impact on the victim. [The claimant] is assessed as presenting a high risk of causing serious harm, and there are areas of treatment which have yet to be addressed. Taking all these factors into account the Panel concludes that the risks remain too high to be safely manageable in the community and outweigh the benefit to [the claimant] of a longer period of supervision. Parole is denied. [The claimant] will have a further review.

Discussion

14. The thrust of the submissions made by Mr Stanbury on behalf of the claimant is that the reasons given by the Board have not sufficiently demonstrated that a proper, as distinct from a merely apparent, balancing exercise was carried out. In a proper balancing exercise the Board would have weighed the benefit to the claimant of being tested in the community against the risk to the public of his reoffending after release. The Board concentrated on risk to the virtual exclusion of benefit; and, when dealing with risk, the focus was placed on risk of harm resulting from further offending to the virtual exclusion of risk of commission of further offences. The effect of the index offences on the victim, which was mentioned by the Board, was irrelevant. There was nothing in the way of reasoning to support the rejection by the Board of the views of Mr Kania and Mr Roworth.
15. Unlike too many of the attempts which are made to review decisions of the Board, this case was launched and has been pursued in a highly responsible manner. In granting permission to apply, I said:

[I]n this case the claimant can present what is, at least, a fair argument to the effect that risk was accorded too much weight in the decision-making process. He may not succeed, but he has put forward a case which requires the grant of permission.

After hearing from Mr Stanbury and from Mr Manknell, counsel for the Board, I have, however, concluded that the decision must stand.

16. There are two aspects of the decision which require examination: the Board's approach to risk, and the reasoning which supports (or does not support) the conclusion.
17. As regards risk, Mr Manknell correctly reminded me that the Directions given by the Secretary of State to the Board in relation to release on licence require the Board to "consider primarily [italics supplied] 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." By contrast, the Directions as to the transfer of life sentence prisoners to open conditions which were relevant in the decision of Smith J in R (Ross Gordon) v The Parole Board, unreported, 7 November 2000, imposed no such requirement of primacy on the balancing exercise.
18. In my judgment, in the particular circumstances of this case, the Board did not place undue weight risk. I accept that the effect of the index offences on the victim would, as a stand-alone factor, be immaterial and should not have a place in the reasoning. But, as a graphic illustration of the kind of harm that could be caused in the event of reoffending, it was highly relevant, and I do not think that the Board can be faulted for having mentioned it. Further, I do not agree that there was some erroneous conflation of the two kinds of risk, or concentration on one to the exclusion of the other. Several of the analytical tools used to assess risk do, indeed, distinguish between risk of reoffending and risk of harm from further offences. The Board is, however, entitled, as it appears to have done in this case, to take a holistic view. The greater the damage that might be caused to the victim of an offence committed by a prisoner on licence, the less weight must fall to be attached to the fact that there is no more than a low or medium risk of actual reoffending. One has in such a case nothing more than a common sense application of the notion of risk which is, at the end of the day, a single concept.
19. As regards reasons, both counsel referred to what I said in R (Rawnsley) v The Parole Board [2010] EWHC 2689 (Admin). The judgment in that case included this passage at paragraph 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' in this case was clearly expressed. The Board was telling the claimant: notwithstanding everything that has been said about your conduct in prison, the benefit which you could derive from work done on licence, and the absence of any further, useful work that could be done in custody, we regard the risk which you present as outweighing those factors. I do not agree that, in this case (in other cases the position might be different) even an elementary appraisal of the probation officers' views was required. The Board was not disagreeing with any fundamental point made by the officers about the claimant. What the Board was doing was taking into account the matters to which the officers had adverted, but finding that the scales tipped in the opposite direction to that recommended by the officers. The decision may have been, and probably was, finely-balanced. But how much weight should be attached to a particular factor, in this case the factor of risk, is a matter for prudential judgment rather than nice analysis. The question is simply not susceptible of more detailed explanation than that which is to be found in the decision.

Conclusion

20. It follows from what I have said that the claim will be dismissed: but I do not wish to leave the case without expressing my thanks to both counsel for their succinct and well-structured submissions.