R (Gulliver) v Parole Board
| Jurisdiction | England & Wales |
| Judge | Sir Anthony Clarke,Sir Igor Judge,Lord Justice Buxton |
| Judgment Date | 04 July 2007 |
| Neutral Citation | [2007] EWCA Civ 1386 |
| Docket Number | Case No: C1/2006/2501 |
| Court | Court of Appeal (Civil Division) |
| Date | 04 July 2007 |
[2007] EWCA Civ 1386
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION, ADMINISTRATIVE COURT
(MR JUSTICE COLLINS)
Sir Anthony Clarke
(The Master of the Rolls)
Sir Igor Judge
(The President of the Queen's Bench Division) and
Lord Justice Buxton
Case No: C1/2006/2501
Mr E Fitzgerald QC and Mr T Maloney (instructed by Messrs Twell and Co) appeared on behalf of the Appellant.
Mr S Kovats, Mr D Pievsky and Mr P Patel (instructed by Treasury Solicitor) appeared on behalf of the Respondent.
Sir Anthony Clarke, MR:
Introduction
This is an appeal against an order made by Collins J on 6 November 2006, in which he dismissed the appellant's claim for judicial review of a decision by the Parole Board not to direct his re-release from prison, following his recall to prison by the Secretary of State for Justice (“the Secretary of State”) for an alleged breach of the conditions of his licence after he had been released on license. The appeal is brought by permission of Sir Henry Brooke, who said that it seemed to him to be appropriate that the Court of Appeal should consider the legal question at the heart of the appeal, even if it were academic in the case of the appellant.
On 4 February 2005, the appellant was sentenced to three years' imprisonment for assault occasioning actual bodily harm to his former girlfriend. He was released on licence on 17 March 2006 and only seven days later, on 24 March, the Secretary of State recalled him to prison. The reasons given for the recall were these:
“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 23 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.”
On 28 April written representations were made to the Secretary of State on behalf of the appellant. The appellant's case came before the Parole Board, initially in May, when it reached preliminary conclusions which were adverse to the appellant, but his case was fully considered by the Parole Board at an oral hearing on 13 June 2006. On 15 June the Parole Board decided that the appellant should not be released until he was compulsorily released on licence, which was required to occur when he had served three-quarters of his sentence. He has now been released.
The reasons given by the Parole Board were these:
“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.”
Thus, as I read the Parole Board's reasons, it did not accept that it had been proved that the appellant was in breach of the conditions on his licence. On the other hand, it was persuaded that there was evidence upon which the Secretary of State could reasonably conclude that there had been a breach. The Parole Board had available evidence both from the appellant and from Securicor. In any event, it was correctly conceded by Mr Fitzgerald on behalf of the appellant that the Secretary of State could reasonably think that the appellant was in breach of his licence conditions. In these circumstances the revocation of the licence and the recall was lawful.
The issue in the appeal is whether, having held that there was in fact no breach of the appellant's licence conditions, the Parole Board was entitled to consider all the evidence available on 13 June, and to hold that the appellant's risk to the public was such that he should not have been released. If, contrary to his submissions, it is held that the Parole Board was entitled to have regard to all the available evidence and to consider whether the release of the appellant would present an unacceptable risk to the public, Mr Fitzgerald correctly concedes that the decision of the Parole Board was not wrong in law. There was, indeed, ample evidence upon which the Parole Board could reach the conclusion it did and there is no basis for holding that its decision was irrational or otherwise wrong in law.
The Statutory Framework
The statutory framework is somewhat complicated by the fact that because the appellant committed the offence before 4 April 2005, the release provisions applicable to him are to be found in the Criminal Justice Act 1991 (“ CJA 1991”), whereas the recall provisions are to be found in the Criminal Justice Act 2003 (“ CJA 2003”). Because the appellant was a short-term prisoner but his sentence was one of more than 12 months, he was entitled to be automatically released on licence after serving half his sentence (see the Criminal Justice Act 1991 section 33(1)(b)). The licence was due to last until he would, but for his release, have served three-quarters of his sentence (see CJA 1991 section 37(1)). If the appellant had been a long-term prisoner, the position would have been somewhat different: he would have been entitled to be released after serving two-thirds of his sentence. These provisions are not relevant to the issues in this appeal because no-one suggests that the position would, in principle, be different as between a short-term and a long-term prisoner serving a determinate period of imprisonment.
However, Mr Fitzgerald submits that there are, for present purposes, significant differences between the release and recall provisions for life prisoners by comparison with those for short and long-term prisoners. It is sufficient, for present purposes, to refer to life-prisoners to whom section 28 of the Crime Sentences Act 1997 (“the 1997 Act”) applies, so far as material:
“(5) As soon as, in the case of a life prisoner to whom this section applies—
(a) he has served the part of his sentence specified in the order or direction ('the relevant part'); and
(b) the Parole Board has directed his release under this section, it shall be the duty of the Secretary of State to release him on licence.
“(6) The Parole Board shall not give a direction under subsection (5) above with respect to a life prisoner to whom this section applies unless—
(a) the Secretary of State has...
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