England and Wales High Court (Administrative Court) Decisions

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

		Leeds Combined Court 1 Oxford Row Leeds LS1 3BG
		2nd April 2012

MR JUSTICE HICKINBOTTOM:

1. In 2005, the Claimant Paul Rowe pleaded guilty of making threats to kill his partner, H, and two offences of assault occasioning her actual bodily harm. Both assaults involved the Claimant strangling H. On the second occasion, which was committed whilst on bail for the first assault, she lost consciousness.
2. On 19 October 2005, in respect of the threats to kill, the Claimant was sentenced under section 225 of the Criminal Justice Act 2003 to a term of imprisonment for public protection with a minimum custodial term of 8 months. On the same occasion, he was given concurrent extended sentences for the assaults. The minimum term to be served expired on 19 May 2006.
3. By section 28(5) of the Crime (Sentences) Act 1997, the Secretary of State is required to release a life prisoner (which, by definition, includes someone subject to a term of imprisonment for public protection) when (i) the prisoner has served the minimum custodial term, and (ii) the Parole Board has directed his release on licence.
4. The Parole Board has a primary duty to consider the risk posed by an offender to the public (section 28(6)(b) of the 1997 Act). The Board is constituted under section 239 of the 2003 Act, which provides for it to make its own rules of procedure (section 239(5)), and for the Secretary of State to give it directions as to the matters to be taken into account by it when discharging its functions (section 239(6)).
5. For any life prisoner, a period in open conditions is generally essential prior to consideration for release on licence, to enable areas of concern about risk to be tested in conditions more closely resembling the community than closed prison conditions. Under directions given to the Parole Board by the Secretary of State in August 2004 pursuant to section 239(6) of the 2003 Act, a move to open conditions is to be based on a balanced assessment of risk and benefits, but with an emphasis on risk reduction. In performing that risk-benefit balance, the Board is required to take into account all information before it. Evidence may be written or oral, and may include hearsay evidence (R (Sim) v Parole Board [2004] EWCA Civ 1845). Amongst the relevant matters which the Board will take into account are the nature and circumstances of the index offence and the reasons for it, including information provided in relation its impact on the victim; and also the offender's awareness of the impact of the offence.
6. Much of the information provided to the Parole Board for its consideration comes from the Secretary of State. Rule 6 of the Parole Board Rules provides that the Secretary of State must, within 8 weeks of a Parole Board hearing, serve on the Board reports and information relevant to the case. Rule 6(2) provides that:

"Any part of the information or report... which in the opinion of the Secretary of State should be withheld from the prisoner on the grounds that its disclosure would adversely affect national security, the prevention of disorder or crime, or the health or welfare of the prisoner or others, such withholding being a necessary and proportionate measure in all of the circumstances of the case, shall be recorded in a separate document and served only on the Board together with the reasons for believing that its disclosure would have that effect."

7. The Parole Board has also issued a policy guidance document, "Victims and Families Practice Guide", to fulfil its requirements under the Criminal Justice System's Code of Practice for Victims of Crime and to allow appropriate victim participation in Parole Board hearings. This sets out how victim personal statements ought to be dealt at Parole Board hearings as follows:

"Those preparing a victim personal statement should bear in mind that the Parole Board's primary role is to protect the public by risk assessing prisoners to decide whether or not they can be safely released into the community. Victim personal statement should therefore contain information that helps the Board assess the current risk the offender presents. This statement and any recording thereof must be sent by the Ministry of Justice to the Board at least 28 days before the date fixed for the Panel hearing. The statement will be considered by the Panel Chair as soon as is practicable thereafter. He/she may then give such directions in relation to the statement as he/she thinks fit. The direction made for example provide for the removal of any irrelevant material from the statement. However, if it appears to the Panel Chair that the statement contains new information potentially relevant to the prisoner's risk, the Panel Chair may request the Secretary of State to submit evidence relating to the matter and/or may direct that that information will only remain within the statement if the victim attends the Panel hearing as a witness in order to give evidence and potentially to be cross-examined in relation to it.

Either party, that is the Ministry of Justice or the prisoner, may make written representations to the Panel Chair in relation to the statement or to any of his/her directions. It should be clearly understood by victims that normally the statement and any recording thereof will be disclosed to the prisoner and his/her legal representative in its final form. If the victim wishes to object to such disclosure written notification to this effect giving reasons should be provided to the Ministry of Justice when the statement is sent and the Ministry of Justice may make the appropriate non-disclosure application to the Board and thus to the Panel Chair. The application will be decided by the Panel Chair in accordance with rule 6(2) of the Parole Rules 2004 as amended."

8. That procedure is intended to hold in balance the public interest in addressing risks posed by an offender, the interests of any victim (who may be put at particular risk by disclosing matters relating to the risk posed by an offender), and the interests of the offender in being able to respond to apparent risk factors.
9. In the Claimant's case, by 2011, he was a Category C prisoner. There was a Parole Board hearing on 25 January 2011, at which he requested release on licence or alternatively transfer to Category D, open conditions. The hearing resulted in a decision of 7 February 2011, refusing both release and any recommendation to transfer him to open conditions. On 7 March 2011, the Secretary of State accepted those recommendations, with an indication that the next Parole Board review would commence in February 2012, with an oral hearing fixed for July 2012.
10. This claim, challenging the Parole Board's recommendations of 7 February 2011, was issued on 6 May 2011. In addition, the claim challenges the content and timing of the victim personal statement as produced by the Secretary of State to the Board, for that hearing, to which I shall return shortly. Permission to proceed was granted by His Honour Judge Behrens, sitting as a judge of this court, on 15 June 2011.
11. Judge Behrens gave permission to proceed on all seven grounds relied upon, but expressly noted that he considered the first ground to be arguable. That ground concerns a victim personal statement from H, apparently prepared on 16 April 2008. It contains a number of wide-ranging allegations that the Claimant used violence towards H and her children, and had been in possession of weapons which he used against them, over and above the incidents for which he was charged and convicted.
12. The statement was apparently produced by H after the Claimant was imprisoned, and after their relationship had irretrievably broken down. It was included in the dossier provided to the Parole Board by the Secretary of State, but not given to any member of the relevant Panel until the morning of the hearing on 25 January 2011, when it was given to the Chair in an envelope marked "Not for disclosure". It had, of course, been previously disclosed to neither the Claimant nor his legal representatives. The Chair read the statement that morning, and discussed it with her co-panellists. They were unanimous that it should not be disclosed to the Claimant. It was however given to the Claimant's legal representative, on the basis of an undertaking that he would not disclose it or any of its contents to the Claimant himself.
13. The Claimant's representative did not seek an adjournment, and the hearing continued. In submissions, without referring to the content of H's statement, the Claimant's representative submitted that, as it had not been the subject of any testing by cross-examination or otherwise, very little weight ought to be given to H's statement.
14. The Panel's determination of 7 February 2011 was as I have already described. In it, the Panel indicated that it had taken into consideration the whole of the dossier, including the material that he had been disclosed to the Claimant's solicitor but not to the Claimant himself; and noted, not only the extremely serious nature of the index offences, but also "the previous violence you have perpetrated in your relationship".
15. In the light of R v (Roberts) v Parole Board [2005] UKHL 45, Miss Arshad, on behalf of the Claimant, concedes that in appropriate cases a Parole Board Panel can withhold material from a prisoner, and even from his legal representative. However, whether that is appropriate in a particular case (and, if so, on what terms) is fact specific, and will depend upon, amongst other things, whether any steps can be taken to mitigate the effect of non-disclosure (e.g. by disclosing the parts of the evidence that can be disclosed without undue problem, or disclosing the gist of the evidence). That is why the procedure requires the Panel Chair, prior to the hearing, to consider directions with regard to the material, including in particular steps to mitigate the effects of any non-disclosure. The importance of that consideration is emphasised by Lord Woolf in Roberts at [83]. As Roberts indicates, in addressing the question whether in any case the procedure has been such as to breach an offender's rights under Article 5(4) of the European Convention on Human Rights or under the common law by compromising his ability effectively to test or challenge evidence which bears upon the legality of his continued detention, it is necessary to look at the proceedings as a whole. Where a decision has been taken by the Board, using a procedure which involves significant injustice to the prisoner, then this court will quash that decision and refer it back to the Board for re-determination.
16. In this case, the evidence suggests that the very late production of the victim personal statement by the Secretary of State to the Parole Board left the Panel Chair in a difficult position. She received the statement only upon arrival at the prison on the day of the hearing. Rightly, with her co-panellists, she considered whether the statement should be disclosed. I say "rightly" because, if they had decided it could be disclosed to the Claimant, then it may well have been that he could have dealt with the allegations in it in respect of his use of violence towards H and her children, outside the scope of the offences for which he had been charged and pleaded guilty. Alternatively, it would have been open to him to have made an application for H to have been called to give evidence and/or be cross-examined.
17. However, the Panel having decided that the statement could not be disclosed to the Claimant, the Chair ought to have considered if that non-disclosure could have been mitigated in any way, such as by disclosing parts of the statement or the gist of the statement; or whether the hearing could be dealt with justly without taking that statement into account at all. Whilst I have some sympathy with the Chair, because she was put in a challenging position by the very late disclosure of the statement by the Secretary of State, here is no evidence that the Chair performed that exercise, or any part of it, as she ought to have done.
18. Mr Thyne for the Parole Board submitted that this produced no injustice because the statement was disclosed to the Claimant's solicitor, who did not ask for an adjournment; but it is unclear to me what could have been gained by the Claimant from an adjournment, unless the Chair decided to make directions to mitigate the effects of non-disclosure. The representative was entitled to proceed on the basis that the Chair had already considered such steps as she ought to have done, and had come to the view that none was appropriate; but, on the evidence, as I have indicated she does not appear to have done so. In any event, I do not consider that the representative can be sensibly criticised for not seeking an adjournment in the circumstances of this case, and certainly I do not consider that, by failing to do so, he waived any defect in procedure that made the hearing unfair.
19. It is clear from my comments above that the difficulties that have arisen in this case arose from the very late production of the victim personal statement by the Secretary of State. It is now accepted by him that the timing and content of the statement were not properly dealt with by him, and he does not seek to contest these proceedings as they make any claim against him.
20. This morning, Mr Thyne, for the Parole Board, has taken instructions, and has frankly and graciously conceded that the manner in which the Panel dealt with the victim personal statement was in error and has consequently conceded the main issue in the claim. For the reasons set out above, I consider that concession properly made.
21. However, although I consider that the Panel Chair failed to deal with the difficulties she faced lawfully, those difficulties arose as a result of the lateness of the production of the victim's statement by the Secretary of State. I am led to believe that this is not an isolated incident of such late production. This case is a good illustration of why production should be timely, and in accordance with the Secretary of State's own guidance and directions. Had the production in this case been timely, it is very likely that production would have been dealt with in a proper and lawful manner, and it would have been unnecessary for this claim ever to have been brought.
22. Nevertheless, for the reasons I have given, I do not consider that the Parole Board Panel performed the balancing exercise between the various interests involved, which it was required to do, with proper consideration to how the effects of non-disclosure could be mitigated. That failure vitiated the process that led to the decision.
23. For those reasons, I shall allow this judicial review and quash the Parole Board's decision of 7 February 2011, refusing both release and any recommendation to transfer him to open conditions. The Board must consequently now reconsider those matters.