R (Bayliss) v Parole Board
| Jurisdiction | England & Wales |
| Judge | MR JUSTICE CRANSTON |
| Judgment Date | 13 November 2008 |
| Neutral Citation | [2008] EWHC 3127 (Admin) |
| Court | Queen's Bench Division (Administrative Court) |
| Docket Number | CO/9561/2008 |
| Date | 13 November 2008 |
[2008] EWHC 3127 (Admin)
Mr Justice Cranston
CO/9561/2008
IN THE HIGH COURT OF JUSTICE
THE ADMINISTRATIVE COURT
QUEEN'S BENCH DIVISION
Phillip Rule (instructed by Pickup & Jarvis) appeared on behalf of the Claimant
Daniel Squires (instructed by the Treasury Solicitor) appeared on behalf of the First Defendant
Steven Kovats (instructed by the Treasury Solicitor) appeared on behalf of the Second Defendant
(Approved by the court)
The Criminal Justice Act 2003 introduced provisions for sentencing dangerous offenders to imprisonment for public protection, which means that they have no automatic right to be released. They came into effect in 2005 and replaced earlier measures in the Powers of Criminal Courts (Sentencing) Act 2000 for the imposition of longer-than-commensurate determinate custodial sentences on offenders convicted of violence offences or sexual offences, and from whom it was necessary to protect the public from serious harm. This application for judicial review and habeas corpus raises the question of how the Parole Board should treat those who have been subject to a sentence of imprisonment for public protection. In essence, the challenge is to the test used by the Parole Board for releasing such prisoners on licence and whether, applying that test in this particular case, the Parole Board erred in law.
Background
The claimant in this case was sentenced in June 2006 to imprisonment for public protection for causing death by dangerous driving. He had been in a stolen vehicle on his way to purchase drugs. His driving was such as to cause the unintentional death of his longtime girlfriend. He pleaded guilty. There was no separate penalty imposed for offences of aggravated vehicle taking and driving whilst disqualified. At Oxford Crown Court His Honour Judge Hall said:
“This was a dreadful bit of driving. You killed your best friend but you killed her in circumstances where the way you were driving was patently obviously dangerous. That road is single-carriageway; it narrows; there are ample signs to tell you to slow down and there is an extremely obvious T junction with a brick wall facing you. No-one approaching that junction could have had any doubt at all that there was no way of going straight on. You started to brake only 30 yards before and there are tyre marks from there up to the moment of side impact, which was so severe that it left the car in the sort of condition that we see in the photographs, and your friend dead. It was not your car.”
The learned judge went on to observe the record of the claimant, that he had 39 convictions for 108 offences, these involving dishonesty, motoring offences and breaches of various court orders. He highlighted that the claimant had been disqualified from driving 16 times, usually at the wheel of someone else's car, and that in 1997 he had been convicted of dangerous driving after a police chase. The learned judge went on to say:
“I am of the opinion that I think that there is a significant risk to members of the public of serious harm if you were to commit further specified offences. Well I think there is. It is as simple as that. The risk of people being killed on the road, in a car chase with someone in somebody else's car, driving whilst disqualified, is significant in your case.”
The learned judge imposed a minimum period of 4 years, which meant that the claimant's tariff expired in April of this year.
Whilst in custody, the claimant has been subject to various assessments. First, there are two OASys assessments. OASys assessments are widely used in the criminal justice system and accepted as a tool for risk assessment of those convicted of offences. The assessments in relation to the claimant were dated July 2006 and June 2007. The assessments identified those at risk from the claimant as members of the public, other road users and passengers, if he were to be driving. The nature of the risk was identified as road traffic accidents and the death of a person. The risk was likely to be greatest, said the OASys reports, if the claimant had relapsed into drug misuse and was driving to obtain drugs, driving illegally or driving under the influence of alcohol. Circumstances likely to increase the risk were said to be the need to obtain drugs, or if the claimant were under the influence of alcohol. Chosen as factors likely to reduce the risk were the claimant refraining from driving, addressing his drug and alcohol misuse, being aware of victims and improving his thinking skills. The OASys assessors then categorised the claimant in relation to the likelihood of his causing serious harm, including harm to others. This categorisation relates to imminent release back into the community. Four categories are used: low, medium, high and very high. For our purposes only two are relevant. Medium is defined as the offender having the potential to cause serious harm but being unlikely to do so unless there is a change in circumstances, for example, in our case, drug or alcohol misuse. The high category is defined as the potential harm happening at any time and the impact being serious. Whereas the July 2006 assessment had been that there was a high risk of harm to the public in the community, the June 2007 assessment had reduced that to a medium risk of such harm. In both OASys assessments, however, the claimant was regarded as having a high risk of re-conviction.
In addition to the OASys assessments, various reports were prepared within the prison. The wing report, which is dated 6th December 2007, remarked that the claimant was an enhanced prisoner who was currently employed in the stores. That is a trusted position. The writer of the report went on to comment that the claimant's conduct was of a good, high standard. He was always polite, helpful and respectful. He was complying with his sentence plan and had recently successfully completed an enhanced thinking skills programme. He had no history of escape and he had a positive attitude to his sentence. He was now a spur representative.
In her report, dated 29th February 2008, the claimant's lifer manager said that the claimant had completed his enhanced thinking skills course with good reports and had recently completed the Sycamore Project, which is a victim awareness programme. At that time he was awaiting a report about the latter. He had also, she said, been assessed as suitable for a RAPt programme, the programme designed for prisoners to address their substance misuse. The report writer noted that the claimant was “very realistic in that he may be confined to closed conditions for further work and he will not hesitate to begin the RAPt course.” She concluded her report by saying that she would like him to complete the RAPt programme, either in custody or in open conditions.
The claimant's personal officer in prison, in a report dated 27th October 2007, recited that the claimant had had only one adjudication, which was for the possession of unauthorised drugs, to which he had pleaded guilty in January 2007. It noted the courses he had attended, which in the report writer's view had all helped in his current mindset. He got on well with staff and was always polite, friendly and respectful.
There were also reports prepared by two probation officers. The internal probation officer, in a report dated 6th February 2008, commented that the claimant was at a high risk of re-conviction, a medium risk of harm to the public, and a low risk of harm to children, known adults and staff. The report went on to note the programmes which the claimant had undertaken, commented that feedback from those programmes had been positive and also recorded that the claimant had participated in voluntary and mandatory drug tests. The majority of those tests had been negative. The conclusion was:
“The lack of a firm risk management plan by his offender manager makes it difficult for me to recommend him for release on parole at this stage.”
The external probation officer, in his report of 19th December 2007, said that the claimant had considerably entrenched offending behaviour and it would be optimistic to expect him not to resort again to criminality. The conclusion of the report was that it could be considered that were he to participate in the RAPt programme his ability to abstain from illegal drugs would be enhanced.
All these reports went before a hearing of the Parole Board on 7th July 2008. At the Board the claimant was represented by Mr Rule of counsel, who also represented him in this application. There was oral evidence from the claimant and from the two probation officers. The Parole Board issued it decision letter on 9th July. In its opening paragraph, the letter observed that it was “not satisfied that it was not longer necessary for the protection of public that you be confined” and had therefore not directed his release. It went on to declare that it was not making any recommendation for transfer to open conditions. The decision then recounted the background to the index offence, the record of the claimant and recalled in paragraph 5 that the claimant had recognised the deleterious effects of drug abuse on his life. Unfortunately, the decision noted, he had received an adjudication for possession of controlled substances in January 2007, before he undertook a short duration programme which was the first step towards treatment. The decision went on to record the courses which the claimant had...
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