Henry v Parole Board
| Jurisdiction | England & Wales |
| Judge | HHJ Waksman |
| Judgment Date | 09 May 2011 |
| Neutral Citation | [2011] EWHC 2081 (Admin) |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 09 May 2011 |
| Docket Number | CO/109/2011,Case No: C0/109/2011 |
[2011] EWHC 2081 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Manchester Civil Justice Centre
1 Bridge Street West
Manchester
M3 3FX
His Honour Judge Waksman
Case No: C0/109/2011
Mr Jagadesham appeared on behalf of the Claimant.
Mr Thyne appeared on behalf of the Defendant.
HHJ WAKSMAN QC:
Introduction
1. This is a challenge, by way of judicial review, to the refusal of the defendant parole board to transfer the claimant, Mr Henry, a life prisoner, to open conditions. The refusal was made in a decision letter dated 7 October 2010 following an oral hearing.
2. The principal ground of claim is that the parole board proceeded, or may have proceeded, in ignorance of established facts concerning the matters surrounding Mr Henry's offending which led to his being given his life sentence.
The Facts
3. In October 2004 Mr Henry stood trial for three counts of rape against his ex-partner in her premises which were all said to have occurred on 5 June 2004 while their five-year-old daughter was present in the house. That she was present in the house was not in dispute. I can take the key elements of the prosecution case from the summary given by the Court of Appeal when addressing Mr Henry's appeal against sentence. In paragraph 1 of the judgment of the court, Scott Baker LJ referred to the fact that Mr Henry was convicted on 22 October by a majority of ten to two on two counts of rape. The jury was unable to agree on a third count which remained on the file. I pause to say that third count (Count 1) was never taken any further. The life sentence had a minimum term of three years and 225 days.
4. Paragraph 3 of the judgment of Scott Baker LJ states as follows:
“The Crown's case was as follows. On 5 th June 2004 the appellant went to the complainant's home at Royal Oak Road in Wythenshawe. Once inside the house he made advances and violent threats towards her. He pushed her on to a chair and she begged him ‘not in front of [the child]'. The complainant and the child screamed at the appellant to stop, but he punched her, threatened her with a knife and forced her upstairs with the child in her arms. He then raped her in the bedroom as the child looked on. That rape was count 1 on the indictment, the charge on which the jury was unable to agree.”
5. Pausing there, a fair reading of that summary would certainly put what I would describe as the alleged violent precursor events as intertwined with Count 1, on which the jury could not agree. Paragraph 4 of the judgment states as follows:
“In the bedroom C eventually fell asleep and the appellant raped the complainant on two further occasions, those being counts 2 and 3. On those occasions the complainant put up little resistance as she knew the appellant ‘would not have listened’ (to use her words). The appellant then left then left and the complainant went to neighbours and told them what had happened.”
The judgment then deals with earlier offences.
6. Paragraph 12 of the judgment recites what the trial judge had said in his summing-up. He had told the jury to look separately at each matter and said there that a lot of the evidence and background covered all three counts while all the first incident, the activities downstairs before anyone either went upstairs to the bedroom, covered all three counts. Then paragraph 14 says this:
“There were several particularly unpleasant features about the offences on which the appellant was convicted: first, they were committed at a house where a 5 year old child was present. The evidence was she was asleep on the occasion of the second of the three rapes and present but elsewhere in the house on the third occasion. She was extremely upset and wide awake at the time of the first incident in respect of which the jury was unable to agree. But even on the basis of what happened on the second and third occasions, it is a particularly unattractive feature of these offences that the parties' 5-year-old child present. Second, there was not one but two offences committed over a substantial period in the course of the evening.”
7. At paragraph 28 Scott Baker LJ concluded that although the sentence given by the judge was at the very top end of the bracket for the two offences it was not manifestly excessive. He said that:
“Had the jury convicted of all three offences, the appellant would have been looking at a substantially greater determinate element than 8 years and, as Mr Bennathan accepted, a life sentence would in those circumstances have been inevitable.”
8. It follows from all of this that there was no decision as to the Count 1 offence, and of course a critical part of that offence was the allegation that the daughter actually witnessed its commission. This was not the case for the second and third counts on which Mr Henry was convicted.
9. I now turn briefly to the trial judge's sentencing remarks. At page 28 of the hearing bundle, just after paragraph C, he said:
“…when you committed these rape offences, you were prepared to use your own powers to overbear that woman. I do not ignore the fact that the jury had difficulty so that they could not reach a verdict on count one, and I do not approach this case on the basis you entered there that night to rape. If you had been convicted on count one, that would have been the conclusion, but the jury have not convicted you on to count one and therefore I do not draw that inference, but what I am satisfied of is that whilst there that night, you did rape your ex-partner on two occasions and you overbore her will. It was what you wanted, and no regard for anyone else.”
He later went on to say that rarely had he seen anyone so clearly traumatised as she was as shown during the course of the first video interview.
10. At page 29, paragraph D, he then said:
“I bear in mind that there was no weapon used. There were threats, there was a repetition of the offence, in the sense that there were two offences of rape that night. I have had regard to the way in which they were carried out, and as I say, I do not take the view that I should sentence you on the basis that you went there that night to rape.”
11. On that basis it is really impossible to conclude that the judge sentenced specifically on the basis that there was violence used towards the victim or, for example, that there were threats with a knife, which had formed part of the precursor events alleged by the prosecution. If the judge was satisfied that there had been such violence and threats, or forcing the woman upstairs with the child in her arms, it is inconceivable that that he would not have mentioned it.
12. By 2010 Mr Henry had been in prison for some six years and was by then a Category C prisoner. The relevant reports did not recommend release on parole at that stage, but Mr Henry's offender manager, Ms Conte, recommended a move to open conditions in a report produced on 27 November 2009. A report prepared by his probation officer, Ms Christine Andrew, dated 17 November 2009, also recommended a move to open conditions but not release on parole at that stage.
13. Without at this stage going into detail, these papers showed that in general terms Mr Henry had moved from a position of denying the rapes altogether—he had previously alleged consensual sexual intercourse—to accepting, on Counts 2 and 3, that it was not consensual; however, further work was necessary to address the index offences in detail.
14. Mr Henry also gave an account of the offences at the oral hearing in front of the parole board prior to the making of its decision.
15. I now turn directly to what the parole board said in its decision letter of 7 October 2010. At page 192 of the bundle, under section 3, headed “Analysis of Offending” they describe the victim and then Mr Henry going to her home in the early hours of the morning with the intention of visiting their daughter. While he was there he raped her on two occasions against her will. The daughter was present at the time these offences were committed. When passing sentence the judge said he had rarely seen anyone so clearly traumatised as the victim was when interviewed on the first video interview. He stated that he bore in mind the assessment of Mr Henry's risk and that these offences had been committed so soon after his release on licence (which had occurred in March 2004).
16. In section 4 of the letter the parole board deal with factors increasing or decreasing the risk of re-offending. Halfway through they say:
“Up until the Automatic Lifer panel hearing on 23rd September 2008 you had always denied that you raped your victim but in your evidence that day you accepted that your victim may not have been consenting”.
And then this:
“Of great concern to the Panel is that the index offences were committed by you when on licence for previous offences and with a specific condition that you did not approach your ex-partner.”
17. I interpose to say that it is common ground this last statement is erroneous to the extent that it says that there was a breach of a specific condition not to approach his ex-partner. That condition had itself already been lifted, in order that he could see his daughter.
18. Under section 5 “Evidence of change during sentence”, the letter says:
“On a OASys assessment in November 2009 you were assessed as posing a high risk of harm to a known adult and a medium risk of harm to children due to the index offence being committed in front of your 5 year old daughter.”
19. It seems to me that on a fair reading, the statement “in front of your...
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