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
		20th October 2014

1. HIS HONOUR JUDGE JEREMY RICHARDSON QC : In this judicial review claim Kim Hovenden (the claimant) seeks to challenge a decision of the Parole Board of 27th January 2014, wherein it was decided that his continued confinement in prison was necessary for the purposes of public protection (the decision).
2. I am indebted to Mr Jonathan Underhill, for the claimant, for his realistic and concise submissions. I am equally indebted to Mr Tim Buley, for the Parole Board, for his helpful contributions. In the end the entire case has been able to be determined upon a single issue about whether the Parole Board applied the right test. Permission to move was granted by Stewart J.
3. The claimant is a serial sex offender. He is aged 55. It is plain from the narration of his criminal history that he poses an obvious and serious danger to the public. When he was trusted on licence in 2009 it ended in his recall to prison such as to reveal to the Parole Board that he could not be trusted. The facts of the case were summarised in the decision and set out with some clarity. It does not make happy reading.
4. The Parole Board in the decision concluded:

i. "Based on what has happened in the past, in the absence of treatment and in light of your behaviour whilst on licence, the Panel have concluded if re-released there is a real and significant risk of you once again breaching licensed conditions with the consequential risk of you committing further sexual offences. Given this, the very vulnerable nature of your previous victims and the escalating nature of your sexual offending the Panel has concluded that your risks are such that your continued confinement remains necessary for public protection purposes."

5. It is accepted by both sides that paragraph plainly reveals the Parole Board applied the correct test when reaching its conclusion.
6. The public protections test that has to be applied is contained within section 225C(3) of the Criminal Justice Act 2003 (as amended by the Legal Aid, Sentencing and Punishment of Offenders Act 2012), which provides:

i. "The Secretary of State must not release (the prisoner) under subsection (2) unless the Secretary of State is satisfied that it is not necessary for the protection of the public that (the prisoner) should remain in prison..."

7. It is unnecessary for me to refer to legislative history for present purposes or helpful explanatory judgment of the Divisional Court in R (on the application of) Benjamin King v Parole Board [2014] EWHC 564 (Admin). In this case it is argued that the opening paragraph of the decision reveals the Parole Board applied the wrong test and that permeated the entire fabric of the decision. The opening paragraph reads:

i. "A three member panel of the Parole Board considered your case at an oral hearing on 24th January 2014. In deciding whether to direct your release the Panel must release you unless it is satisfied that there exists a risk that you will commit offences of the type for which you were sentenced or the licence is broken down to a point where supervision has been rendered impossible. The Panel also explored any areas of continuing risk."

8. Thereafter, the Parole Board analysed the circumstances of the case. This included the following: First, in 1975, 1982 and 1994 the claimant was convicted of sexual crimes. Second, he has a number of other convictions for crimes of dishonesty. Third, on 27th September 2001 in the Crown Court at Maidstone, before His Honour Judge Warwick McKinnon, he was sentenced to 12 years' imprisonment with a 3 year licence extension by way of extended sentence. This sentence arose from his conviction for four counts of rape and one count of indecent assault. Fourth, in respect of all of this, save one matter in 1982, the claimant maintains his innocence. Fifth, he was released on licence on 11th March 2009 and recalled on 11th September 2009. The factual details of the sexual crimes are summarised in the decision. I forbear to recite the intra-family depravity. The Parole Board decision continued:

i. "The Panel considers your risk factors to include repeated and entrenched sexual offending; sexual preference for children indicating disordered thinking around sexual relationships; a willingness to put your own gratification above the needs of others, leading to an absence of sexual boundaries, predatory manipulative and grooming behaviour; and a lack of more general consequential thinking skills. Discussing your risk factors with the Panel you said the misuse of alcohol was a potential risk factor but you had consumed alcohol in prison and considered that you could manage your intake in the community. You could not think of any other risk factors."

9. The details of the 2009 licence recall were also set out when the claimant associated with a vulnerable female despite being told to desist.
10. The claimant has been assessed as unsuitable for the Sexual Offender Treatment Programme. There was clearly an evaluation within the decision of the positive features set against the negative features of the case before coming to a conclusion. The plain structure of the decision is that of empirical analysis leading to a conclusion which plainly embraced the correct legal test as I have explained.
11. In my view this case can be simply analysed:

(1) It might have been better to set out the correct test within section 255C(3) "the public protection test" in clear terms at the outset of the decision.

(2) The high watermark of the claimant's submission, in my view, is that the opening paragraph was perhaps infelicitous of language. It must be remembered this was a decision addressed directly to the claimant himself not designed for lawyers.

(3) That infelicity of language in any event embraces a number of legitimate factual matters that may be considered under the public protection test.

(4) In any event the infelicity of language in the opening paragraph does not permeate the remainder of the decision; far from it. A careful analysis of the various factors is demonstrated.

(5) When reaching a conclusion it is plain the Parole Board had the correct public protection test well in mind.

12. In my judgment, this is not one of those cases where an erroneous promulgation of the law at the outset flaws everything in its wake. If there was an error in the opening paragraph, it was an error of infelicity of language rather than legal substance. Furthermore, if error there was (and I do not believe there was) it ended with the final word of that paragraph. The remainder of the decision is unimpeachable. It is plain the conclusion reached by the Parole Board was actuated by the correct test as set out in the final paragraph. It is as plain as plain could be that the claimant poses a serious public protection risk. This decision needs to be viewed in its entirety and not filleted to the point of unreality.
13. Mr Underhill was utterly realistic in his submissions to this court, which he advanced with commendable brevity and good sense. What limited argument he possessed on this point was placed before me. The Parole Board, in my judgment, plainly applied the correct public protection test. In the result his argument was found to be wanting for the reasons I have given.
14. Both parties were in agreement that a detailed judgment is unnecessary in the circumstances of this straightforward case. Consequently I have been able to give this mercifully short judgment. This claim for judicial review is dismissed.
15. MR BULEY: My Lord, I am very grateful. The only matter on my side is the claimant is legally aided. Out of an abundance of caution I ask for the normal costs order not to be enforced without leave of the court. I shall not say anything about it unless anything arises from my learned friend.
16. HIS HONOUR JUDGE JEREMY RICHARDSON QC: Mr Underhill do you want to add anything?
17. I make the usual order. Thank you both very much indeed. I am very grateful to you both for the helpful, brief and sensible way this case has been approached. Thank you both.