R (Dean Solomon) v Parole Board
| Jurisdiction | England & Wales |
| Judge | Mr Justice Munby |
| Judgment Date | 26 October 2006 |
| Neutral Citation | [2006] EWHC 2639 (Admin) |
| Court | Queen's Bench Division (Administrative Court) |
| Docket Number | Case No: CO/5436/2006 |
| Date | 26 October 2006 |
[2006] EWHC 2639 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Mr Justice Munby
Case No: CO/5436/2006
Mr Jonathan Lennon (instructed by Messrs Chivers) for the claimant
Miss Valentina Sloane (instructed by the Treasury Solicitor) for the defendant
The question in this case is whether the Parole Board erred in refusing to order the release of a sexual offender serving an extended sentence. In my judgment the Board did not err and this application for judicial review must accordingly be dismissed.
The facts
The claimant is a sexual offender aged 50. He is, as his counsel in effect had to concede, a predatory male with a penchant for teenage girls. He has 20 previous convictions for a total of 73 offences, some of dishonesty, some of violence and some sexual. Most of these offences occurred in or before 1990. I focus on the later convictions, which are those directly relevant for present purposes.
In 1993 the claimant was convicted of raping, buggering, attempting to bugger and indecently assaulting two girls then aged 14 and 15. He was sent to prison for 8 years. In 1998 he was recalled to prison after pleading guilty to possession of indecent photographs of children. In 1999 he was convicted of indecent assault on two girls who were then under 14 and on another girl who was then under 16. He was also convicted of taking indecent photographs of them. He was sent to prison for 5 years to be served concurrently with his previous sentence; the sentence was reduced on appeal to 3 years. On 17 July 2003 he was convicted of indecently assaulting a 13 year old girl – he kissed her on the cheek after persuading her and her two friends to go with him to a funfair. He was given an extended sentence, being sentenced to 15 months in prison with 3 years extended licence. Because of the time he had spent in custody on remand – the offence had been committed in August 2002 – he was immediately released. On 1 December 2003 he was recalled to prison, after he had patted a 15 year old barmaid on the bottom. For that indecent assault he was convicted in December 2004, again being given an extended sentence. He was sent to prison for 9 months with a further 3 years extended licence to be served consecutively to the existing extended licence.
It appears that all of these offences involved an element of 'grooming'. I need not go into the sordid and concerning details.
In these circumstances, the claimant's conditional release date is 21 October 2006; his sentence expiry date is 14 August 2008; and his licence expiry date is 31 March 2008.
On 25 May 2006 the claimant appeared before the Parole Board. He was represented by counsel. There was (and I quote the claimant's grounds for seeking judicial review), "little or no support for his release at that hearing." On 2 June 2006 the Board issued its decision letter. The Board declined to order his release.
The proceedings
The Board's decision, as I have said, was dated 2 June 2006. The claimant's application for judicial review was issued on 30 June 2006, together with his application for urgent consideration. On 3 July 2006 Silber J directed that the acknowledgment of service be served by 10 July 2006. It was in fact received by the court on 11 July 2006. Leveson J (as he then was) refused permission on the papers on 13 July 2006. The Claimant's renewed application came before Collins J on 21 August 2006 who in the absence of the Board (which was apparently unaware of the hearing) granted permission and gave the claimant leave to amend his claim form. The amended grounds were set out in an 'addendum' dated 21 August 2006. The Board served detailed grounds for resisting the claim dated 25 September 2006. They were settled by Miss Valentina Sloane, who appeared before me on behalf of the Board, and appropriately stood on their own without need of any further skeleton argument. The claimant was represented by Mr Jonathan Lennon, who came into the case at comparatively short notice. His skeleton argument was dated 11 October 2006.
I am grateful to both Mr Lennon and Miss Sloane, whose admirable submissions, both written and oral, focussed succinctly and helpfully on the real issues in the case.
In the claimant's original statement of grounds, the Board's decision was challenged on two grounds. Mr Lennon indicated that the second of these grounds was no longer being pursued. The argument before me accordingly proceeded on two grounds: the one being the first of the two grounds identified in the claimant's original statement of grounds, the other being the matter raised for the first time in the 'addendum'. I shall take them in turn.
The hearing before me was on 16 October 2006. At the end of the hearing I reserved judgment. I now (26 October 2006) hand down my judgment.
The first ground
The first ground of challenge alleges misdirection by the Board. I must first set out the relevant law. I can take it very shortly because it was not in dispute.
The claimant was, as I have said, subject to an extended sentence imposed on him pursuant to section 85 of the Criminal Courts (Sentencing) Act 2000 (previously section 58 of the Crime and Disorder Act 1998). The statutory purpose of such a sentence (see section 85(1)(b)) is "preventing the commission by [the defendant] of further offences and securing his rehabilitation."
In R (Sim) v Parole Board [2003] EWCA Civ 1845, [2004] QB 1288, at para [46], Keene LJ, giving the judgment of the Court of Appeal, Civil Division, quoted with approval what Elias J had said at first instance, [2003] EWHC 152 (Admin), [2004] QB 1288, at para [53], with reference to extended sentences:
"In such cases the object of the sentence is not to subject the prisoner to detention for the extended licence period, and indeed frequently when such sentences are imposed, there would be no power at that stage to detain the prisoner in custody for that period. The aim of the sentence is to manage the risk in the community rather than in prison, albeit that it is recognised that it may be necessary to resort to further detention if that aim fails. The offender is not on licence as an alternative to prison; rather he is on licence as an alternative to liberty, since the judge must have assumed that a longer than commensurate sentence was not appropriate."
Rose LJ made a similar point when giving the judgment of the Court of Appeal, Criminal Division, in R v Pepper [2005] EWCA Crim 1181 at para [5]:
"It should also be borne in mind that, by virtue of section 85(1)(b) the purpose of an extended sentence is to prevent the commission of further offences and to secure the offender's rehabilitation and not, for example, to protect the public from serious harm, which is the role of a longer than commensurate sentence (see section 80(2)(b) of the Powers of Criminal Courts (Sentencing) Act 2000)."
The task for the Board at the hearing was that defined by section 44A of the Criminal Justice Act 1991, a provision (inserted by section 60 of the Crime and Disorder Act 1998) which although repealed by the Criminal Justice Act 2003 continues to apply to the claimant by virtue of the saving provisions in paragraph 19(d) of Schedule 2 to the Criminal Justice Act 2003 (Commencement No 8 and Transitional and Savings Provisions) Order 2005, SI 2005/950.
Section 44A(4) sets out the test for determining whether or not the prisoner should be released. It provides that the Board shall direct the prisoner's release (and the Secretary of State is obliged to act upon that direction):
"if satisfied that it is no longer necessary for the protection of the public that he should be confined (but not otherwise)."
At first blush, this language appears to mean that the Board does not have to be positively satisfied that it is necessary for the protection of the public that the prisoner should be confined; rather it needs only to be satisfied that it is no longer so necessary. And, as Elias J pointed out in R (Sim) v Parole Board [2003] EWHC 152 (Admin), [2004] QB 1288, at para [12], it follows as a matter of language that if the Board is left uncertain as to whether it is still necessary or not, the prisoner will continue to be confined.
But this is not in fact the way in which section 44A(4) is to be interpreted, for as Keene LJ explained in R (Sim) v Parole Board [2003] EWCA Civ 1845, [2004] QB 1288, at para [50]:
"a conventional interpretation of section 44A(4) would be incompatible with the article 5 rights of those detained after recall during the extension period … What is to be the end result if, in any given case, the Parole Board is left in doubt as to whether detention is necessary to protect the public? Is it to direct release or not? It seems to me that there has to be what Elias J called, at para 53 a "default position" to cover such situations, and if so, it follows from my earlier conclusions that it has to be one expressed in the terms of a presumption in favour of release."
Keene LJ continued in para [51] by stating that section 44A(4) has to be read as providing that:
"the board has to be positively satisfied that continued detention is necessary in the public interest if it is to avoid concluding that it is no longer necessary."
It is against this background that I turn to consider the reasons the Board gave for its decision in this case. The decision letter dated 2 June 2006 obviously has to be read as a whole, but the...
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