R (Gulliver) v Parole Board
| Jurisdiction | England & Wales |
| Judge | MR JUSTICE COLLINS |
| Judgment Date | 06 November 2006 |
| Neutral Citation | [2006] EWHC 2976 (Admin) |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 06 November 2006 |
| Docket Number | CO/7051/2006 |
[2006] EWHC 2976 (Admin)
IN THE HIGH COURT OF JUSTICE
THE ADMINISTRATIVE COURT
QUEEN'S BENCH DIVISION
Mr Justice Collins
CO/7051/2006
MR T MOLONEY (instructed by Messrs Twell & Co) appeared on behalf of the CLAIMANT
MR D PREVSKY (instructed by the Treasury Solicitor) appeared on behalf of the DEFENDANT
The claimant in this case is now some 37 years old. On 4th February 2005, he was convicted of an offence of assault occasioning actual bodily harm and given a custodial sentence of three years' imprisonment. He had to be released on licence at a period which was halfway through that sentence and that release took place on 17th March of this year. There were various conditions, which included that he be subjected to what I think can loosely be described as a tagging systems which was undergoing a trial at that time on the Isle of Wight, where he lived and where he had been imprisoned.
A week later, on 24th March, the Secretary of State decided to recall him to prison. The basis of the recall was that he had breached the conditions of his licence in that, having been informed that the battery which worked the device was running low and he should recharge it, he did not do so. The circumstances of the breach were stated to be that the device had shut down so that there was no way of seeing where he had been for some five hours or so during the night of 23rd March and he had been contacted but the unit had still not been recharged for some four hours or so. It was said that the device appeared to be working correctly so far as the company responsible was concerned and, accordingly, it was suggested that the Secretary of State should consider recall.
The Secretary of State's powers of recall are contained in section 254 of the Criminal Justice Act 2003 which provides, as far as material:
"(1) The Secretary of State may, in the case of any prisoner who has been released on licence under this Chapter, revoke his licence and recall him to prison.
(2) A person recalled to prison under subsection (1)—
(a) may make representations in writing with respect to his recall, and
(b) on his return to prison, must be informed of the reasons for his recall and of his right to make representations.
(3) The Secretary of State must refer to the Board [the Parole Board] the case of a person recalled under subsection (1)."
and subsection (4) requires the Secretary of State to comply with a direction of the Board for immediate release.
The reasons given for the recall were as follows:
"You have been recalled to prison because you have breached condition 5(vii) of your licence in the following way:
It has been reported that you have failed to comply with such arrangements as may be reasonably put in place and notified to you by your supervising officer so as to allow for your whereabouts to be monitored by global positioning satellite (whether by electronic means or otherwise) in that on 23rd March 2006 you failed to re-charge your satellite tracking unit when prompted to do so by Securicor. You acknowledged the message which informed you that your battery was running low but did not put the unit to charge for a further 4 hours and 18 minutes, during which time your whereabouts could not be monitored via satellite tracking. It is your responsibility to ensure that the tracking unit is fully charged and operational.
In view of the offences for which you were originally sentenced, the risk suggested by your offending history and your behaviour as described above, the Home Secretary is no longer satisfied that it is right for you to remain on licence."
The claimant has a very bad criminal record. It includes, so far as material for our purposes, two previous convictions for serious attacks upon the woman with whom he had before the attack been living. The first was in 1987, when he occasioned serious injury to a girlfriend which led, no doubt because of his youth and the lack of any other convictions at that stage, to sentences of three months in a detention centre. Following that, in 1995, he was convicted of rape and kidnapping, which led to a sentence totalling some five and three-quarter years. Those were offences committed against, as I have indicated, his then ex-partner. There was a further offence in 2002, a third one, when he was sentenced to 18 months' imprisonment suspended for two years for assault occasioning actual bodily harm and then came the index offence, assault occasioning actual bodily harm, for which he received the sentence of three years' imprisonment. Those were not the only offences of violence for which he had been convicted but they are the most serious and most relevant for the purposes of this case and the whereabouts of the victim of the assault for which he received the sentence of three years' imprisonment was concealed from him and he should not have known where she was because there was believed to be a risk that he might attack her again. The cause for concern was based upon the fact that he was liable, when under stress, to resort to the taking of drugs and it appeared that the taking of drugs was a contributory factor to his offending. So there was powerful material upon which concern about his danger to, in particular, any ex-partner could be said to exist.
The matter came before the Parole Board initially in May but was fully considered at an oral hearing on 13th June 2006 and, on 15th June, the Parole Board decided that the decision of the Secretary of State would be upheld and that he should not be released until compulsory release on licence, which was required to occur when he had served three-quarters of the sentence. In fact, that is next month and so there is little time left for him to benefit from this claim, should it succeed.
The duty to release short term prisoners was contained, so far as he is concerned, in section 33 of the Criminal Justice Act 1991. That, as I have said, required release from a sentence of this length, that is three years, when he had served half, to be on licence until he had served three quarters. Section 33A provided that a prisoner who has been recalled and then released subject to conditions, when he has served three quarters of his sentence, is liable, if he breaches any conditions or otherwise has to be recalled, to serve the whole of his sentence.
The Board, in giving its reasons, said this, so far as material:
"The Board accepted that there may have been problems in getting the satellite tracking system equipment to work properly and that there was no evidence to prove conclusively that Mr Gulliver had failed to recharge the equipment during a crucial period of some four hours overnight. Mr Gulliver deserved credit for alerting the police and probation service to the fact that the security firm had inadvertently disclosed his partner's new address to him. However given his history of violence towards this and previous partners, the Board is satisfied that in the circumstances known at the time the decision to recall was justified. In reaching this decision the Board has taken account of an email from the security firm stating that the tracking equipment was working properly when it was checked after the alleged breach.
Mr John Grimes, the home probation officer, and his line manager … both gave evidence. During the hearing they changed their view that the risk was manageable. Crucial to the release plan proposed in consultation with the MAPP team was a condition of residence at a hostel in Fareham, on the mainland. It was considered essential that Mr Gulliver remained under close supervision and not on the Isle of Wight now that the pilot satellite tracking option had ended. Mr Gulliver was still considered to present a high risk of causing harm to his ex-partner as well as any future partner.
Although Mr Gulliver had previously signed up to residing at the hostel, his reservation about the move away from the Isle of Wight became clear. Not only would he lose the support of his family and an offer of work, but he feared the isolation and exposure to drugs. At one stage during the hearing Mr Gulliver said he doubted he would be able to cope with this. Also, having finally prepared himself to tackle difficult issues from this childhood through counselling he was very troubled at the prospect of transferring from one counselor to another at a stage when he returned to the island."
The line manager and the probation officer considered that the change in his attitude showed a lack of commitment to the supervision process and because of this withdrew support for his release. The Board then went on to say that they had taken account of his good behaviour since returning to prison and that he had work and support from his family on the island, in particular from his mother. But against that they had to weigh the opposition to his release on the grounds of public protection expressed by the Probation Services and noted that depression and emotional stress had been key factors in the past and, on his own evidence, Mr Gulliver had clearly been deeply anxious about his ability to cope with isolation away from his support networks on the Isle of Wight.
It is apparent from that that the Parole Board was not satisfied, certainly not beyond reasonable doubt, that he had indeed failed to recharge the equipment and had been in breach of the condition which had been given as the reason for the recall. It is, as I understand it, common ground that, since the effect of recall...
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