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
		13 November 2017

Miss Rose QC:

1. By this claim for judicial review, the Claimant seeks to challenge the decision of the Defendant made on 9 August 2017 to recall him to prison. The Claimant says that the decision was unlawful, disproportionate and unreasonable, and that in consequence his detention is unlawful at common law and under Article 5 of the European Convention on Human Rights.
2. At the conclusion of the hearing on 8 September 2017, I indicated that I had decided that the claim should succeed, and ordered the release of the Claimant from prison. This judgment sets out the reasons for that decision.

Facts

3. The Claimant was born on 21 June 1945, and is thus 72 years old. He was convicted on 5 January 2006 of a number of serious sexual offences committed in the early 1990s, including rape, incest, and assault occasioning actual bodily harm, and sentenced to life imprisonment, with a four year tariff. Taking into account the time he had spent on remand, his tariff expired on 11 October 2009.
4. The Claimant suffered from bowel cancer in 2009. He has a number of chronic physical disabilities, including nerve damage. He has restricted mobility, and suffers from incontinence. He uses a stoma and a colostomy bag. He suffers from neuropathic pain in his hands and feet which makes walking difficult, and uses a walking frame or a wheelchair. He also suffers from depression.
5. The Claimant was the subject of a number of Parole Board reviews between 2009 and 2016. His case was eventually considered by a panel of the Parole Board at an oral hearing on 8 August 2016. By a decision made following that hearing, on 22 August 2016, the panel concluded:

"Having carefully considered the whole of the evidence the panel is satisfied that in principle, and subject to an appropriate release and risk management plan being put in place, your risk would be manageable on licence in the community."

6. Since no suitable accommodation had yet been identified, and an appropriate risk management plan was not yet in place, the panel adjourned the hearing for these matters to be addressed.
7. Notwithstanding the panel's conclusion, the Claimant was not released until May 2017, because of the difficulty in finding appropriate accommodation for him.
8. However, by a further decision dated 15 May 2017, the Parole Board panel Chair ordered his release. In making that decision, the panel Chair conducted an up to date assessment of the risk presented by the Claimant, taking into account his progress in custody and changes since August 2016. The panel Chair's conclusion was as follows:

"Nothing which has occurred since the oral hearing has caused the panel chair to alter the assessment which he and the other two panel members made in August 2016. The panel chair has reminded himself, as all three panel members did in August 2016, that the Board's task is to assess your current risk of serious harm to the public, which in the context of this case must mean the risk of your causing serious harm by future sexual offending.

There is no evidence that you have ever posed any risk of sexual offences against males, so the panel is concerned only with your risk, if any, of causing serious harm by future sexual offending against females. The fact, if it be the fact, that you may on occasions cause offence to females or behave inappropriately towards them, without causing them any serious harm, is immaterial to the panel's decision.

The offences which led to your two lengthy prison sentences were committed against specific victims (██████████ who were teenagers at the time of the offences) in specific situations which will clearly never recur; and in the panel chair's view the risk of your committing sexual offences against any other females in the future is properly described as low.

The panel chair is in complete agreement with the views expressed by Mr Payne at the oral hearing [Mr Payne is a forensic psychologist who had assessed the Claimant, and who gave evidence at the hearing in August 2016]. He had concluded in his assessment that you would pose a low risk of sexual violence if you were released into the community. …

In his addendum report of February 2017 he saw no reason to change his view of your risk of future sexual violence. He did not believe, and the panel chair does not believe, that anything which has happened since the oral hearing has afforded any evidence of an increase in risk. Whatever criticisms may be made of your occasionally poor behaviour in custody, there is nothing to suggest an increased likelihood of serious harm caused by future sexual offences. Your behavioural lapses can be put down in part to your problematic personality traits which include a somewhat narcissistic and self-centred approach to life and significant difficulty in understanding other people's positions or views.

It is Mr Payne's opinion that your risk of future non-sexual violence is actually higher than your risk of sexual violence: he places it at the low-moderate level. He has explained this as follows: "At times, [Mr Goldsworthy] will present as appreciative and grateful to staff he feels understand his special needs and meet them, However, he is also likely to be very sensitive to treatment he feels does not meet what he is entitled to and should be provided with. His response to this perceived substandard care may vary, but could include contempt for staff he feels do not understand or are not competent, voicing suspicion that staff are deliberately withholding care, or signs of anger and frustration in the form of verbal aggression (insults, swearing, abusive language). On occasions where Mr Goldsworthy feels his response does not produce an improved level of care, increasing levels of anger and frustration may lead to physical violence, most likely in the form of the throwing of an object that is to hand."

The panel agrees with Mr Payne's analysis, but the risk of future inappropriate behaviour of this kind is entirely different from the risk of future sexual violence upon which the panel is required to focus: it falls a long way short of the kind of risk which would make it necessary for you to continue to be confined in prison in order to protect the public from serious harm. The manageress of the care home to which it is proposed you should be released is aware of your offending history and has seen Mr Payne's report, but is nevertheless willing to accept you as a resident. No doubt the kind of petulant behaviour to which Mr Payne refers is not altogether uncommon in elderly residents in care homes. It is not a reason for locking them up in prison for the protection of the public."

9. As this passage indicates, accommodation had been arranged for the Claimant at a care home: Lyle House, in Roehampton. The Claimant was released to that address on 17 May 2017.
10. The conditions of the Claimant's licence included a condition that he should be "of good behaviour", and a condition that he should not commit any offence.
11. On 28 June 2017, the Claimant was informed by doctors at St Thomas' Hospital that he had been diagnosed as suffering from a metastatic colorectal cancer which had spread to his liver, and that his condition was terminal. He was told that it was likely that he had between about three months and one year (or possibly two years, as the recall report records) to live.
12. Following the diagnosis, the Claimant's relationship with some carers at Lyle House deteriorated. It was said that he had sworn at a night carer. The recall report notes that the home generally deals with vulnerable adults with dementia, and that the Claimant is different from their usual client group. It was suggested that additional training for some staff might be needed.
13. On 7 August 2017, Anna Dillon of the Probation Service was informed of further problems with Mr Goldsworthy's behaviour. It was a matter of particular concern, given his offending history, that a staff member had reported a possible incident of him inappropriately touching the leg of a 90 year old resident, though it was said to be unclear whether he "was being tactile or had an ulterior motive".
14. Anthony Gosling of the Probation Service attended Lyle House on 8 August to meet Mr Goldsworthy and discuss his behaviour with him.
15. On the following day, 9 August, the Probation Service was informed that the Claimant's behaviour had become significantly worse overnight. He had threatened staff members, stating that he would "get you sorted out" and "take your head off". He had also thrown a bag belonging to a member of staff against the wall, breaking an ipad and mug that were inside. Staff felt intimidated, and residents had to be moved for their safety. Staff called 999, but the police did not attend. It appears that staff did not inform the police of the Claimant's history when making the emergency call.
16. As a result of this incident, the management of Lyle House were not prepared to permit the Claimant to remain there any longer.
17. Ms Dillon noted in her recall report dated 10 August 2017 that she had been able to obtain alternative emergency accommodation, in the form of a disabled access studio flat in Hounslow. However, her report states that "it was decided that Mr Goldsworthy's risk could not be managed in the community. An out of hours recall was initiated by Mr Josling". No reason was given in the recall report as to why the Claimant's risk could not be adequately managed in a studio flat, such as the one which had been identified.
18. The Claimant was thus recalled to prison at HMP Wandsworth late on 9 August 2017.
19. An urgent application for interim relief was made on 21 August 2017, with a claim for judicial review of the recall decision being issued on 22 August 2017.
20. On 22 August 2017, Nicola Davies J granted permission for judicial review, expedited the claim, and ordered the defendant within three days to review and reconsider the decision to recall the Claimant's licence. She also made an order requiring the Hounslow flat to be retained for possible occupation by the Claimant in the meantime.
21. The decision to reconsider the recall was made on 24 August 2017, by Ian York, Head of Post-Release Casework. The decision to recall the Claimant was reaffirmed. The reasons were stated to be increasing concerns about the Claimant's behaviour, and, in particular, the incident when the Claimant had threatened violence against staff at Lyle House, and had thrown the member of staff's bag against the wall, breaking her ipad and mug. It was noted that the Claimant had already been placed on a behaviour management plan, as a result of his previous poor and threatening behaviour, and that staff were in no doubt that this incident was a "deliberate act of aggression".
22. The letter referred to the touching of the elderly resident's leg by the Claimant, but stated that it had now been confirmed that this incident was "non-threatening".
23. Mr York also stated that the Parole Board in May 2017 had advised the Claimant to avoid angry and offensive behaviour towards staff at Lyle House, and pointed out the risk of recall in such circumstances, and referred to the Claimant rejecting advice from his Offender Manager regarding his behaviour.
24. Mr York acknowledged that since the Claimant was serving an indeterminate sentence, there must be a causal link between his behaviour and his index offence in order for him to be recalled. He stated:

"Due to the sexual and violent nature of your index offences I am satisfied that the reported aggressive and violent behaviour was more than sufficient to establish that link. Whilst at the time of the recall the concern surrounding the alleged sexual contact was appropriately taken into consideration, in reviewing that decision, and now discounting that incident, I do not find that it would have made any difference to the decision to recall. I am also satisfied that due to the type of residence in which you had been housed and the vulnerability of the other residents (many very elderly, infirm, and suffering from dementia) that you posed an increasing risk to both staff and residents. It may be that the sort of behaviour you displayed can be contained and managed in a prison environment with staff who are trained in dealing with violent and aggressive behaviour. You, however, were placed in a care home which is staffed by people who are not trained and do not have facilities to deal with such violent and aggressive behaviour. As such I consider that your behaviour raised an immediate risk to the safety and mental welfare of other residents and staff and on that basis I cannot see how your risks could have been safely managed in the community and there was no alternative but to recall you. "

25. The decision letter went on to note that further information recently received in the Claimant's risk management plan provided detail from the care home manager outlining an appalling level of verbal abuse, intimidating behaviour, and manipulation, and stated that "it is of significant concern that abuse, intimidation and manipulation were important features of your index offences."
26. There was no consideration in this letter of the question whether the Claimant's risk could be adequately managed in the studio flat identified as available. The reasoning proceeds from a statement that the Claimant's risk could not be safely managed in the care home, because of the training of the staff, the nature of the facilities, and the presence of vulnerable residents, to the conclusion that "there was no alternative" but to recall him.
27. The Claimant was informed that his case had been referred to the Parole Board, who would consider his recall, and whether he could be re-released. No timescale for this exercise was provided, though it was stated that the Board had been asked to expedite the hearing.

Legal framework

28. As a prisoner serving an indeterminate sentence, of which the tariff portion had expired many years earlier, the Claimant could lawfully be detained only if his detention was necessary for the protection of the public against sexual or violent harm.
29. The Parole Board had the power to release him on licence under s. 28 of the Crime (Sentences) Act 1997 ("C(S)A 1997"). His recall to prison was governed by s. 32 of the C(S)A 1997. Under s. 32(1), the Defendant has the power in the case of any life prisoner who has been released on licence, to revoke his licence and recall him to prison. The prisoner has the right to be informed of the reasons for his recall, and has the right to make representations in relation to it.
30. The legislation itself does not set out the test to be applied for recall. However, the test is the same as for initial release on licence (see R v Parole Board, ex parte Watson [1996] 1 WLR 906. The Claimant could lawfully be recalled only if (1) there were reasonable grounds for concluding that there was a breach of his licence conditions, and, (2) in all the circumstances, his recall was necessary for the protection of the public, because of the dangers posed by the prisoner when out on licence: R (Jorgensen) v Secretary of State for Justice [2011] EWHC 977, paragraphs 16 and 25. As Silber J stressed in this case at paragraph 18, detention is justified only as a last resort, where other less severe measures have been considered and found to be insufficient to safeguard the public interest which might require detention. I note that the test applied by Silber J in Jorgensen was conceded by the Defendant to be correct and applied by the Court of Appeal in the case of R (Calder) v Secretary of State for Justice [2015] EWCA Civ 1050, paragraphs 27 – 28.
31. The Defendant operates policies which apply in relation to the recall of indeterminate sentence prisoners. Under PSI 30/2014 "Recall, Review and Re-release of Recall Offenders", revised and re-issued on 24 January 2017, it states, at paragraph 6.2:

"Test for recall for indeterminate sentence prisoners

6.2 When making a request to recall an indeterminate sentence offender on licence there must be evidence that there is an increased risk of harm to the public before recall is agreed. The [Probation Officer] must take into account the extent that the offender's behaviour presents an increased risk of sexual or violent harm to others, regardless of the type of index offence for which he or she was originally convicted…"

32. Similarly, Chapter 13 of the Indeterminate Sentence Prisoner Manual (PSO 4700) gives guidance to a Probation Officer making a recall request which states:

"In detailing the circumstances leading to the recall request, you must show the deterioration in behaviour/compliance, which leads you to assess that the risk of harm to life and limb has increased to an unacceptable level. Whilst the seriousness of any breach is a factor, the level of risk to life and limb is paramount."

Discussion

33. There was disagreement between the parties as to the appropriate standard of review applicable in this case. The Claimant submitted that, since the case concerns a decision to deprive a person of their liberty, the Court ought to apply a proportionality standard. On the other hand, the Defendant urges a Wednesbury approach, with a wide margin of discretion being afforded to the Defendant, on the basis that this is a decision that engages the safety of the public, of necessity taken in circumstances of urgency.
34. In my judgment, it makes no difference to the outcome of this case whether the test applied is one of proportionality or pure Wednesbury irrationality, because the flaws in the decision to recall the Claimant are such that the decision cannot be rationally sustained. The reasoning for the decision failed to take account of obviously relevant considerations, and failed properly to apply the Defendant's own policy guidance. On that basis, the decision was unlawful whatever standard of review is applied.
35. First, there was no evidence of any deterioration in the Claimant's behaviour, such that the risks he posed in August 2017 were any greater than those identified by the Parole Board panel Chair when he was released in May 2017. On the contrary, the risks of poor behaviour, including the abuse of carers, the use of threatening language, and violence (particularly throwing objects) were specifically identified by the panel Chair, and, crucially, were judged by him not to be sufficient to warrant the Claimant's continued detention. What the Claimant did at Lyle House was precisely what the panel Chair had expected that he would do. The panel Chair had considered whether conduct of this nature was sufficient to warrant the Claimant's continued detention, and had concluded that it was not.
36. In that situation, it was not rational for the Defendant to recall the Claimant to prison, and moreover the decision to do so was contrary to the Defendant's own policy guidance set out above. His behaviour showed no deterioration or greater risk than anticipated, but, rather, was entirely consistent with the panel Chair's assessment of the type of risk which he posed, which had been judged to be insufficient to justify his detention.
37. The Defendant argued that the threat of violence made against Lyle House staff was an escalation from the types of abuse considered by the Parole Board. However, in reaching his decision in May 2017, the panel Chair had before him evidence of threatening language, including a threat made to a female member of the prison staff to "get out his spanking stick and spank her". The panel Chair also took into account the risk of actual physical violence on the Claimant's part, including throwing objects. The specific threats made to Lyle House staff are obviously hyperbolic, particularly coming from a severely disabled elderly man. It is significant that the panel Chair considered that the Claimant's behaviour, strikingly similar to that manifested at Lyle House, fell "a long way short" of the type of conduct which would justify detention.
38. Secondly, one significant concern at the date of the original recall was the incident concerning the touching of the 90 year old resident's leg. However, it rapidly became apparent that this was not a matter which ought to have been taken into account against the Claimant, since it appears to have been entirely innocent, or, at least, "non-threatening".
39. Thirdly, much of the concern appears to have arisen because of the difficulty encountered by the staff at Lyle House in managing the Claimant's undoubtedly challenging and obnoxious behaviour. It appears that staff may not have been trained to deal with conduct such as his. In addition, his behaviour appears to have caused considerable concern in an environment largely consisting of vulnerable elderly residents, many of whom had dementia.
40. It may thus be that Lyle House was not a suitable place for the Claimant to live. However, it does not follow from this that he had to be recalled to prison. When the original decision to recall him was made, a studio flat in Hounslow was available. Nicola Davies J ordered that this flat should be retained, so that it remained available when his recall was reconsidered. However, neither the original recall decision nor the reconsideration explained why the risk presented by the Claimant, such as it was, including the risk of him upsetting elderly care home residents, could not be adequately managed if he was accommodated in his own studio flat, with assistance being provided to him by visiting carers. This approach was unlawful, and amounted to a failure to take account of relevant considerations. As Silber J observed, detention is a last resort. It was incumbent on the Defendant to consider reasonable alternatives to prison before recalling him, and particularly to consider the viability of managing him in alternative accommodation which had already been identified as available.
41. Fourthly, no consideration appears to have been given to the exceptionally stressful circumstances of the Claimant when the incidents at Lyle House blew up. The Claimant had very recently been informed that his cancer had returned, and that it was terminal. He had been told that he might have as little as three months to live. In that situation, the manifestation of frustration and stress through abusive or aggressive behaviour was understandable. Consideration ought properly to have been given to measures to be taken to assist him in coming to terms with his situation, rather than simply deciding to recall him to prison. That was particularly important, given the very harsh impact of recall to prison on a man with potentially only a few months to live. There was a real risk that he would die in prison before the Parole Board had been able to assess his case.
42. Finally, the attempts by the decision makers to identify a causal link between the Claimant's index offence and his behaviour were in my judgment misconceived. As the Parole Board panel noted in May 2017, behaviour of this kind is entirely different from the risk of future sexual violence, and falls a long way short of the kind of risk which would make it necessary for the Claimant to continue to be confined in prison in order to protect the public from serious harm.
43. The Parole Board panel Chair pointed out that "petulant behaviour" of the type in which the Claimant indulges is not uncommon amongst elderly care home residents, and that "it is not a reason for locking them up in prison for the protection of the public."
44. That judgment was reached by an independent judicial body, which had considered all the evidence in the round, including at an oral hearing. There was no rational basis on which it was open to the Defendant to reach a different view, in circumstances where the behaviour which had materialised was in substance the same as that which the panel Chair had described, and had anticipated.
45. Accordingly, I conclude for these reasons that both the initial decision to recall the Claimant, and the reconsideration of that decision on 24 August 2017 were unlawful. Both decisions are accordingly quashed.
46. It follows that there was no justification for the Claimant's detention, which was unlawful from the time of his recall to prison.
47. The Claimant's claim for damages for false imprisonment is to be determined by way of written submissions, in accordance with directions agreed between the parties.