R Benit v The Parole Board
| Jurisdiction | England & Wales |
| Judge | Mathew Gullick |
| Judgment Date | 06 May 2022 |
| Neutral Citation | [2022] EWHC 2172 (Admin) |
| Docket Number | No. CO/1798/2021 |
| Court | Queen's Bench Division (Administrative Court) |
| Year | 2022 |
and
[2022] EWHC 2172 (Admin)
Mathew Gullick QC
(Sitting as a Deputy Judge of the High Court)
No. CO/1798/2021
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Royal Courts of Justice
Mr C Buckley (instructed by RMNJ Solicitors) appeared on behalf of the Claimant.
THE DEFENDANT did not attend and was not represented.
THE INTERESTED PARTY did not attend and was not represented.
THE DEPUTY JUDGE:
Introduction
This is a claim for judicial review of the decision of the Parole Board dated 22 February 2021. By that decision a three-member panel of the Board (“the Panel”) declined to recommend that the claimant be released from prison on licence. The claimant now challenges the lawfulness of that decision. Permission to apply for judicial review was granted on the papers by Mr Antony Metzer QC, sitting as a Deputy High Court Judge.
The Parole Board, as defendant, and the Secretary of State for Justice, as an interested party, both take a neutral stance on the merits of this claim and did not appear at the trial. The Parole Board did, in its Acknowledgement of Service, make some observations on matters of law to which I will return later in this judgment. I had the benefit of written and oral argument from Mr Carl Buckley, counsel for the claimant, for which I am grateful.
Two of the original three grounds of judicial review for which permission was given were pursued by Mr Buckley in his submissions at trial. Ground 1, which alleged that the Panel had unlawfully relied on the claimant's maintenance of his innocence of the index offence, was not pursued. By ground 2 it was contended that the decision was unlawful because the Panel had placed reliance on inappropriate matters, and by ground it was contended that the Panel's decision as to the claimant's risk, and his need to undertake further programme work, was unlawful.
Background
The claimant is now aged 44. On 24 January 2014 he was sentenced to 10 years' imprisonment for the offence of rape of a female under the age of 16. He also received a concurrent sentence of imprisonment for grooming a child under 16 for sexual activity. The claimant was convicted of these offences after a trial. The claimant had been communicating with the victim, then aged 15, on social media. He obtained her phone number and sent her sexually explicit messages. He met the victim on several occasions and in due course took her to a hotel where they had sex. At trial the claimant contended that he believed the victim was aged 17 and the sex was consensual.
The claimant has an extensive criminal record going back to 1992 for a variety of offences including theft, burglary, violence, failing to surrender to bail and breach of licence conditions. He had two previous convictions for sexual offences arising from sexual activity with a 13-year-old female he had met in a public house, for which he received a total of four years' imprisonment. The Panel described the claimant's offending in the following terms in section 3 of its decision:
“The panel was concerned about the prolific nature of your offending. Your earlier convictions indicate thrill seeking behaviour driving stolen cars and stealing goods to fund your substance misuse. Your offending escalated with you willing to use manipulative and grooming behaviour to satisfy your sexual appetite for underage girls. The index offence indicates a continuation of this pattern of behaviour and could be said to be predatory as you groom your vulnerable victims.”
On 28 June 2018 the claimant was released on licence from the sentence of 10 years' imprisonment imposed on him for the offence of rape on 24 January 2014. This release occurred as the result of the operation of the relevant early release provisions in the Criminal Justice Act 2003 and was not the result of any risk assessment or decision by the Parole Board. On 18 October 2018 the claimant's offender manager was made aware of two further historic allegations of sexual offending involving the claimant. The allegations were historic in the sense that although they had only recently been made, the alleged offending was said to have taken place in one case in 2002–03, and in the other case in 2007. These matters therefore preceded the claimant's conviction for rape in 2014. The allegation dating from 2007 was one of rape, and that from 2002–03 was that the claimant had sent the complainant sexually explicit correspondence before arranging to meet her and then having sex with her. Both the complainants were under 16 at the time of the allegations.
At this point (i.e., October 2018) the police also informed the claimant's offender manager that the claimant had, in their view, deleted 345 images and five videos from his mobile telephone without permission despite a condition of his release on licence being that the claimant should not delete the usage history of any such device. It was therefore determined that the claimant was in breach of his licence condition and he was immediately recalled to prison. The claimant did not challenge the lawfulness of the decision to recall him to prison, and it is not in issue in these proceedings. As matters presently stand, the claimant is not due to be released from the prison until 26 June 2023, which is the end date of the 10 year custodial sentence imposed on him in 2014. I apprehend that this date is less than 10 years from the date of sentence due to time spent on remand prior to the sentence being imposed.
It is, however, possible for the claimant to again be released on licence prior to the end date of his sentence. For that purpose the Panel of the Parole Board whose decision is now challenged held an oral hearing on 17 February 2021. That hearing was held as a remote hearing by the agreement of all parties. The Panel heard oral evidence from three of the claimant's current and former offender managers, from three police officers, and from the claimant. The claimant was represented by his solicitor at the hearing. The Secretary of State for Justice was not represented and did not provide a view to the Panel, although a dossier of 339 pages, with which I have also been provided, containing a number of reports on the claimant was before the Panel.
The Panel's decision was communicated in a letter dated 22 February 2021. It is structured as follows: Section 1 – Introduction; Section 2 – Evidence considered by the panel; Section 3 – Analysis of offending; Section 4 – Risk Factors.; Section 5 – Evidence of change, circumstances leading to recall and progress in custody; Section 6 – Panel's assessment of current risk; Section 7 – Evaluation of effectiveness of plans to manage risk; Section 8 – Conclusion and decision of panel; Section – Indication of possible next steps to assist future panels. In total it runs to just over 11 pages of single-spaced type.
For present purposes the most material parts of the decision are sections 7 and 8. In section 7, as I have already indicated, the Panel evaluated the effectiveness of the plans to manage the claimant's risk with which it had been provided. It stated as follows:
“The Panel was provided with a risk management plan. The plan and requested licence conditions were discussed in the hearing and your future plans explored. You would be expected to reside in a standard AP [Approved Premises] for 5 weeks, commencing 24/3/2021, and there might be an option to extend your stay by an additional 3 weeks if necessary. The move on address after the AP was likely to be [an address] for up to two months and then you would be supported to obtain accommodation … The panel assessed that the proposed plan was suitable and provided some intervention, together with some controls and supports that are relevant to your case.
The Panel assessed that you are motivated but there is a doubt about your ability to comply with your risk management plan, and with your licence and its standard and additional licence conditions.
There are requests for licence conditions which the panel explored to determine if they are necessary and proportionate in your case. You would be subject to a curfew, a daily sign in at the AP, be tested for drugs and alcohol, and expected to do further work on your use of drugs and alcohol, and sexual offending.
There was a request for a number of restrictions regarding contact with, or residence with, anyone under the age of 18. This was accepted by the panel.
There is a condition relating to notification of the development of intimate relationships with men or women. Given your index offence and your need to manage your sexual urges the panel accepted this condition was necessary and proportionate.
There were requests for licence conditions which relate to being open and honest with professionals, namely for a polygraph condition, to provide details of...
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