R (Bektas) v Probation Service
| Jurisdiction | England & Wales |
| Judgment Date | 07 August 2009 |
| Neutral Citation | [2009] EWHC 2359 (Admin) |
| Docket Number | CO/3575/2009 |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 07 August 2009 |
[2009] EWHC 2359 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
Before: Rabinder Singh QC
(Sitting as a Deputy High Court Judge)
MR P PATEL and MR M RICKARD (instructed by PARFITT LAW SOLICITORS) appeared on behalf of the Claimant
MR J JOHNSON appeared on behalf of the Defendant
Introduction
This claim for judicial review is brought with the permission of Christopher Symons QC sitting as a Deputy High Court Judge was granted on the papers on 22 April 2009. For reasons that will become apparent, the only live issues at the hearing before me concerned the Secretary of State. The decision which is under challenge is his decision to recall the claimant to prison for breach of a condition of his licence.
I should say a word about the procedural history of this case, which has not been a happy one. On the defendant's side there was no acknowledgment of service, no detailed grounds and no evidence was ever filed. A skeleton argument was filed on 13 July at a time when the hearing was listed for the next day; that hearing was adjourned until 6 August. The Treasury Solicitor has apologised to the court and, of course, I accept that apology.
On the claimant's side, a further skeleton argument was filed on the morning of the hearing in which several new matters were raised, including an entirely new ground of challenge. No criticism is to be made of Mr Patel. Mr Johnson, for the defendant, fairly felt able to deal with most of the new points, although he did object to any new argument that would require the filing of evidence which the Secretary of State has not had the opportunity to do. This affected one aspect of the argument for the claimant to which I will return.
As I have said, the claimant seeks permission to amend his grounds to include a further ground. I will refer to that in due course as ground two. In the exercise of my discretion, I grant permission to amend the grounds to make that challenge. It seems to me that it raises a pure matter of law and Mr Johnson fairly accepted that he could deal with it without the need for the filing of the evidence. He, if I may say so, was able to deal with the point more than proficiently and, in all the circumstances, it seems to me just and convenient that the best way to deal with the second ground is for me to grant permission in this case so that it can be, as it now has been, fully argued as a matter of substance.
Factual background
The claimant pleaded guilty in 2004 to a charge of conspiracy to supply Class A drugs, namely heroin. The case concerned a large amount, that is 9.67 kilograms, with an estimated street value of £425,000. For that offence, the claimant was sentenced to a determinate sentence of eight years' imprisonment on 5 July 2005. It would appear the claimant was arrested on 13 July 2004 and was on remand until the date of his sentence. The period spent in custody was, it seems, taken into account.
On 23 July 2008, the claimant was released on licence on various conditions. For present purposes, it is necessary to recite condition 5(1) which provided:
“While under supervision you must:
“i. Be well behaved, not commit any offence and not do anything which could undermine the purposes of your supervision, which are to protect the public, prevent you from re-offending and help you [reintegrate] successfully into the community.”
On 21 October 2008, the claimant was arrested by the police on suspicion of threats to kill his wife and assault occasioning actual bodily harm. He was remanded in custody by a court and arrived at Belmarsh Prison on 3 November 2008. Although their exact date of compilation is not clear, it is apparent that on 4 December 2008 the OASys assessments were printed off and they are in the bundle before me. It is important to recite some passages in the OASys assessment which was written by Lucy-Anna Kelly of the National Probation Service. At page C2 of the bundle, the OASys assessment states:
“I have received information from Lewisham Community Safety Unit about the following offence committed by Mr Bektas against his wife, Ellis Bektas (?) in their family home. Mr Bektas has pleaded not guilty and has been committed to Woolwich Crown Court on 2 January 2009 for trial. He is currently remanded in custody.
“On 31 October 2008, Mrs Bektas states that her husband, Mr Bektas, phoned her at home after work and heard that she had friends in the house. This enraged him as he had previously told her that he did not want people in the house. When he arrived home, she was watching television. He allegedly punched her, grabbed her by the hair and the back of her neck and pushed her into a chair. He then held a knife to her and threatened to cut her head off and kill her. Police state that Mrs Bektas has bruising to her cheek, neck and hand but did not require hospital treatment. Both the above children were present and he allegedly threatened one of them saying, 'If you don't get up, I will beat you up too.'.
“According to the police, Mr Bektas was not under the influence of drugs or alcohol. He denies the offence and said that he was merely (?) his wife who had slapped him during an argument. He stated that his 9 year old son appeared with a knife during the argument and threatened to kill both of them if they did not stop fighting.”
At page C3 of the bundle, in relation to a section of the assessment form which is to be completed if the offender is believed to pose a risk of serious harm to children whose identity is known, or if the offender is in close contact with named children who are at risk, there appears the following passage:
“Mr Bektas has been charged with ABH and threats to kill against his wife. These offences were committed in front of his children (aged 9 and 13). I understand that his 9 year old son grabbed a knife during the incident and threatened to kill both his parents if they did not stop the dispute. Mr Bektas threatened to beat him up too if he did not sit down.”
At page C5 of the bundle in a section headed “R10 Summary” in relation to risk there are mentioned in particular a known adult, that is Mr Bektas's wife, and children, that is Mr Bektas's children. In relation to Mrs Bektas, there is reference made to the possibility of physical assault and the initial impact of sustained victimisation and in relation to Mr Bektas's children the possibility of fear of violence, the initial impact of witnessing the incidents of domestic violence and possibility of physical harm.
For present purposes it is unnecessary to recite further passages from the OASys assessment and I return to the chronology of events in this case.
On 12 December 2008, there was a request for recall report made which appears at appendix D of the bundle before me. At page D1, this report noted that the claimant was eligible for consideration for a fixed term recall (FTR). It then considered his suitability for FTR and observed that the risk of serious harm level was medium. The recommendation made was for a standard recall, not an FTR.
At page D4 of the bundle, the report set out the facts as they were believed to be in relation to the incident on 31 October 2008, much in the same terms as the OASys assessment which I have already quoted. The report continues on the same page under the question, “What is the pattern of behaviour causing concern at this time?”
“Third party information made available to them indicates that this may not be an isolated incident. I am concerned that the above allegation indicates that there is a risk of physical and emotional harm to Mrs Bektas and her two children.”
In response to a further question, “How has the offender responded to supervision to date (including details of any other breaches of licence)?” The report continues:
“This case was allocated to me on 15th October 2008. Probation records indicate that Mr Bektas's attendance has, to date, been excellent. He has arrived on time to all of his appointments and has been polite and cooperative throughout the supervision. He has attended fourteen or fifteen appointments offered, having missed one appointment due to ill health.”
In relation to the question, “Have any alternative actions to recall been taken to secure compliance, if so how has the defendant responded?” The report noted:
“Mr Bektas has been remanded in custody since he was arrested for this offence.”
At page D5 of the bundle the report has a section on risk assessment. The question raised is what is the assessment of risk of harm presented by the offender if she or he were to be released at the end of the 28 day period in custody. The risk of serious harm level is assessed to be medium and the risk of reconviction is also assessed to be medium.
In relation to an item headed, “Additional licence conditions for fixed term recall cases only”, against the passage, “If the original licence contains additional conditions, or if the offender manager is recommending an additional condition to manage the offender on licence please insert it here” the report states, “NA”, in other words, not applicable.
At page D6 of the bundle, the report has the endorsement by the Line Manager and also the Senior Manager and attaches various reports to it including the OASys assessment, to which I have referred, and the pre-sentence report which was of course before the Crown Court at the time of the sentence in 2005 but which it...
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...or serious personal injury, whether physical or psychological." 18 In R(Bektas) v the Secretary of State for Justice and Another [2009] EWHC 2359 Admin Mr Rabinder Singh QC sitting as a High Court Judge also had something to say about the relevant sub-section. Under the heading "issue one" ......
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Recalling Conditionally Released Prisoners in England and Wales
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