Aswad Browne v The Parole Board of England & Wales
| Jurisdiction | England & Wales |
| Judge | Lord Justice Coulson,Lord Justice Singh,Lady Justice Arden |
| Judgment Date | 20 September 2018 |
| Neutral Citation | [2018] EWCA Civ 2024 |
| Docket Number | Case No: C1/2016/4462 |
| Court | Court of Appeal (Civil Division) |
| Date | 20 September 2018 |
[2018] EWCA Civ 2024
Lady Justice Arden
Lord Justice Singh
and
Lord Justice Coulson
Case No: C1/2016/4462
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE ADMINISTRATIVE COURT
His Honour Judge McKenna
CO/5649/2015
Royal Courts of Justice
Strand, London, WC2A 2LL
Philip Rule & Jake Rylatt (instructed by Cale Solicitors) for the Appellant
Tom Cross (instructed by Government Legal Department) for the Respondent
Hearing dates: Tuesday 17th & Wednesday 18th July 2018
Judgment Approved
Introduction
In this Judgment, I shall refer to the appellant as “Mr Browne” and to the respondent as “the Parole Board”.
This appeal was presented as raising a potentially important issue as to the correct test to be applied on a judicial review of a decision of the Parole Board. On a proper analysis, however, that issue is, at best, subsidiary to the main points in this appeal, particularly given the extremely limited scope of the appeal itself. Furthermore, for the reasons set out below, I consider that – as is all too common in public law cases — the appellant's case has not been assisted by the production of over-long and contradictory skeleton arguments at every stage of the process, and the desire to pursue every possible point (whether good, bad or indifferent), regardless of the issues raised in the Detailed Statement of Facts and Grounds of Claim (“DSFGC”). This appeal has again demonstrated the need for claimants in the Administrative Court to demonstrate the same procedural and analytical rigour that can be found in other areas of the Civil Justice system.
The Parole Board's Decision
Mr Browne was born on 6 November 1982. He has a history of serious and violent offending dating back to 2004, when he was convicted of possessing an offensive weapon (a knife) and other offences, for which he was sentenced to imprisonment. The following year, 2005, he was sentenced to imprisonment for possessing ammunition. In 2006 he was convicted of threatening behaviour, and in 2007 he was convicted of attempted robbery and sent to prison for 30 months.
On 15 June 2011 he was sentenced to 6 years and 3 months imprisonment for burglary and assault causing actual bodily harm. On the face of it, this offence was under-charged, since it involved Mr Browne and his two associates, dressed in balaclavas and hoods, attacking the owner of the property, who was a single female. The judge's sentencing remarks referred to “great planned violence towards the victim…inside her own garden”; the judge said that Mr Browne and his associates had subjected the victim to “intensive violence”, and called the attack “every householder's worst nightmare”.
Mr Browne was released on licence on 25 March 2014. Condition 5(1) of the licence required him to:
“…be well-behaved, not commit any offence and not do anything which would undermine the purposes of your supervision, which are to protect the public, prevent you from re-offending and help you re-settle successfully into the community.”
On 11 November 2014 Mr Browne missed his appointment with his Probation Officer, saying that he feared that, had he attended, he would have been recalled to prison as a result of an allegation of assault by his ex-partner. Beyond the fact that Mr Browne's ex-partner had a clump of hair missing, and one of his daughters was said to have been present during the assault, there was little information about this event. Mr Browne's ex-partner did not wish to press charges. She did however obtain, without notice, a non-molestation order in the Family Court on 11 December 2014, which was served upon Mr Browne on 19 December 2014. The order prevented him from, amongst other things, “communicating with [the ex-partner] whether by letter, text or otherwise except through solicitors”.
Despite the terms of the order, and despite express advice from Mr Browne's Offender Manager not to have any contact with his ex-partner, he called and texted his ex-partner on 24 December 2014 and telephoned her again on three occasions on 8 January 2015. It was common ground that these events constituted a clear breach of the non-molestation order and, on 12 January 2015, Mr Browne was convicted on two counts of breach. He was sentenced to 56 days imprisonment and subsequently recalled to prison for breach of condition 5(1) of his licence.
There was a hearing before the Parole Board on 27 July 2015 at which Mr Browne gave oral evidence. In a Decision Letter (“DL”) dated 11 August 2015, the Parole Board concluded that the risk he presented was not manageable in the community for the period remaining until his determinate sentence expired. It therefore did not direct his release. The DL is a detailed document, setting out the evidence that was considered; an analysis of the appellant's past offending; the relevant risk factors; the circumstances leading to the appellant's recall; and his progress in custody.
Under the heading ‘Panel's assessment of current risk’, the DL referred to the results of the OASys Assessment commonly used by the Probation Service for the assessment of the risk posed by offenders in England and Wales and went on:
“You have been assessed as presenting a low static risk of re-offending (OGRS), a medium risk of general re-offending (OGP) and a low risk of violent re-offending (OVP). You have also been assessed as presenting a high risk of causing serious harm to a known adult, a medium risk of serious harm to children, members of the public and staff members (presumably because of your offence of assaulting the police officer by running over his foot).
In coming to its own assessment of risk the panel took account of the very serious and violent nature of the index offence of burglary that involved pre-planning and targeted offending. The panel was particularly concerned about the violence that was used against the victim in order to get her to comply. Little is known by your Offender Supervisor or Offender Manager about the extent of the violence and your part in it. In your evidence to the panel you minimised your responsibility for running over the police officer's foot, describing it as an accident, and that you reacted out of shock, not knowing who the person was. You have previous convictions for offences of violence, albeit that they are not for such serious offences.
The panel had concerns about the allegation of assaulting your ex-partner. Although you have not been convicted of any violence against your ex-partner, nonetheless a non-molestation order was imposed as a result of an incident that occurred in November 2014. You continue to demonstrate significant hostility towards your ex-partner, accusing her of having drugs in the house, of fabricating the complaint and that she threatened you for money. You demonstrate limited insight into the effects of your own behaviour.
You have yet to undertake any accredited thinking skills work or interventions to address your involvement in the use of violence during the index offences of burglary and ABH.
The panel considered that your risk of violence would not have included the violence used during the burglary. As such the panel considered that your OVP underestimated your present risk of future violent offending. Taking all factors into account the panel considered that you continue to present at least a medium risk of violent re-offending with a high risk of causing serious harm to an intimate partner through domestic violence. The panel noted that your risk of serious harm to the public had been reduced to medium whilst you were on licence as a result of the period of 10 months that you spent in the community without further violent offending.”
Thereafter, the DL went on to set out its evaluation of the effectiveness of the plans to manage that risk. As to that, the Parole Board concluded:
“The panel considered that the proposed risk management plan was robust and likely to cover all the relevant areas of risk. However the panel is not satisfied that external risk management proposals would not, on their own, be sufficient to manage the risk. The panel also have significant concerns about your motivation and ability to comply with your licence conditions, particularly if they interfere with your ability to see your daughter. Your behaviour in committing further offences on licence suggest that you may comply superficially with supervision but continue to behave in maladaptive ways to achieve your own objectives.”
Accordingly, having balanced the current risk posed by Mr Browne and the plans to manage that risk, the Parole Board set out its detailed conclusions as to why the appellant's risk was not manageable in the community for the remaining period of his sentence.
The Application for Judicial Review
The application for Judicial Review was supported by the DSFGC dated 25 October 2015 drafted by Mr Rule. Although it was long (16 pages and 42 paragraphs), it identified just three grounds of challenge. Ground 1 (paragraph 28) was the alleged failure on the part of the Parole Board to apply a presumption in favour of release. Ground 2 (paragraph 30) raised a suggestion of procedural unfairness because it was said that there had been no proper investigation of the allegation of assault on his ex-partner in November 2014. Ground 3 (paragraph 39 and following) was said to be linked in part to the second ground, and concerned “ the assessment of risk of serious harm”. Paragraph 40 accepted that “the proper threshold” for the challenge to the assessment of risk was that it was “irrational” but suggested that, in this case, the risk assessment was irrational because it was based on the alleged assault of the ex-partner which had not been properly investigated. Ground 3...
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