QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
London WC2A 2LL
B e f o r e :
|THE QUEEN ON THE APPLICATION OF HARRIS||Claimant|
|SECRETARY OF STATE FOR JUSTICE||Defendant|
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Mr S Pritchard (instructed by the Treasury Solicitor) appeared on behalf of the Defendant
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"The deportation order against Mr Harris remains extant. However, at the current time he cannot be removed from the UK under TERS because Immigration Enforcement have yet to commence consideration of Mr Harris' case and consideration will only begin on 21/11/2014. Once consideration has commenced, Immigration Enforcement will need to serve Mr Harris with a signed deportation order which will provide Mr Harris with an opportunity to appeal. In addition to this, a travel document will also need to be obtained. His suitability for removal under TERS will be reviewed on a regular basis by PPCS on behalf of the Secretary of State. The expectation is that where a prisoner is eligible for and there are no impediments to removal, they will be released and removed under TERS. Until such time, their ongoing detention must continue to be reviewed by the Parole Board."
"5. Evidence of progress in custody
While on remand prior to your retrial and sentence, you received adjudications for assault, damage and abusive words and behaviour. You settled down thereafter and at HMP Gartree you undertook a drugs course in 2008. In 2010 you completed a Thinking Skills Course, it being noted that you had participated positively throughout the programme and gained a good understanding of the skills and tools used. You arrived at HMP Ranby on 25 July 2011. You have completed an in-cell victim awareness pack and in conversations with your offender manager have demonstrated good victim awareness and genuine remorse. You do not meet the criteria for other offending behaviour programmes such as CLAM, CSP and RESOLVE, but you have made constructive use of your time pursuing educational and vocational qualifications and working in the plastics workshop. Although you have a number of minor disciplinary infringements on your record while at Ranby, you are described as generally polite and personable. Given your immigration status and conviction, you meet the criteria for automatic deportation, and the appropriate notice was served on you on 22 June 2010. Immigration Enforcement will commence consideration of your case eighteen months prior to expiry of your tariff. You receive visits from your mother and stepfather and are in telephone contact with your nine year old son, facilitated by his mother. You have however always accepted that on release you will have to return to Jamaica. You have other family members there, including an uncle who may be able to offer you employment in his electrical business. You have been saving money with a view to setting up a poultry breeding business on your return to Jamaica.
6. Panel's assessment of current risk
Your risk of causing serious harm had been assessed as high at the time of sentence but is now reduced to medium. All other relevant risk scores are low. The panel accepts this assessment. It is clear to the panel that you have matured considerably in the course of your sentence. You appear to the panel entirely genuine in your expressions of remorse and declared intention to keep free of cannabis, shun criminal associates and lead a law-abiding life. You are aware of how much you would stand to lose if you were to abscond.
7. Evaluation of effectiveness of plans to manage risk
Both your offender manager and offender supervisor recommend that you be transferred to open conditions. It is considered that your risk would be manageable in open conditions and you would be most unlikely to abscond. In your evidence to the panel you spoke thoughtfully of the potential benefits to you of a transfer to open conditions, remarking that you have been in closed establishments for ten years and that a transfer to open would help you get ready for release, improve your education and employability, and would provide you with the opportunity to see more of your family. Because of your liability to deportation, you would be unable to pursue employment outside the prison. You would however be able to prepare for release into the community by adjusting to the less restrictive regime of an open prison, and you hope to be able to pursue a business studies diploma and to learn employment skills, for example, in agriculture if you are transferred to an establishment with its own farm.
8. Conclusion and decision of panel
The panel accepts that you have done all the offending behaviour work appropriate to closed conditions. The panel agrees with the professionals responsible for you that the benefits to you of a transfer to open conditions outweigh the risks, the panel also agrees with all witnesses who state that, do you not present a significant risk of absconding if transferred to open conditions.
The panel therefore recommends that you be transferred to open conditions where you will be able to do further constructive work in reducing your risk factors by managing the tests of less secure conditions and taking forward your plans for a law-abiding life on your eventual release."
"The Secretary of State has now considered the Parole Board recommendation but is not prepared to agree to your transfer to open conditions in view of the fact that you are subject to liability to deportation and Immigration Enforcement will not be considering your case until 18 months prior to your tariff expiry on 21 May 2016, ie November 2014. Full reasons for this decision are attached at Annex A."
"4. The Secretary of State notes your behaviour has been good and that you have complied with your sentence plan, completing the Thinking Skills Programme . . . and your Offender Supervisor and Offender Manager both support a progressive move to open conditions. He notes that you were assessed as not meeting the criteria for the Self Change Programme . . . Controlling Anger and Learning to Manage it programme . . . and the RESOLVE programme. You are not tariff expired until May 2016 and the Secretary of State has concerns with regard to your abscond risk due to your possible deportation.
5. In view of the above concerns regarding the abscond risk relating to your immigration status, the Secretary of State, following the hearing, has liaised with Immigration Enforcement regarding your current immigration status. IE has now informed the Secretary of State that they will not be looking at your case until November 2014, 18 months prior to your tariff expiry, 21 May 2016.
6. The Parole Board based their decision on the facts before them at the hearing and it was not possible at this early stage to provide them with details as to the prospect of you being deported. You are currently just under 2 and a half years away from your tariff expiry and it will be just under a year before Immigration Enforcement commence consideration of your deportation.
7. The Secretary of State has taken account of the uncertainty over your immigration status and the amount of time remaining before your tariff expiry date. The Secretary of State considers that your immigration status should be resolved before your move to open conditions.
8. Against this background, the Secretary of State has decided to reject the Parole Board's recommendation and decided that you should remain in closed conditions. If, however, following consideration of your case, Immigration Enforcement informs the Secretary of State that it would be unlikely you would be deported, he will take immediate steps to refer your case to the Parole Board for an exceptional pre-tariff review. As your tariff does not expire until May 2016, this would still allow sufficient time for you to transfer to open conditions and be able to undertake resettlement work including release on temporary licence."
The overview of the challenge
"It is the duty of the [Parole] Board to advise the Secretary of State with respect to any matter referred to it by him which is to do with the early release or recall of prisoners."
" . . . I derive five principles from the authorities:
(1) The decision of the Secretary of State is not lawful if he fails to take into account the recommendation of the Parole Board and the fact that the Parole Board has particular expertise in assessing the risk posed by individual prisoners. Nevertheless, it is a matter for the Secretary of State what weight he assigns to those factors in any given case.
(2) The decision of the Secretary of State is not lawful if it was reached by an unfair procedure. It is for the court to determine in any given case whether the procedure was unfair.
(3) If the Secretary of State places reliance upon significant material that was not before the Parole Board, then fairness may require that the prisoner be given an opportunity to comment upon it.
(4) The mere fact that the Secretary of State takes a different view from the Parole Board of material that was before the Parole Board is not normally a matter which merits a reference back to the prisoner for his further comments.
(5) Even if the procedure adopted by the Secretary of State is fair, if his final decision is irrational it may still be quashed on traditional Wednesbury grounds."
"51. However, at the time of the decision under review the decision maker under the statutory scheme remained the Secretary of State for these few prisoners. He must therefore have been entitled to come to his own conclusion on the assessment of risk provided he did so by a process which was fair and the decision was rational. As Mr Owen QC accepted, he had some expertise, though not superior expertise. I cannot accept that he was only entitled to reject the recommendation on the narrow grounds suggested by the claimant, particularly given that assessment of risk is, as experience has more clearly shown over the years, a task of great difficulty where those entrusted with it can reasonably differ.
52. It is self evident that he should and would accord weight to the recommendation of the Parole Board. However the weight the Secretary of State should accord to the recommendation must depend on the matters in issue, the type of hearing before the panel, its findings and the nature of the assessment of risk it had to make. The grounds for impugning the decision he makes which does not follow the recommendation must depend on the fairness of the way in which he approached his decision making in the light of the foregoing and whether the decision has a rational basis."
"60. In my view, the Secretary of State, when making the decision on parole, also had to distinguish between the findings of fact made by the panel and the assessment of risk. The findings of fact were the basis on which the Secretary of State was entitled to reach his own view, using the Appendix 7 criteria, to determine risk, according appropriate respect to the views of the panel on their assessment of risk."
"21. Miss Rose QC submitted to the Divisional Court (as she has done to us) that, once an independent and impartial tribunal has determined, after a fully contested hearing including oral evidence, that a public authority has failed in its statutory duty to communicate requested information, its determination is definitive and can be departed from by the executive only on cogent grounds. Examples of such grounds are some demonstrable error or change of circumstances, which would show that the tribunal's judgment could no longer be safely relied on. It is not reasonable for an accountable person simply to disagree with the evaluation of the tribunal."
"37. In my view, whether a decision is 'reasonable' depends on the context and the circumstances in which it is made. I agree with the Divisional Court that two opposing decisions or opinions may both be objectively reasonable. But whether it is reasonable for X to disagree with the reasonable decision or opinion of Y depends on the context and circumstances in which X and Y are acting. That is well illustrated by the three authorities on which Miss Rose relies. In each case, the court asked whether it was reasonable for Y to make a decision which was contrary to the earlier decision of X. In each case there was a judicial review challenge to the reasonableness of the later decision. In my view the cases provide a helpful analogy. In each of them, the context in which the reasonableness of Y's decision was to be judged was that it was contrary to the earlier decision of X, which was an independent and impartial body that had conducted a full examination of the very issues that Y later had to determine. In each case, the court emphasised as being of particular importance the fact that the earlier decision had been made by an independent and impartial body, after a thorough consideration of the issues. In these circumstances, the court held that there had to be something more than a mere disagreement on the same material for it to be reasonable for Y to disagree with X. In the present case, the Attorney General disagreed with the decision of the UT (an independent court chaired by a High Court judge) on the very question which the UT had examined in meticulous detail. The Attorney General did not have any additional material and it has not been suggested that the UT made any error of law or fact. It is accepted that the UT's decision was a reasonable decision.
38. I do not consider that it is reasonable for an accountable person to issue a section 53(2) certificate merely because he disagrees with the decision of the tribunal. Something more is required. Examples of what would suffice are that there has been a material change of circumstances since the tribunal decision or that the decision of the tribunal was demonstrably flawed in fact or in law. This was the approach suggested by Simon Brown LJ in Danaei in relation to the Secretary of State's decision which contradicted the earlier decision of the special adjudicator. It seems to me to be particularly apt in relation to section 53(2). I do not agree with the reasons given by Davis LJ for distinguishing the three cases (see para 32 above). The fact that a section 53(2) certificate involves making an evaluative judgment (rather than a finding of primary fact) is not material to whether the accountable person has reasonable grounds for forming a different opinion from that of the tribunal. Nor do I consider that the basis for the decision in Powergen was that the decision of the highway authority was 'subversive of the legislative scheme.'"
"91. For my part, I am not persuaded that that is the correct approach: I am not persuaded that the Secretary of State was entitled to reject the Ombudsman's finding merely because he preferred another view which could not be characterised as irrational. As I have said, earlier in this judgment, it is not enough that the Secretary of State has reached his own view on rational grounds: it is necessary that his decision to reject the Ombudsman's findings in favour of his own view is, itself, not irrational having regard to the legislative intention which underlies 1967 Act: he must have a reason (other than simply a preference for his own view) for rejecting a finding which the Ombudsman has made after an investigation under the powers conferred by the Act. It is, to my mind, a striking feature of the history which I have set out that the Secretary of State has not, even in this Court, sought to meet the Ombudsman's finding that the assurances given on page 15 of the leaflet PEC 3 were incompatible with the Government's intentions."