Danny Osborne v Parole Board for England & Wales
| Jurisdiction | England & Wales |
| Judge | Mrs Justice Collins Rice |
| Judgment Date | 20 December 2022 |
| Neutral Citation | [2022] EWHC 3306 (Admin) |
| Docket Number | Case No: CO/1253/2022 |
| Court | Queen's Bench Division (Administrative Court) |
| Year | 2022 |
The King on the Application of
[2022] EWHC 3306 (Admin)
THE HONOURABLE Mrs Justice Collins Rice
Case No: CO/1253/2022
IN THE HIGH COURT OF JUSTICE
KING'S BENCH DIVISION
ADMINISTRATIVE COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
Mr Julian Coningham (Solicitor Advocate of Coninghams Solicitors) for the Claimant
The Defendant and Interested Party did not attend
Hearing date: 7 th December 2022
Approved Judgment
This judgment was handed down remotely at 10.30am on [date] by circulation to the parties or their representatives by e-mail and by release to the National Archives
THE HONOURABLE Mrs Justice Collins Rice
Introduction
Mr Osborne was sentenced to an indefinite term of imprisonment for public protection in 2008, for an offence of robbery. His minimum period having expired, he was released on licence in 2015 but recalled later that year. A similar thing happened in 2016. He was released again in June 2019.
On 21 st October 2020, he was arrested for allegedly stalking and assaulting a former partner. His licence was revoked on 22 nd October. He returned to custody the following day.
His case was referred by the Secretary of State for Justice to the Parole Board on 23 rd November 2020, and heard by a panel on 8 th November 2021. The panel comprised two independent members (including the chair) and a psychiatrist; there was no psychologist member. It received written and oral evidence, hearing from Dr Bromley (forensic psychologist), Ms Brownsey-Joyce (senior prison probation officer) and Ms Lynn (community offender manager). Mr Osborne gave evidence and was legally represented by Mr Coningham, who continues to represent him in these proceedings. The panel adjourned for further written evidence and submissions.
By a decision dated 6 th January 2022, the panel declined to direct Mr Osborne's release. He submitted an application for reconsideration on 30 th January. That was rejected by a decision dated 23 rd February.
By these judicial review proceedings, and with permission granted on all grounds, Mr Osborne challenges the decision of the Parole Board not to direct his release, and the rejection of his application for reconsideration. The Parole Board maintains a neutral stance, as is its common practice.
The decisions challenged
(a) The refusal to release
The Parole Board panel decision of 6 th January sets out its reasoned analysis in three sections. First, there is an analysis Mr Osborne's offending behaviour (‘the past’). This considered his criminal record, as well as further ‘unproven allegations’ of violence. The decision states (at [1.5]) that:
The panel places only minimal weight on those unproven allegations, which are nevertheless indicative to that extent of the possibility that Mr Osborne's violent offending has been more extensive than the offending for which he has been convicted.
It recorded Dr Bromley's analysis of his history and ‘precipitators of violence’.
Second, the decision analyses evidence that Mr Osborne had changed (‘the present’). It considered the programmes he had completed, the progress he had made in addressing his offending behaviour, and the history of his recalls, and in particular the events of October 2020. It notes Mr Osborne's denial of the allegations of stalking and assaulting his former partner and that he had not been charged in this connection, the complainant having withdrawn her original statement to the police. It considered the allegations nevertheless relevant to its assessment of the justification of Mr Osborne's recall and his present risk. So it directed itself to whether it was fair and appropriate to make findings of fact regarding this particular alleged behaviour.
It noted that Mr Osborne's convicted violent offending included assaulting a different intimate partner, and his own account that the relationship with the later complainant had been violent (on her part). It noted the matter had not been proceeded with by the police, in view of the complainant's retraction, but also that she had withdrawn support for further proceedings, not retracted the allegations. It noted there were witness statements on the police file, and a photograph of the complainant at the time with facial bruising consistent with this evidence. It considered Mr Osborne's own account of the events, which was that he himself had been a victim of assault by third parties. It rejected his account as ‘not credible’. It concluded (at [2.29]):
Considering the allegations in the round, the panel considers that it is in a position to find, as a fact, that Mr Osborne was violent and abusive towards Ms G on the 21/10/2020, including causing a bruise to her right eye. The panel notes that Mr Osborne was, by his own admission, intoxicated with benzodiazepine at the time of the violent and abusive behaviour towards Ms G.
Third, the decision analyses the manageability of risk (‘the future’). It summarises and considers the evidence of Ms Lynn and Dr Bromley about this. It records that during the hearing the panel had explored with these witnesses the interplay between Mr Osborne's underlying personality disorder (antisocial personality disorder – APSD) and his attention deficit hyperactivity disorder (ADHD). Both witnesses had said that while ADHD might be relevant, it was not a primary driver of his offending. The panel noted its agreement with that analysis, adding that it considered ‘the primary drivers of Mr Osborne's offending are more likely to be his underlying traits of ASPD’. It noted that Ms Lynn and Dr Bromley considered Mr Osborne suitable for re-release, because of his willingness to work with Dr Bromley's assessment of his risk and recommendations for managing it in the community. This was also supported by Mr Osborne's prison offender manager Mr Bennett.
In reaching its final conclusions, the panel took into account Mr Osborne's convicted violent offending (including towards a former partner); his own account of the violence in his relationship with the complainant Ms G (albeit he attributed that to her); its finding of fact that he had been violent and abusive to her in October 2020; the fact that he had failed to report to Ms Lynn that he had recommenced this relationship; as well as his largely positive conduct in prison, and concluded that recall was justified.
It considered (at [4.7]) that:
underlying traits of ASPD are likely to be the primary drivers of Mr Osborne's violent and abusive behaviour in intimate relationships, and of his inability or unwillingness to be open and honest with those who are tasked with assessing his risk.
It went on to conclude as follows (at [4.9]–[4.12]):
the panel considers that Mr Osborne's repeating pattern of emotional mismanagement, violence, and his inability or unwillingness to be open and honest is indicative of a need for intervention to address his underlying ASPD traits. The panel considers that there is insufficient evidence that Mr Osborne would be likely to engage with any voluntary measures targeting ASPD traits in the community. The proposed BBR [building better relationships] programme would not address the ASPD traits and the risk management plan does not include any mandatory intervention in the community that would do so.
The panel also notes the context of Mr Osborne's history in which he has committed further offences while on licence.
It is for those reasons that the panel considers that the proposed risk management plan is unlikely to be effective in protecting the public. The panel considers that Mr Osborne's risk of serious harm will be imminent when he enters into or resumes an intimate relationship and openness and honesty, which was lacking when he was in the community most recently, is essential to effective risk management of Mr Osborne outside of custody.
The panel therefore considers that it remains necessary that Mr Osborne remains confined in prison.
The decision turns finally to the question of suitability for open conditions. It noted past absconding from open conditions, and that allegations had been made that he had stabbed someone while unlawfully at large – ‘although the panel has given minimal weight to those allegations’. It also noted that ‘the higher intensity intervention targeting underlying traits of ASPD that is required in Mr Osborne's case prior to his release could not be made available to him in open conditions’. It concluded he was unsuitable for open conditions.
(b) The reconsideration decision
Mr Osborne applied under Rule 28(1) of the Parole Board Rules 2019 for reconsideration of the decision to refuse release. His grounds were:
Irrationality
a) The panel was not entitled to find (as it did) that the Applicant had assaulted a former partner.
b) The panel was not entitled to place weight (as it did) on unproven allegations.
c) The panel wrongly rejected the recommendations of the professional witnesses.
Procedural unfairness
d) The panel had a duty (which it ignored) to inform the parties that it considered the release plan inadequate.
The decision of Mr James Orrell for the Parole Board of 23 rd February rejected all of these grounds. He concluded:
a) The panel had sufficient information before it to make a finding of fact, approached the problem cautiously and set out extensively in the decision letter the evidence it had taken into account. It could not be said in the light of that evidence the panel was not entitled to come to the conclusion it did about the assault on his former partner.
b) Despite the reference to putting ‘minimal weight’ on the unproven allegations, a fair and comprehensive reading of the decision indicates the panel actually...
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