Ismailaj v Parole Board
| Jurisdiction | England & Wales |
| Judge | Foskett J |
| Judgment Date | 20 April 2011 |
| Neutral Citation | [2011] EWHC 1020 (Admin) |
| Docket Number | CO15324/2009 |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 20 April 2011 |
[2011] EWHC 1020 (Admin)
Administrative Court
Judge: Foskett J
CO15324/2009
Appearances: P Rule (instructed by Lewis Nedas & Co) for VI; M Slater (instructed by the Treasury Solicitor) for the Board; S Kovats QC (instructed by the Treasury Solicitor) for the Secretary of State.
Issue: Whether fairness required an oral hearing before the Parole Board in relation to a recalled determinate sentence prisoner.
Facts: VI was convicted of people trafficking for the purposes of sexual exploitation and sentenced to 9 years' imprisonment. He was also subject to a confiscation order carrying a default sentence of 22 months' imprisonment, which was activated for non-payment. VI became eligible for parole in April 2009. Reports prepared in advance of the consideration of parole indicated a progressive change in his attitude as to accepting responsibility for his offending. He challenged the Parole Board decision not to grant parole and its failure to hold an oral hearing, contending that there were numerous factors in favour of an oral hearing that had not been taken into account and that it was likely that he would have been released earlier had one been held.
1. On 21 February 2005 the Claimant, then a 27-year old Albanian national who had come to the UK as an illegal immigrant in 2000, pleaded guilty at Southwark Crown Court on the day fixed for the trial to an offence of trafficking Lithuanian women into the UK from Germany for the purposes of sexual exploitation. He had been arrested on or about 11 October 2004. He was sentenced to 11 years' imprisonment on 22 February 2005 and recommended for deportation. The sentence of imprisonment was reduced on appeal to the Court of Appeal Criminal Division in November 2005 to 9 years: see [2005] EWCA Crim 3404. It was said in the judgment of that court that of the various defendants the Claimant ‘was much the most significantly involved”. According to the same judgment, the Claimant had made a benefit from the illegal activities of approximately £160,000 – although the assessed benefit in the confiscation proceedings to which I will refer below was in excess of £170,000.
2. On 22 November 2005 a confiscation order was imposed on the Claimant at Southwark Crown Court in the sum of £95,000 plus interest with a default sentence of 22 months.
3. Given the fact of subsequent non-payment, on 6 November 2007 the City of Westminster Magistrates' Court activated the default sentence which had the effect of adding a consecutive period of 22 months to the effective prison sentence. When the Claimant completed two-thirds of the 9-year sentence in October 2010 (when ordinarily he would have been entitled to release), he began serving the 22-month term which he is currently serving. He must serve half of that term so that his release date is now set to be 19 September 2011.
4. His sentence for the trafficking offence was imposed shortly before the sentencing regime set out in the Criminal Justice Act 2003 became effective. He was, therefore, sentenced under the terms of the Criminal Justice Act 1991. His sentence was imposed for offences committed before 4 April 2005 and exceeded 4 years in length. Consequently, it took effect as a Discretionary Conditional Release (DCR) sentence.
5. He was entitled to be released at the half-way point of the sentence if his release on licence was recommended by the Parole Board. The half-way point is known at the Parole Eligibility Date (“PED’). As already indicated, release would have been automatic at the two-thirds point of the sentence (the Non-parole date, “NPD’). As I have indicated, but for the 22-month default sentence in relation to the confiscation order, he would have been released in October 2010. The default sentence itself is not subject to parole.
6. If he had been sentenced to a 9-year term for an offence committed after 4 April 2005 he would have been subject to a Standard Determinate Sentence (“SDS’) which provided for automatic release at the half-way point of the term (the Conditional Release Date, “CRD’).
7. The Claimant's “PED’ was 19 April 2009. The Panel considered the Claimant's first parole application on 15 September 2009 and rejected it.
8. The Claimant's essential complaint, in a nutshell, is that had the Panel held an oral hearing of that parole application, as he contends it should have done, it is likely that he would have been released earlier. It is also said that there was a failure to have regard to all proper material considerations in reaching the decision on paper.
9. His claim for judicial review was launched against the Parole Board and the Secretary of State for Justice. The Claim Form was sealed on 15 September 2009 and the grounds were served on 26 January 2010.
10. On 8 July 2010 he obtained permission from Mr Nicholas Padfield QC, in his capacity as a Deputy High Court Judge, to proceed against the Parole Board, but not against the Secretary of State. The basis of the grant of permission was that it was arguably unfair not to hold an oral hearing. Although the Claimant sought to amend his grounds to raise wide-ranging issues against the Secretary of State and effectively to renew before me the application for permission to apply for judicial review against the Secretary of State, the matter was not listed as a ‘rolled up” hearing, no direction to that effect having been obtained previously. The Secretary of State appeared by Mr Steven Kovats QC and, having heard from Mr Philip Rule for the Claimant and from Mr Kovats, I refused the renewed application and the matter proceeded simply against the Parole Board on the basis for which permission had previously been granted.
11. Various assessments and reports were made of and on the Claimant in the period before the Panel considered his application in September 2009.
12. One such assessment was by his Offender Supervisor, Ms Sophie Browne. She had been his Offender Supervisor since October 2008 (when he arrived at HMP Erlestoke in Devizes, Wiltshire) and had interviewed him formally on 3 occasions during that period. Although there is no clear evidence to this effect, it does seem likely, as Mr Matthew Slater for the First Defendant contended, that she will have seen him on other, more informal, occasions over that period. Nonetheless, the assessment that took place on 25 February 2009 (the last of the 3 to which she referred in her report) is the assessment that mattered for the purposes of the parole application. Her report was dated 19 March 2009.
13. In addition to the information she obtained from the interview, she had access to the Claimant's prison records, including his wing history, sentence planning files, the OASys (Offender Assessment System) documents and drug testing history. She also requested further information from other sources.
14. She records the Claimant as continuing to say, as he had done at the time of his sentencing, that he was really unaware about what was going on at the time of his alleged involvement in the human trafficking and explained the remarks of the judge who sentenced him that he was ‘deeply involved in this offending” as the result of something said by one of his co-defendants. He sought to explain the substantial sums of money going through his bank account on the basis that he was effectively doing people favours by transferring money back to the families of certain people who were in the UK illegally.
15. Ms Browne said that she had not had access to the CPS papers and that she had only the sentencing judge's remarks to assist in testing what the Claimant had said. However, her report draws a contrast between what the sentencing judge said and what the Claimant himself said. Looking at the former, it was plain that the Claimant had been convicted of ‘deep involvement in a substantial sex trafficking operation”. She recorded that he took no real responsibility for his actions and that he continued to maintain that his involvement was minimal and unwitting. She recorded that he had demonstrated no victim empathy which indeed was consistent with earlier reviews that had been undertaken. Her conclusion was expressed in these terms:
‘[The Claimant] continues to minimise his offending and demonstrates very little victim empathy or remorse for his involvement in the sex trafficking operation. He has not had the opportunity to undertake any offending behaviour work whilst in custody and, due to his deportation status, will effectively not be on licence on release: there will not, therefore, be any further opportunity for him to examine his behaviour. [He] continues to pose a high risk of serious harm to the public – specifically vulnerable females wishing to enter the UK – which I would judge will continue to be the case whether he is in the UK or Albania. In light of this, I do not support release at this time.”
16. He was also interviewed by a Probation Officer, Ms Fiona Gaines, on 23 July 2009, some 5 months after Ms Browne's interview in February, following a transfer to HMP Guys Marsh (in Shaftesbury, Dorset). His Offender Supervisor at that prison was a Mr Smith. Mr Smith was present during the...
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The Queen (on the application of Aswad Browne) v The Parole Board of England and Wales
...and are sufficient to demonstrate the lawfulness of the decision." 27 This statement was subsequently cited with approval in Ismailaj v Parole Board [2011] EWHC 1020 (Admin) and R. (D'Cunha) v Parole Board [2011] EWHC 128 (Admin). 28 It is common ground that the Defendant must decide for it......