R (Morales) v Parole Board and Others
| Jurisdiction | England & Wales |
| Judge | THE HONOURABLE MR JUSTICE SILBER,Mr Justice Silber |
| Judgment Date | 14 January 2011 |
| Neutral Citation | [2009] EWHC 1990 (Admin),[2011] EWHC 28 (Admin) |
| Date | 14 January 2011 |
| Court | Queen's Bench Division (Administrative Court) |
| Docket Number | Case No: CO/3300/2008,CO/3300/2008 |
[2009] EWHC 1990 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
Before: Mr Christopher Symons QC
(Sitting as a Deputy High Court Judge)
CO/3300/2008
Mr Manjit Gill QC and Mr James Dixon (instructed by Glaisyers Solicitors) appeared on behalf of the Claimant
Ms emma White (instructed by Treasury Solicitors) appeared on behalf of the First Defendant
Mr Mark Vinall (instructed by Treasury Solicitors) appeared on behalf of the Second Defendant
Mr Iain Daniels (instructed by DLA Piper) appeared on behalf of the Third Defendant
THE DEPUTY JUDGE: In this matter the applicant, Mr Morales, seeks permission to proceed with his application for judicial review, he having been granted permission by Burnett J in relation to one part of his claim.
Dealing with the facts very briefly, Mr Morales was sentenced to 30 months' imprisonment, with a two-year extended licence at Stafford Crown Court on 28 October 2005. He was released on 25 January 2007 under terms of a licence which included an obligation to attend a community sex offender group. He attended such a group on 21 February 2007, during which it was alleged by those running the group that he behaved inappropriately. It was alleged that he breached the terms of his licence, and based on reports by the Probation Service the Secretary of State revoked the applicant's licence and returned him to prison on 23 February 2007.
The sex offender group on 21 February had been recorded, and there was a DVD of that session.
The recall was reviewed by the Parole Board on 10 May 2007, and they ordered an oral hearing and ordered that the video tape be produced (their order is at B39 of the bundle). What the Parole Board said was:
“… It therefore recommended this case be set for an oral hearing at which hearing the following should be made available by the Probation Service …
(3) any video tapes that exist of that or any other session in which Mr Morales participated.”
The Staffordshire Probation Service decided that they could not release the tape and they were concerned about third party participants. On 24 August 2007, the Parole Board referred to the video DVD as one key piece of evidence, and directed that the Secretary of State make it available at a deferred hearing. There was still further procrastination, and an offer was eventually made to produce the DVD but such that the applicant himself was not to see it. Eventually the DVD was produced, and it was seen and heard by the Parole Board and resulted in the applicant's release.
What the Parole Board said in their decision to release the applicant was that they reached the clear conclusion that the recall to custody was neither necessary nor proportionate when considered within the legislative framework and judicial precedent (that was having seen that particular DVD).
Burnett J, as I have mentioned, gave permission to proceed with the claim on the basis of delay, but refused permission in relation to three other relevant matters: first, a challenge to the powers of the Parole Board, and as to whether, in the absence of a power to summons witnesses and documents, it could be Article 5(4) compliant; second, in relation to the lawfulness of the recall by the Secretary of State; and third, in relation to misfeasance, although the learned judge rightly pointed out that it was not an appropriate matter for judicial review, but of course that did not mean that it could not be proceeded with in a different way.
The application for permission has been renewed before me today, and I can deal with this quite briefly. On the first point, namely the compliance issue, the Parole Board has appeared before me today and supported the grant of permission in relation to that particular matter. In my judgment, it is an appropriate point upon which permission should be granted. The DVD in this particular case was not produced in spite of an order by the Parole Board to produce it. While there are procedures under Order 34, Rule 4 for the parties to go to court for orders, in my judgment it is arguable, and I say no more than that, that such a power is not sufficient to make the Parole Board compliant.
In relation to the unlawfulness of the arrest, I remind myself, in line with the case of Biggs, that the context of such a decision tells strongly in favour of a rapid decision-making process without extensive investigation or procedural elaboration. In this particular case, the Secretary of State had before him the report from the Probation Service, which I have in the bundle at pages 25 and 26. That document sets out the circumstances and details of the breach, the offender's general response to supervision and a risk assessment.
Mr Gill makes three points to me in relation to the exercise the Secretary of State has to carry out before he should order a recall. He should first of all take the view or be satisfied himself that there is an imminent risk. If there is such a risk, he must satisfy himself on the sort of risk that exists —that is whether more offences are going to be committed —and Mr Gill points to the fact that, in the document before the Secretary of State, there is no reference to further offences. Thirdly, he says the Secretary of State must be satisfied of the link between the alleged actions and the risk that exists.
It seems to me, reading this document as a whole, that there was quite sufficient for the Secretary of State to reach the conclusion he did on the basis of not an extensive investigation or procedural elaboration, but just on a careful reading of the document. It seems to me, in the light of that, that it is not arguable that the Secretary of State acted unlawfully in relation to that, and so I decline to grant permission in relation to that point.
In relation to the question of misfeasance, a claim of misfeasance in public office will necessarily involve looking at particular individuals and their motives and their state of mind at different times. It is a difficult claim to make good in the absence of some documentary evidence, which gives rise to some sort of belief that they have acted inappropriately. Certainly I have seen no such documentary evidence and no doubt if there was such evidence it would have been drawn to my attention. If this was a matter as to whether or not permission should be granted to proceed with judicial review, I would unhesitatingly refuse such permission. But that is not the case. Really the issue as far as misfeasance is concerned is whether that should be allowed to proceed in parallel with these judicial review proceedings, or whether it should effectively be hived off and Mr Morales be required to particularise his claim and proceed in a separate way.
In my judgment, it would be wholly inappropriate to burden this judicial review application with the claim in relation to misfeasance. It will involve a great deal of evidence and court time. It will not, as I see it, involve the Parole Board, who will be playing an active part in the judicial review proceedings, and perhaps most important, before any such claim can proceed it will need to be properly pleaded, by which I mean not in a judicial review way of stating grounds in a coherent but relatively short form, but will have to be carefully particularised since it is going to make allegations of a serious nature against individuals. So I will hear the parties as to what the appropriate directions are, but it should not proceed at the same time as these judicial review proceedings. It may be sensible for it to be heard, if it is going to be proceeded with, after these judicial review proceedings, and possibly by the same judge, although I certainly am not minded to make any such direction today.
Now, Mr Gill, first of all, directions in relation to the judicial review, there does not seem to be any issue, subject to anything anybody says, that we should have the summary grounds and evidence from the defendants within 35 days. Is that acceptable to everyone?
MR GILL: Yes, my Lord.
THE DEPUTY JUDGE: And what other directions should I give in relation to the judicial review?
MR GILL: My Lord, the standard directions in Part 54 would follow. The standard procedure would follow. I do not think there is a need for anything else. Although the matter is important, I do not think I could ask for expedition as such. So I do not think there is really any other direction —
THE DEPUTY JUDGE: No, very well. As far as your misfeasance claim is concerned, I certainly think you should, if you advise and your client decides to proceed with it, produce a pleading as if you issued a claim form in relation to this matter. What do you propose?
MR GILL: My Lord, a direction that —
THE DEPUTY JUDGE: I am minded to start this direction “if so advised”, without wishing to encourage or discourage in any way, you understand.
MR GILL: Yes, on that point I did not in fact address with you the arguability or otherwise of the misfeasance claim because that was not an issue that Burnett J dealt with, and I did not take you to the relevant documents. There are some which may be thought to be a little surprising, but still.
THE DEPUTY JUDGE: Mr Gill, since I said in my judgment that I had not found any document, I have read the bundle so it was not merely relying on what I have been shown today.
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