R Calero v Parole Board
| Jurisdiction | England & Wales |
| Judge | DEPUTY JUDGE |
| Judgment Date | 28 February 2011 |
| Neutral Citation | [2011] EWHC 863 (Admin) |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 28 February 2011 |
| Docket Number | CO/10527/2010 |
[2011] EWHC 863 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
Before: MR C M G OCKELTON (Sitting as a Deputy Judge of the High Court)
CO/10527/2010
Miss Felicity Williams appeared on behalf of the Claimant
Mr David Mankwell appeared on behalf of the Defendant
(Official Shorthand Writers to the Court)
(As Approved)
: This application for judicial review raises the question whether the claimant was entitled to an oral hearing in relation to a decision of the Parole Board at the end of her tariff[C M G1].
The claimant is a serving prisoner. She was convicted of manslaughter by reason of diminished responsibility following her change of plea during her trial before His Honour Judge Morris QC and a jury in September 2008.
The judge's sentencing remarks reveal that the claimant had an extremely disturbed youth. She was brought from her country of nationality to the United Kingdom by family members and brought up by an uncle who abused her. Her mother was mentally unstable. One of the striking incidents in the claimant's childhood is that her mother attempted to commit suicide jumping from a bridge holding the claimant. She was injured on that occasion. To complete that part of the story, her mother has since committed suicide while the claimant has been in prison. Her father suffers from hereditary retinitis pigmentosa which took his sight and (because it is hereditary) threatens the claimant's.
The relationship between the claimant and her uncle deteriorated. The offence of which the claimant was convicted was one which the judge regarded as having been carefully thought out but as arising from the history between them. In a phone call lasting some 50 minutes, the claimant persuaded her uncle to visit her in the flat where she was living. After his arrival she stabbed him some 100 times in an attack which took 24 minutes and which was recorded on her brother's mobile telephone.
In giving her accounts during the trial of what had happened, she was found by the judge to have been not entirely reliable, although he gave her full credit for her change of plea. He imposed a sentence of imprisonment for public protection with a minimum term based on what would have been a determinate sentence in her case of six years' imprisonment, giving credit for her plea. The term therefore had to be divided by two, resulting in a term of three years, against which she was entitled to credit for the period she has served on remand. the resulting calculations meant that the end date of her tariff term was 11 July 2010.
Reports were prepared for the Parole Board's review at or about that time. The reports all derive from a period of activity on the part of the report writers during March 2010. The Parole Board made its provisional decision under Rule 11 of the Parole Board Rules on 1 July. There was, as is permitted by Rule 12, a submission that there should be an oral hearing in her case but the Parole Board decided again that there should not be on 29 July. It is that decision which is the subject of the present application. Permission to apply was granted by His Honour Judge Thornton QC. He appended to his decision an extended series of observations although it is fair to say that the only operative part of that decision is that permission be granted.
The starting point has to be the Parole Board Rules 2004, as amended. Rules 11 and 12 are as follows:
"III Proceedings without a hearing
Rule 11
Consideration by single member panel
11 (1) Within 14 weeks of the case being listed, a single member panel shall consider the prisoner's case without a hearing.
(2) The single member panel must either -
(a) decide that the case should receive further consideration by an oral panel, or
(b) make a provisional decision that the prisoner is unsuitable for release.
(3) The decision of the single member panel shall be recorded in writing with reasons, and shall be provided to the parties within a week of the date of the decision.
Rule 12
Provisional decision against release
12 (1) In any case where the single member panel has made a provisional decision under rule 11 (2) (b) that the prisoner is unsuitable for release, the prisoner may request an oral panel to give consideration to his case with a hearing.
(2) Where the prisoner does so request consideration of his case with a hearing, he must serve notice to that effect giving full reasons for the request on the Board and the Secretary of State within 19 weeks of the case being listed.
(3) If no notice has been served in accordance with paragraph (2) after the expiry of the period permitted by that paragraph, the provisional decision shall become final and shall be provided to the parties within 20 weeks of the case being listed."
So much appears clear, but it is apparent that those two rules may not mean quite what they say. The first reason for saying that emerged during the course of the present hearing. There is a direction given to the Parole Board under Section 32 (6) of the Criminal Justice Act 1991, which gives the Parole Board the task also of deciding whether to recommend that a life-sentence prisoner should be transferred to open conditions. The Parole Board has issued further directions indicating that such a recommendation is not to be made without a hearing. To that extent, a case raising the issue that the prisoner is clearly suitable for transfer to open conditions, although falling within Rule 11 (2) (b) on its face is not to be treated under that rule. Whether the Parole Board directions can stand in the light of the Parole Board Rules —given that the latter were given the authority of a statutory instrument by amendment in the Parole Board (Amendment) Rules 2009 —is far from clear, but fortunately is not a matter I have to decide.
The other reason why Rules 11 and 12 cannot be taken simply in the sense that they read is that there has been a considerable amount of judicial and other explanation of the test which is to be applied in deciding whether an oral panel hearing is necessary. I shall refer to some of that authority in a moment, but before getting to that it is necessary to look at another issue raised by Miss Williams, which is whether the procedure under Rule 12 is an appeal against the Rule 11 decision, or whether it is a review of the case as a whole, or whether it is something else.
The reason why that question arises is that the decision made on 29 July in the present case is headed "Appeal against Paper Decision" and contains, as part of its wording, "We confirm that you have appealed the decision." That is a reference back to the decision made on 1 July which had a covering letter indicating that the claimant had an opportunity of lodging an appeal against it.
One of the observations made by HH Judge Thornton QC was that the Board member had erred in treating it as an appeal. That, he says, was an error. It was not an appeal, he says, but a fresh determination; and the first determination was only a provisional decision.
Mr Mankwell, on behalf of the Parole Board, gave an indication that the wording of the documents describing the process as an appeal has caused difficulty elsewhere. I do not think the process is correctly called either an appeal or a review. I think the first decision is exactly what it says, that is to say it is a provisional decision. It will stand unless there is any reason to depart form it. Notice of it is given to the prisoner who has an opportunity to see that that is the way that things are going at the moment and to see if he can displace the provisional view of the Parole Board.
That conclusion has two consequences in terms of the decision-making process in the second decision. The first is that the first decision is undoubtedly a relevant part of the decision maker's decision-making process. The first decision is the decision so far on the material so far available. It is the decision from which the second decision is being asked to depart. But, on the other hand, the second decision is not an appeal in the sense of looking to see whether the first decision was a decision that was properly made. The second decision is the operative decision. It replaces the provisional decision and must be made on all the material available to the second decision—maker.
The second decision needs to be seen as a completion of the task begun by the first decision, and as neither an appeal nor a review. It has some of the characteristics of an appeal and some of the characteristics of a fresh decision. It has the characteristics of a fresh decision in that it takes account of everything available at the date of the second decision. It has the characteristics of an appeal in that it takes as its starting point the first decision.
In the present case what is said is that, whatever it is called, the second decision did not take into account everything that should have been taken into account. But one ought to start with what is logically Miss Williams' first ground for review —that the decision was wholly procedurally incorrect in being treated as an appeal. It seems to me that whatever it was called, the second decision-maker did what I would have expected, that is to say, started at the first decision and looked to see whether material subsequently supplied gave any reason to change it. That is exactly the process that I have concluded is envisaged by the Rules. So far as that ground is concerned, therefore, Miss Williams' submissions are not...
To continue reading
Request your trial