R Daniel Bate v Parole Board of England and Wales
| Jurisdiction | England & Wales |
| Judge | Lord Justice Green,Lord Justice Holroyde |
| Judgment Date | 26 October 2018 |
| Neutral Citation | [2018] EWHC 2820 (Admin) |
| Docket Number | Case No: CO/459/2017 |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 26 October 2018 |
[2018] EWHC 2820 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
DIVISIONAL COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
Lord Justice Holroyde
and
Lord Justice Green
Case No: CO/459/2017
Philip Rule (instructed by Coninghams Solicitors) for the Claimaint
Holly Stout (instructed by Government Legal Department) for the Defendant
Hearing dates: 20th and 21st June 2018
Judgment Approved
The claimant Mr Daniel Bate, who until April 2017 was serving a sentence of imprisonment for public protection imposed in 2008, seeks judicial review of what he alleges was unlawful delay on the part of the defendant Parole Board in its review of his detention. He complains of a violation of his rights under Article 5(4) of the European Convention of Human Rights (“the Convention”), and claims declaratory relief and damages. Permission to bring the claim was granted on 1 st February 2018.
The facts
Mr Bate was born on 18 th September 1985, and so is now 32 years old. On 11 th March 2005, aged 19, he committed an offence of possession with intent to supply of a controlled drug of class A. On the 2 nd and 3 rd of November 2006, aged 21, he committed two offences of wounding with intent, contrary to section 18 of the Offences Against the Person Act 1861. He was remanded in custody for the latter offences on the 5 th April 2007. Following trials at which he was convicted of all three offences, he was sentenced on 19 th March 2008. He was found to be a dangerous offender (as that term is defined for sentencing purposes under the Criminal Justice Act 2003). For each of the section 18 offences, he was sentenced to imprisonment for public protection (“IPP”). The court specified a minimum period to be served (“tariff”) of 3 years 5 months. A concurrent determinate sentence, which did not affect his date of release, was imposed for the drugs offence.
The minimum period which Mr Bate was required to serve in prison expired in 2010. The effect of section 28 of the Crime (Sentences) Act 1997 is that, from that point on, the Secretary of State for Justice (“SSJ”) was under a duty to release him on licence as soon as the Parole Board had directed his release. By section 28(6), the Parole Board could not give a direction for his release unless (a) the SSJ had referred his case to the Board, and (b) the Board was satisfied that it was “no longer necessary for the protection of the public” that he should be confined.
Mr Bate has the misfortune to suffer, or to have suffered, from some mental health problems. He was diagnosed in childhood as suffering from Attention Deficit Hyperactivity Disorder. More recently, there have been diagnoses of Autistic Spectrum Disorder, “tic” disorder and mild learning difficulties.
Mr Bate was not released at the end of his tariff period. On 26 th April 2011 he was transferred to open prison conditions. On 29 th September 2011, however, he absconded. He remained unlawfully at large until 16 th January 2012, when he gave himself up and was returned to closed conditions.
On 17 th April 2013, Mr Bate was again transferred to open conditions. Again, however, the move was not successful. On 17 th September 2013 he was assessed as unsuitable to remain in open conditions, and was returned to closed conditions at HMP Lewes. The adverse assessment related to a number of incidents, including occasions when he was thought to be under the influence of drugs, and was thought to have been using the drug known as spice (then designated a “legal high”). The decision to return him to closed conditions was the subject of an attempted challenge by way of judicial review. However, permission to apply was refused.
A panel of the Parole Board reviewed Mr Bate's detention (not for the first time) at an oral hearing on 10 th December 2014. The panel did not direct his release. In its report, the panel recognised that Mr Bate appeared to cope well in closed conditions and, to his credit, had done work to address aspects of his offending and recent behaviour. The panel was however concerned that he would struggle to cope in less supported conditions. It felt that a recent prolonged outburst of aggressive behaviour showed that Mr Bate needed to do more work to address his poor self-control and anger, and that release at that stage to approved premises would put him and others at risk.
It is relevant to note that, in that report, the panel said:
“There was concern that you may have abused substances when last in open, but you deny this and there is no evidence that you have abused drugs although your relapse plans need development”.
On 13 th January 2015 the National Offender Management Service (“NOMS”) wrote to Mr Bate referring to the outcome of the recent review. As to when his detention would next be reviewed, the letter concluded by saying:
“Your review period is therefore set at 14 months – February 2016 and is made up of the following:
To do more work to address your poor self-control and anger and to engage in treatment to improve your understanding of how to self-manage your behaviour and show that you can cope with challenge and change without resorting to aggression or violence.
Your next parole review process will be undertaken in accordance with the Generic Parole Process, a centrally monitored review process. Your review process is expected to take 26 weeks to complete, as it involves the preparation of reports and coordination of various parties, including the Public Protection Casework Section, the Prison Service and the Parole Board. Your parole review will commence in August 2015 and the target month for consideration by the Parole Board is February 2016.
You will be notified by the Parole Board nearer the time about the exact dates of their consideration of your case.”
On 24 th June 2015 the SSJ, through NOMS, formally referred Mr Bates' case to the Parole Board for consideration as to whether or not it would be appropriate to direct his release. The letter noted that Mr Bate was not eligible to be considered for transfer to open prison conditions, following a policy announcement in 2014 which denied transfer to open conditions to a prisoner who had previously absconded.
On 27 th November 2015 a single member of the Parole Board directed that there be an oral hearing, and that “this case should be listed on the first available date”. It was noted that, at that stage, only limited progress had been made in identifying the support which would be available to Mr Bate if he were released. Directions were given as to the reports which should be obtained, as to the witnesses who should attend, and also – having regard to Mr Bate's mental health needs — as to the need for the panel conducting the hearing to include a specialist psychiatrist member.
The hearing did not in fact take place until 22 nd June 2016. Before that date was reached, in March 2016, a new Offender Supervisor was allocated to Mr Bate's case. When she saw him for the first time, on 18 th March 2016, he told her that he wanted to be honest and disclosed that he had been using spice “on and off for 5 years, up until December 2015”. That was a significant admission, because during the period to which it referred Mr Bate had consistently denied that he was using spice. Subsequent to that admission, on 13 th April 2016 Mr Bate tested positive for cannabis and cocaine: he told his Offender Supervisor that he had chosen to smoke cannabis because he was frustrated about not knowing what was happening in relation to his parole, and said that he had not been aware that the cannabis had been mixed with cocaine. He saw his Offender Supervisor again on 20 th April 2016, when she observed him to be “in a terrible state: shaking, sweating and disorientated”. He told her that he had used spice the previous day.
A panel of the Parole Board, comprised of three members including a psychiatrist, convened on 22 nd June 2016 to conduct an oral hearing. The reports available to the panel included reports in which both Mr Bate's Offender Supervisor and Offender Manager recommended that he be released, initially to Approved Premises with a view to a subsequent transfer for residential drug rehabilitation at a small establishment run by the St Thomas Fund. The Offender Supervisor's report stated that Mr Bate had been referred to the St Thomas Fund but had not yet been interviewed. She said that if he were accepted, the establishment would provide “specialised substance misuse support” and would also serve to monitor his behaviour. Her opinion was that Mr Bate was determined to address his substance misuse. The Offender Manager's report referred to the mental health diagnoses which have been mentioned in paragraph 4 above, and commented that Mr Bate's use of spice in custody appeared to have been linked to several factors, including –
“… self-medication to manage anxiety and low mood; the frustration and uncertainty surrounding his efforts to be released and the widespread availability and culture of spice use in the prison.”
No substantive hearing took place on that date. Instead, the case was deferred. The Parole Board uses the word “deferred” to refer to a hearing which is put off until a later date without being reserved to the panel which makes the decision to defer. Where a case is reserved to the panel which has decided to put it off to a later date, the hearing is said to be “adjourned”.
In a letter dated 31 st July 2016, the panel gave the reasons for the deferral. The letter summarised the circumstances of Mr Bates' offending, the course of his prison sentence and his mental health problems. It referred to his admission in March that he had been...
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