R Debono v Parole Board of England and Wales
| Jurisdiction | England & Wales |
| Judge | Alice Robinson |
| Judgment Date | 10 March 2020 |
| Neutral Citation | [2020] EWHC 655 (Admin) |
| Date | 10 March 2020 |
| Court | Queen's Bench Division (Administrative Court) |
| Docket Number | No. CO/2586/2019 |
[2020] EWHC 655 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Royal Courts of Justice
HER HONOUR JUDGE Alice Robinson
(sitting as a Judge of the High Court)
No. CO/2586/2019
and
Mr J. Bunting (instructed by Bhatt Murphy) appeared on behalf of the Applicant.
THE RESPONDENT did not attend and was not represented.
THE JUDGE:
Introduction
This is a challenge by way of judicial review to a decision of the Parole Board dated 3 May 2019 in which it declined to direct that the claimant be released or to recommend that the claimant be transferred to open conditions. By a letter dated 31 May 2019, the Secretary of State accepted that recommendation. The Parole Board are the defendants and the Secretary of State for Justice is an interested party. The Parole Board has submitted an acknowledgement of service in which they indicate an intention to remain neutral and the Secretary of State has written a letter to similar effect, stating, “I will not be lodging an Acknowledgement of Service”. Neither of them has been represented at the hearing today.
The claimant was initially acting in person and his application for permission to apply for judicial review of the Parole Board decision was refused on 29 September 2019 on the papers by Jeremy Johnson QC, sitting as a Deputy High Court Judge. The application for permission was renewed at an oral hearing on 30 October 2019, which the claimant did not attend. At that hearing, Peter Marquand, sitting as a Deputy High Court Judge, granted permission on the single ground that the Parole Board had failed to take into account paragraph 7 of the 2015 Directions from the Secretary of State to the Parole Board and/or failed to undertake the balancing exercise required by that paragraph when considering whether or not to recommend the claimant be transferred to open conditions.
The Parole Board and Secretary of State were directed to file a bundle containing relevant legislation, the 2015 Directions, and relevant authorities. The Secretary of State did so. The claimant is now represented by Mr Jude Bunting who appears before me today, having previously submitted a helpful Skeleton Argument in support of the claimant's case.
The claimant is 45 years of age and was sentenced to two concurrent sentences of imprisonment for public protection on 13 December 2006 for offences of arson with intent to endanger life with a minimum specified term of eight a half years, less 323 days spent on remand. The minimum term expired on 17 October 2014, more than five years ago.
The offences for which the claimant received the sentence of imprisonment for public protection involved fire-bombing the homes of two police officers in the early hours of the morning when the officers and their families, including small children, were in occupation. He had a poor record up to that point of offending, including many convictions for offences of dishonesty, some for violence, and many involving vehicles. Since being in custody, he has engaged in a range of rehabilitative programmes and the Parole Board described his behaviour in custody as “excellent”.
The Secretary of State referred his case to the Parole Board in April 2018 seeking advice as to whether the claimant should be transferred to open conditions.
Parole Board decision
The Parole Board had before it a range of reports on the claimant, including from a number of psychologists, his offender supervisor and offender manager. The Parole Board's decision deals with the psychological reports in the section headed “Risk Factors”.
“The dossier contains six psychological risk assessment reports together with a joint statement by two of the psychologists, a psychologically informed assessment following your deselection from the Therapeutic Community at HMP Grendon, and a recent assessment of suitability for the Kaizen program, as well as two psychiatric reports prepared prior to your sentence. An ongoing concern has been whether you have traits of a personality disorder and/or whether you fulfil the diagnostic criteria for a personality disorder. You have consistently maintained that you do not have either a disorder or traits. The Panel is satisfied that the overwhelming evidence of the psychological and psychiatric reports conclude that you do have traits of a disorder, although there are differences in respect of the significance of these traits. For the purpose of these reasons, it is sufficient to cite only one of the reports, namely that of Dr Anderson, a consultant psychiatrist who was commissioned by your solicitors to produce a report on you prior to you being sentenced. Dr Anderson States:
‘Clearly, Mr Debono has personality traits consistent with dissocial personality disorder (ICD-10 F60-2)’
The panel considers that your dysfunctional personality traits (whether of a dissocial or other type) are currently unaddressed risk factors that manifest in your inflexibility, inability to accept that others may at time know better than you, grievance thinking, and a grandiose outlook. The nature of these factors is currently inhibiting your progress through your sentence.”
A number of the reports before the Parole Board dealt with the possibility of the claimant being transferred to open conditions. As the Parole Board noted in the section headed, “Evidence of change since last review and progress in custody”:
“Your offender supervisor recommended that you transfer to open conditions, but simultaneously accepted that you had not fully addressed your core risk factors. His recommendation was based on your compliant behaviour for over nine years at HMP Highpoint, your unwillingness to follow the treatment pathway that has been identified as necessary, and to give you an opportunity to be tested in a different environment.
Your offender manager told the Panel that she considered you should remain in closed conditions because you have not addressed your core risk factors.”
In the “assessment of current risk”, the Parole Board referred to the various risk assessments and said:
“The index offences were the culmination of a lengthy period of antisocial behaviour and offending. Although not all your risk factors were identified in detail prior to you being sentenced, reports were prepared that clearly indicate you have traits of personality disorder, and although you have undertaken some offending behaviour work during your sentence and your behaviour has been good, you have failed to address the core risk factors that have underpinned your serious criminal behaviour.
A treatment pathway has been outlined but you have categorically refused to engage with it and the Panel considers that this is the clearest possible indication that, if you are released and you are required to undertake work to address your personality factors or required to refrain from particular activities, if you did not consider the restriction necessary or disagreed with the need to do the work, it is likely that you would refuse to comply.”
In section 8, headed “Conclusion and decision of panel”, the Parole Board said this:
“Mr Twell submitted that you should be transferred to open conditions as your risk could be safely managed in open conditions. The panel agrees that your risk probably could be safely managed in open conditions because it is likely that would comply with the regime in the way that you have complied with the regime with HMP Highpoint. However, the panel considers that Mr Twell is fundamentally in error in submitting that because your risk could safely managed in open conditions it follows that you should be transferred. In the case of an indeterminate sentence prisoner whether a lifer on an IPP who is compliant with the regime, the key decision for the Board is the decision whether to recommend transfer to open conditions. If a recommendation is made and accepted and provided the offenders is compliant within open conditions, there is a high probability that they will be released if not at the initial hearing in open conditions at the second hearing. This can result in the release of an offender whose risk factors are clearly identified and who has not satisfactorily addressed their core risk factors. This in turn leads to an unacceptably high risk to the public that following release and particularly after any period of close supervision in Approved Premises has expired there is an untreated serious offender at liberty in the community with the concomitant risk of further serious offence.
You have claimed an impaired recollection of the events surrounding the commission of the index offences and attribute your lack of progress to your inability to supply a detailed account. Although it would be helpful if you were able to provide a more detailed account the panel does not consider that the...
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