Gregson v The Parole Board
| Jurisdiction | England & Wales |
| Judge | Kenneth Parker J |
| Judgment Date | 10 December 2009 |
| Neutral Citation | [2009] EWHC 3639 (Admin) |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 10 December 2009 |
| Docket Number | CO/12804/2009,Case No: CO/12804/2009 |
[2009] EWHC 3639 (Admin)
IN THE HIGH COURT OF JUSTICE
Sitting at:
Manchester Civil Justice Centre
1 Bridge Street West
Manchester
M3 3FX
Before: Mr Justice Kenneth Parker
Case No: CO/12804/2009
Miss Plimmer appeared on behalf of the Appellant.
Mr Ruck Keene appeared on behalf of the Defendant.
(As approved)
Mr Justice Kenneth Parker:
1. This is a claim for judicial review in which the claimant, Jason Gregson, seeks to challenge the procedural fairness of a decision on the part of the defendant, the Parole Board, not to recommend his release.
2. The Parole Board made this decision on 8 April 2009. The Parole Board was asked to reconsider the decision and accepted that invitation. The further decision of the Parole Board is dated 18 August 2009 and was provided to the claimant's solicitors on 8 September 2009. In his order dated 18 November 2009, HHJ Stewart QC sitting as a Deputy Judge at the High Court granted permission and observed that the claim was brought in time or alternatively time should be extended on the basis that it could not properly be brought until the outcome of the review was known. The Secretary of State for Justice applied to be joined as an interested party. No objection was taken to that course and I ordered that the Secretary of State do so join.
Background
3. The claimant is a discretionary conditional release prisoner. He is currently detained at Her Majesty's Prison Lowdham Grange where he was a Category B prisoner until 15 September 2009 when he was down graded to Category C. On 3 October 2000 he had been convicted of very serious offences of kidnapping, false imprisonment and wounding with intent and sentenced to 16 years' imprisonment. His non-parole date is 18 February 2010. That is in two months' or so time, when the Secretary of State must release him on licence. The claimant's parole expiry date was 16 June 2007. The Parole Board did not recommend release on his first two reviews. At his second review in April 2008 there were a number of report writers supportive of release but the Home Probation Officer was unsupportive of such release.
4. On 27 February 2009, in accordance with the stipulated procedures, the Secretary of State completed the dossier. This included the following statement at V2 of the bundle comprising the dossier:
“The Parole Board has been given additional information which has been withheld from you in accordance with rules made by the Secretary of State. The information has been withheld from you for the protection of information, the disclosure of which may endanger the safety or physical or mental health of any individual. You have no right to see this information and no grounds for appeal to the Parole Board or Prison Service”
5. The dossier included among other things: firstly, a parole assessment report completed by the prison seconded probation officer, Mr Keith Etherington, dated 2 February 2009 (this report concluded that the claimant had fully complied with sentence planning targets that give little or no cause for concern and importantly had made “every effort to distance himself from his past”; he recommended release, noting that his prison conduct “is suggestive of a likely good response to licence”); secondly, an independent psychologist report from Dr Peter Pratt dated 21 May 2008 which was supportive of release; and then thirdly, an open parole assessment report prepared by the Home Probation Officer, Mr Jean Pierre Mary —Home Probation Officer, I shall call to him —dated 25 February 2009. That report is in my view of very great significance in this claim and so I shall at the outset make reference to certain passages in that report. Firstly, I would refer to paragraph 2.5 of Mr Mary's report where he says:
(Checked to audio – requested documents not provided)
“I remain uncertain as to how much Mr Gregson has actually internalised of what he has learned from the Cognitive Self Change Programme and how much his statements reflect his core beliefs. In my assessment the motivation behind his offending behaviour is related to his association with criminal peers and to his attitudes and beliefs towards planned organised crime which have skewed his thinking skills.”
Then at paragraph 4.2, Mr Mary says:
(Checked to audio – requested documents not provided)
“In my assessment Mr Gregson's risk will increase if he regains contact with his old associates or if an event takes place which will rekindle a spirit of revenge or retaliation for harm caused to self, family or peers considered to be on the same side. In my assessment Mr Gregson minimised these factors in interview by indicating that the Cognitive Self Change Programme had helped him address and resolve all these issues. Although I appreciate Mr Gregson's optimism after working as hard as he did to complete the first five blocks of the programme, I am of the view that Mr Gregson's ability and resolve to apply his learning will be only be truly put to the test when he is released into the community.”
Then in the conclusion and recommendation section at 6.1 appears the following:
(Checked to audio – requested documents not provided)
“Once I acknowledge that part of the reason why Mr Gregson was only re-categorised to B recently is that he had to wait to enrol on the Cognitive Self Change Programme and remained a Category A prisoner in the meantime, it is my assessment that Mr Gregson needs to experience a lower level prison regime in preparation for his release in the community. I also acknowledge the view of the seconded probation officer that no further offence focussed intervention is available to Mr Gregson in custody. Whilst this is true, in my opinion one of the issues to be dealt with is that Mr Gregson now needs to demonstrate progress through his ability to continue to be of good behaviour in a more relaxed prison regime and then also be progressing in the community. Such an approach would also give Mr Gregson the opportunity to demonstrate how his core beliefs and values about violence and organised crime have changed and how he has replaced them with another set of socially acceptable beliefs and values.”
There was no reference in that open report, and I make no criticism of that fact but it is a fact, to the existence of closed material known to the writer of the report.
6. On 17 March 2009 the Secretary of State lodged the dossier with the Parole Board. The Parole Board listed a paper hearing to take place on 8 April 2009. On 20 March 2009 the Parole Board was served with an addendum report called “Not for disclosure to the offender —Parole Assessment Report”. That is the closed document in these proceedings. This report was prepared by Mr Mary on 25 February 2009 and Mr Mary was of course the same Home Probation Officer as prepared the adverse report to which I have referred and from which I have just quoted.
7. I must take some care in referring to that document because the court is sitting in open court. Proceedings can be reported and also this judgment itself will be reported. The closed material has still not been disclosed to the prisoner and the position of the Secretary of State through Mr Ruck Keene, who has appeared in this hearing, is that the material should still not be disclosed for public interest reasons. However, I think I can say this much without offending any public interest aspect. The upshot of the closed material is that on the basis of information received, the prisoner is still thought to be in contact with the criminal underworld in circumstances that give rise to considerable concern. On its face the content of this document if substantiated was highly material to risk assessment. That is no doubt the reason why the material was obtained in the first place and was then provided after consideration to the Parole Board. In my view a reasonable objective observer would in these circumstances expect The Parole Board to take account of the contents of that material and to give it very substantial if not decisive weight.
8. On 26 March 2009 the claimant's solicitors received the dossier without the closed document. On 2 April 2009 the claimant's solicitors wrote to HMP Lowdham Grange noting that the dossier indicated that the document had been withheld and they requested a copy of the closed document. The claimant's solicitors gave an undertaking not to disclose the closed document to the claimant in accordance with paragraph 5.16.10 of PSO 6000, to which I will refer in a moment.
9. On 7 April 2009 on receipt of the closed document the claimant's solicitors made written submissions to The Parole Board that the allegations contained in the closed document should be disclosed to the claimant to enable him to provide a meaningful instruction to them and in order that he might have a fair opportunity to seek to rebut the matters contained there in. They contended that his application for release would inevitably be refused if reliance was placed on the closed document. These submissions pointed to inconsistency between the closed evidence and the more positive open reports of the Home Probation Officer and the SPO regarding prison behaviour as reflected in his enhanced status. The submissions also submitted that it was necessary to enable the claimant to provide an explanation in response to matters contained in the closed document.
10. The claimant's solicitors requested an adjournment of the paper consideration on the 8 April 2009 to enable the Parole Board to determine whether or not the report should be disclosed to the claimant or withdrawn from the dossier....
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