R Mary McCourt v The Parole Board for England and Wales
| Jurisdiction | England & Wales |
| Judge | Lady Justice Macur,Mr Justice Chamberlain |
| Judgment Date | 01 September 2020 |
| Neutral Citation | [2020] EWHC 2320 (Admin) |
| Court | Queen's Bench Division (Administrative Court) |
| Docket Number | Case No: CO/335/2020 |
| Date | 01 September 2020 |
[2020] EWHC 2320 (Admin)
Lady Justice Macur
&
Mr Justice Chamberlain
Case No: CO/335/2020
IN THE HIGH COURT OF JUSTICE
DIVISIONAL COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
Mr Tom Little QC, Mr James Thacker and Mr Tom Rainsbury (instructed by Thompsons Solicitors) for the Claimant
Mr Nicholas Chapman (instructed by The Government Legal Department) for the Parole Board for England and Wales
Ms Joanne Cecil and Ms Leonie Hirst (instructed by Tuckers Solicitors) for the 2nd Interested Party
Hearing dates: 29 & 30 July 2020
Judgment Approved by the court for handing down
(subject to editorial corrections)
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Lady Justice Macur and
Introduction
This is the judgment of the Court to which both members have contributed.
In February 1988, Ian Simms murdered Helen McCourt. She was 22 years old. Forensic evidence suggests that he strangled her with a ligature. There was compelling circumstantial evidence which associated him with the offence. He demonstrably lied about his whereabouts and about injuries he sustained at relevant times. On 14 March 1989, he was convicted of the murder, despite his denials, and sentenced to life imprisonment. The minimum term was set at 16 years and one day. Simms sought to appeal his conviction, but was unsuccessful. He continues to deny his guilt and has never revealed the whereabouts of Helen's remains.
On 21 November 2019, after a hearing, a Parole Board panel directed that Simms be released. The decision was confirmed after an independent reconsideration by Sir David Calvert-Smith (a former Chairman of the Parole Board) on 8 January 2020. Simms was released in February 2020.
Mrs Mary McCourt is Helen McCourt's mother. The grief she has suffered has been compounded because Helen's remains have never been found. She has long campaigned for a change in the law to prevent the release of those who are convicted of murder but do not reveal the whereabouts of their victim's remains. In large part as a result of this campaign, the Prisoners (Disclosure of Information about Victims) Bill (“the Bill”) has passed through the House of Commons and, at the present time, has received its second reading in the House of Lords. Although not yet enacted, it has come to be known as “Helen's Law”. We refer to its terms below.
By this claim, Mrs McCourt seeks judicial review of the Parole Board's decision to release Simms. The application proceeds as a rolled-up hearing to determine permission, with the substantive hearing to follow if permission is granted. The grounds of challenge (re-ordered to reflect the way they were argued orally before us) are that the Parole Board: (1) misdirected itself as to the test to be applied; (2) failed to undertake reasonable inquiries and in particular failed to challenge Simms about his denials; (3) reached irrational conclusions; and (4) acted in a way that was procedurally unfair.
Simms disputes Mrs McCourt's standing to bring this claim and submits that the Parole Board's decision involved no public law error. The Parole Board appears and has made submissions both on standing and on the substance of the claim, but is neutral as to the outcome. The Secretary of State is not represented and has made no submissions.
This claim raises an important point that has not been decided: does a victim of crime, or (in a case where the victim is deceased) a relative, have standing to seek judicial review of a decision of the Parole Board to release an offender? In R (DSD) v Parole Board [2019] QB 285, the Divisional Court proceeded on the footing that the answer was “Yes”, quashing a decision of the Parole Board to release a man who at the time of his offending was known as John Worboys (a taxi driver who had sexually assaulted a number of his passengers). In that case, however, there was no dispute as to the standing of the victims.
Mrs McCourt argues that the claim also raises important points about victim participation in Parole Board proceedings and about “the principles which the Board should apply when determining whether to release a convicted murderer who not only denies his guilt but refuses to reveal information as to the whereabouts of the victim's body”.
On 30 January 2020, Mrs McCourt applied to this Court for interim relief, including an order staying Simms' release and an order for disclosure. The application was heard on 4 February 2020 by a Divisional Court (Dingemans LJ and Fordham J): [2020] EWHC 433 (Admin). The application for a stay was refused. Specific disclosure was directed. Directions were given for the question of permission to be considered by a single judge. On 16 April 2020, Chamberlain J ordered this rolled-up hearing.
We heard oral submissions remotely over 1 1/2 days. Mr Tom Little QC appeared for the Claimant, with Mr James Thacker and Mr Tom Rainsbury, all acting pro bono. Mr Nicholas Chapman appeared for the Parole Board. Ms Joanne Cecil and Ms Leonie Hirst appeared for Simms. We are grateful to all of them for their commendable submissions.
Factual background
The Parole Board review which led to the challenged decision was Simms' seventh review since the expiry of his tariff. On the sixth, in January 2016, the Parole Board had recommended that he be transferred to open conditions to enable identified “risk factors” to be tested. The recommendation was accepted by the Secretary of State and Simms was transferred in July 2016. He remained there until his release in February 2020.
The hearing in the present proceedings took place on 7 and 8 November 2019 before a panel consisting of a judicial member, a psychiatrist and an independent member. Exceptionally, Mrs McCourt's legal representative was granted permission by the panel chair to be present throughout the hearing to observe, though not to participate in, the proceedings. There was no objection to this procedure by the Secretary of State or by Simms. Undertakings were given by the nominated legal representative as to the use to which communications, documents and oral information could be put, and as to the disposal and safekeeping of that information. An additional request for disclosure of the prisoner dossier was refused at that stage. It has been disclosed in these proceedings by direction of the court.
The dossier considered by the panel contained a large quantity of materials, including numerous psychiatric and psychological reports from 2011 to date, offender supervisor and offender manager reports from 2017 to date and a detailed risk management plan. The dossier included evidence of how Simms had dealt with release on temporary licence since his move to open conditions.
The dossier also contained information submitted by Mrs McCourt to the Probation Service, which she said was pertinent to risk. This included a letter written by Simms in 1991 and a painting he had completed in prison which Mrs McCourt said conveyed a malign and macabre reference to Helen's fate. Mrs McCourt and her son Michael made victim impact statements and read them out to the panel on the day before the hearing. The victim impact statement of Michael's wife Susan was also read to the panel. At the hearing, the panel heard evidence from two psychologists, the offender manager and the offender supervisor. Simms gave evidence and was questioned by the panel, including about his offending and his behaviour in prison. All witnesses, including those instructed by the Secretary of State, supported release.
Simms was represented and sought release. The Secretary of State was represented and did “not express a view on whether the Panel should direct release on the facts of this prisoner's case” but “urge[d] caution upon the Panel when arriving at a release decision in this case.” The McCourt family opposed release.
In advance of the hearing, the Parole Board directed the parties to file skeleton arguments on the issues of Simms' denial of the offence and failure to reveal what happened to Helen McCourt's remains. An addendum psychology report was produced to deal with the impact upon risk of Simms' denial and failure to reveal the location of Helen's remains. A consultant clinical and forensic psychologist was instructed on Simms' behalf to prepare a review of the academic literature on the same issues, without reference to the circumstances of this case.
The release decision contained detailed reasons. The panel started by analysing the offence, including the trial judge's sentencing remarks. They noted that Simms had “disposed of the body which has never been recovered”. They considered the risk factors applicable, including Simms's mental health stability, compliance with medication, compliance with rules and licence conditions and attitudes which condone the use of violence as a means of solving problems. Specific consideration was given to how he would cope with and react to the high-profile campaign against his release if, for example, he were located by the press; and to the possibility, in the light of the letter he wrote in 1991, that he would try to contact the McCourt family. The panel summarised the conclusions reached in the latest psychiatric reports. They considered in detail the evidence of how Simms had dealt with release on temporary licence, including how he had dealt with an enquiry from a member of the press.
In their assessment of current risk, the panel considered static and dynamic risk factors. The latter were affected by the fact that “there is no clarity as to why...
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