R (Morecock) v Parole Board
| Jurisdiction | England & Wales |
| Judge | Mr Justice Keith,MR JUSTICE KEITH |
| Judgment Date | 08 November 2004 |
| Neutral Citation | [2004] EWHC 2521 (Admin) |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 08 November 2004 |
| Docket Number | Case No: CO/2492/2004 |
[2004] EWHC 2521 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
The Honourable Mr Justice Keith
Case No: CO/2492/2004
Miss Abigail Nixon (instructed by Messrs. Atter Mackenzie) for the Claimant
Mr Daniel Stilitz (instructed by the Treasury Solicitor) for the Defendant
Introduction
In October 1994, the claimant was sentenced to twelve years' imprisonment. In April 2002, he was released from custody on licence, but in May 2003 he was recalled to prison when his licence was revoked. The Parole Board subsequently confirmed his recall to prison. In this claim for judicial review, he seeks to have that decision of the Parole Board quashed, and he asks the Court to declare that the decision not to release him from prison was unreasonable. All references in this judgment to sections of an Act are to sections of the Criminal Justice Act 1991 unless otherwise stated.
The facts
The facts are not in dispute. It was following his conviction for an offence of burglary with intent to commit rape that the claimant was sentenced to twelve years' imprisonment. He also received concurrent sentences of nine years' and four years' imprisonment for offences of causing grievous bodily harm with intent and indecent assault respectively. The claimant has a long record of previous convictions going back to 1979 when he was 14 years old. His first offences were theft of a motor car, driving without insurance and driving whilst disqualified. Prior to the offences for which he is now in prison, he had been convicted on nine further occasions of numerous offences including driving without insurance, assault occasioning actual bodily harm, theft, burglary and rape. He had been sentenced to three years' imprisonment in December 1986 for offences of rape and theft, and to seven years' imprisonment in February 1989 for an offence of rape.
The claimant's current sentence expires on 16 March 2006. On 16 April 2002, having been in prison for eight years, the claimant was released on licence, pursuant to section 33(2), which requires the Secretary of State to release on licence a long-term prisoner (defined in section 33(5) as a prisoner serving a sentence of imprisonment for a term of four years or more) as soon as he has served two-thirds of his sentence. The licence stated that he would be under supervision until the expiry of his sentence. It also stated that the objectives of this supervision were (a) to protect the public, (b) to prevent re-offending on his part, and (c) to achieve his successful re-integration into the community.
Para. 5 of the licence set out the conditions of his licence. Section 37(4) required him to comply with those conditions. They applied while he continued to be under supervision. They included requirements that he kept in touch with his supervising officer, that he lived at Braley House Hostel unless given prior approval by his supervising officer to live elsewhere, and that he complied with any requirements reasonably imposed on him by his supervising officer for the purpose of ensuring that he addressed his alcohol and sexual offending behaviour problems. But for present purposes, the most important condition was that in para. 5(vi), which required him to
"….. be of good behaviour, not commit any offence and not take any action which would jeopardise the objectives of [his] supervision ….."
Two other terms of the claimant's licence need to be mentioned. Para. 7 of the licence stated:
"If you fail to comply with any requirement of your probation supervision (set out in paragraphs 3, 4, and 5 above), or if you otherwise pose a risk to the public, you will be liable to have your licence revoked and be recalled to custody until the date on which your licence would otherwise have expired ….."
And para. 8 of the licence stated:
"Your sentence expires on 16/03/2006. In accordance with the provisions of Section 40 of the Criminal Justice Act 1991, you are liable to be returned to custody if you are convicted of a further imprisonable offence committed before your sentence has fully expired. The court dealing with the new offence may add all or part of the outstanding period of the original sentence on to any new sentence it may impose."
On 28 May 2003, the Secretary of State revoked the claimant's licence and recalled the claimant to prison. He did so pursuant to section 39(2), which provides:
"The Secretary of State may revoke the licence of [a long-term prisoner] and recall him to prison without a recommendation by the [Parole] Board, where it appears to him that it is expedient in the public interest to recall that person before such a recommendation is practicable."
The Secretary of State's reasons for revoking the claimant's licence were that he had broken condition 5(vi) of his licence, and that he had been living at his ex-partner's address prior to Christmas 2002, whereas permission for him to live away from the hostel had not been given until February 2003. The documents setting out the Secretary of State's reasons for revoking the claimant's licence said this about why the Secretary of State believed that the claimant had broken condition 5(vi) of his licence:
"….. despite being instructed by your supervising officer, both verbally and in writing, not to contact your ex-partner, you have admitted that you contacted her on the evening of 23 May 2003 and during the following weekend. It has also been alleged that you have physically assaulted and raped your ex-partner and have been displaying intimidating and abusing behaviour towards her."
The document concluded:
"In view of the offences for which you were originally sentenced, the risk suggested by your offending history and your behaviour as described above, the Home Secretary is no longer satisfied that it is right for you to remain on licence."
In reaching this decision, the Secretary of State had relied on a report about the claimant dated 28 May 2003 from the claimant's supervising officer. It was that report which had referred to the breaches which had resulted in the revocation of the claimant's licence. But the report also included the following passages:
"It has been confirmed by Worcester Police Intelligence, that Mr Morecock currently owns a vehicle registration G336 WHP that has been seen both at [the address of the claimant's ex-partner] and parked in the vicinity of the hostel on a number of occasions over a period of several weeks. Mr Morecock had been given a written warning by myself on 8.11.2002 for driving his car illegally, as he holds only a provisional driving licence.
At the time of his release he represented a very high risk to the general public of further sexual offending, especially when disinhibited by alcohol. It was highlighted that the risk of being caught was not a deterrent to this man. The situation has not changed within the time that he has been released. It would appear that Mr Morecock has continued to demonstrate further risky behaviours. These include, driving illegally, which he has been warned about both verbally and in writing by his supervising officer, as well as by Worcester Police Intelligence. I understand that on the afternoon of the [23] /05/03 Mr Morecock was stopped while driving his car illegally and has subsequently been issued with a summons for driving without a Licence and without insurance."
Section 39(4) requires the Secretary of State to refer to the Parole Board the case of a person recalled to prison under section 39(2). Representations were then made in writing on 8 September 2003 by the claimant's solicitors for consideration by the Parole Board. The letter recorded that the claimant's ex-partner had withdrawn the allegations of rape and assault. It denied that the claimant had ever failed to live at the hostel. It admitted that the claimant had been in contact with his ex-partner on 23 May 2003, despite having been instructed not to contact her, but it stated that she had initiated the contact. And it admitted that the claimant had driven a motor vehicle as an uninsured driver and as a provisional licence holder, the latter being an admission, so Miss Abigail Nixon for the claimant told me, that he had driven unsupervised and without L plates.
On 24 September 2003, the Parole Board responded to those representations. It noted that the grounds for his recall had been twofold:
"….. firstly, it was said he had failed to be of good behaviour and the specific allegations were that he had sexually assaulted and intimidated his partner and that he had persisted in driving illegally. Secondly, it was alleged that he had failed to reside at the address stipulated."
That was not quite correct. The document setting out the Secretary of State's reasons for revoking the claimant's licence had not referred to the driving offences at all. However, the Board accepted his ex-partner's assurance that all the allegations relating to her were unfounded, and it found no conclusive proof that the claimant had failed to reside as directed. But it rejected the claimant's representations over his recall to prison. It said:
"However, his solicitor has admitted that he has been driving illegally and the panel notes that he has now been summoned for driving while disqualified and driving with no insurance. In this regard, he has demonstrably breached the licence condition requiring him to be of good behaviour; accordingly his representations are rejected."
Thus, the Parole Board confirmed his recall to...
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