England and Wales High Court (Administrative Court) Decisions

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

		Royal Courts of Justice Strand London WC2A 2LL
		26 November 2012

1. MR JUSTICE HOLMAN: This is a renewed oral application for permission to apply for judicial review by the claimant, Mr Kimon Lyefook, after refusal by a single judge on paper. The defendants to the claim, as named in the claimant's claim form, are the Parole Board and the Secretary of State for Justice. The application relates to a refusal to grant parole to the claimant after an earlier licence had been terminated and he had been recalled to prison.
2. On 29 March 2007 the claimant was convicted after a trial of causing death by dangerous driving. He was sentenced to 9 years' imprisonment. At that time he already had approximately 22 previous convictions. There is a summary of the claimant's earlier history and also of the circumstances of the current offence in paragraph 2 of the decision of the Parole Board now under challenge. That states that he was convicted in 2007 of causing the death of a young woman by dangerous driving. He received a sentence of 9 years. He had been disqualified from driving in 2006 and had neither a licence nor insurance. The summary reads:

"The sentencing judge was clear that you had never passed a driving test. You had bought the car in the beginning of the year and were carrying a woman who, you knew, intended to go shoplifting. You were exceeding the 30 mph speed limit. It was February and late in the afternoon. You came off a roundabout at high speed and overtook a taxi. Your passenger gave evidence that she warned you twice about the girl running across the road but you did not break or steer away in order to avoid her. You hit the victim just as she reached the kerb. You did not slow down or stop and said to your passenger that 'you had not asked her to step into the road.' You denied being the driver, pleaded not guilty and showed no remorse for killing her."

3. With regard to the previous offending history, the panel recorded:

"The panel noted that ... [you] had stated that you had had your provisional licence revoked in 1997 and had driven illegally since then, with at least 7 convictions for car related crime, including one for dangerous driving ...

Apart from your convictions for car crime and driving crime you have a criminal record starting at 15, with offences of robbery x 3, theft, drugs, possession of bladed articles, use of forged documents, deception, resisting arrest, a public order offence and breaches of bail, court and community orders. You have cautions for assault, drugs and theft. You have used over 20 aliases and different dates of birth to avoid conviction ..."

4. I quote those passages from the decision of the Parole Board because it was obviously necessary and appropriate for them to reach their own decision with regard to parole in the context of the facts of the offence in question and also the general history of offending.
5. On 17 December 2010 the claimant was released from prison on licence. On 17 February 2011 his licence was revoked by the Secretary of State and he was recalled to prison. He, as was his right, asked that consideration should be given by the Parole Board to his re-release. Written decisions were made by the Parole Board in March and May 2011, in each case not recommending release. He asked for an oral hearing and that finally took place on 18 January 2012. The Parole Board gave their written decision on 27 January 2012. It is that decision, fundamentally, which he now seeks to challenge by this claim for judicial review.
6. The claim form was issued in the office of the Administrative Court on 8 May 2012. The maximum time for filing a claim for judicial review is 3 months from the action or decision in question, which had in fact expired on 27 April 2012. In his written reasons for refusing permission, the refusing judge commented that the claim was out of time. That is indeed correct, as I have indicated, but Mr Lyefook points out the difficulties in the way of a serving prisoner mounting a claim such as this. Amongst other things, he had to photocopy a quantity of documents, and he points out that his income in prison is very limited when it comes to paying for photocopying. So I, for my part, would not base any decision today on the fact that the claim was actually issued out of time. I, for my part, propose to focus on the merits of the underlying claim.
7. Several witnesses gave oral evidence at the hearing. They were: the claimant himself; his offender manager, Ms Dottin; his offender supervisor, Mr Bentley; and Mr Weijman, the manager of the probation hostel in Kew where the claimant was living whilst on licence.
8. It is important to appreciate that there was a divergence of view between those three professional people. Certainly, as the Parole Board clearly noted in their reasons, the offender manager, Ms Dottin, and the offender supervisor, Mr Bentley, supported the release of the claimant back into the community. This is clearly referred to in the last sentence in paragraph 4 of the reasons of the Parole Board, and again in a sentence approximately halfway through paragraph 7. On the other hand, Mr Weijman, the manager of the probation hostel, did not support the release of the claimant back into the community. There was thus clearly a difficult set of circumstances for the Parole Board within which, clearly, they had to make their own assessment and exercise their own independent judgment.
9. The decision and conclusion of the Parole Board was that it was simply too risky at that stage to recommend that the claimant be released again on licence. In paragraph 5 of their reasons, the Board said:

"Your risk of serious harm to the public was high to the public and medium to staff, both in the community and medium to staff and prisoners in custody ...

The panel's view was that your behaviour on licence had paralleled your attitude to authority prior to your sentence and had shown that you still were willing to breach rules and challenge boundaries. Your inappropriate behaviour and your reporting of it showed a worrying aspect of your character, as a man who was above rules and who was prepared to manipulate staff for your own ends. It assessed your risk of harm to the public as high and to staff as medium ..."

10. In reference to the evidence that the manager of the probation hostel, Mr Weijman, had given, the Board said towards the end of their written reasons:

"Mr Weijman did not support your release. He had had knowledge of you since the day you arrived at the hostel and gave evidence to the panel that his staff were so concerned about your behaviour that he became involved with the day to day running of your licence. He had the opportunity to observe your challenging and rule breaking behaviour and to talk to members of staff face to face about your breaches and your inappropriate behaviour. His view was that the change in your behaviour was very recent and very short when set against your record of criminality and challenging and risk taking behaviour over 26 years. He considered [and I emphasise that at this point the Board is reporting the content of the evidence that Mr Weijman had given to them] that until you had demonstrated that you keep your grandiose and narcissistic personality under control and had demonstrated a longer period of good and compliant behaviour, your risks would not be able to be safely managed in the community ..."

11. Immediately after that passage the court then stated:

"The panel agreed. It considered that it was clear from the oral and written evidence that your licence had broken down to a point where supervision and compliance with licence conditions had made become impossible. It was disturbed that you continued to make inappropriate comments about staff in the hearing and found it hard to keep your temper ..."

12. Today, Mr Lyefook has said that he has 101 reasons for challenging the decision of the Board. But in the forefront he said that the reasons of the Board contained charges of slander and defamation of character. He said that they had said untruths about himself and his character. He said that some of the things that had been said in this case, either by the Parole Board or later by the judge when refusing permission to apply for judicial review, were "based on my social rank and not following their own laws". He said that he considered that parts of the decision and reasoning of the Parole Board were very disrespectful to him, and that, accordingly, he is a victim within the meaning of the Human Rights Act 1998.
13. It is clear from both his written material and some of the things which he said today that the claimant feels especially strongly about the role and position of the Chairperson of the panel of the Parole Board at the hearing, a person called Mary Kane. He said that Mary Kane had "deliberately lied" and had said that he had a personality disorder. He said that that was "a deliberate lie to make me appear worse than I am". When I asked him what the "deliberate lie" was, he said that it relates in particular to the evidence of the offender supervisor, Mr Bentley. He took me to a passage at the very end of paragraph 4 of the written reasons of the Parole Board. That reads as follows:

"Your offender supervisor had taken immense trouble in persuading you to complete these targets on your sentence plan. He [ie the offender supervisor, Mr Bentley] told the panel that when you arrived at HMP Swaleside in May 2011, your behaviour had been difficult, stroppy and challenging. Gradually, over the last 3 to 4 months it had improved, with a great improvement in the last 6 weeks since completing the TSP."

14. It is that passage in particular that Mr Lyefook says amounts to a deliberate lie on the part of the Chairperson, Mary Kane. It is therefore necessary to look, as I did this afternoon with the claimant, at the written record of the course of the evidence. It is important to emphasise, as is stated at the outset of that record, that "these notes are not produced as a verbatim record of the proceedings".
15. On page 3 of those typed notes, there is the following answer by Mr Bentley after a reference to some confrontational behaviour regarding a packet of crisps. Mr Bentley said:

"Mr Lyefook's character in general would be well summed up within the situation. He is very forthright and is opinionated at times but when he becomes impassioned about a subject or feels his view is important he will push forward that view with gusto. I have had conversations with him that have gone down that road but at no time have I found him physically or verbally threatening. He just articulates forcefully. Work has been geared towards assertive and aggressive ... I have spoken to him over the months about how people perceive issues and some may find his behaviour aggressive rather than assertive."

16. A little further on in the notes on page 4, there is another answer by Mr Bentley as follows:

"Over the time I have known Mr Lyefook we have had one or two strong conversations and both had opinions but no altercations or issues with behaviour. He has interacted with me politely and respectfully and I have seen a change in his willingness to participate over the last 4-5 months in general, particularly following his move to A wing. There have been positive and negative comments since May. A positive from last week."

17. Yet further on in his evidence, at page 6 of the notes, there is another answer by Mr Bentley as follows:

"There have been improvements definitely in his day to day attitude and willingness to interact. There are still instances of poor behaviour but not security based and not evidenced aggressively. It is verbal challenging if he doesn't receive appropriate answers or things aren't going his way and he has always done that but now it is tempered with a thought process and restriction. It is not perfect and there is still a way to go but not to say it couldn't be managed in a hostel situation."

18. Shortly after that the Chairperson, Mary Kane, then put the following to Mr Bentley:

"So to summarise you have known Mr Lyefook since May. He was quite stroppy, challenging, difficult and negative to begin with. You have seen a change in his attitude for the last 3-4 months with a particular change since he has finished the TSP 6 weeks or so ago, but never any violence?"

To that, Mr Bentley answered: "That is correct".

19. One can see, therefore, that the passage in the later written reasons of the Parole Board that Mr Lyefook, the claimant, identifies as "a deliberate lie" is in fact an almost verbatim repeat of the question that the Chair, Mary Kane, had put to him in summary, to which Mr Bentley had answered: "That is correct". It is perfectly true, as Mr Lyefook has said today, that that particular question by the Chairperson, Mary Kane, could be said to have been a leading question. On the other hand, as is perfectly clear from its opening phrase, "So to summarise", and its context in the record of the oral evidence as a whole, it was an attempt by the Chair to summarise in two or three sentences the content of the evidence of Mr Bentley as a whole, including the earlier passages in his evidence which I have already quoted. Mr Bentley is, of course, a professional person, and would have been well able to disagree with, or qualify, any parts of the summary by the Chairperson, Mary Kane, if he had thought that her summary of his evidence was in some way unfair, distorted or, worse still, untrue.
20. Frankly, the claimant does not make out, even arguably, the most grave of his allegations, namely that the Chairperson of the Parole Board Panel had "deliberately lied", or that anything within the written decision of the Parole Board amounts to slander or defamation of his character. The Parole Board exists to make assessments and judgments about risk, which inevitably involve also making assessments and judgments about character.
21. As I have already said, the Parole Board on this occasion was faced with the difficult circumstances that the offender manager and offender supervisor took one view with regard to risk, and the manager of the probation hostel, where he had lived on licence, took another view. The members of the Parole Board had had an opportunity, as they state in their written reasons, to hear also from Mr Lyefook himself at that hearing on 18 January, and were clearly entitled, and indeed bound, to take into account the impression that they also formed of him.
22. By statute, the Parole Board is established and charged with the very difficult duty of making decisions of this kind, balancing on the one hand fairness and respect for prisoners, and on the other hand risks to the public, including staff and fellow inmates in establishments such as a probation hostel.
23. It seems to me that, although the claimant clearly feels very strongly indeed about this matter and a burning sense of grievance, on proper analysis his complaints amount to no more than a disagreement with the assessment that the Parole Board were charged to make and did make that day.
24. For those reasons, it seems to me that the proposed judicial review has no realistic prospect of success and I propose, therefore, to refuse permission to apply for judicial review.
25. I wish to record in this judgment that I have enquired today as to the possibility of further consideration of the claimant's case by the Parole Board. I have before me a letter dated today (26 November 2012) by Holly Gallagher in the office of the Treasury solicitor, which includes the following:

"It is for the Secretary of State to refer the matter back to the Board. The Secretary of State's target review date is January 2013, subject to all relevant information being available to the Board. By way of background, the Secretary of State has asked for all relevant reports to be sent to him by 7 December 2012 and the prisoner is due to have his dossier disclosed to him on the week commencing 10 December 2012."

26. My own decision today is not in any way influenced by the imminent prospect of fresh consideration by the Parole Board, but, rather, for the reasons I have already given. Nevertheless I make plain publicly that further consideration by the Parole Board of the position of this prisoner is now expected to take place as relatively soon as January 2013.
27. That is my decision and the reasons for it. The shorthand writer will in due course make a transcript. I will correct that for any spelling, punctuation or similar errors and a copy will sent to you, Mr Lyefook. That concludes today. I am extremely grateful to the escorts for their courtesy and bringing Mr Lyefook. I will briefly rise while he leaves.
28. CLAIMANT: How do I appeal this? Don't worry, I'll still be exposing the discrimination. You will be held accountable.