England and Wales High Court (Administrative Court) Decisions

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

		Royal Courts of Justice Strand London WC2A 2LL
		18 March 2015

1. THE DEPUTY JUDGE: On 25 February 2010 the claimant was given an extended sentence consisting of a custodial term of five years and an extended licence period of a further five years. On 5 April 2013, after the expiry of that proportion of his custodian term that he was bound to serve, he was released on licence, subject to a number of conditions.
2. On 26 April 2013, just three weeks later, he was recalled to custody. That led to the Parole Board considering whether to recommend re-release. A panel met on 7 June 2013, looked at the matter on paper, and decided that it was necessary for the protection of the public that the claimant remain in custody, this being the test under the Crime (Sentences) Act 1997.
3. On 1 August 2013 the claimant's solicitors wrote to request an oral hearing, setting out reasons why that should take place. On 6 August 2013 a panel member of the Parole Board considered the request and refused it. The claimant now challenges that decision with permission from Ian Dove QC (as he then was) sitting as a deputy High Court judge on 30 May 2014.
4. The Parole Board has filed an acknowledgement of service indicating that, as a court or tribunal, it does not intend to make submissions, but sets out some observations as to the time delay and the relevance of the challenge, which I shall come to later in this judgment.
5. Since the decision not to grant an oral hearing, the Supreme Court has handed down judgment in the case of Osborn v Parole Board [2013] UKSC 61. It is not now necessary to go beyond this case to determine the principles to be applied. The conclusions of the Supreme Court are helpfully summarised in paragraph 2 of the judgment of Lord Reed, with whom all the other Justices agreed. He states as follows:

"i) In order to comply with common law standards of procedural fairness, the board should hold an oral hearing before determining an application for release, or for a transfer to open conditions, whenever fairness to the prisoner requires such a hearing in the light of the facts of the case and the importance of what is at stake. By doing so the board will also fulfil its duty under section 6(1) of the Human Rights Act 1998 to act compatibly with article 5(4) of the European Convention for the Protection of Human Rights and Fundamental Freedoms, in circumstances where that article is engaged.

ii) It is impossible to define exhaustively the circumstances in which an oral hearing will be necessary, but such circumstances will often include the following:

(a) Where facts which appear to the board to be important are in dispute, or where a significant explanation or mitigation is advanced which needs to be heard orally in order fairly to determine its credibility. The board should guard against any tendency to underestimate the importance of issues of fact which may be disputed or open to explanation or mitigation.

(b) Where the board cannot otherwise properly or fairly make an independent assessment of risk, or of the means by which it should be managed and addressed. That is likely to be the position in cases where such an assessment may depend upon the view formed by the board (including its members with expertise in psychology or psychiatry) of characteristics of the prisoner which can best be judged by seeing or questioning him in person, or where a psychological assessment produced by the Ministry of Justice is disputed on tenable grounds, or where the board may be materially assisted by hearing evidence, for example from a psychologist or psychiatrist. Cases concerning prisoners who have spent many years in custody are likely to fall into the first of those categories.

(c) Where it is maintained on tenable grounds that a face to face encounter with the board, or the questioning of those who have dealt with the prisoner, is necessary in order to enable him or his representatives to put their case effectively or to test the views of those who have dealt with him.

(d) Where, in the light of the representations made by or on behalf of the prisoner, it would be unfair for a 'paper' decision made by a single member panel of the board to become final without allowing an oral hearing: for example, if the representations raise issues which place in serious question anything in the paper decision which may in practice have a significant impact on the prisoner's future management in prison or on future reviews.

iii) In order to act fairly, the board should consider whether its independent assessment of risk, and of the means by which it should be managed and addressed, may benefit from the closer examination which an oral hearing can provide.

iv) The board should also bear in mind that the purpose of holding an oral hearing is not only to assist it in its decision-making, but also to reflect the prisoner's legitimate interest in being able to participate in a decision with important implications for him, where he has something useful to contribute.

v) The question whether fairness requires a prisoner to be given an oral hearing is different from the question whether he has a particular likelihood of being released or transferred to open conditions, and cannot be answered by assessing that likelihood.

vi) When dealing with cases concerning recalled prisoners, the board should bear in mind that the prisoner has been deprived of his freedom, albeit conditional. When dealing with cases concerning post-tariff indeterminate sentence prisoners, it should scrutinise ever more anxiously whether the level of risk is unacceptable, the longer the time the prisoner has spent in prison following the expiry of his tariff.

vii) The board must be, and appear to be, independent and impartial. It should not be predisposed to favour the official account of events, or official assessments of risk, over the case advanced by the prisoner.

viii) The board should guard against any temptation to refuse oral hearings as a means of saving time, trouble and expense.

ix) The board's decision, for the purposes of this guidance, is not confined to its determination of whether or not to recommend the prisoner's release or transfer to open conditions, but includes any other aspects of its decision (such as comments or advice in relation to the prisoner's treatment needs or the offending behaviour work which is required) which will in practice have a significant impact on his management in prison or on future reviews.

x) 'Paper' decisions made by single member panels of the board are provisional. The right of the prisoner to request an oral hearing is not correctly characterised as a right of appeal. In order to justify the holding of an oral hearing, the prisoner does not have to demonstrate that the paper decision was wrong, or even that it may have been wrong: what he has to persuade the board is that an oral hearing is appropriate.

xi) In applying this guidance, it will be prudent for the board to allow an oral hearing if it is in doubt whether to do so or not.

xii) The common law duty to act fairly, as it applies in this context, is influenced by the requirements of article 5(4) as interpreted by the European Court of Human Rights. Compliance with the common law duty should result in compliance also with the requirements of article 5(4) in relation to procedural fairness.

xiii) A breach of the requirements of procedural fairness under article 5(4) will not normally result in an award of damages under section 8 of the Human Rights Act unless the prisoner has suffered a consequent deprivation of liberty."

6. I have, of course, read the judgment in full and have in mind the detail which adds to that summary. For the purposes of this judgment, however, I need only add two further observations.
7. First, the role of this court is to determine for itself whether a fair procedure was followed. This is not merely a review on Wednesbury grounds (see paragraph 65 of Osborn).
8. Secondly, paragraph 88 of Osborn makes it clear that:

"Whether a prisoner's right to a fair hearing requires the holding of an oral hearing does not depend on his establishing that his application for release or transfer stands any particular chance of success: that approach would not allow for the possibility that an oral hearing may be necessary in order for the prisoner to have a fair opportunity of establishing his prospects of success, and thus involves circular reasoning."

9. The sentence imposed on the claimant was in respect of four charges of sexual assault on a female under 13 and four charges of gross indecency with children. The victim was about three years old at the time of the offences. She and her parents were living in the claimant's flat. Because the parents were heroin users, the claimant was left effectively to care for the child on a number of occasions, including changing her nappy. It was at these times that the offences occurred, involving him kissing her vagina and digitally penetrating her, and getting her to kiss his penis and put her hand on it while he masturbated.
10. The pre-sentence report discloses a lack of insight or victim empathy, and a belief, common among child sexual offenders, that the child was enjoying the sexual contact. There was a history of inappropriate behaviour within the claimant's own family and a previous conviction for masturbating in sight of semi-clothed children in a public park. The claimant was assessed then as having a high risk of future sexual offending against children, with a high risk of harm to prepubescent children, predominantly female. It is not surprising in those circumstances that an extended sentence was imposed.
11. On release from prison under licence, on 5 April 2013, one of the conditions was to report to staff at a named approved premises at 9.00 am, 11.00 am, 1.00 pm, 3.00 pm, 5.00 pm and 7.00 pm daily. On 16 April 2013 he was late for his 1.00 pm sign-in. He claimed that this was due to a medical issue but provided no medical evidence to confirm this. On 24 April 2013 he was about 50 minutes late for his 1.00 pm sign-in and was issued with a warning letter.
12. Following his release, the claimant was subject to covert police surveillance, which disclosed some concerning behaviour on two particular days. On 25 April 2013 he was seen in McDonald's engaging in discussion with a mother who had young children. Thereafter, this same mother and her children came to sit at the claimant's table. He was seen on CCTV to pass something from his tray to the male child, who was aged about three. Earlier that day the claimant had bought a book in a charity shop entitled "Rock Me Gently: A True Story Of A Convent Childhood", the story of a victim of sexual abuse.
13. The next day, 26 April 2013, the claimant got on a bus and sat opposite a girl aged between two and three and stared at her throughout the journey. Other seating was available at the time.
14. Later that day he went to the public library and took out two books, both being accounts of child sexual abuse. In his room at the approved premises three days later, a further two books on sexual abuse were found.
15. The claimant's solicitors' letter to the Parole Board on 1 August 2013 takes issue with these facts or sets out other matters in mitigation. In relation to the first failure to report on 16 April 2013, they say he was attending the accident and emergency department at hospital and tried to contact the approved premises to tell them he would be late. In any event, he was fitted with a Buddi GPS tracker which should have confirmed his location.
16. As to the visit to McDonald's, the claimant denied making eye contact with young children. The restaurant was full, with many families there. He could not realistically have sat away from any children. His solicitors had asked for a copy of the CCTV footage to produce at an oral hearing.
17. As to the bus journey, the claimant said there was no other seating available and, in any event, he had arrived first and sat down before the child.
18. The books he had were about the impact of sexual abuse on children, rather than the details of the abuse itself. They were, he said, part of his process of understanding and developing empathy with the victims. The claimant's solicitors therefore submitted that an oral hearing was appropriate and necessary to consider the several points of dispute arising from the evidence relied upon to revoke his licence.
19. The panel's decision on the papers on 7 June 2013 does not make specific findings of fact but clearly relies on the two failures to report and the incidents on 25 and 26 April 2013 (as set out above), together with the purchase, borrowing and possession of books on sexual abuse. It concluded that despite:

"... a very strong and well resourced risk management plan, you were still able to engage in worrying and risky behaviours and did not comply with the terms of your licence and additional conditions."

20. This was a case of recall from licence in which the claimant had been deprived of his conditional freedom. It therefore demanded particularly anxious scrutiny. The claimant had raised disputes of fact which were important to the conclusions of the panel, whether or not they were likely to alter the final result.
21. The Parole Board had a duty to be and to appear to be independent and impartial, not predisposed to favouring the official account of events. The claimant had a legitimate interest in being able to participate in the decision-making process, and he had evidence to contribute which could not simply be ignored before it was tested.
22. Applying the Osborn principles, it is clear to me that an oral hearing should have been granted and that the decision on 6 August 2013 to refuse it was flawed.
23. That leaves the question of relief and the points raised in the acknowledgement of service.
24. The decision which is under challenge was made on 6 August 2013. The claim form was not issued until 26 February 2014. That delay was explained in a witness statement from the claimant's solicitors setting out the difficulties there had been with obtaining legal aid. That explanation was accepted at the permission stage and, although that is not necessarily the end of the matter, it is not, in my judgment, a case in which that delay should be revived now to refuse relief if otherwise it is justified.
25. But that delay does mean that things have moved on and there has been no request for expedition in this case. Thus, it is now over 18 months since the challenged decision and 21 months since the paper review.
26. The acknowledgement of service points out that the claimant was due a further review of his continued detention in June 2014, and it attaches a letter from the Ministry of Justice dated 23 September 2013 which sets this out. The letter points out:

"The Public Protection Casework Section, on behalf of the Secretary of State, is required by law to refer your case annually to the Parole Board for them to review your suitability for re-release."

The next annual review should have taken place in June 2014.

27. This morning Mr Atanda, the advocate appearing on behalf of the claimant, has told me that no hearing did take place in June 2014, nor has it taken place to date, but that a further hearing is due in August 2015, later this year. He has no documentation to explain why, if his information is correct, the annual review in 2014 did not take place. On a purely chronological basis, the hearing due for August of this year suggests, if it is an annual review, that there was a hearing in around August of last year. I have no doubt Mr Atanda is faithfully setting out his instructions; there is a risk that he has been misinformed.
28. The Parole Board is not represented here today and there is no update to the observations put in in the acknowledgement of service, which is dated 15 April 2014.
29. The answer, it seems to me, is this. I should grant relief in the form of quashing formally the decision of 6 August 2013. I do not go further than that, nor am I invited to do so. This means that the Parole Board must consider whether it is necessary to remake and revisit that decision of 6 August 2013 and reconsider whether to grant an oral hearing.
30. Relevant to that decision is likely to be the question of whether there has in fact been any further review between that time and this. If, contrary to Mr Atanda's understanding and instructions, there was a 2014 review, it may well be that the decision of 6 August 2013 has become purely academic and it would not be necessary to revisit it unless, arguably, any other consequences flow from the failure to grant an oral hearing there.
31. Those are matters which I simply raise and on which I make no further observation. They are matters to be considered by the Parole Board in due course.
32. Therefore, the relief I grant goes no further than formally to quash the decision of 6 August 2013.
33. MR ATANDA: Thank you, my Lord.
34. THE DEPUTY JUDGE: Mr Atanda, you have public funding, so you will want the usual order for assessment of your publicly funded costs --
35. MR ATANDA: Yes, my Lord.
36. THE DEPUTY JUDGE: -- in the standard form. You seek no other order? No. Thank you.
37. MR ATANDA: Thank you, my Lord.
38. THE DEPUTY JUDGE: Thank you very much.