R Harris v Secretary of State for Justice
| Jurisdiction | England & Wales |
| Judge | Mr Justice Dove |
| Judgment Date | 24 October 2014 |
| Neutral Citation | [2014] EWHC 3752 (Admin) |
| Docket Number | CO/1024/2014 |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 24 October 2014 |
[2014] EWHC 3752 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
Royal Courts of Justice
Strand
London WC2A 2LL
Mr Justice Dove
CO/1024/2014
Mr J Bunting (instructed by Michael Purdon) appeared on behalf of the Claimant
Mr S Pritchard (instructed by the Treasury Solicitor) appeared on behalf of the Defendant
Background
On 15 October 2007 the Claimant was sentenced to a life sentence with a minimum term of 12 years for murder. His tariff expires on 21 May 2016. During his time in closed conditions he engaged positively with the activities and programmes that were there to assist him and, as a result, in due course consideration was given by the Defendant's officers as to whether or not he should have his case referred to the Parole Board.
On 3 April 2013 one of the Defendant's officers, a Mr Mungar, on behalf of the Defendant, agreed that the Claimant's case should be referred to the Parole Board. The purpose of that referral was to consider whether or not in the Claimant's case his absconding risk and his circumstances were such that he should be moved to open conditions.
On 6 September 2013 Mr Mungar wrote for the purposes of assisting the Parole Board, setting out in particular the position in relation to the Claimant's deportation. He noted that a deportation order had been made in the Claimant's case on 22 June 2010. He then went on to advise as follows:
"The deportation order against Mr Harris remains extant. However, at the current time he cannot be removed from the UK under TERS because Immigration Enforcement have yet to commence consideration of Mr Harris' case and consideration will only begin on 21/11/2014. Once consideration has commenced, Immigration Enforcement will need to serve Mr Harris with a signed deportation order which will provide Mr Harris with an opportunity to appeal. In addition to this, a travel document will also need to be obtained. His suitability for removal under TERS will be reviewed on a regular basis by PPCS on behalf of the Secretary of State. The expectation is that where a prisoner is eligible for and there are no impediments to removal, they will be released and removed under TERS. Until such time, their ongoing detention must continue to be reviewed by the Parole Board."
A panel of the Parole Board convened their hearing, which occurred on 23 October 2013. The deliberations of the Parole Board led to them reaching a decision dated 30 October 2013. In that decision they concluded as follows:
" 5. Evidence of progress in custody
While on remand prior to your retrial and sentence, you received adjudications for assault, damage and abusive words and behaviour. You settled down thereafter and at HMP Gartree you undertook a drugs course in 2008. In 2010 you completed a Thinking Skills Course, it being noted that you had participated positively throughout the programme and gained a good understanding of the skills and tools used. You arrived at HMP Ranby on 25 July 2011. You have completed an in-cell victim awareness pack and in conversations with your offender manager have demonstrated good victim awareness and genuine remorse. You do not meet the criteria for other offending behaviour programmes such as CLAM, CSP and RESOLVE, but you have made constructive use of your time pursuing educational and vocational qualifications and working in the plastics workshop. Although you have a number of minor disciplinary infringements on your record while at Ranby, you are described as generally polite and personable. Given your immigration status and conviction, you meet the criteria for automatic deportation, and the appropriate notice was served on you on 22 June 2010. Immigration Enforcement will commence consideration of your case eighteen months prior to expiry of your tariff. You receive visits from your mother and stepfather and are in telephone contact with your nine year old son, facilitated by his mother. You have however always accepted that on release you will have to return to Jamaica. You have other family members there, including an uncle who may be able to offer you employment in his electrical business. You have been saving money with a view to setting up a poultry breeding business on your return to Jamaica.
6. Panel's assessment of current risk
Your risk of causing serious harm had been assessed as high at the time of sentence but is now reduced to medium. All other relevant risk scores are low. The panel accepts this assessment. It is clear to the panel that you have matured considerably in the course of your sentence. You appear to the panel entirely genuine in your expressions of remorse and declared intention to keep free of cannabis, shun criminal associates and lead a law-abiding life. You are aware of how much you would stand to lose if you were to abscond.
7. Evaluation of effectiveness of plans to manage risk
Both your offender manager and offender supervisor recommend that you be transferred to open conditions. It is considered that your risk would be manageable in open conditions and you would be most unlikely to abscond. In your evidence to the panel you spoke thoughtfully of the potential benefits to you of a transfer to open conditions, remarking that you have been in closed establishments for ten years and that a transfer to open would help you get ready for release, improve your education and employability, and would provide you with the opportunity to see more of your family. Because of your liability to deportation, you would be unable to pursue employment outside the prison. You would however be able to prepare for release into the community by adjusting to the less restrictive regime of an open prison, and you hope to be able to pursue a business studies diploma and to learn employment skills, for example, in agriculture if you are transferred to an establishment with its own farm.
8. Conclusion and decision of panel
The panel accepts that you have done all the offending behaviour work appropriate to closed conditions. The panel agrees with the professionals responsible for you that the benefits to you of a transfer to open conditions outweigh the risks, the panel also agrees with all witnesses who state that, do you not present a significant risk of absconding if transferred to open conditions.
The panel therefore recommends that you be transferred to open conditions where you will be able to do further constructive work in reducing your risk factors by managing the tests of less secure conditions and taking forward your plans for a law-abiding life on your eventual release."
The recommendation of the Parole Board was then passed to the Defendant for a decision in relation to it. The Defendant reached a decision in a letter dated 6 December 2013, which provides as follows:
"The Secretary of State has now considered the Parole Board recommendation but is not prepared to agree to your transfer to open conditions in view of the fact that you are subject to liability to deportation and Immigration Enforcement will not be considering your case until 18 months prior to your tariff expiry on 21 May 2016, ie November 2014. Full reasons for this decision are attached at Annex A."
Turning, therefore, to Annex A, the important passages for the purposes of this case commence at paragraph 4:
"4. The Secretary of State notes your behaviour has been good and that you have complied with your sentence plan, completing the Thinking Skills Programme … and your Offender Supervisor and Offender Manager both support a progressive move to open conditions. He notes that you were assessed as not meeting the criteria for the Self Change Programme … Controlling Anger and Learning to Manage it programme … and the RESOLVE programme. You are not tariff expired until May 2016 and the Secretary of State has concerns with regard to your abscond risk due to your possible deportation.
5. In view of the above concerns regarding the abscond risk relating to your immigration status, the Secretary of State, following the hearing, has liaised with Immigration Enforcement regarding your current immigration status. IE has now informed the Secretary of State that they will not be looking at your case until November 2014, 18 months prior to your tariff expiry, 21 May 2016.
6. The Parole Board based their decision on the facts before them at the hearing and it was not possible at this early stage to provide them with details as to the prospect of you being deported. You are currently just under 2 and a half years away from your tariff expiry and it will be just under a year before Immigration Enforcement commence consideration of your deportation.
7. The Secretary of State has taken account of the uncertainty over your immigration status and the amount of time remaining before your tariff expiry date. The Secretary of State considers that your immigration status should be resolved before your move to open conditions.
8. Against this background, the Secretary of State has decided to reject the Parole Board's recommendation and decided that you should remain in closed conditions. If, however, following consideration of your case, Immigration Enforcement informs the Secretary of State that it would be unlikely you would be deported, he will take immediate steps to refer your case to the Parole Board for an exceptional pre-tariff review. As your tariff does not expire until May 2016, this would still allow sufficient time for you to transfer to open conditions and be able to undertake...
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