England and Wales High Court (Administrative Court) Decisions

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

		The Courthouse 1 Oxford Row Leeds West Yorkshire LS1 3BG
		23rd September 2013

HIS HONOUR JUDGE ROGER KAYE QC:

1. This is an application by Mr. Alan Cain for renewal of a decision to apply for permission to apply for judicial review which was lodged on 20th March 2013 and permission for which was refused on papers by His Honour Judge Behrens, sitting as a judge of this court, on 9th July 2013.
2. The substance of Mr. Cain's complaint was that the Parole Board, as part of his statutory review, which considered his potential release on 21st December 2012, in an undated letter and so far as I can see unsigned, in communication of their decision to him, considered that he was not suitable for release. They noted, amongst other things, that the discretionary period of release is long and it was his first application for parole. The view of the Panel was that the risk of a further sexual offence remained too high for him to be released so the public needed to be protected with him remaining in custody. They noted also that he had the opportunity to apply again for parole.
3. The application form, in the usual way, the form N461, essentially states and relies on two grounds. First, that the decision that the claimant has refused to undertake any offence related work, despite finding that he applied for sex offender treatment programme was Wednesbury unreasonable and in breach of Home Office guidelines. Secondly, he submitted that the Panel had misdirected itself in a material particular, namely his approach to the polygraph evidence. On the one hand stating that it could not take this into account but also then apparently taking it into account as thus confirming an entrenched self-view of innocence.
4. His Honour Judge Behrens, in commenting on these two grounds and in giving his reason, included, amongst the reasons given for refusing permission the following:

"First, you rely on the fact that you have applied for SOTP [that is the Sexual Offenders Treatment Programme] but have been declared unsuitable because you are a denier. It is plain this has taken into account and to my mind this does not demonstrate a flawed approach to the decision. Second, you submit that the Board made wrongful use of the polygraph test. To my mind the comments made by the Board were comments it was entitled to make and did provided additional grounds for its conclusion that the level of risk was not acceptable."

5. The background to the matter, so far as relevant for present purposes, is as follows. The claimant was convicted in September 2006 of a number of historic sexual offences including buggery committed against two children over the period 1980 to 1988. He was sentenced to imprisonment for 13 years. His application to the Parole Board was, as I say, considered on 21st December 2012. The Panel considered and had before it a dossier referred by the Secretary of State on 29th December 2012 and in addition the representations submitted on 27th and 29th November 2012 by Mr. Cain. It also had a sight of the victim impact statements included in the dossier and seen by Mr. Cain.
6. Apart from that document, Mr. Cain's submissions and the form N61 there is very little by paperwork. The Parole Board in its reasoning carried out an analysis of the offending, including reciting the bare facts with a little bit more detail as to the offence that I have already mentioned. It recognised his behaviour in custody but I ought to quote in full what it says under the heading, under paragraph number 4 "Behaviour and progress in custody" and saying the following:

"you have denied these offences consistently and appealed against your sentence and convictions. This resulted in little material change to your sentence. Consequently you have refused to undertake any offence related work in prison, which makes it difficult to evaluate any progress in risk reduction. However, the Panel notes that you did apply to undertake the SOTP but this is not available to you because you are assessed as being unsuitable. Your level of denial has been such that you have arranged to take a polygraph lie detector test and you claim that this shows that you are not lying about your innocence.

The Panel is not presented with any professional analysis of this and as such was unable to take it into account in its decision making progress. The Panel proceeded on the basis of your guilt. The Panel recorded the observations of the OM who reports you have of late spent all of your energies focused on the polygraph test. This has entrenched the self view of your innocence resulted in the impossibility of any work on sexual offending."

The reasons as thus expressed, in my judgment, have to be read as a reasonable person, with the relevant knowledge of the material facts, would read them. A decision of this kind must set out the grounds and reasons with reasonable clarity but it is not a will, or a settlement, or a lease, or conveyance, or other document of that nature, where every word has to be poured over and scrutinised and analysed. What have to be looked for are the commonsense decisions as expressed in the document.

7. The complaint in relation to the SOTP that there was a inconsistency seems to me to be, looking at the reasons given sensibly, as saying no more nor less that whilst the Panel took into account that Mr. Cain had refused to undertake any offence related work in prison, it made it difficult to evaluate any progress in risk reduction. Set against that it was noted that he himself had and did however apply to undertake the SOTP. That was not available to him because he had been assessed as being unsuitable. The implication is of course not that those two matters: the refusal to undertake any offence related work and the application to undertake the SOTP were inconsistent, but the fact was that he had applied to undertake the SOTP but had assessed as being unsuitable. So I see nothing wrong or inconsistent with the terms of the decision in relation to that matter.
8. So far as the polygraph lie detector test is concerned, again, there seems to me to be in the complaint an over-reading of the reasons given in relation to this. The comment that the Panel recorded the observations of the offender manager who reported, "that you have late spent all your energies focussed on the polygraph test. This has entrenched the self view of your innocence and resulted in the impossibility of any work on sexual offending", is not an inconsistent statement with the statement made earlier that he was unable to take the polygraph test result in taking into account in its decision-making progress. All the letter is simply saying is that that they did take into account, which it seems to me to be something they were perfectly entitled to take into account, that the report had been made to them that Mr. Cain had spent all his energies focussing on this test. It was that factor, not the test results, that entrenched the self-view of his innocence and resulted in the impossibility of any work on sexual offending.
9. In these circumstances, it seems to me that the decision reached by the Parole Board was one that it was perfectly entitled to make. There was nothing Wednesbury unreasonable or unlawful about it and accordingly, in my view, His Honour Judge Behrens was perfectly correct to refuse the application for permission for judicial review.
10. It appears that in any event Mr. Cain is not so much concerned with the decision of the Parole Board as a decision not to re-categorise him in the prison system. What he really seems to want is not to be thrown out of prison and released into the world without some period or chance of undergoing rehabilitation, which he considers, should happen by way of open prison and his re-categorisation as a Category D prisoner. This is not something which is the subject of his present application and is a matter for him to pursue with the prison authorities.
11. In these circumstances, in my judgment, there is no arguable merit in the application and I therefore refuse permission.