England and Wales High Court (Administrative Court) Decisions

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

		The Courthouse 1 Oxford Row Leeds West Yorkshire LS1 3BG
		18th September 2013

1. HIS HONOUR JUDGE GOSNELL: In this claim the claimant, Michael Reed, applies for a judicial review of the defendant's decision dated 19th November 2012, which was a decision following an oral hearing which took place on 6th November 2012. The decision was made by the Parole Board to make no recommendation as to release following the review of the circumstances of the claimant's detention following his licence being revoked. I am grateful to counsel for the claimant for a summary of the essential facts of the case which I will read into this judgment.
2. On 16th May 2008 the claimant was sentenced to 7 years' imprisonment. He had been convicted on four counts of attempted rapes and sexual assault against a child. The claimant has protested his innocence in respect of these convictions and his case is currently being reviewed by the Criminal Cases Review Commission.
3. The claimant was automatically released from the custodial period of his sentence on 14th October 2011 and he was living in community under extended licence supervision. He was recalled to prison for alleged breach of his licence on 13th January 2012, otherwise his sentence and licence expiry date is 16th April 2015.
4. The claimant was alleged to have breached condition 5 (xv) of his licence which reads as follows:

i. "Not to use directly or indirectly any computer, data storage device or other electric device (including an Internet enabling mobile phone) for the purpose of having access to e-mail, instant messaging services or any other online messaging services or any other online message board or forum or community without the prior approval of your supervising officer. You must allow a responsible officer reasonable access, including technical checks to establish usage."

5. Two USB sticks were found during the search of the claimant's hostel room in January 2012. Counsel for the claimant reminds me that a memory stick is used as a storage facility, usually for a portable device and can easily be removed for access by a personal computer. It does not have a capacity to access the Internet. It was the possession of these two USB sticks which is found to establish a breach of the claimant's licence conditions.
6. The oral hearing took place at HMP Hatfield before a single member of the Parole Board on 6th November 2012. The defendant noted that the claimant's response to the reporting requirements of his licence were satisfactory although some concern was noted with regard to level of engagement with hostel regime. It was also known that he did not engage in the offence focussed work. At the oral hearing the claimant explained he maintained his innocence and attempted to appeal his convictions. He accounted for his possession of the memory sticks by saying that one had been on an old key ring which had been in his property when he was sentenced or remained there and the second memory stick had been bought shortly before Christmas and he intended to send it to a friend who was helping him with his autobiography. She had agreed to type up his handwritten notes. He had not got round to posting the USB stick when he was apprehended.
7. The claimant's submission is that he complied with every condition of his licence. He had not attempted to access the Internet and should never have been recalled to prison.
8. The statutory background to this type of procedure is in the Criminal Justice Act and pursuant to section 254 the claimant was capable of being recalled to prison for breach of his licence. Originally section 254(3) gave rise to an obligation on the Secretary of State to refer the matter to the Parole Board which is then required to carry out a review of the recall. I mentioned during the hearing that I think that particular section has been repealed but I think both counsel agree that there is a current section which covers this aspect of the matter and they are both agreed that it still represents the law.
9. The only other matter that I need to read into this judgment in relation to statutory guidance is the Secretary of State's issued directions to the Board under section 239(6) of the Criminal Justice Act 3 and the directions provide as follows:

i. "Parole Board review of continued detention following a decision taken by the Secretary of State to recall an offender. In reviewing the offender's continued detention the Parole Board may recommend the offender's immediate release on licence, fix a date for the offender's future release on licence within the year of the Board's decision or determine the reference by making no recommendation as to the offender's release.

ii. The Board is required to take into account all the information available for the time the recall decision was taken together with any subsequent information, including representations made by on behalf of the offender, in particular the Parole Board should consider:

(ii) current assessment of risk prepared by prison and probation staff.

(iii) whether the risk management plan prepared by the probation services is adequate to manage effectively any potential risk of serious harm or imminent offending.

(iv) whether in the light of the offender's previous response to supervision the offender is likely to comply in future with the requirements of the probation supervision for the duration of the licence period.

(v) the availability of suitable accommodation as well as the availability and timing of offending behaviour work or any other intervention either in or out of custody.

(vi) the date on which the outcome of any pending prosecution will be none.

(vii) whether the interests of public protection and the prisoner's long-term rehabilitation would be better served if the offender were rereleased while under probation supervision.

(viii) any representations on behalf of the victim in respect of licence condition.

i. Each individual case should be considered on its own merits without any discrimination on any grounds."

10. I am reminded the appropriate test for the Parole Board was considered by Irwin J in K (on the application of J) v the Parole Board [2010] EWHC 919 (Admin). Irwin J then said as follows:

i. "The Parole Board's duty has been considered in analogous circumstances in a number of authorities with which it is not necessary for me to deal in any detail. The Board was not determining a criminal charge...The Board is concerned with assessment of risk...The role of the Board is not simply to review the reasons given for the recall but to look at the wider picture and decide for itself whether the recall should be maintained (see Gulliver v Parole Board [2007] EWCA Civ 1386. The Board is bound to give preponderant weight to the need to protect innocent members of the public against any significant risk of injury..."

11. The claimant's submissions in this case are to the effect that the decision of the defendant is flawed. The claimant says that the USB memory stick devices found in the claimant's property were not capable of accessing the Internet and the claimant's submission is that the decision is premised on a misunderstanding of the technology . The defendant concluded that the fact of simple possession of memory sticks established that the claimant had been accessing the Internet. This then led to the conclusion that his risk had raised to an unacceptable level and a level that could not be managed in the community. The claimant reminds me that there is a difference between a USB stick and a device colloquially known as a "dongle" which looks similar but is issued by information technology companies with a view to accessing the Internet but not storing data. It is contended that the Parole Board misunderstood the technology and there was no evidence presented to suggest that the USB stick had the capacity of a dongle, in other words that it could have availed the claimant in accessing the Internet.
12. The claimant contends that as a matter of fact the licence conditions had not been breached and the defendants refused to release the claimant on a false premise. Effectively the submissions to me were on the basis that the very fact of the discovery of the two USB sticks did not provide an increased risk, so far as the claimant was concerned, in relation to his future behaviour and that accordingly it was wrong of the Board to refuse to release him. The claimant also submits that the Board placed an over reliance on the fact that as there had been no admission of guilt by the claimant then there would be no offender focus work.
13. The defendant deals with this aspect of the matter by reminding me of the judgment of the Court of Appeal which approved the four principles laid down Laws J in a case called Hepworth when the court reconsidered the matter in the case of Oysman. I only read the fourth of the aspects which I think is important where he said:

i. "(4) But in some cases, particularly cases of serious persistent violent or sexual crime, a continued denial of guilt will almost inevitably mean that the risk posed by the prisoner to the public or a section of the public if he is paroled either remains high or, at least, cannot be objectively assessed. In such cases the Board is entitled (perhaps obliged) to deny a recommendation."

14. I am reminded also of what the general approach of the court should be to judicial review of Parole Board decisions. In particular, I am reminded of the decision of the House of Lords in James [2009] UKHL 22 where Lord Judge stated:

i. "I am not to be taken to being encouraging applications by prisoners for judicial review on the basis that the prisoner may somehow direct the process by which the Parole Board should decide to approach its section 28(6) responsibilities either generally, or in any individual case. These are question pre-eminently for the Parole Board itself. Although possessed of an ultimate supervisory jurisdiction to ensure that the Parole Board complies with its duties, the Administrative Court cannot be invited to second-guess the decisions of the Parole Board, or the way it chooses to exercise its responsibilities. Your Lordships were told that the Board is frequently threatened with article 5(4) challenges unless it requires the Secretary of State to provide additional material. Yet it can only be in an extreme case that the Administrative Court would be justified in interfering with the decisions of what, for present purposes, is the 'court' vested with the decision whether to direct release, and therefore exclusively responsible for the procedures by which it will arrive at its decision."

15. This is reinforced by Stanley Burnton J (as he then was) R (on the application of Scott Alvey) v Parole Board [2008] EWHC 311 (Admin) where he stated:

i. "The law relating to judicial review of this kind may be shortly stated. It is not for this court to substitute its own decision, however strong its view, for that of the Parole Board. It is for the Parole Board, not for the court, to weigh the various considerations it must take into account in deciding whether or not early release is appropriate. The weight it gives to relevant considerations is a matter for the Board, as is, in particular, its assessment of risk, that is to say the risk of re­offending and the risk of harm to the public if an offender is released early, and the extent to which that risk outweighs benefits which otherwise may result from early release, such as a long period of support in the community, and in some cases damage and pressures caused by a custodial environment."

16. The applicable test, say the defendants is set out by Smith J (as she then was) in the R (Gordon) v The Parole Board [2000] EWHC 414 (Admin) at paragraph 31 when she said:

i. " I remind myself that I must not in any way interfere with the discretion or judgement of the Parole Board, who, as Turner J. observed in ex parte Hart (unreported 24th May 2000) are 'uniquely qualified' to make the decisions it is called upon to make. I must ask myself whether they have carried out their task in accordance with the law, as set out in the statutory directions. I must consider whether the decision falls within the range of decisions which a reasonable panel might make. I must ask whether the reasons for the decision are proper, sufficient and intelligible."

17. One aspect of this case, which is perhaps different to most other challenges to Parole Board decisions is that there is a direct challenge to the correctness of the original decision to recall. What the claimant says is that not only was it not a particularly significant factor, he also says that the decision to recall him was actually legally incorrect because he had not in fact breached the conditions of his licence. Relevance of the correctness of the original decision was addressed by the Court of Appeal in the case of Gulliver v Parole Board [2007] EWCA Civ 1386, and whilst the leading judgment was given by Sir Anthony Clarke, Sir Igor Judge (as he then was) made some interesting comments in paragraph 43 which may be relevant to this case when he said:

i. "The effect of this process is that the Parole Board exercises a degree of supervisory responsibility over the Secretary of State's decision and the process which led to it. Nevertheless, whatever its view of that decision, or the circumstances in which it was reached, it is with public safety in mind that the Parole Board must address and decide whether to recommend the release of the prisoner. It is not divested of that responsibility merely because of reservations about the original decision by the Secretary of State."

18. The defendant submits that the risk of harm was correctly assessed by the Parole Board on the basis of the information that they had available to them. It is necessary for me to review at least in passing the decision of the Parole Board which runs to three-pages following the hearing on 6th November. The relevant passages are as follows. In paragraph 1, the Parole Board indicates that the assumption is that the Parole Board would seek to re-release in all the circumstances where it is satisfied that risk can be managed in the community until the next automatic release date. It records later in the paragraph that it was not so satisfied and made no recommendation as to release. But the task of the Parole Board was in fact to assess whether the risk could be managed safely in the community. The Parole Board did record, accurately it seems to me, the history of the circumstances surrounding the recall to prison. In paragraph 5, where it dealt with risk factors and assessment of risk it said as follows:

i. "OGRS indicates a low actuarial risk of reconviction. OGP and OVP which include ... factors also indicate a low risk reconviction for general and violent offending. OASys indicates a high risk of harm. Your risk is primarily identified as sexual harm towards children."

19. The letter then deals with the issue of maintenance of innocence as follows:

i. "Maintenance of innocence does not in itself prevent sense of progression. However, the Panel must proceed on the basis that you were properly convicted. It is reported that you met your victim through a lone parent support group. The circumstances suggest you specifically targeted in a predatory fashion a vulnerable family with the intention of grooming your mother to satisfy your sexual preference with children."

20. It does seem to me that at least the first part of that paragraph accurately summarises what the law is. As I indicated previously in Oyston the fact that it is recorded that maintenance of innocence is not in itself an obstacle to progression is my view sufficient to deal with the allegation that the claimant's assertion of innocence was in some way inappropriately dealt with by the Board.
21. The Board then recalled the submissions put forward on behalf of the claimant as follows:

i. "The Panel noted your explanation for being in possession of two USB memory sticks together with the submission of your representative. There was no evidence to indicate the devices contained any inappropriate material. The Panel also noted the submission of your representative that possession of the memory stick should not have resulted in your recall on the basis that you had not in fact breached the licence condition in question. It was argued that the principle underpinning the licence condition was that you should not have unauthorised access to the Internet, that the memory sticks were a means of storing data rather than means of accessing inappropriate material."

22. Pausing there. While this is recorded as a submission, it does seem to me that the Board must have appreciated the distinction between a memory storage device and a device that accesses the Internet, otherwise I cannot understand why they would record the submission to that effect because obviously it would be recorded if it was relevant which clearly it is. The Panel went to say as follows:

i. "However, the Panel agreed with previous Panels of the Parole Board that your account of how you came to be in possession of the memory sticks lack credibility."

23. Pausing there that is not an issue that I can review in that the Panel had the benefit of hearing from the claimant and it was a matter for them whether they felt it lacked credibility or not:

i. "The purpose of listing such items as prohibited as part of your licence was to protect children against the potential for abuse."

24. This is relied upon by the claimant as an indication of the Panel's misunderstanding of the situation. I am not convinced that is right. It states that the purpose of listing "such items as prohibited". It seems to me there the Board are referring not necessarily purely to USB sticks but to all the items which are set out in subparagraph 15 of paragraph 5 of the licence conditions which included electronic devices and Internet enabled mobile telephones. It then goes on:

i. "Given the predatory behaviour you displayed in the index offences the Panel could not discount the possibility that you intended to pursue behaviour that would put children at risk of sexual harm."

25. I accept that could be read to be interpreted that there was some causal connection between the USB devices and pursuing the behaviour that would put children at risk of sexual harm. The alternative is that there was a general concern based upon all the factors, which is the risk they were trying to assess. Obviously if the finding of the Board had said: you intended to pursue behaviour through your use of the USB devices, then that would have placed the situation beyond doubt but I have to say that particular sentence is open to two possible explanations.
26. In dealing with the effect of the risk management plan the Board recalls neither the offender supervisor nor the offender manager supported early rerelease. There was a concern expressed by the offender supervisor that he had not been able to reduce his risk to attendance in a relevant offending behaviour management programme: "The offender manager's assessment was that your risks could not be managed in the community."
27. This sets out the difficult situation that prisoners convicted of sexual offences find themselves in when they maintain their innocence. Because of that they are not eligible for the types of courses that will help prove that risk to the community has been reduced. It is a difficult situation and one which has been recognised in the past by the court but this decision, in my view, does no more than record the fact that the absence of his attendance in a programme has added to the concerns of the offender manager, that the risk of not be safely managed in the community.
28. In the conclusion the Panel recorded as follows:

i. "In particular it is noted there was no evidence to suggest that you had attempted to form inappropriate relationships in the community or that the memory sticks contained inappropriate material."

29. I pause there to point out that this recording in my view firmly lays to rest the concern that the Panel may not have understood the difference between a memory stick and a dongle. My understanding is that a dongle could not contain inappropriate material because it is incapable of maintaining a recording data. Memory sticks however do record data. So by stating that at least the memory sticks did not contain inappropriate material, the Panel clearly understood what a memory stick was and were not confusing it with a dongle.
30. The next sentence however is again one of the sentences which I think gives rise to concern and perhaps gave rise to the concern which is Judge Behrens expressed in giving permission. It says as follows:

i. "However, it is agreed with your offender manager your account of how and why you were in possession of two USB data storage devices lacked credibility. It could not discount the possibility your intention had to be engage in behaviour which would put children at risk."

31. Obviously if that sentence is intended to mean that the behaviour was going to be by use of the memory sticks it would require some imagination to see how that would occur but if the sentence ending the letter was merely dealing with the risk that the claimant might engage in behaviour putting children at risk generally as a consequence of his past behaviour as found by the courts and by the fact that the offender manager and offender supervisor had not supported the earlier release then it would be an appropriate recording to appear in the decision.
32. I have to say it is unfortunate that it was expressed in that way because it has given to a rise a concern on behalf of the claimant which is not unreasonable that over reliance was placed upon the memory sticks when assessing the risk for the community.
33. Standing back from the situation my job is to review the decision overall. In order to do that I have to look at what was available to the Board to help them make the decision. Clearly there were the factors surrounding the recall which were clearly relevant and were taken into account by the Board.
34. However, there were a number of other factors which they could and should have taken into account. Firstly, the recall report from probation dated 11th January 2012 stated claimant presented high risk of serious harm. The review of re-release report again from probation dated 15th February did not recommend release identifying further work that was necessary. The previous decision of the Board dated 29th February 2012 did not recommend release and cited risk factors such as relationships deficit, thinking skills and the inability to accept personal responsibility. The risk assessment for the proposed decision in November concluded that the claimant presented a high risk of harm to children and his primary risk factor of that sexual harm towards children and that neither offender manager nor the offender supervisor supported early re-release. When the Board had to ask themselves whether the risk could be safely managed in the community, in my view, it is not too surprising they came to the conclusion that they did. I should ask myself: was this decision within the range of decisions which a reasonable Panel might make and are the reasons for the decision proper, sufficient and intelligible.
35. It seems to me given all of the background information that was available this decision was within the range of decisions which a reasonable Panel might make and although I have somewhat been critical about the wording of the reasons for the decision, it seems to me there are overall sufficient and intelligible because they are based on the assessment of risk.
36. I have to say the trigger for this assessment was perhaps based on dubious grounds. I have some sympathy with the contention that there may not have been a breach of the licence conditions in the first place. Once that breach has been alleged and has been unchallenged, it then forced the Parole Board to make an overall assessment taking into account all the circumstances. I am convinced that the Parole Board did take into account all the circumstances and the decision they reached is difficult to challenge for the reasons that I have identified. So having reviewed the situation and decision in its entirety, for the reasons I have indicated I intend to dismiss the claim.
37. MR KARIM: My Lord, I am grateful. The Board does not seek any order as to costs.
38. HIS HONOUR JUDGE GOSNELL: The claim is dismissed and order for costs? Do you want a public funding assessment?
39. MR FITZPATRICK: Yes please.
40. HIS HONOUR JUDGE GOSNELL: No order for costs save for a public funding assessment of the claimant's costs. Anything else?
41. MR KARIM: No my Lord.
42. MR FITZPATRICK: Thank you my Lord.
43. HIS HONOUR JUDGE GOSNELL: Thank you both for your help. I very much appreciate the work you put in your skeleton arguments and grounds, which enabled me to deal with the case without too much further research. I appreciate that.