R (Brooks) v Parole Board and Secretary of State for the Home Department
| Jurisdiction | England & Wales |
| Judge | Lord Justice Kennedy,Lord Justice Clarke,Lord Justice Wall |
| Judgment Date | 10 February 2004 |
| Neutral Citation | [2004] EWCA Civ 80 |
| Docket Number | Case No: C3/2003/1408 |
| Court | Court of Appeal (Civil Division) |
| Date | 10 February 2004 |
[2004] EWCA Civ 80
Lord Justice Kennedy
Lord Justice Clarke and
Lord Justice Wall
Case No: C3/2003/1408
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM MR JUSTICE ELIAS
Royal Courts of Justice
Strand,
London, WC2A 2LL
Edward Fitzgerald QC and Phillippa Kaufmann (instructed by Scott-Moncrieff, Harbour, Sinclair) for the Appellant
Ms Kristina Stern (instructed by Treasury Solicitors) for the Respondent
This is a claimant's appeal from a decision of Elias J who, on 11 th June 2003, dismissed the claimant's application for judicial review of the decisions of the first defendant dated 10 th January 2003 and of the second defendant dated 2 nd April 2003. The case concerns the production of evidence before the Parole Board, and the extent to which the Board is entitled to act if the best evidence is not before it.
Background Facts.
On 19 th December 1977 the claimant, who was then 22 years of age, pleaded guilty to the rape of a 19 year old woman, and was sentenced to life imprisonment, with a tariff eventually fixed at 8 years. He also pleaded guilty to two offences of abducting a woman for unlawful sexual intercourse, attempted abduction and common assault, for which he received concurrent sentences of imprisonment. He had previously been convicted of a number of sexual offences including, in September 1974, rape, attempted rape, robbery and two indecent assaults for which he had received a total of 5 years imprisonment.
On 9 th December 1993 the claimant was released from prison on licence. On 11 th September 1997 he was recalled because of an allegation of robbery. A woman complained of being restrained from behind and made to hand over her purse. He stood trial for that offence in March 1998, and was acquitted, but was not released on licence for a second time until July 2000 because the Parole Board considered, to a very high degree of probability, that he had committed the robbery. Thereafter, in September 2001, his marriage broke down and he moved to live with a new partner, Shirley Langhorne. Some tensions in that relationship were noticed by Sylvia Pettit, the claimant's supervising probation officer, in May and June 2002. They were probably caused in part, it seems, by the restrictions placed on the claimant's access to children because of his criminal record. On 22 nd August 2002 Sylvia Pettit visited the claimant and Miss Langhorne at home, as she had done on many previous occasions. She noticed two small scratch marks on Miss Langhorne's face. The claimant eventually admitted that he had inflicted those injuries. His ex-wife was contacted and agreed that he could return to sleep at her home, and he was required to do so. The Assistant Chief Probation Officer then prepared a warning letter to the claimant requiring him not to visit or approach Shirley Langhorne without the consent of his supervising officer, but that letter was not sent because on the following day, 23 rd August 2002, Shirley Langhorne went to the Newark Probation Office, apparently in fear and distress. She was interviewed by Marion Saddington, a duty probation officer. During lengthy interviews Shirley Langhorne made serious allegations about the claimant. In particular she said that –
(1) On 22 nd March 2002, after a birthday party for him at his family home in London, he had been abusive and violent to her during the journey back to Nottinghamshire, and had then raped her five times during the night.
(2) On other occasions he had held her violently against the wall by her neck, and on 21 st August 2002 he had punched her whilst she was in the bath causing bruising and a graze to her face.
She said he had ransacked her flat, and taken certain possessions and that she was afraid that if she returned to her home she would again be raped. She was moved to a place of safety.
In the light of what Shirley Langhorne had said to Marion Saddington the ACPO recommended that the claimant be recalled to prison, and that same evening the Secretary of State revoked the claimant's licence pursuant to section 32(2) of the Crime (Sentences) Act 1997. The notice of revocation of life sentence sent to the claimant, so far as relevant reads -
"The Secretary of State considered that it was necessary to take this action because of information received from the Probation Service that you had ransacked the flat you shared with your partner and son, from which you then took certain possessions. It was also alleged that you had raped your partner, Ms Langhorne, on 5 occasions in March 2002 following an argument and further that on 21 August you had punched her while she was in the bath and on a separate occasion grabbed her around the neck.
These developments indicate to the Secretary of State that your performance on life licence gives substantial cause for concern. Having regard to all the circumstances, particularly the offence for which you were sentenced to life imprisonment, the Secretary of State cannot be satisfied that your continued presence in the community constitutes an acceptable risk."
The claimant was arrested on 24 th August 2002, and was returned to custody.
Preparations for hearing by Parole Board.
The licence having been revoked, section 32(4)(b) of the 1997 Act required the Secretary of State to refer the case back to the Parole Board, which then had to consider, pursuant to subsection 5, whether to direct the claimant's release. The case was considered on paper by the Parole Board on 30 th August 2002, when the decision of the Secretary of State was confirmed on the information then available. That early consideration did not suffice for the purposes of the 1997 Act, because the claimant was entitled to the opportunity of an oral hearing.
Also on 30 th August 2002 Shirley Langhorne made a witness statement to a police officer. The material part of that statement reads -
"In March 2002 Bill and I had a row and Bill raped me. I don't tell lies, and Bill did do this to me. I told the Probation Service because I needed to get help with Bill and his problems, and Bill was taken back to prison. Although Bill did rape me I don't want the police to do anything about it. I really loved Bill, and I don't want this to go any further. I don't want to discuss what happened, and there is no way I will go to court.
I have been told by the police that if I have problems in the future with any of Bill's family then I must contact them. I have made this decision not to go any further with what I told the Probation about what Bill did on my own, and without anyone else's involvement. I told Probation who then went on to contact the police. Bill did rape me, but I cannot speak up against him. I'm going to move away from this area and start again."
That statement seems to have been in accordance with what Shirley Langhorne had said to Sylvia Pettit on 29 th August, 2002. On 10 th September 2002 solicitors acting for the claimant wrote to the Secretary of State and to the Parole Board secretariat seeking an oral hearing before the Parole Board, and seeking sight of the recall dossier forwarded to the Parole Board. The solicitors also asked for a signed statement to be taken from Shirley Langhorne, and gave notice that "we want the alleged victim and the supervising probation officer to be called as witnesses at the hearing". They said that they took the view that it was the responsibility of the Secretary of State to ensure that they both attended, and asked for the matter to be dealt with expeditiously to comply with the claimant's right under Article 5(4) of the European Convention on Human Rights to have the lawfulness of his detention decided speedily by a judicial body.
It seems that on 3 rd October 2002 Shirley Langhorne telephoned the claimant's solicitors and asked if it was possible to "withdraw the charges". The solicitors rightly told her to speak to the police and to the probation service, and informed the Secretary of State what had occurred. Shirley Langhorne did not thereafter contact either the police or the probation service.
On 6 th November 2002 the claimant's case was formally referred by the Secretary of State to the Parole Board, and on 7 th November 2002 the Lifer Unit at the Home Office on behalf of the Secretary of State, acknowledged the two letters from the claimant's solicitors, and suggested that it would be more appropriate for the probation service to obtain a statement from Shirley Langhorne. The writer had arranged for the attendance before the Parole Board of the supervising probation officer, and suggested that it may be of benefit if the ACPO, Mr Kay, were also to attend. The letter concludes -
"With regards to the alleged victim again, you will need to put this to the Parole Board as it is their responsibility and not the Secretary of State's."
The accuracy of that assertion is a matter which we have had to consider in this case.
The oral hearing before the Parole Board was arranged to take place on 27 th November 2002, and on 20 th November 2002 the Parole Board secretariat wrote to the Lifer Unit to inform the Secretary of State that the chairman of the Parole Board panel had made certain directions pursuant to Rule 9 of the Parole Board Rules 1997, including a direction that a signed statement be taken from Shirley Langhorne and that further information be obtained from the supervising probation officer. The letter also recorded that in accordance with Rule 7 of the 1997 Rules the chairman had requested the attendance of the supervising probation officer and the alleged...
To continue reading
Request your trial
-
R (Morales) v Parole Board and Others
...issued under CPR 34.4 (1). It is not disputed that those provisions in the CPR apply to the Parole Board (see R (Brooks) v Parole Board [2004] EWCA Civ 80 [34] and [47]) and as is explained in paragraph 34.4.1 of Civil Procedure 2010, "the Chairman of the Parole Board Panel is entitled to g......
-
R Gregory Mcgetrick v The Parole Board and Another
...relevant information before it reaches its decision to release a prisoner on licence." 32 The decision of the Court of Appeal in R (Brooks) v The Parole Board [2004] EWCA Civ 80 is an example of the application of this overriding principle. The Court of Appeal upheld the decision of Elias J......
-
R (Lucinda Vowles) v Secretary of State for Justice and Another
...defined differently. This was determined by the courts in relation to the Parole Board: see R (Sim) v Parole Board [2004] QB 1288; R (Brooks) v Parole Board [2004] EWCA Civ 80. We agree with the submission that there is no difference in principle to the assessment of risk before the FTT. ......
-
Andrew Royston Morris v The Parole Board
...paramount”. Subsequent judgments have emphasised the upmost importance of protecting the public (for example: R(Brooks) v Parole Board [2004] EWCA Civ 80, per Wall LJ at [71]; and R(King) v Parole Board [2016] EWCA Civ 51 per Dyson MR at 34 The Divisional Court in R (DSD and NBV & Ors) v ......