Michael Osborn & John Booth v The Parole Board

[2010] EWCA Civ 1409

IN THE HIGH COURT OF JUSTICE

COURT OF APPEAL (CIVIL DIVISION)

ON APPEAL FROM MANCHESTER CIVIL JUSTICE CENTRE

Mr Justice Langstaff

Before: Lord Justice Sedley

Lord Justice Carnwath

and

Lord Justice Moses

Case No: C1/2010/0962 & C1/2010/1374

CO/5423/2009 & CO/2330/2010

Between
Michael Osborn & John Booth
Appellants
and
The Parole Board
Respondent

Hugh Southey QC & Vijay Jagadesham (instructed by Harrison Bundey Solicitors for Mr Osborn & Scott-Moncrief, Harbour and Sinclair, Solicitors for Mr Booth)

David Manknell (instructed by Treasury Solicitors) for the Respondent

Royal Courts of Justice

Strand, London, WC2A 2LL

(Transcript of the Handed Down Judgment of Word Wave International Limited A Merrill Communications Company 165 Fleet Street, London EC4A 2DY Tel No: 020 7404 1400, Fax No: 020 7404 1424 Official Shorthand Writers to the Court)

Hearing date : Thursday 11th November, 2010

LORD JUSTICE CARNWATH
1

In these two linked cases, the claimants seek judicial review of decisions of the Parole Board to refuse oral hearings. The first (Osborn) relates to recall following release on licence under a determinate sentence. It is an appeal from the judgment of Langstaff J on the substantive application for judicial review. The second (Booth) relates to the review of an indeterminate sentence. It is technically the first substantive hearing of the judicial review application, permission having been refused by Langstaff J, but granted in this court by Maurice Kay LJ. With respect to Mr Manknell, who sought to persuade us otherwise, I do not consider that this procedural difference should affect our approach to the issues.

The factsOsborn

2

Mr Osborn was born in 1972. Before he was 18, he had convictions for assault occasioning actual bodily harm, threatening behaviour and the possession of an offensive weapon. In 2006 he was convicted of putting people in fear of violence by harassment and of the possession of an imitation firearm (which he was alleged to have “brandished” at the home of his estranged wife). He was sentenced to 6 years imprisonment.

3

The custodial part of that sentence expired on the 20th February 2009, when he was released. He was recalled on the same day. He broke his conditions of release by arriving 20 minutes late at his hostel, having taken a detour which he did not disclose to the hostel. He blamed his lateness on traffic, whereas in fact he had diverted from a direct route to the hostel in order to visit an address at 19 Hilltop View in Handsacre. On 24 th February he was told that he had been recalled on two counts: failure to report to the hostel without delay, and making a detour such that he did not achieve his first hostel curfew time requirement. He was also informed that, having regard to his offending history, and the behaviour described in the breach report, the Secretary of State was not satisfied that it was right for him to remain on licence. He was invited to make representations.

4

The breach report by the offender manager, Mr Holsey, dated 6th March, recorded that the claimant had before release indicated his “absolute refusal” to comply with the requirements of his licence, and stated that he would “disappear for the weekend post-release” with his partner and their son, although he understood the inevitability of ensuing recall. He had scribbled through some of his licence conditions when presented with them in the week before his release. Mr Holsey had “information received” that on the day of his release the claimant had stated his intent not to meet with his offender manager. When reminded that he could not have access to firearms, he was reported to have said “not for another 2 hours”, and was reported to have said he would be back in prison shortly after he had done what he needed to do. Mr Holsey commented:

“Obviously this information and his behaviour on the day gave rise for serious concern as to the imminent risk of harm that this man may present and questioned as to how confidently such could be managed in the community.”

Shortly before he left the address in Handsacre he had telephoned the hostel manager to tell her that he would be late saying (falsely) that he was on the A38. He also told her that he had a multi-personality disorder and, if he were placed with someone else, she would “live to regret it”.

5

The report noted that he was at a medium risk of general re-offending, but that, if he did re-offend, there would be an imminent risk of serious harm with a serious impact upon any likely victim. It added that, in view of his statement that he had been diagnosed as having a multiple personality disorder, it was “crucial” that before being considered for eventual release, he should undertake a full psychiatric assessment. Mr Holsey did not recommend release.

6

In a letter dated 6 th April 2009 (surprisingly, not mentioned in the judge's account of the facts), Mr Osborn's solicitors commented in detail on the grounds for recall, and requested re-release. The letter referred to a four page hand-written note by Mr Osborn explaining his reasons for arriving late. The notes include an elaborate account of the events of that day, including delays in the time of actual release leading to delay in arriving at his fiancée's sister's house, and further problems caused by what his solicitors described as “the erratic monitoring and pursuance by the police surveillance team” leading to the de-tour which made him late. The solicitors' letter noted that Mr Holsey's report had only been received that day, and that they had not been able to obtain Mr Osborn's comments on his alleged statements of intention not to comply with the licence conditions, but it added that Mr Osborn suffered from mental health problems of which the probation service were aware. The letter accepted that Mr Osborn had expressed “initial concerns” in respect of some of the conditions, but commented that he had now been advised of the proper channels for challenging such conditions, and understood that they were binding. He had demonstrated in custody that he could behave well, and a willingness to change, and he could be expected therefore to comply with his licence.

7

In its decision dated 22 nd April 2009, the Parole Board concluded:

“The panel considered the benefits to Mr Osborn of addressing his offending behaviour within the community. Against this, the panel balanced the seriousness of the index offences, his history of previous convictions (including violence) and breach of trust, the immediate breakdown of supervision under the current licence, Mr Osborn's apparent unwillingness to comply with the requirements of licence supervision, the lack of information on his current mental health status and the recommendation that a full psychiatric assessment should be carried out prior to any re-release, the lack of confirmed accommodation for re-release, and the very high risk of harm should he re-offend. The assessment of risk is such that it cannot be safely managed within the community at present. The panel therefore makes no recommendation regarding re-release.”

8

On 28th April 2009 the claimant's solicitor wrote requesting an urgent oral hearing, and describing the Parole Board's finding as “irrational”. It was said that the decision made no reference to Mr Osborn's account of the events of the day of his release. It complained that the Board had relied on information not disclosed to them –

“for example, details of our client's intention to abscond, not to comply with licence conditions, not to meet with his offender manager, access to firearms, hostel's future acceptance among others”

This appears to be a reference to Mr Holsey's report. If so, it is unfortunate that the writer seems to have forgotten that it had been referred to in their previous letter, with an indication that they needed time to take instructions on it. The letter of 28 th April does not indicate what if anything of Mr Holsey's report was disputed. The letter went on, however, to ask for a direction for seven named witnesses to attend an oral hearing, and for specific documents to be supplied. As the judge commented, the letter –

“… gave no indication as to what was in dispute, if anything, upon which those witnesses' evidence or those documents would bear”.

9

The Parole Board refused the request for an oral hearing. The reasons given were:

“Michael Osborn's solicitors' representations dated [27/5/09 and] 28/4/09 dispute parts of the behaviour on the day of release which led to recall (e.g. Mr Osborn's detour) as well as ‘brandishing a firearm’ in the index offences. This panel has carefully considered the full dossier and concludes that the disputed facts are not essential either to the recall decision or the panel's risk assessment of the panel on 22/04/09: Mr Osborn's denial of the index offences was known to the panel already.” (The reference to representations of 27/5/09 appears to be a mistake. The only letter was on 28/4/09.)

10

Before the judge there was initially an issue whether the claimant had been made aware of the matters in Mr Holsey's report, but the judge recorded that he had seen it and had time to respond. The judge recorded that, despite having had “every opportunity” to do so, Mr Osborn had not disputed the contents of the report “in any meaningful way” prior to the hearing before him; this view was not altered by reference to material relied on by counsel in post-hearing submissions (para 15).

11

In this connection I should refer also to the judge's comments on the third submission on behalf Mr Osborn:

22. Thirdly, the claimant contended that he could explain his detour en-route to the hostel (he did so in part in his written representations to the Board), and to incarcerate him until the conclusion of his determinate sentence would be disproportionate to him having delayed for 20 minutes in arriving at his hostel....

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