R (Gardner) v Parole Board

JurisdictionEngland & Wales
JudgeMr Justice Munby:,MR JUSTICE MUNBY
Judgment Date21 December 2005
Neutral Citation[2005] EWHC 2981 (Admin)
Docket NumberCase No: CO/149/2005
CourtQueen's Bench Division (Administrative Court)
Date21 December 2005

[2005] EWHC 2981 (Admin)

IN THE HIGH COURT OF JUSTICE

QUEEN'S BENCH DIVISION

ADMINISTRATIVE COURT

Royal Courts of Justice

Strand, London WC2A 2LL

Before:

Mr Justice Munby

Case No: CO/149/2005

Between
R (on The Application Of Robert Gardner)
Claimant
and
The Parole Board
Defendant

Mr Hugh Southey (instructed by Hodge Jones & Allen) for the claimant

Mr Steven Kovats (instructed by the Treasury Solicitor) for the defendant

Mr Justice Munby:
1

The two questions in this case are whether the Parole Board has power to exclude a prisoner from part of a hearing whilst evidence is being taken and, if it does, whether that power was lawfully exercised in the particular circumstances of the present case.

2

In my judgment the Board has that power and it was lawfully exercised in the present case.

3

The events leading up to the hearing before the Board, which took place on 14 October 2004, can be sketched in comparatively briefly. On 16 October 1980 the claimant was convicted of a murder committed on the night of 31 December 1979/1 January 1980. He was sentenced to life imprisonment. The tariff sentence was fixed at nine years. On 14 April 1989 the claimant was released on life licence. On 27 April 1989 he committed an assault in a public house for which he was sentenced on 19 March 1990 to 12 months imprisonment. On 20 March 1990 he was recalled to prison under the terms of the licence. On 14 December 1990 he escaped from prison, being recaptured on 31 January 1991. In 1992 he married. On 12 August 1993 he absconded whilst on an escorted home visit, being recaptured on 24 December 199In September 1997 the claimant was transferred to an open prison. On 22 April 2000 he was transferred to a closed prison but returned to open conditions on 21 November 2000. During 2000 he was divorced, though he and his wife (as I shall refer to her for convenience though without, I hope, causing any offence) were later reconciled. On 23 July 2002, by which time she was again estranged from the claimant, his wife made allegations concerning telephone calls he was making to her and about threats he was alleged to have made to her and her son during periods of resettlement leave. These allegations were never substantiated, but on 29 July 2002 the claimant was removed from open conditions and returned to a closed prison. On 29 September 2003 the claimant was again released on life licence subject to a number of conditions, those conditions being varied on 5 January 2004. On 28 March 2004 the police were called to the wife's flat following a report of the claimant causing a disturbance. On 5 April 2004 police again visited the wife's flat and were shown bruises which she said had been caused by the claimant. On 7 April 2004 the claimant's probation officer recommended urgent revocation of his licence, expressing the view that the claimant presented "an escalating risk of harm" to his wife. On 8 April 2004 the licence was revoked by the Secretary of State and the claimant was recalled to prison. He was arrested on 26 April 2004 and returned to prison. On 7 October 2004 the Secretary of State made written submissions to the Board supporting the claimant's recall to prison.

4

A panel of the Board, chaired by His Honour Judge Nicholas Coleman, conducted a hearing on 14 October 200The claimant was represented by counsel (there was no solicitor). That counsel, I should make clear, was not the counsel who appeared on his behalf before me. Having heard evidence from the claimant's wife, from DC Hopkins, a police officer from the Domestic Violence Unit who had been involved in the original investigation into the wife's allegations, from Mr Kelly, the claimant's probation officer, and from the claimant himself, the panel, in a written decision dated 20 October 2004, expressed itself (paragraph 27) as

"satisfied on all the evidence that your recall was justified. The Panel was also satisfied that on all the available evidence there was a substantial risk of serious violence to [your wife] and those associated with her. Moreover there was clear evidence that the life licence conditions had been ignored and deliberately broken by you."

5

The dispute before me arises out of the fact that the panel required the claimant to leave the room in which the hearing was taking place whilst his wife gave her evidence. The claimant's counsel was permitted to remain, was present throughout, and was able to cross-examine the wife, following a brief adjournment, after she had finished her evidence in chief, during which he was able to obtain further instructions from the claimant.

6

The present proceedings were commenced on 13 January 2005. The relief sought is a quashing order quashing the decision to exclude the claimant from part of the hearing. Permission was granted by Hughes J on 16 March 2005. The parties sensibly agreed that the hearing should be deferred until the House of Lords had given judgment � which it did on 7 July 2005 � in R (Roberts) v Parole Board and another [2005] UKHL 45, [2005] 2 AC 738.

7

To understand events at the hearing before the panel it will be convenient to interpose at this point in the narrative references to the relevant statutory provisions.

8

It is common ground that the claimant's case came before the panel pursuant to section 32(4)(b) of the Crime (Sentences) Act 1997, which is included in Chapter II of Part II of that Act. Section 32 of the Criminal Justice Act 1991, which was the relevant provision in force at the time of the hearing, provides so far as material as follows:

"(1) The Parole Board shall be, by that name, a body corporate and as such shall �

(a) be constituted in accordance with this Part; and

(b) have the functions conferred � by Chapter II of Part II of the Crime (Sentences) Act 1997 ('Chapter II') in respect of life prisoners within the meaning of that Chapter �

(4) The board shall deal with cases as respects which it gives directions under � Chapter II on consideration of all such evidence as may be adduced before it.

(5) Without prejudice to [subsection] � (4) above, the Secretary of State may make rules with respect to the proceedings of the board, including provision authorising cases to be dealt with by a prescribed number of its members or requiring cases to be dealt with at prescribed times.

(6) The Secretary of State may also give to the board directions as to the matters to be taken into account by it in discharging any functions under � Chapter II; and in giving any such directions the Secretary of State shall in particular have regard to �

(a) the need to protect the public from serious harm from offenders; and

(b) the desirability of preventing the commission by them of further offences and of securing their rehabilitation.

(7) Schedule 5 to this Act shall have effect with respect to the board."

9

Paragraph 1(2)(b) of Schedule 5 to the Criminal Justice Act 1991 provides, so far as material for present purposes, that:

"It shall be within the capacity of the board as a statutory corporation to do such things and enter into such transactions as are incidental to or conducive to the discharge of � its functions under Chapter II of Part II of the Crime (Sentences) Act 1997 in respect of life prisoners within the meaning of that Chapter."

10

The Parole Board Rules 2004 were made by the Secretary of State in exercise of the powers conferred on him by section 32(5) of the 1991 Act. Rule 5(1) provides that, subject to exceptions none of which is material for present purposes, at the hearing before the panel a prisoner "may be represented by any person who he has authorised for that purpose." Rule 19, so far as material for present purposes, provides as follows:

"(2) The panel shall avoid formality in the proceedings and so far as possible shall make its own enquiries in order to satisfy itself of the level of risk of the prisoner; it shall conduct the hearing in such manner as it considers most suitable to the clarification of the issues before it and generally to the just handling of the proceedings.

(3) The parties shall be entitled to appear and be heard at the hearing and take such part in the proceedings as the panel thinks fit; and the parties may hear each other's evidence, put questions to each other, call any witnesses who the Board has authorised to give evidence in accordance with rule 15, and put questions to any witness or other person appearing before the panel.

(4) The chair of the panel may require any person present at the hearing who is, in his opinion, behaving in a disruptive manner to leave and may permit him to return, if at all, only on such conditions as the chair may specify.

(5) The panel may adduce or receive in evidence any document or information notwithstanding that such document or information would be inadmissible in a court of law, but no person shall be compelled to give any evidence or produce any document which he could not be compelled to give or produce on the trial of an action.

(6) The chair of the panel may require the prisoner, any witness appearing for the prisoner, or any other person present, to leave the hearing where evidence is being examined which the chair of the panel, in accordance with rule 8(2)(d) (subject to any successful appeal under rule 8(2)), previously directed should be withheld from the prisoner as adversely affecting national security, the prevention of disorder or crime or the health or welfare of the prisoner or others."

Rule 2(2) defines "the parties" as meaning the prisoner and the Secretary of State.

11

Rule 8(2)(d) provides that the directions which the chair of the panel may give may in particular relate to:

"as regards any documents which have been received...

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