R (Gordon) v Parole Board
| Jurisdiction | England & Wales |
| Judgment Date | 07 November 2000 |
| Date | 07 November 2000 |
| Court | Queen's Bench Division (Administrative Court) |
Court and Reference:Administrative Court ; CO/164/2000
: Smith J
: F Krause (instructed by John Atkins) for G; E Grey (instructed by the Treasury Solicitor) for the Board.
: Whether the Parole Board's failure to recommend a mandatory life sentence prisoner's transfer to open conditions was irrational, failed to give adequate reasons, or failed to carry out the necessary balancing act between risk and benefit.
: G, a mandatory life sentence prisoner, had progressed to a pre-release hostel, but had been returned to closed conditions following incidents where he became intoxicated, including one which lead to a charge of indecent exposure: this was over 6 years previously. Release of mandatory lifers is a matter for the Home Secretary, though he cannot release without a recommendation from the Parole Board. The policy is that lifers should spend time in open prison conditions before being considered for release, and the Board is asked to consider recommending a transfer to open conditions if it does not recommend release. The Home Secretary has issued directions to the Board as to the factors to be considered in deciding whether to recommend transfer to open conditions, which involve weighing the risks of a move to less secure conditions against the benefits to the prisoner.
When G's case was considered by the Board, reports prepared for it supported a transfer to open conditions; these included an expert report from a psychologist, which noted that necessary further work could be done in open conditions. The Board did not recommend such a transfer, taking the view that G presented too great a risk and a further assessment of the risk posed should take place in closed conditions.
This was challenged by judicial review. It was argued that the Board had been influenced by erroneous conclusions; that the reasons given were inadequate in that G could not understand why a transfer had not been recommended, and in particular why the expert report in favour of a move had been rejected; and that there was no indication that the necessary balancing act had been carried out.
:
1. This is an application for judicial review of a decision of the Parole Board dated 4 February 2000 in which they refused to recommend that the applicant, who is a mandatory life prisoner be transferred from category C (closed) conditions to category D (open) conditions. Permission to move was granted by Maurice Kay J.
History
2. The applicant, Ross Elton Gordon, was born in December 1958 and was brought up in Salford. He left school with no formal qualifications. As a youth he was in trouble with the police for various offences, including robbery and house burglary. On one occasion he had been found guilty of conduct likely to cause a breach of the peace. It appears that he had indecently exposed himself to a woman. He was at this time a heavy drinker. In August 1977, he killed his former girlfriend by stabbing her. The background to that offence was that she had terminated their relationship and would not go back to him. He was only 18 years old. At the trial in December 1977, he admitted the killing but claimed he had not intended to cause really serious harm. He was convicted of murder. A tariff of 13 years was fixed.
3. Following sentence he was detained in Liverpool and Wakefield Prisons. He began to undertake academic work and by 1980 had obtained several GSE O level passes and an A level in Mathematics. By 1984 he had obtained a BA degree in Mathematics, Computer Science and Technology. From 1984 to 1987, he was at HMP Grendon Underwood, where he undertook various courses designed to address his past offending behaviour. He continued his academic work through the Open University. After leaving Grendon in July 1987, he was transferred to HMP The Verne as category C. In May 1988 he was moved on to HMP Sudbury on category D. There he continued to progress both with his academic work and in other respects. Academically he had begun to concentrate his attention on courses which would equip him to work as a teacher. His behaviour gave no cause for concern. The authorities were aware that he had formed a 'close relationship' with a woman who lived in the area. In August 1991, within a year of the expiry of his tariff sentence, he was transferred to the Pre-Release Employment Scheme (PRES) attached to Wormwood Scrubs.
4. In November or December 1991, it emerged that the woman with whom he had been associating at Sudbury was pregnant with his child. It appears that he had not disclosed to the authorities that his relationship with her had been sexual. He was withdrawn from the PRES scheme for 5 months but was allowed to return in April 1992. In July 1992, he was withdrawn from PRES again for 2 days following an incident in which he had returned to the hostel the worse for drink and had been abusive to staff. Two months later, there was another incident in which he behaved badly in drink. He plainly had a drink problem. He was withdrawn from PRES and returned to the main prison for 5 months, during which time he began a Self Help Addiction Recovery Programme. In February 1993, he resumed PRES but in June 1993 there occurred an incident which resulted in his return to closed conditions. The applicant was travelling on the London Underground late one evening. He had been drinking. One or more women passengers complained that he had exposed his penis. He was arrested and charged with indecent exposure. He was immediately removed from PRES. A few weeks later, he pleaded guilty to the offence, was fined £48 or sentenced to 1 day's imprisonment. Immediately thereafter he was returned to category C closed conditions. It was recognised that he still had a drink problem. He had also been taking drugs but was not thought to be addicted. He cooperated in work to address his addiction to alcohol and his drug habit.
5. In March 1995 he was transferred to Littlehey Prison as category C. His behaviour was exemplary. He was given enhanced status. He continued his work on addiction and became secretary of the Alcoholics Anonymous group within the prison. He continued with his academic work. The work allotted to him within the Prison was largely that of classroom assistant teaching fellow prisoners. The reports prepared for the Parole Board Review spoke well of his progress in all respects and unanimously recommended a transfer to category D, as an essential step on the route to release. The view was that he was ready to be tested again in open conditions.
6. During all the discussions he had had with psychologists and psychiatrists following the offence of indecent exposure, the applicant had always given an account of the incident which did not really amount to the offence of indecent exposure. He had always claimed that he had a poor recollection of the incident, as he had been very drunk. He thought that what had happened was that, being in drink, he was desperate to urinate and had relieved himself on the train. The women must have seen his penis. This explanation had been accepted and the incident had been treated as not involving any truly sexual element. He repeated this account in interview with a member of the Parole Board prior to the review.
7. At the Review in December 1997, the Panel refused to recommend him for transfer to open conditions. They expressed their concern that insufficient work had been done to explore the reasons behind the two occasions when the applicant had exposed himself, one of which had resulted in a conviction for conduct likely to cause a breach of the peace (in 1977 at the age of 18) and the other in 1993 when he had been convicted of indecent exposure. They noted that this issue had not been explored by most of the report writers and had been dealt with only superficially. The applicant had 'minimised' it in interview with the Board Member. The Panel considered that given the nature of the index offence, the lack of exploration of the sexual element and the previous problems on PRES, they did not regard the risk of transfer to open conditions to be acceptable. They expressed the hope that the sexual element be explored promptly and that there would be formal assessment for a Sex Offender Treatment Programme (SOTP). They recommended a review in one year's time.
8. Thereafter, the applicant underwent three forms of assessment for an SOTP. Two appear to have been carried out by the resident psychologists at Littlehey. The applicant repeated his recollection of the 1993 incident. This account was not challenged and both concluded that there had been no sexual element to the 1993 offence. They concluded that the applicant was not suitable for an SOTP because he did not need such treatment. Finally in the autumn of 1998, he underwent a full psychometric assessment, which, as he understood matters, apparently produced a recommendation that an SOTP was not...
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