R Edmund Bruton v The Secretary of State for Justice

JurisdictionEngland & Wales
JudgeMr Pushpinder Saini
Judgment Date28 July 2017
Neutral Citation[2017] EWHC 1967 (Admin)
Docket NumberCase No: CO/171/2017
CourtQueen's Bench Division (Administrative Court)
Date28 July 2017

[2017] EWHC 1967 (Admin)

IN THE HIGH COURT OF JUSTICE

QUEEN'S BENCH DIVISION

ADMINISTRATIVE COURT

Royal Courts of Justice

Strand, London, WC2A 2LL

Before:

Mr Pushpinder Saini QC

sitting as a Deputy Judge of the High Court

Case No: CO/171/2017

Between:
The Queen on the application of Edmund Bruton
Claimant
and
The Secretary of State for Justice
Defendant

Philip Rule (instructed by Kesar & Co.) for the Claimant

Christopher Knight (instructed by the Government Legal Department) for the Defendant

Hearing dates: 18 July 2017

Approved Judgment

Mr Pushpinder Saini QC:

1

This judgment is divided into five parts as follows:

(i) Overview: paras. 2–7.

(ii) The Facts: paras. 8–38.

(iii) Statutory Framework: paras. 39–48.

(iv) The Grounds: (i) Procedural Fairness (paras. 49–81); (ii) Royal Prerogative of Mercy ("RPM") (paras. 82–84); and (iii) Claimed misdirection in relation to application of a threshold under section 30 of the Crime (Sentences) Act 1997 (paras. 85–88).

(v) Conclusion: para. 89.

I. Overview .

2

The issue in this claim for judicial review is the legality of the decision of the Defendant ("the Secretary of State") made by letter dated 16 September 2016 ("the Decision") to refuse to direct the release of the Claimant, Mr. Edmund Everett Bruton ("Mr. Bruton"), from prison on compassionate grounds relating to the health of his mother.

3

Mr. Bruton is serving an indeterminate sentence for public protection with a minimum term of 7 years and 6 months. The minimum term will expire in September 2018 and his case will at that time be put before the Parole Board to assess release on licence.

4

Mr. Bruton's mother, Maisie Bruton, suffers from Alzheimer's disease, and is sadly in severe cognitive decline. She has been placed on the end of life care register and is unable to perform basic care tasks for herself. Other than Mr. Bruton, she has no other family members in the United Kingdom and is understandably distressed at the thought of leaving her own home and moving into a residential care home.

5

In outline, Mr. Bruton argues that the Secretary of State's decisions to refuse his applications for compassionate release under section 30 of the Crime (Sentences) Act 1997 and/or or under the Royal Prerogative of Mercy, fall to be quashed by reason of several overlapping procedural failings.

6

It is to be noted however at the outset that Mr. Bruton does not contend that the decisions to refuse release from prison on compassionate grounds were perverse or irrational, and the relief he seeks is limited to orders requiring the Secretary of State to reconsider the decisions in a proper, fair and lawful manner.

7

The Secretary of State resists each of the procedural challenges and further submits that, even if any procedural challenges are made good, I should decline to order relief under section 31(2A) of the Senior Courts Act 1981.

II. The Facts

8

On 25 October 2011, His Honour Judge Burn, sitting in the Crown Court at Inner London, imposed on Mr. Bruton concurrent sentences of imprisonment for two offences of, intentionally damaging property intending to endanger the life of persons inside a property, and dangerous driving. It cannot be disputed that the offences were of a very serious nature and the Judge in his sentencing remarks described it as "a most disturbing and worrying case". In short, Mr. Bruton deliberately drove his car into the home of his former partner when she was at home with her young children. At the time he had consumed a significant quantity of anti-freeze, had caused himself to suffer cuts to the neck and is recorded to have resisted first-aid at the scene of the crime.

9

I will need to explain the nature of the offences in more detail, as well as to refer further to the Judge's sentencing remarks, since these matters are relevant to risk assessments made in respect of Mr. Bruton.

10

The offences were committed by Mr. Bruton following the ending of his relationship with his partner. As described by the Judge, Mr. Bruton "set about, in a pre-meditated and meticulous way, not only planning [his] own death but also planning really serious injury, on the jury's verdict, to the extent of endangering the life of [his ex-partner], and, indeed, her young children".

11

The Judge also observed that Mr. Bruton had planned the attack over some days, seeking to "do the maximum amount of harm [he] could to [his partner] and, quite possibly, one or more of her young children". The Judge noted that on "the jury's verdict, at the time [he] did that, [he] intended to put their lives in danger. I repeat, to put their actual lives in danger".

12

In passing sentence, the Judge said that he did not have the slightest hesitation in concluding that that Mr. Bruton was "dangerous" within the meaning of the Criminal Justice Act 2003. The Judge observed:

"To spell it out, I am satisfied that there is a significant risk that in the future, if at liberty to do so, you will both commit further serious offences and, as a result, members of the public will suffer really serious harm; physical and / or psychological. I am satisfied that one of the categories of people most at risk is, unfortunately, your ex-partner and possibly her children".

13

Although Mr. Bruton had submitted an independent psychiatrist's report to the trial Judge suggesting a low risk of re-offending, the Judge specifically stated that he entirely agreed with the view expressed in the probation report before him that the nature of Mr. Bruton's "offending suggests a high level of pre-meditation and controlling behaviour designed to punish [his ex-partner for] ending the relationship". The Judge added: "…this extreme form of domestic abuse was planned to cause the most significant serious harm [to his ex-partner] and her children. He has attempted to manipulate the situation and negate any responsibility from the distress caused by presenting this violence in the context of attempted suicide".

14

The Secretary of State's subsequent OASys 2014 risk assessment (referred to further below at para. [16]) also cited evidence that, after his offence, he had sent a text message to his ex-partner saying: "u cud have avoided it if u answered me" and "will be waiting for you in hell".

15

Mr. Bruton pleaded not guilty at trial and in the Statement of Facts and Grounds at §4 he expressly pleads that "he continues to maintain the position that he never intended to drive the vehicle in to the home". He also maintains this position in his pre-action letter and representations of 19 October 2016.

16

Whilst in prison, Mr. Bruton's risk level has been assessed by means of so-called OASys assessments conducted jointly by the prison and probation services. OASys stands for "Offender Assessment System". One of the specific purposes of OASys is to assess the risk of harm to others which an offender poses, both inside and outside prison.

17

Although these reports are intended to be prepared annually, for unexplained reasons, only a single OASys Assessment dated 9 April 2014 ("the 2014 OASys") was prepared in respect of Mr. Bruton. That assessment concluded, in relation to both current and future risks, that persons at risk from Mr. Bruton were his ex-partner and her children, and that the risk "may extend to other members of her extended family". This was no doubt by way of reference to the comments of the trial Judge and the nature of the offence which led to the IPP sentence. It was also noted that there was and would be a risk to "future female partners and children in the event that a relationship comes to an end".

18

The nature of the identified risk was physical and sexual violence, sexual deviancy, and acting violently when Mr. Bruton becomes depressed or when he feels that he has been hard done by. The risk was assessed as likely to be greatest when the partner does not seek to engage in his preferred sexual practices, when the partner decides to end the relationship, and when the partner enters into a new relationship. Notably, one of the specific circumstances thought likely to increase risk was "mother's declining health and her demise".

19

Assessing the risk of serious harm that Mr. Bruton would pose if released into the community, the view expressed in the 2014 OASys was that Mr. Bruton would pose a "high" risk of serious harm to both known adults and children, and a "medium" risk of serious harm to the public (this assessment of "medium risk" is material to the claim of lack of access to documents to which I make reference in para. 24 below). "High risk of serious harm" was defined as: "There are identifiable indicators of risk of serious harm. The potential event could happen at any time and the impact would be serious".

20

I now turn to the application for compassionate release.

21

On the documents before me, it appears that there may have been an application for compassionate release on a date prior to the application with which this claim is concerned. The parties' representatives however were unable to help me further in relation to that matter save that I was informed that a previous decision by the Defendant in early 2016 had been withdrawn after initiation of judicial review proceedings.

22

The parties were content to proceed however on the basis that one of the documents initiating the present application (and a document considered by the Secretary of State as part of Mr. Bruton's representations) was the written application for compassionate release sent to HMP Swaleside by Mr. Bruton's former Solicitors. The nature of the representations in that document suggest that they were submitted at some point in 2014 or 2015. I will call this "the Application" in the remainder of this judgment.

23

The basis of the submission in the Application was the health of Maisie Bruton and both section 30 of the 1997 Act and...

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