R Michael Goldsworthy v Secretary of State for Justice Parole Board for England and Wales (Interested Party)
| Jurisdiction | England & Wales |
| Judge | Miss Rose |
| Judgment Date | 13 November 2017 |
| Neutral Citation | [2017] EWHC 2822 (Admin) |
| Docket Number | Case No: CO/3859/2017 |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 13 November 2017 |
and
[2017] EWHC 2822 (Admin)
Dinah Rose QC
Sitting as a Deputy High Court Judge
Case No: CO/3859/2017
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
Ian Brownhill (instructed by Kesar & Co Solicitors) for the Claimant
Tom Rainsbury (instructed by the Government Legal Department) for the Defendant
The Interested Party did not appear and was not represented
Hearing date: 8 September 2017
Judgment Approved
Miss Rose QC:
By this claim for judicial review, the Claimant seeks to challenge the decision of the Defendant made on 9 August 2017 to recall him to prison. The Claimant says that the decision was unlawful, disproportionate and unreasonable, and that in consequence his detention is unlawful at common law and under Article 5 of the European Convention on Human Rights.
At the conclusion of the hearing on 8 September 2017, I indicated that I had decided that the claim should succeed, and ordered the release of the Claimant from prison. This judgment sets out the reasons for that decision.
Facts
The Claimant was born on 21 June 1945, and is thus 72 years old. He was convicted on 5 January 2006 of a number of serious sexual offences committed in the early 1990s, including rape, incest, and assault occasioning actual bodily harm, and sentenced to life imprisonment, with a four year tariff. Taking into account the time he had spent on remand, his tariff expired on 11 October 2009.
The Claimant suffered from bowel cancer in 2009. He has a number of chronic physical disabilities, including nerve damage. He has restricted mobility, and suffers from incontinence. He uses a stoma and a colostomy bag. He suffers from neuropathic pain in his hands and feet which makes walking difficult, and uses a walking frame or a wheelchair. He also suffers from depression.
The Claimant was the subject of a number of Parole Board reviews between 2009 and 2016. His case was eventually considered by a panel of the Parole Board at an oral hearing on 8 August 2016. By a decision made following that hearing, on 22 August 2016, the panel concluded:
"Having carefully considered the whole of the evidence the panel is satisfied that in principle, and subject to an appropriate release and risk management plan being put in place, your risk would be manageable on licence in the community."
Since no suitable accommodation had yet been identified, and an appropriate risk management plan was not yet in place, the panel adjourned the hearing for these matters to be addressed.
Notwithstanding the panel's conclusion, the Claimant was not released until May 2017, because of the difficulty in finding appropriate accommodation for him.
However, by a further decision dated 15 May 2017, the Parole Board panel Chair ordered his release. In making that decision, the panel Chair conducted an up to date assessment of the risk presented by the Claimant, taking into account his progress in custody and changes since August 2016. The panel Chair's conclusion was as follows:
"Nothing which has occurred since the oral hearing has caused the panel chair to alter the assessment which he and the other two panel members made in August 2016. The panel chair has reminded himself, as all three panel members did in August 2016, that the Board's task is to assess your current risk of serious harm to the public, which in the context of this case must mean the risk of your causing serious harm by future sexual offending.
There is no evidence that you have ever posed any risk of sexual offences against males, so the panel is concerned only with your risk, if any, of causing serious harm by future sexual offending against females. The fact, if it be the fact, that you may on occasions cause offence to females or behave inappropriately towards them, without causing them any serious harm, is immaterial to the panel's decision.
The offences which led to your two lengthy prison sentences were committed against specific victims (your own daughters who were teenagers at the time of the offences) in specific situations which will clearly never recur; and in the panel chair's view the risk of your committing sexual offences against any other females in the future is properly described as low.
The panel chair is in complete agreement with the views expressed by Mr Payne at the oral hearing [Mr Payne is a forensic psychologist who had assessed the Claimant, and who gave evidence at the hearing in August 2016]. He had concluded in his assessment that you would pose a low risk of sexual violence if you were released into the community. …
In his addendum report of February 2017 he saw no reason to change his view of your risk of future sexual violence. He did not believe, and the panel chair does not believe, that anything which has happened since the oral hearing has afforded any evidence of an increase in risk. Whatever criticisms may be made of your occasionally poor behaviour in custody, there is nothing to suggest an increased likelihood of serious harm caused by future sexual offences. Your behavioural lapses can be put down in part to your problematic personality traits which include a somewhat narcissistic and self-centred approach to life and significant difficulty in understanding other people's positions or views.
It is Mr Payne's opinion that your risk of future non-sexual violence is actually higher than your risk of sexual violence: he places it at the low-moderate level. He has explained this as follows: " At times, [Mr Goldsworthy] will present as appreciative and grateful to staff he feels understand his special needs and meet them, However, he is also likely to be very sensitive to treatment he feels does not meet what he is entitled to and should be provided with. His response to this perceived substandard care may vary, but could include contempt for staff he feels do not understand or are not competent, voicing suspicion that staff are deliberately withholding care, or signs of anger and frustration in the form of verbal aggression (insults, swearing, abusive language). On occasions where Mr Goldsworthy feels his response does not produce an improved level of care, increasing levels of anger and frustration may lead to physical violence, most likely in the form of the throwing of an object that is to hand."
The panel agrees with Mr Payne's analysis, but the risk of future inappropriate behaviour of this kind is entirely different from the risk of future sexual violence upon which the panel is required to focus: it falls a long way short of the kind of risk which would make it necessary for you to continue to be confined in prison in order to protect the public from serious harm. The manageress of the care home to which it is proposed you should be released is aware of your offending history and has seen Mr Payne's report, but is nevertheless willing to accept you as a resident. No doubt the kind of petulant behaviour to which Mr Payne refers is not altogether uncommon in elderly residents in care homes. It is not a reason for locking them up in prison for the protection of the public."
As this passage indicates, accommodation had been arranged for the Claimant at a care home: Lyle House, in Roehampton. The Claimant was released to that address on 17 May 2017.
The conditions of the Claimant's licence included a condition that he should be "of good behaviour", and a condition that he should not commit any offence.
On 28 June 2017, the Claimant was informed by doctors at St Thomas' Hospital that he had been diagnosed as suffering from a metastatic colorectal cancer which had spread to his liver, and that his condition was terminal. He was told that it was likely that he had between about three months and one year (or possibly two years, as the recall report records) to live.
Following the diagnosis, the Claimant's relationship with some carers at Lyle House deteriorated. It was said that he had sworn at a night carer. The recall report notes that the home generally deals with vulnerable adults with dementia, and that the Claimant is different from their usual client group. It was suggested that additional training for some staff might be needed.
On 7 August 2017, Anna Dillon of the Probation Service was informed of further problems with Mr Goldsworthy's behaviour. It was a matter of particular concern, given his offending history, that a staff member had reported a possible incident of him inappropriately touching the leg of a 90 year old resident, though it was said to be unclear whether he "was being tactile or had an ulterior motive".
Anthony Gosling of the Probation Service attended Lyle House on 8 August to meet Mr Goldsworthy and discuss his behaviour with him.
On the following day, 9 August, the Probation Service was informed that the Claimant's behaviour had become significantly worse overnight. He had threatened staff members, stating that he would "get you sorted out" and "take your head off". He had also thrown a bag belonging to a member of staff against the wall, breaking an ipad and mug that were inside. Staff felt intimidated, and residents had to be moved for their safety. Staff called 999, but the police did not attend. It appears that staff did not inform the police of the Claimant's history when making the emergency call.
As a result of this incident, the management of Lyle House were not prepared to permit the Claimant to remain there any longer.
Ms Dillon noted in her recall report dated 10 August 2017 that she had been able to obtain alternative emergency accommodation, in the form of a disabled access studio flat in Hounslow. However, her...
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