R (Gardner) v Parole Board
| Jurisdiction | England & Wales |
| Judgment Date | 21 December 2005 |
| Date | 21 December 2005 |
| Court | Queen's Bench Division (Administrative Court) |
Court and Reference: Administrative Court, CO/149/2005
: Munby J
: H Southey (instructed by Hodge Jones & Allen) for G; S Kovats (instructed by the Treasury Solicitor) for the Board.
: Whether the Board had lawfully excluded a prisoner from a part of a hearing when it heard evidence from his ex-wife.
: By r6 Parole Board Rules 2004, made by the Secretary of State under s. 32(5) Criminal Justice Act 1991, information and reports to be used at an oral hearing before the Board may be withheld from the prisoner if that is proportionate in light of, inter alia, the needs of the welfare of others; r8 provides for the determination of this issue. Under r19, the panel has a discretion as to how it conducts hearings, but r19(3) allows the parties to appear and be heard and "take such part in the proceedings as the panel thinks fit; the parties may hear each other's evidence"; r19(4) provides that a disruptive person may be removed; further, under r19(6), the prisoner may be removed when material withheld from the prisoner under rr6 and 8 is being considered.
In April 1989, G was released from a life sentence imposed for murder; he committed an assault later that month, for which he was sentenced to 12 months' imprisonment in March 1990, and his life licence was revoked. He married in 1992, divorced in 2000, but subsequently was reconciled with his wife. In 2002, they again split up and she alleged that he made threats to her and her son on resettlement leaves and on the telephone: G was moved to closed conditions, but the allegations were never substantiated. He was released in September 2003, but his licence was revoked in April 2004: this followed 2 visits by the police to his ex-wife's flat, one on 28 March 2004 following a report that G was causing a disturbance and one on 5 April 2004 when she claimed that he had caused her bruises.
His case was referred to the Parole Board under s. 32 Crime (Sentences) Act 1997 and a bundle of documents was prepared on which G was able to make comments; his ex-wife prepared a statement, to which G responded; in light of the conflicting evidence, arrangements were made for her to be called to give evidence. A panel of Board heard evidence from G's ex-wife, the police officer who was involved in investigating the alleged domestic violence, and G's probation officer: it concluded that the recall was justified because of the risk of serious violence towards his ex-wife and those associated with her, and he had breached his licence conditions. G had been required to leave the hearing when his ex-wife gave evidence: she had indicated that she would not attend if he was present when she gave evidence, and it was apparent to those from the Parole Board secretariat who spoke to her on the day of the hearing that she was frightened to give evidence in his presence; she rejected an offer to have screens put up. G's legal representative had remained and was able to question her: however, he had also submitted that there was no power for the Board to prevent G being present. The judge ruled that the basis for the decision was concern for the welfare of the ex-wife. In its decision not to release G, the panel noted that there were conflicting issues of fact as between him and his ex-wife, but that it did not need to resolve all of them; it also commented that not all of her allegations were true, but that his detention was nevertheless justified. In judicial review proceedings, the lawfulness and propriety of the Board procedure was challenged.
:
1. The 2 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 9 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 1993. In 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 HHJ Nicholas Coleman, conducted a hearing on 14 October 2004. The 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 (para 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] 2 Prison Law Reports 262, [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 s. 32(4)(b) of the Crime (Sentences) Act 1997, which is included in Ch 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...
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