Betteridge (R) v Parole Board
| Jurisdiction | England & Wales |
| Judgment Date | 23 June 2009 |
| Neutral Citation | [2009] EWHC 1638 (Admin) |
| Docket Number | CO/4129/2009 |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 23 June 2009 |
[2009] EWHC 1638 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
Mr Justice Collins
CO/4129/2009
MR H SOUTHEY appeared on behalf of the Claimant
MR S GRODZINSKI (instructed by Treasury Solicitors) appeared on behalf of the Parole Board
MR S KOVATS (instructed by Treasury Solicitors) appeared on behalf of the Secretary of State
1.1. MR JUSTICE COLLINS: This claim comes before me following the submission that there should be a rolled up hearing. It was accepted by counsel on behalf of both the defendants that it would be appropriate to grant permission and treat this as the hearing of the claim. That I do, and I direct that the requirements of the rules be set aside for the purposes of hearing this claim.
2.1. Not for this case, but for future consideration, I merely raise the point in rolled up hearings as to whether the court ought not to make a requirement of the grant of permission that the court fees that otherwise would be payable are then paid, because otherwise the court, on a rolled up hearing, does itself out of the fees that would otherwise be payable. I am sure those representing the Ministry of Justice will be quite pleased to know that that is being considered. However, that is not strictly material for the purposes of this case.
3.1. The claimant is a serving prisoner. He was convicted of what, on any view, appears to have been a singularly unpleasant rape of a 14-year old girl. He was sentenced originally to life imprisonment with a tariff of 5 years. He appealed against that sentence and the Court of Appeal reduced it to an IPP with a tariff of three and a half years. That tariff expired on 18 December of last year.
4.1. By virtue of section 28 of the Crime (Sentences) Act 1997, when the tariff comes to an end the prisoner in question has the right to a hearing before the Parole Board, and if the Parole Board directs his release then the Secretary of State must release him on licence. The Act does not require the Secretary of State to refer the case to the Board unless the prisoner applies for that to happen, but the reality is that the Secretary of State routinely does refer post-tariff lifers to the Parole Board. The reason behind that is that it is common ground that Article 5(4) of the European Convention on Human Rights requires there to be a speedy hearing an independent judicial body, and the Parole Board it is accepted is the equivalent for the purposes of the Convention, to determine whether the continued detention is lawful. In fact it is the practice of the Secretary of State, in cases where the tariff exceeds 3 years, to provide a dossier to notify the Parole Board 6 months before the end of the tariff. The purpose behind that being the obvious one, to enable the Board to put in train steps to ensure that there is a hearing as soon as reasonably possible after the tariff is served.
5.1. Unfortunately, on the facts of this case, for reasons which are not made clear and which are perhaps not material, the dossier was not lodged until 2 months before the tariff came to an end. That meant that it joined the queue of those cases which were in the Parole Board, and in which hearings had to be held, at a later stage than it otherwise would have done. This meant that the hearing was delayed further than otherwise it need have been.
6.1. There is a power in the Secretary of State, provided by section 239(2) of the 2003 Act, to enable him to ask the advice of the Parole Board in relatively general terms. Normally, as I understand it, the Secretary of State will use that power to ask advice as to whether the prisoner in question should be placed in open conditions or downgraded, depending what category he is in, but it can be used to ask the Parole Board to say whether, on the material that is before it, it can say that the prisoner will be likely to be regarded as suitable for release when he completes his tariff.
7.1. In this case there was a reference to the Board asking its advice as to whether the claimant should be downgraded, he being in category C, to enable him to go into open conditions. The importance of that is that normally, but not invariably, it is necessary for lifers to show, before being granted release, that they are able to be in open conditions, show that they can be trusted to behave themselves properly so that there will be no risk, no danger to the public were they to be released. As I say, that is not invariable, but it is regarded as desirable in many cases.
8.1. On 15 September 2008 the Parole Board gave its advice. It noted that the offender's supervisor had taken the view that the claimant had shown in prison that he had learned sufficiently to mean that it was appropriate that he could be put to open conditions. However, the panel did not agree with the views, not only of the offender's supervisor, but also of other reporters, that it would be appropriate to do that. What they said, so far as material, was as follows:
“9) The panel, which included a psychologist and a psychiatrist among their number, noted the recommendations for open conditions made by report writers, but they also noted the identification of remaining areas of treatment need specified within both the July/August 2007 PIT and the June 2008 SARN. They feared that there had been an underestimate of risk within the RM-2000 and an insufficient attention to the sadistic elements of the offences in other assessments. They would therefore counsel against the formulaic approach in this case, which appears at least partly to be responsible for the conclusion that once RSOTP has been completed no further work is required and would recommend that further individual assessment should be undertaken, which takes account of their specified comments.
“10) In reaching their conclusion the panel also noted from your answers (while making due allowance for oral hearing conditions and obvious intellectual limitations) that you appear to have no more than a superficial understanding of the reasons why you committed the index offences or of the risk management strategies, which will be necessary on release to manage the sexual attitudes and responses which you still but partially acknowledge.
“11) Thus while the panel acknowledge the support of report writers for a move to open conditions, the panel were not prepared to accept that those conclusions were soundly based. They therefore make no recommendation to the Secretary of State on the occasions of this review; that is because, balancing your interests in sentence progression against the interests of public safety, they were not satisfied that sufficient evidence exists that your risk of sexual and/or violent offending has yet reduced to a level such that that risk can be safely managed out of closed conditions”.
It follows inevitably from that, that the panel, if asked, would not conceivably have recommended that the claimant was suitable for release.
9.1. The formal referral under section 28 came on 13 October 2008, and the solicitors on behalf of the claimant were concerned at that early stage that there would be unacceptable delay in dealing with the matter. The pre-tariff advice dossier was, as the Parole Board indicated, to be assessed under the system that they had, which is described as intensive case management. That is a system that has come into being in order to try to improve the quality of information and minimise the risk of referrals, both pre-hearing and on the day of the hearing. That was introduced in January 2008. Once the dossier is received it is put before the ICN member and the prisoner is then informed that he has 4 weeks to make representations. Once those have been received then the matter is considered, the decision is made as to whether further information is needed or whether the matter can then be put in the queue, if I may put it that way, for an oral hearing.
10.1. Prior to 1 April of this year, when the Parole Board Amendment Rules 2009 came into force, the ICN member had no power to make binding directions, and all indeterminate prisoners had a full entitlement to an oral hearing. That has been changed and there is now power to refuse an oral hearing. The ICN member is enabled to send the case to an oral hearing with all necessary directions which will have to be complied with, because they become binding so far as the Parole Board is concerned.
11.1. The new rules also enable there to be a more satisfactory deployment of membership, inasmuch as single members can deal with matters that before could only have been dealt with by a panel on an oral hearing. There is no need, in certain circumstances, for an oral hearing, whereas before that was needed, and some matters can be dealt with without a judicial member being on the panel. It is not, I think, necessary for me to go into the precise details of these changes: suffice it to say they have been brought in in recognition of the problem that has been created, partly, perhaps largely, because of the introduction of IPPs and the pressure that put upon the Parole Board, although it is right to say that even without IPPs the work load of the Parole Board has risen, the pressure has become greater upon it in recent years.
12.1. I have had before me a number of figures produced and statistics. Again, all I think I need say is that they do not, unfortunately, show that, despite the efforts that are being made, there has yet been a reduction of the backlog...
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