R Lewis Remy Grinham v The Parole Board for England and Wales
| Jurisdiction | England & Wales |
| Judge | Mr Justice Spencer |
| Judgment Date | 04 August 2020 |
| Neutral Citation | [2020] EWHC 2140 (Admin) |
| Court | Queen's Bench Division (Administrative Court) |
| Docket Number | Case No: CO/1851/2020 |
| Date | 04 August 2020 |
[2020] EWHC 2140 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
Mr Justice Spencer
Case No: CO/1851/2020
and
Stuart Withers (instructed by Dobson Law) for the Claimant
The Defendant and the Interested Party were not represented
Hearing date: 28th July 2020
Approved Judgment
Introduction and overview
The claimant is a serving prisoner currently detained at HMP High Down. In March 2019 he was released on licence at the half-way point of a determinate sentence of 56 months' imprisonment. He breached the terms of his licence and was recalled to prison in July 2019. Thereafter he was diagnosed with cancer. His solicitors made representations to the Parole Board applying for his release again on licence. An expedited oral hearing of that application took place on 4 th February 2020 before a single Panel Member.
The claimant's case is that the oral hearing was rushed because insufficient time had been allowed for it and the Panel Chair repeatedly made it clear that she could not sit beyond a certain time. Case management directions had not been complied with. There had been late service of a report from the claimant's Offender Supervisor. This compounded the problem of shortage of time as it was served only on the day of the hearing and his solicitor needed to consider the report and take the claimant's instructions upon it. Other significant information which should have been served before the hearing had not been obtained and provided. The hearing was concluded without oral submissions on the claimant's behalf so that the missing information could be supplied. Thereafter the claimant's solicitor lodged written closing submissions. On 19 th February 2020 the Panel Chair gave the Parole Board's decision not to grant the claimant's re-release on licence.
In this claim for judicial review the claimant challenges that decision on the grounds of procedural unfairness and invites the court to quash the decision and direct an expedited re-hearing. The full term of the claimant's sentence expires on 11 th January 2021.
Permission to apply for judicial review was granted on the papers by Kerr J. The Parole Board, as defendant, had served an acknowledgment of service indicating that it remained neutral and would not actively defend the decision under challenge. The Secretary of State for Justice, as an interested party, had also indicated by letter that he wished to remain neutral in the litigation.
At the hearing before me the claimant was represented by Mr Stuart Withers. I am grateful to him for his written and oral submissions. The hearing was conducted remotely by Skype video.
The factual background
The claimant is now 25 years of age. He has a poor record of offending. On 23 rd September 2016 at Croydon Crown Court he was sentenced to a total of 56 months' imprisonment for offences of burglary (domestic and commercial), attempted burglary, harassment, perverting the course of justice, and driving offences. The burglary offences were committed in order to fund his abuse of class A drugs. The victim of the offence of harassment was his girlfriend, Ms H. The claimant was caught driving a vehicle without a licence. He ran away when the police stopped the vehicle. The passengers named him as the driver. The claimant offered them money to withdraw their statements to the police. That was the offence of perverting the course of justice. The car belonged to his partner, Ms H. She alleged that the claimant had been violent towards her and had sent her threatening messages. That was the offence of harassment. A restraining order was made for her protection, but in 2018, on her application, the order was discharged and she resumed her relationship with the claimant, albeit he was then in prison.
On 18 th March 2019 the claimant was released on licence. Following release he lived with Ms H and her father for about 5 weeks. The claimant relapsed into drug use and failed to keep in contact with his offender manager by telephone.
On 19 th July 2019 the claimant's Offender Manager, Shirley George, submitted a recall report to the Secretary of State. The claimant's licence was revoked the same day and he was returned to prison.
On 31 st July 2019 Ms George provided a Part B recall report recommending that the claimant was not suitable to be re-released. His risk of serious harm to the public, and to any known adult, was assessed as medium. The report stated that whilst on licence the claimant had failed to engage with the drug services despite attempts to encourage him to do so, including the issuing of a licence warning. He had persistently given positive drug tests for cocaine and cannabis. Having relapsed into drug misuse he was at high risk of re-offending, compounded by his lack of employment. Ms George's view was that unless the claimant was able to address his substance misuse and his employment skills he was highly unlikely to comply with a further period of licence in the community. She could not recommend his re-release until he had completed interventions to address his substance misuse and employment needs.
On 19 th August 2019 the claimant's solicitors made written representations to the Parole Board requesting his release on the papers, or in the alternative requesting an oral hearing. The representations acknowledged that the claimant had relapsed into drug abuse and had been living a chaotic life after release on licence. He had gone to live with his partner, Ms H, but because there were problems with the relationship he vacated the property and became homeless. Eventually a temporary place was found for him at a hostel. The representations made it clear that he disputed several of the factual allegations in the recall report, including the suggestion that he had been untruthful in saying he was working when in fact he was not, and other facts surrounding the circumstances of his recall. Reference was made to previous mental health issues which had probably contributed to his relapse, including bi-polar disorder, ADHD and depression.
An oral hearing is granted
On 17 th September 2019 the Parole Board determined that the case should be listed for an oral hearing. The decision said that this was because it would be unfair to conclude the review negatively on the papers given that his risk of serious harm remained at the level of “medium” and he was not suspected of further offending. The addition of oral evidence might lead a Panel to conclude that the claimant was manageable on licence subject to appropriate arrangements being put in place. An oral hearing would ensure fairness, providing him with the opportunity to challenge aspects of the dossier and his recall, as well as ensuring that a thorough examination of his case could be conducted against the test for release.
Accompanying that decision, directions were given for the obtaining of further reports from the mental health in-reach team and the substance misuse team. The directions specified in some detail the information required in reports from the claimant's Offender Manager and from his Offender Supervisor. It was directed that the hearing should be listed for 1 hour 30 minutes, to be heard by a single member. The case was unsuitable for a video link between the prisoner and the panel. It was specifically noted that owing to the claimant's reportedly having bi-polar disorder, depression and ADHD, the Panel should conduct a face-to face hearing. Subsequently the direction for mental health reports was revoked as there had been no contact with the metal health in-reach team.
The claimant's cancer is diagnosed
Sadly, shortly after re-call to prison, the claimant was diagnosed with stage 4b Hodgkin's Lymphoma and commenced an intense course of chemotherapy. On 30 th October 2019 medical evidence of this diagnosis was provided. The claimant was allowed temporary release from custody in November 2019 to attend hospital for treatment, under the close supervision of prison officers.
On 5th December 2019 the claimant's solicitor made a further application that the claimant be released, on the papers, in view of this deterioration in his health. By then the claimant was on his second cycle of chemotherapy. It was submitted that his risk of harm to the public was significantly decreased by this change in circumstances. His aunt was able to provide an address for him on release and he would have the support of his family and his partner, Ms H, who is a registered nurse. It was submitted that his poor behaviour on licence might have been a symptom of the cancer which at that stage had been undiagnosed.
An expedited hearing is ordered
On 20 th December 2019 the Parole Board refused the application for release on the papers but ordered that the claimant's case be expedited and that the oral hearing listed for March 2020 be brought forward to an earlier date. On 10 th January 2020 further directions were given for the oral hearing. The claimant's solicitors were invited to obtain a medical report from the oncology consultant confirming the diagnosis and its impact on the claimant's physical capacity, and the prospects of his regaining any lost physical capacity within the next 12 months (i.e. during the remainder of his sentence, which would expire anyway in January 2021). A deadline of 27 th January 2020 was set for the...
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