R Dean Pearce v Parole Board of England and Wales
| Jurisdiction | England & Wales |
| Judge | Mr Justice Bourne |
| Judgment Date | 16 December 2020 |
| Neutral Citation | [2020] EWHC 3437 (Admin) |
| Date | 16 December 2020 |
| Docket Number | Case No: CO/3267/2019 |
| Court | Queen's Bench Division (Administrative Court) |
[2020] EWHC 3437 (Admin)
THE HON. Mr Justice Bourne
Case No: CO/3267/2019
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
Philip Rule (instructed by Instalaw Solicitors) for the Claimant
Sarah Sackman and Conor Fegan (instructed by Parole Board Legal Services) for the First Defendant
Myles Grandison (instructed by Government Legal Department) for the Second Defendant
Hearing date: 18 November 2020
Approved Judgment
Introduction
The Claimant's application for judicial review arises from the decision of the First Defendant (“the Board”) dated 20 May 2019, refusing to direct his release and instead directing his transfer to open prison conditions. By his two grounds, permission for which was granted by Johnson J on 3 October 2019, he contends that:
i) “there was procedural unfairness and failing in the manner or system by which the Parole Board reached its decision, contrary to common law and/or Article 5(4) of the European Convention on Human Rights (“ECHR”) requirements of fairness”; and
ii) “the policy or guidance issued by the Parole Board to purportedly govern the treatment of non-conviction allegations in parole reviews does not meet the requirements of fairness to be observed as a matter of common law and/or of Art. 5(4) ECHR”.
In 2009 the Claimant, then aged 27, committed offences of sexual assault by penetration and sexual assault of two women whom he met in the street. He pleaded guilty to these offences. The Court was told about previous convictions including one for a sexual assault on a 13 year old girl in 2005. On 13 October 2010 he was sentenced to imprisonment for public protection (“IPP”) with a minimum term of 3 1/2 years (less time spent on remand) which expired on 7 November 2013. He is now aged 38 and remains in prison.
From time to time the Claimant's imprisonment was reviewed by the Board pursuant to the statutory provisions to which I come in a moment. The decision now before me was the fourth such review.
Statutory framework
I repeat, in very similar terms, the summary of the relevant provisions which was set out by McGowan J in R (Morris) v Parole Board and Secretary of State for Justice [2020] EWHC 711 (Admin) (“ Morris”).
The power to impose an IPP derived from s. 225 of the Criminal Justice Act 2003 (“the 2003 Act”). IPPs were later abolished by the Legal Aid, Sentencing and Punishment of Offenders Act 2012. However, this was done with prospective effect and so the Claimant remains subject to the IPP. He is therefore subject to a “ life sentence”, as defined by s. 34(2)(d) of the Crime (Sentences) Act 1997 (“the 1997 Act”).
By s.239(1)(b) of the 2003 Act, the Board has the functions conferred on it in respect of life prisoners by Chapter 2 of Part 2 of the 1997 Act. In this regard, by s.239(2) of the 2003 Act, the Board has a duty “ to advise the Secretary of State with respect to any matter referred to it by him which is to do with the early release or recall of prisoners”.
Once the minimum term of the Claimant's IPP elapsed, the Board became responsible for considering his release pursuant to s.28(5)-(8) of the 1997 Act. If the Board directs the Second Defendant (“SSJ”) to release a prisoner pursuant to s.28(5), the SSJ has a duty to release that prisoner on licence.
When deciding whether to grant a direction to the SSJ to release the prisoner under s.28(5) of the 1997 Act, s.28(6) provides that:
“(6) The Parole Board shall not give a direction under subsection (5) above with respect to a life prisoner to whom this section applies unless—
(a) the Secretary of State has referred the prisoner's case to the Board; and
(b) the Board is satisfied that it is no longer necessary for the protection of the public that the prisoner should be confined.”
In deciding whether to give a direction, s.239(3)-(4) of the 2003 Act provides that:
“(3) The Board must, in dealing with cases as respects which it makes recommendations under this Chapter or under Chapter 2 of Part 2 of the 1997 Act, consider—
(a) any documents given to it by the Secretary of State, and
(b) any other oral or written information obtained by it;
and if in any particular case the Board thinks it necessary to interview the person to whom the case relates before reaching a decision, the Board may authorise one of its members to interview him and must consider the report of the interview made by that member.
(4) The Board must deal with cases as respects which it gives directions under this Chapter or under Chapter 2 of Part 2 of the 1997 Act on consideration of all such evidence as may be adduced before it.”
Guidance
The central subject of the present case is the question of how the Board should deal with allegations against a prisoner of offending which has not resulted in a conviction. That subject among others is covered by the Board's Guidance on Allegations (“the Guidance”) whose lawfulness the Claimant challenges by his second ground.
The Guidance was published by the Board on 11 April 2019 following the Divisional Court's decision in R (DSD and NVB) v Parole Board and Secretary of State for Justice [2019] QB 285, better known as the case of the taxi driver John Worboys (“ DSD”). It is intended to assist Board members in acting consistently with that decision on the treatment of allegations.
In Morris the lawfulness of the Guidance was challenged in very similar terms to the present challenge. I am again indebted to McGowan J in that case for the following summary of the relevant parts of the Guidance.
The Guidance states at the outset:
“5. Panel decisions must be made objectively, based on (a) the information and evidence provided to the panel and (b) information and evidence obtained as a result of the panel's inquiries and (c) what can properly be inferred from that information and evidence.
6. Panels faced with information regarding an allegation, will have to assess the relevance and weight of the allegation and either:
a. Choose to disregard it; or,
b. Make a finding of fact; or
c. Make an assessment of the allegation to decide whether and how to take it into account as part of the parole review.”
The Guidance states, in summary, that allegations should be disregarded only where not relevant ([8–10]). If they are relevant, the Board should go on to consider whether it can make a finding of fact ([11–12]). If the Board cannot make a finding of fact, it is nevertheless encouraged to consider the “ level of concern” raised by the allegation. In this regard, the guidance provides as follows:
“Making an Assessment of the Level of Concern
18. Panels may need to make an assessment of an allegation when the allegation is capable of being relevant to the parole review, but the panel is not in a position to make a finding of fact either because there is insufficient material available to make such a finding on the balance of probabilities, or because it would not be fair to do so. This most often arises when there is information regarding an allegation, but, critically important aspects of the evidence cannot fairly be tested. The allegation and the circumstances around it can form a basis for testing the reliability of the prisoner's evidence. It can be material on which an expert's evidence can be tested. The wider circumstances of the allegation might also give rise to areas of concern.
19. To make an assessment of concerns arising from an allegation, panels will need to decide:
a. What, if any, relevance the allegation has to the parole review; and
b. The weight to attach to the concerns arising from the allegation;
and then form a judgement as to the relevance and weight, if any, to be attached to these concerns, and the impact this has on the panel's overall judgement.
20. If an allegation is relevant to the parole review, the panel will need to form a judgement as to what weight to give the allegation. This will require an examination of the allegation. The following factors can be considered when judging what weight to give an allegation:
a. Source: can the credibility and reliability of the source be assessed and, if so, what is their credibility as a source; were the actions of the source consistent with the allegation; does the source have a motive to act against the prisoner; how contemporaneously was the making of the allegation with the events concerned; has the source's account been consistent? Allegations from a credible source are likely to be given greater weight than allegations from a less credible source.
b. Supporting information: is there other evidence that supports the specific allegation whether from other sources and/or documentary evidence that record the allegation? Allegations that are supported by other information will normally have more weight than allegations that come from a single source.
c. Nature of the allegation: an allegation that is of more serious misconduct is capable of having a greater effect on the panel's risk assessment.
d. Contemporaneity: is the allegation relating to events in recent times or at some time in the distant past? Allegations that relate to more recent times are likely to be more relevant than allegations relating to events in the distant past.
e. Context: does the allegation fit with other information known about the prisoner (which could include convictions or known behaviour including patterns of behaviour or other known allegations) in which case it may have more weight than an allegation that does not fit; and
f. The prisoner's evidence: panels should take account of the prisoner's denial or limited admissions/minimisation of the allegation, and, in doing so, make an...
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The Queen (on the application of Dean Pearce) v The Parole Board of England and Wales
...OF APPEAL (CIVIL DIVISION) ON APPEAL FROM THE HIGH COURT OF JUSTICE QUEEN'S BENCH DEIVISON ADMINISTRATIVE COURT MR JUSTICE BOURNE [2020] EWHC 3437 (Admin) Royal Courts of Justice Strand, London, WC2A 2LL Mr Philip Rule and Mr Jake Rylatt (instructed by Instalaw Solicitors) for the Appellant......
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The Queen (on the application of Dean Pearce) v The Parole Board of England and Wales
...in R (Morris) v The Parole Board [2020] EWHC 711 (Admin) and of the first instance judgment of Bourne J in the present case ( [2020] EWHC 3437 (Admin)). The Guidance thus fell for consideration by the Court of Appeal in the present case in its amended form, and that court held that it was......