R (D'Cunha) v The Parole Board
| Jurisdiction | England & Wales |
| Judge | HHJ Stephen Davies |
| Judgment Date | 01 February 2011 |
| Neutral Citation | [2011] EWHC 128 (Admin) |
| Court | Queen's Bench Division (Administrative Court) |
| Docket Number | CO/8820/2010,Case No: CO/ 8820/2010 |
| Date | 01 February 2011 |
[2011] EWHC 128 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT (MANCHESTER)
Manchester Civil Justice Centre, 1 Bridge Street West, Manchester, M60 9DJ
BEFORE HIS HONOUR JUDGE STEPHEN DAVIES SITTING AS A JUDGE OF THE HIGH COURT
Case No: CO/ 8820/2010
Ms Farrhat Arshad (instructed by Scott-Moncrieff, Harbour & Sinclair, Solicitors London NW5) for the Applicant
Mr Sam Karim (instructed by Treasury Solicitors Department, London WC2) for the Defendant
Hearing date: 17 December 2010
Date judgment in draft: 7 January 2011
I direct that pursuant to CPR PD 39A paragraph 6.1 no official shorthand note shall be taken of this Judgment and that copies of this version as handed down may be treated as authentic.
His Honour Judge Stephen Davies.
Introduction
In this case the Applicant seeks judicial review of a decision of a Panel of the Parole Board ('the Panel'), contained in a letter dated 18 May 2010, in which it: (a) declined to direct the Applicant's release from custody; (b) declined to make a recommendation to the Secretary of State for Justice ('the Secretary of State') that he should be transferred to open conditions.
Permission was granted by HHJ Pelling QC on 10 September 2010, that permission being limited to 4 of the 6 grounds contained in the Judicial Review Claim Form.
The hearing took place on 17 December 2010. The Applicant was represented by Ms Arshad of counsel and the Defendant by Mr Karim of counsel. At the conclusion of the appeal I gave counsel the opportunity to lodge supplementary written submissions on two particular points which had arisen during the course of the hearing, and they both took the opportunity to do so.
The facts can be summarised as follows:
The Applicant is a man who was born in 1956 and is thus now 54 years of age. It appears that his first conviction for violence was in 1972, when he was convicted of offences including one of assault occasioning actual bodily harm. He was subsequently convicted on a number of further occasions up to 1992 for offences including offences involving violence —although none as serious as the offence, committed in 2006, for which he is currently in custody ('the index offence') —and public order offences. During this period he received a number of custodial sentences. He married in his early 20's and had 2 children, but separated shortly after his second child was born. He became responsible for the care of his eldest son and appears to have had a reasonable employment record. In the early 1990's he formed a new relationship, and had 2 further children in 2000 and 2003. By 2006 he was a reasonably successful decorating contractor living with his partner and their 2 children. The onset of the relationship appears to have coincided with a cessation in his offending behaviour, although in 2003 he was bound over for a public order offence and in 2006 he received a fixed penalty notice for a further public order offence.
On 2 June 2006 the Applicant committed the index offence of wounding with intention to cause grievous bodily harm, for which he was convicted after a trial and sentenced on 26 February 2007 to imprisonment for public protection ('IPP') with a minimum period of 2 1/2 years. The victim, who had worked for the Applicant, had driven to the Applicant's house to demand money which he believed was owing to him but, seeing the Applicant outside with his son, had driven past. The Applicant got into his car and chased him for some distance, eventually forcing him to stop. Both men got out of their cars and there was a struggle in the course of which the Applicant struck the victim twice around the head with the hooked end of a crowbar.
The Applicant was imprisoned first in HMP Bedford, from where he was transferred to HMP Wellingborough in February 2008. In May 2008 he successfully completed a Victim Awareness course. In May 2008 he was assessed for the 'Controlling Anger and Learning to Manage it ('CALM') course but deemed unsuitable. The contemporaneous note produced by the trainee forensic psychologist who interviewed him reveals that the reason he was deemed unsuitable was that the main precursor to his offending was assessed as being poor decision making, rather than poor emotional or anger control. The psychologist recommended that the main focus of the Applicant's offending behaviour work should be cognitive skills. Accordingly, the Applicant was accepted on an Enhanced Thinking Skills (ETS) course, which he successfully completed in July 2008. In early 2010 he successfully completed a Cognitive Skills Booster accredited programme. He has also completed a number of educational and vocational courses. More generally, his behaviour whilst in custody has throughout been exemplary, with no adjudications or positive drug tests. He has been on an enhanced wing regime, working as an orderly and as a listener and also working with special needs children for gym sessions. Whilst in prison he was subjected to an unprovoked attack, and did not respond with any aggression. As the Panel accepted in its decision letter, all of this demonstrated his great remorse and wish to avoid further offending, and it was impressed with the sincerity of his desire to avoid committing another aggressive or violent offence.
On 15 February 2009 the Secretary of State referred his case to the Parole Board to consider whether or not it would be appropriate to direct his release and, if not, to advise the Secretary of State whether he should be transferred to open conditions. The Panel was provided with a dossier comprising 169 pages, together with various other materials. This included:
a. A written report dated 14 August 2008 from Dr Peter Pratt, being an independent consultant clinical and forensic psychologist instructed by the Applicant's then solicitors, together with an addendum report dated 4 December 2009.
b. A sentence planning and review report dated June 2009 from Ms Lansberry, a probation officer and the Applicant's offender supervisor at HMP Wellingborough.
c. A parole assessment report dated 20 July 2009 from Ms Oliver-Blais, a probation officer and the Applicant's offender manager within the Hertfordshire probation area, together with an OASys assessment completed by Ms Oliver-Blais contemporaneous with that report, and an addendum report dated 23 April 2010.
d. A sentence planning and review report dated 22 June 2009 by Mr Rushdon, a prison officer, the Applicant's personal officer at HMP Wellingborough.
On 18 February 2010 the Panel met and heard evidence from Mr Rushdon, Ms Lansberry, and Ms Oliver-Blais. Due to pressure of time it adjourned to the first next available date, being 4 May 2010, when it heard evidence from Dr Pratt, and from the Applicant. The Applicant was represented at both hearings by Ms Arshad. There was no representation from the Secretary of State before the Panel, whether written or oral.
The decision letter is a document comprising 9 pages, broken down into 9 individual sections respectively entitled (1) Decision of the Panel; (2) Evidence considered by the Panel; (3) Analysis of Offending; (4) Factors which increase or decrease the risk of re-offending and harm; (5) Evidence of change during sentence; (6) Panel's assessment of risk of re-offending and serious harm; (7) Plans to manage risk; (8) Conclusion: Level of risk and suitability for release / open conditions. As I have already stated, the Panel declined to direct the Applicant's release from custody or to make a recommendation to the Secretary of State that he should be transferred to open conditions. It made these decisions in the face of the written and oral support from all of the witnesses from whom it had heard that the Applicant should be released or transferred.
On 10 June 2010 the Applicant's then solicitors wrote to the Parole Board enclosing a copy of an advice from Ms Arshad on the merits of judicial review in respect of the decision, and requesting the appointment of a fresh panel to consider the Applicant's case. Reference was made to an addendum report from Dr Pratt dated 1 June 2010 commenting on certain parts of the decision letter. That request was refused by letter dated 15 July 2010. The instant proceedings were commenced on 18 August 2010; in granting permission HHJ Pelling QC rejected a complaint based on the delay in bringing this claim. The relief sought was a declaration that the decision was unlawful and should be quashed and an order for a fresh panel to be urgently convened to reconsider.
The grounds of challenge as advanced before me are as follows:
I. Ground 2: the Panel failed to give any or any adequate reasons for rejecting the evidence of the four witnesses from whom it had heard live evidence, all of whom had recommended release and/or a move to open conditions;
II. Ground 3: the Panel's view as to the necessity for the Applicant to complete work on loss of control and anger was irrational.
III. Ground 4: the Panel failed to give adequate weight to the Applicant's completion of accredited offending behaviour courses.
IV. Ground 6: the Panel erred in its approach to consideration of suitability for open conditions in that it failed to carry out a balancing exercise between risk and benefit to the Applicant, contrary to the Secretary of State's directions to do so.
I should begin the substantive part of this judgment by referring to the relevant legal framework in which the Parole Board operates.
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