R (ex parte Gary Delaney) v The Parole Board of England and Wales
| Jurisdiction | England & Wales |
| Judge | Mr Justice Andrew Baker |
| Judgment Date | 18 March 2019 |
| Neutral Citation | [2019] EWHC 779 (Admin) |
| Court | Queen's Bench Division (Administrative Court) |
| Docket Number | Case No: CO/3677/2018 |
| Date | 18 March 2019 |
and
[2019] EWHC 779 (Admin)
THE HONOURABLE Mr Justice Andrew Baker
Case No: CO/3677/2018
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Sitting at Bristol
Courtroom No. 7
2 Redcliffe Street
Bristol
BS1 6GR
Mr D Gardner appeared on behalf of the Claimant
The Defendant and the Interested Party did not appear and were not represented at the hearing
The Claimant, Gary Delaney, is a lifer. He was convicted of a murder and sentenced to a mandatory life sentence in July 2006. The murder was committed in October 2005 when Mr Delaney, who had had something of a career in boxing, was working as door security. He assaulted a patron by a sufficiently violent punch that the jury was sure he had intended really serious injury, and tragically his victim fell backwards, striking his head on the ground, resulting in death.
Mr Delaney's minimum term was set at 11 years, less time served on remand, with the result that he became eligible to be considered for release from October 2016. It is possible to infer that Mr Delaney, stating this in general terms, must have responded well to custody, and the evidence before the court such as it is in relation to his time in custody seems to confirm that. It is possible to infer that in general terms anyway from the very fact that he was released on licence as quickly as in February 2017, only four months after the expiry of his tariff.
The matter now comes before the court because in late October 2017, Mr Delaney's licence was revoked. He was recalled to custody following his arrest on 29 October 2017 on suspicion of a series of incidents of domestic violence against a woman with whom he had struck up a relationship following his release. The allegations were of a relatively serious nature, including allegations that there had been a wrist fracture, a perforated ear drum, and an act of urinating on the complainant.
Mr Delaney challenges, with permission granted on the papers, the decision letter dated 18 June 2018 by which a panel of the Parole Board concluded that it would not direct that he be re-released on licence, and it would not recommend that he be transferred to open conditions.
Mr Gardner, who appears today for Mr Delaney, in most helpful and succinct submissions, puts the case for Mr Delaney as follows:
a. Firstly, and principally, the Parole Board has adopted a ‘Wednesbury unreasonable’ conclusion as to the risks Mr Delaney poses if re-released. That conclusion, Mr Gardener submits, and I agree, fundamentally infects the entirety of the decision letter, if it was a flawed conclusion. That is because, in substance, the sole effective basis of the conclusion that Mr Delaney should not be re-released is that the risks the panel concluded that he would present if re-released were unacceptably high. In addition, the overwhelming factor in the balance when considering whether to recommend transfer to open conditions was, in the view of the panel, those same risks, which the panel concluded were such as could not at present be safely managed under open conditions.
b. Secondly, the decision letter betrays an unlawfully inadequate set of reasons for the conclusion as to risks reached. In reality, as it seems to me, there is nothing in this second ground if the first ground is not made out. The valid challenge to this decision letter as regards the assessment of risks, if there be a valid basis for challenge, is that the reasons for the conclusion as to risk given by the panel do not lawfully justify the conclusion reached, rather than that one cannot discern sufficiently from the decision letter what those reasons were in the first place.
c. Thirdly, as a separate and independent ground of challenge to the decision not to recommend a transfer to open conditions, the Parole Board panel has in that regard, in effect, leapt from its conclusion as to risks, which Mr Gardener rightly accepts is one factor to which the panel must have regard, to the conclusion that a transfer to open conditions cannot be recommended. That conclusion, it is said, was reached without pausing between the two to consider other factors that the Parole Board, under the applicable Standing Directions, was obliged to consider. The submission as a result is that in substance the panel has not conducted a balancing exercise at all, that being the type of exercise required in respect of a consideration whether to recommend transfer to open conditions. It has, so it is said, wrongly adopted an approach that the threshold assessment of risk, even if it is not itself a flawed assessment, is sufficient without more to preclude any recommendation for open conditions.
In relation to the panel's assessment of the risks Mr Delaney would present if re-released, the panel summarised, in the decision letter, the circumstances reported to the police resulting in Mr Delaney's arrest on suspicion of domestic violence as I have already mentioned. It took evidence from DS Fuller, the officer in charge of the possible new criminal case against Mr Delaney that might have arisen out of those allegations. The key passages in the decision letter, displaying the Parole Board panel's assessment of the matter and its reasoning, were then as follows:
“14) Although the initial complaints had been recorded through the body worn video system when police originally attended the house on 29 September, as Mr Fuller put it, through no lack of trying, the police were unable to obtain any evidence which could be satisfactorily used in court, and as a result the decision not to proceed had to be taken. He told the panel that there were reasonable grounds for believing that you had been guilty of violent offending; having heard his evidence and seen the documents the panel has little doubt that that was correct. Mr Fuller told the panel that in the police view, there was truth in the allegations made against you, but the police have been unable to prove them. He also said that in his view, if in the community, you would pose a serious risk of violence to [the complainant], if there was any resumption of your relationship with her and give rise to high risk. The panel was impressed by Mr Fuller's careful and measured evidence and accepts it. It is clear that the concession as to the reasonableness of the recall was sensible and, it could be said, inevitable.
15) You denied use of any violence. You said that you could only remember the events of the night when the police were called, 29 October. You accepted that...
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