R Gregory Mcgetrick v The Parole Board and Another
| Jurisdiction | England & Wales |
| Judge | Lord Justice Stanley Burnton,Mr Justice King |
| Judgment Date | 04 April 2012 |
| Neutral Citation | [2012] EWHC 882 (Admin) |
| Docket Number | Case No: CO/2915/2011 |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 04 April 2012 |
[2012] EWHC 882 (Admin)
Lord Justice Stanley Burnton
Mr Justice King
Case No: CO/2915/2011
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
Sam Grodzinski QC (instructed by Bhatt Murphy) for the Claimant
Lisa Giovannetti QC (instructed by the Treasury Solicitor) for the Parole Board
James Strachan (instructed by the Treasury Solicitor) for the Secretary of State
Hearing date: 9 March 2012
Introduction
These proceedings raise the question of whether it is lawful for the Parole Board, when deciding whether to release a prisoner on licence, to take into account material provided by the Secretary of State containing factual allegations about the prisoner's pre-trial conduct, which formed part of the original prosecution case against him, but in relation to which he was never convicted. This material was referred to before us as the "untried material", and it is convenient for me also so to refer to it.
The facts
On 6 May 2005, following guilty pleas, the Claimant was sentenced to seven years' imprisonment plus an extended licence period of three years, under section 85 of the Powers of Criminal Courts (Sentencing) Act 2000. The sentence was imposed in relation to two different sets of offences, the first concerning possession of firearms and ammunition; and the second concerning possession of a large number of indecent images of children on his computer.
In sentencing him, the Judge at Northampton Crown Court stated [147]:
"I bear in mind that it does not appear that you had those images other than for your own gratification in some form or another and therefore this is an important mitigating factor. I know not why you got involved in such offending, but that you undoubtedly did is all too apparent by the number of images the court has had to consider. Those are serious matters but they do lack, fortunately, some of the various factors such as distribution, production and matters of that sort, which would require the court to pass a severer sentence".
After noting that the Claimant had no previous convictions, the Court imposed the sentence referred to above.
On 4 February 2009, following an oral hearing the previous month, the Parole Board directed that the Claimant be released on licence, his risk being found sufficiently low to warrant such release. His licence included as condition 9 a condition "Not to own or use a computer… capable of accessing the internet… without the prior approval of your supervising officer" and as condition 11 a condition "Not to have unsupervised contact with children under the age of 16 without the prior approval of your supervising officer". He was released on 23 February 2009.
On 18 September 2009, the Secretary of State recalled the Claimant to prison. This followed an incident in which the Claimant was seen by a police officer to have spoken to two school girls aged around 9 years old in a public place "for a couple of seconds". The girls' evidence to the police officer was that the Claimant, who had had been walking with his mobile phone to his ear, had said "I'm fed up getting voicemail". This was considered by the probation service and the Secretary of State to be a breach of condition 11 of his licence. He was then seen to enter an internet cafe and to access a number of websites including Google, email sites, and a "dirty dating" website which contained images of partially clothed adult women. This was a breach of condition 9.
The Claimant's case was initially considered by the Board on the papers, and then at an oral hearing in August 2010. The Board's assessment was that "you currently pose a medium risk of serious harm to children and the public and a low risk of reconviction". However the Board considered that it had insufficient evidence to make a final decision about re-release, and directed the Claimant's Offender Manager, Ms Pauline Hughes, to arrange for the Claimant to be assessed for the Internet Sex Offenders Programme (ISOP).
The next hearing of the Board was on 3 November 2010. At that hearing, a series of further risk assessment reports were placed before it in an updated dossier prepared by the Secretary of State. The updated dossier included the untried material. That material consisted of a Case Summary that had been prepared by the CPS prior to the Claimant's Crown Court trial. In addition to referring to the allegations of possessing firearms and indecent images of children on which he had been convicted, the Summary included allegations that the operator of the Claimant's computer had, at some point before his arrest in September 2004, exchanged images with other internet users and had boasted in emails of raping two children and having a "very loving relationship" with his 9-year-old daughter. It referred to the fact that the Claimant had been subsequently arrested on suspicion of indecent assault on children unknown and charged with specimen offences including distributing an indecent photograph of a child and sending obscene and menacing messages via email. In addition, the untried material included prosecution witness statements from the police relating to these allegations. No indictment was ever pursued in relation to any of these matters, and the Claimant was not convicted of any offence in connection with them.
As noted above, the updated dossier also included a report from Ms Hughes, the Claimant's Offender Manager at the Probation Service, dated 7 October 2010. It stated:
"… since the recall information has come to light which supports my assessment that Mr McGetrick is a risk of contact offences towards children. This information has been submitted to the Parole Board via the Parole Clerk and is in summary police information which relates to correspondence found at the time that the indecent images of children were discovered on Mr Mcgetrick's personal computer."
The report referred in detail to the untried material, and to concern of a "heightened risk related to contact offences" arising from the untried material.
The updated parole dossier also contained a detailed report from Julia Long, an independent and experienced Chartered Forensic Psychologist, with 22 years' experience, including working for HM Prison Service as its Principal Psychological Adviser and Head of Casework; and for the Parole Board as the manager of the Board's Quality Unit. Her opinion was that recent reports for the Claimant's re-release review "appear to have reverted to making assertions about risk that have no empirical basis and seem merely linked to an absence of understanding of Mr McGetrick's offending behaviour". She criticised Ms Hughes' report and stated that "there are genuine ethical and professional issues about using material that was not tested at Court".
The Claimant's solicitor's letter to the Board dated 28 October 2010 enclosed Ms Long's report and made representations as to why the untried material should not have been included in the dossier. It made express reference to the instructions contained in Prison Service Order 6000, which states:
"… pre-trial prosecution evidence, such as witness statements… must not be included in the dossier as they do not necessarily set out the circumstances of the offence as established in court: they are liable to challenge by the prisoner and could mislead the Parole Board…"
The letter was copied to the Secretary of State, who responded by email on 1 November 2010. It contended that the instructions contained in PSO 6000 was:
"specific to Determinate Sentence DCR prisoners and refers to dossiers which would be compiled for pre-release Parole Reviews on paper. For recall Oral Hearings dossiers however, we can include all documents that may be relevant to risk (inclusive of Case Summaries, hearsay evidence etc). The Panel will, at the hearing, place what weight they will, on the evidence on the dossier, including the MG5 report…"
At the next hearing of the Board on 8 November 2010, Counsel representing the Claimant submitted that the untried material should not be shown to the Panel of the Board considering the Claimant's re-release on licence. The Board's decision stated:
"The Panel considered that this was a matter of importance to the Parole Board, which could not be interpreted by individual members. [Counsel for the Claimant] indicated that should we decide that the answer was as submitted by [the Secretary of State], he would then request an adjournment to argue his point on judicial review. The Panel therefore adjourned your hearing to a date to be fixed, once your solicitors, NOMS and the Parole Board have satisfactorily agreed this matter or the point has been decided by the Administrative Court. …"
Further correspondence ensued between the Claimant's solicitors and the Secretary of State, but no agreement was reached about whether the untried material should be included in the Parole Dossier. On 16 December 2010, the Claimant's solicitor wrote to the Board, inviting it to make a decision about whether the untried material should be considered by the Board. On 23 February 2011, the Board's Head of Casework wrote to the Claimant's solicitor, communicating the decision of the Chairman of the Board:
"My conclusion is that the allegations, for good or ill, form part of the material before the Panel. It is therefore for the Panel to decide whether it is relevant, and if it is, to come to a...
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