Briggs & others v The Parole Board
| Jurisdiction | England & Wales |
| Judge | MR JUSTICE COLLINS |
| Judgment Date | 19 October 2009 |
| Neutral Citation | [2009] EWHC 2761 (Admin) |
| Date | 19 October 2009 |
| Court | Queen's Bench Division (Administrative Court) |
| Docket Number | CO/1900/2009 |
[2009] EWHC 2761 (Admin)
IN THE HIGH COURT OF JUSTICE
THE ADMINISTRATIVE COURT
QUEEN'S BENCH DIVISION
Mr Justice Collins
CO/1900/2009
MR J DIXON (instructed by CHIVERS) appeared on behalf of the Claimant
MR RDUNLOP (instructed by THE TREASURY SOLICITOR) appeared on behalf of the Parole Board
MR S MURRAY (instructed by THE TREASURY SOLICITOR) appeared on behalf of the Secretary of State
: The claimant in this case is a prisoner who, in 1998, was sentenced to a total of 14 years' imprisonment for offences of rape, section 18 wounding, and possession of a firearm. The circumstances of the offence were serious indeed, in as much as the claimant abducted a young lady, had intercourse with her (although apparently he has not accepted that it was rape but he was convicted of rape) and then shot her. Fortunately, the shot, although it passed through her body, did no permanent damage, but it is hardly surprising that an exceedingly serious view was taken of what he had done.
He was also, at the time that he was sentenced, subjected to an extension of his licence period; it was ordered that it should run until the end of the sentence as opposed to the three quarter stage.
On 10 January 2007 he was released on parole. He only lasted, unfortunately, until 8 February when he was recalled to custody following a dispute that he had had with a former resident in the hostel in which he was staying. This indicated that he had, by then, still failed to keep his anger under control. It was, in those circumstances, not at all surprising that he should be recalled or that his recall should be, as it was, upheld by the Parole Board.
Some 18-months later, in September 2008, the matter was reconsidered by the Parole Board and, on paper, a single member declined release. The claimant asked for an oral hearing and that was granted. That oral hearing took place at Frankland Prison, which is near Durham, on 27 October 2008. The panel consisted of a single District Judge who had, it seems, had to come from London, and it is that which has caused the problems in this case. Putting it very briefly, the key facts are that, because the District Judge had to come from London, she desired, and it was arranged, that the hearing commenced at 2pm. She says, in the material before the court, that she took the view that the case would reasonably take between two and two and a half hours. It seems that no enquiries were made of the prison, because the prison operates a lock down which is at 4pm, it being a high security prison. There can be no criticism of that policy: it depends upon staff availability and on the need to ensure that there is proper control and discipline within the prison. But, that meant, assuming this policy was to be applied, that only two hours at most could be given to the hearing.
The hearing in question was not entirely straightforward. One of the issues was whether the claimant suffered from what is described as a dangerous and serious personality disorder, or DSPD for short. His case, essentially, was that he recognised that he had problems of controlling his anger and this was brought home to him by the incident which led to his recall. But since then he had turned over a new leaf and had behaved in a way which showed that he had put the anger problems behind him. He was not, he asserted, someone who was suffering from DSPD. Indeed, one of the matters in issue was whether he should undertake courses which were designed to deal with DSPD. He had on his side two Probation Officers, in particular his home Probation Officer, who thought that, in all the circumstances, having regard to the way he had behaved since he had been recalled, that it was appropriate that he be released. There is no question but that the witnesses took the view that this was not an easy case, and certainly it was not a straightforward case. In addition, there attended a psychologist who was prepared to give evidence but in the end, as I understand it, was not called, it being thought that his evidence was not required. In addition, of course, there was the appellant himself who wished to give his evidence and he was the last witness to give evidence.
Mr Dixon who has appeared for him before me, and who represented him at the hearing before the Parole Board, was not informed of the four o clock deadline when the hearing commenced. It was not until, he tells me, towards the end of the first witness' evidence that the District Judge informed him, or informed everybody, that there was the lock down and thus the need to conclude the hearing by 4pm. He was placed in a dilemma. He could have applied for an adjournment, but that would have required the taking of instructions from his client, itself something which would inevitably take up a little bit of time. He tells me that he could not reasonably have been expected to make such an application without seeking his client's instructions, and that is undoubtedly correct. He believed that if there were an adjournment it would mean that there would be an inability to have a fresh hearing before 2 or 3-months. Of course, if there was a prospect that his client would succeed in the application to the Parole Board, then he would be released and would not have to face a further period in custody.
I am told by Mr Dunlop who appears on behalf of the Parole Board, that in reality it should have been possible, particularly as this was a single member panel as opposed to a panel of three, to obtain a hearing date possibly within a matter of days, but certainly it would not have been necessary to wait for months. Of course, the possibility of an adjournment and investigation as to how long would be needed was not something that had been done. Mr Dixon has some experience, as do his solicitors, of appearing in these cases, and no doubt formed his view of the possible delay on the basis of that experience. In any event, he did not apply for an adjournment.
The case continued. It seems that there was a reference, in the course of the next witness, the probation officer's evidence, for the need to bear in mind the deadline, and then the appellant himself gave his evidence. It is said that there was no apparent rush involved, or difficulties involved in the whole of the evidence that was given, but the submissions made by Mr Dixon did have to be shortened. In answer to the Pre-action Protocol Letter in this case, in dealing with the issue of procedural fairness which was the only ground upon which permission was granted, this is said:
“The chair accepts that the hearing was, towards the end, rushed, as the prison needed to have Mr Briggs back on the wing by 4pm. This was not known prior to arriving at the prison and it may be it was not communicated to counsel until part way through the hearing. The reason the hearing was fixed for 2pm was in order to enable the Chair to travel from London to HMP Frankland. She had seen the dossier and had identified issues before hand, and felt that two to two and a half hours would be sufficient to deal with the issues. The Chair does not agree that Mr Briggs' evidence was particularly rushed and notes that there was sufficient time for him to give that evidence in chief and be cross-examined by the Secretary of State. The Chair found him to be a poor witness, he demonstrated little insight and made derogatory remarks about the victim. It is nevertheless accepted that counsel's submissions were probably truncated because of the time pressures.”
It is to be noted that, in answering the letter after the event, the District Judge indicates that she found the claimant a poor witness who had demonstrated little insight and made derogatory remarks about the victim. She sets out at considerable length the evidence that she heard, which in fact came from, I think two witnesses; a probation officer and Miss Woodward who is a psychologist. There was a second psychologist who was not called. Then, of course, there was the claimant. So three witnesses were giving evidence.
It seems to me that, certainly in those circumstances, in a not entirely straightforward case, 2 hours was exceedingly tight on any view. Essentially, it was said that the panel had to weigh the extreme gravity of the index offence and the claimant's past record with the current position, and pointed out that there were still relatively high risk assessments. In all the circumstances, the view was taken that he continued to present a considerable risk.
The fact is that she took the view that the risk was still too high, having regard to the claimant's past record, past behaviour, and, to an extent, the evidence which he gave. The question is whether in all the circumstances that hearing was not fair.
Now, it seems to me that the situation was, so far as the claimant was concerned, unfortunate. The Parole Board surely has experience of hearings in Frankland Prison, and indeed in other high security prisons, and the existence of a lock down policy is something which is not unknown. When it was appreciated that it would be desirable, in the interests of the travelling arrangements of the District Judge, that the hearing should be at two o clock, it surely should have been sensible to make enquiries to ascertain whether there would be any difficulties in ensuring that the hearing could be accommodated if it were to run for up to two and a half hours, and possibly a little more than that. However, that was not done. When the District...
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