R (on the application of John McIntyre) v The Parole Board
| Jurisdiction | England & Wales |
| Judge | The President of the Queen's Bench Division |
| Judgment Date | 09 July 2013 |
| Neutral Citation | [2013] EWHC 1969 (Admin) |
| Docket Number | Case No: CO/1523/2013 |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 09 July 2013 |
[2013] EWHC 1969 (Admin)
President of the Queen's Bench Division
and
Mr Justice Cranston
Case No: CO/1523/2013
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
Ms Leonie Hirst (instructed by Lawtons Solicitors) for the Claimant
Mr Tim Buley (instructed by Treasury Solicitor) for the Defendant
Hearing date: 12 June 2013
Approved Judgment
This is the judgment of the court.
The issue in this application for judicial review is the extent of the defendant (the Parole Board)'s obligation to make, maintain and make available a record of the proceedings before it.
The factual background
The claimant was convicted of an offence of wounding with intent to inflict grievous bodily harm on 16 March 2007. The victim was the partner of a woman whom he had been seeing. The claimant agreed to meet the victim to sort things out. They met and a fight developed. During the fight injuries were sustained. The claimant was convicted of that offence; a connected charge of common assault on the woman was not pursued. He was sentenced to an indeterminate sentence for public protection (IPP) with a minimum term of 18 months. That minimum term expired in September 2008.
On 19 August 2010 there was a hearing before a panel of the Parole Board to consider his release. The claimant gave evidence. The panel decided that the claimant should be moved to open conditions. The decision of the Parole Board was set out in a letter dated 25 August 2010.
i) Part of the reasoning entailed setting out the circumstances of the offence:
"A fight ensued between you and the victim during the course of which you took a metal object from a female in the crowd, and struck the victim over the head. The victim fell to the ground and you went on to kick him. You were sentenced on the basis that the implement that you used was a machete. However you deny this but admit that the implement was a metal bar. Although the dossier suggests that you told a Probation Officer that [your girlfriend] passed you the metal object, you maintained in evidence that you did not know the identity of the person who handed you the object."
ii) Another part of the letter set out the panel's view on the charge of common assault which was not pursued. It stated that the dossier suggested that he had banged the woman's head against a phone box. It recorded that in his evidence to the panel, he denied that this had happened, although he had admitted pushing her; he had claimed CCTV evidence had proved that he had not assaulted her.
After that hearing the claimant was moved to open conditions. He absconded. When he surrendered, he was returned to closed conditions.
His release was again considered by a panel of the Parole Board on 9 December 2011. On that occasion he also gave evidence in relation to what he accepted had happened when he committed the offence. In its decision letter of 1 February 2012 the panel decided he should be transferred to open conditions.
i) In the reasoning the panel again referred to the facts of the offence of wounding with intent of which he had been convicted. It recorded that the panel was referred to what the trial judge had said and what had been said in August 2010 as recorded in the earlier panel's letter of 25 August 2011. The letter then stated in respect of the evidence given at the hearing in December 2011:
"You now accept it was a bladed weapon that you had taken to the scene."
ii) The letter also referred to the charge of common assault which had not been pursued. It set out what had been recorded in the letter of 25 August 2010 in respect of the hearing earlier in the month, namely that he had pushed her. It continued:
"You told the panel that you now accept that you banged her head during a struggle in a telephone box. The panel is concerned that you repeatedly provided minimising evidence at the previous Parole Board review."
The claimant was content with the decision made in the letter of 1 February 2012 that he be placed in open conditions. He therefore made no challenge to the decision. However, his solicitor who had represented him at the hearing was concerned as to what had been recorded in relation to what was said by the panel to have been his change of account in relation to the offence of wounding with intent and the charge of common assault. She thought it might be used to the claimant's disadvantage at the next hearing.
She therefore wrote to the Parole Board on 1 March 2012 drawing attention to the record of the differing accounts. She made clear that she could not recall, having reviewed her own largely verbatim notes, that what was recorded in the letter of 1 February 2012 as his evidence in December 2011 had in fact been his evidence. She therefore requested a copy of the panel's notes.
The Parole Board secretariat replied on 12 April 2012. They declined to supply the notes. The secretariat stated, having taken legal advice, that:
"The notes are created by panel members in the course of them carrying out duties for the Parole Board. However, panel members take notes in relation to their "judicial" function; the Parole Board has no control over what notes panel members take or how these are recorded.
Panel members' notes of hearings do not form part of the Parole Board's official record of a case and are not filed with the Parole Board's files. The notes remain in the possession of panel members and the Parole Board does not control access to the notes."
The Secretariat stated that the letter from the claimant's solicitor would be placed on the file so that it was available at the next hearing.
Some correspondence followed. On 9 August 2012 the claimant's solicitor wrote to the Parole Board stating that she intended to apply for judicial review of the decision of the Parole Board not to supply the notes.
After some further correspondence permission was sought on 23 January 2013 to review the decision of the Parole Board:
"to fail to have a policy or practice regarding the disclosure of notes of Parole Board hearings recording evidence heard at such hearings and their refusal to disclose such notes."
On 28 March 2013 the Single Judge granted permission; in doing so he observed that he could not understand why the Chairman's note of the disputed issues could not be transcribed and be made available.
When the claimant's solicitor sought the notes, it then emerged that this request could not be complied with as the notes made by the panel had been destroyed in compliance with the guidance issued to them by the Board.
The practice of the Board and its panels
The Parole Board is currently established under s.239 of the Criminal Justice Act 2003; its status was described in R (Brooke) v The Parole Board [2008] EWCA Civ 29; [2008] 1 WLR 1950.
It is sufficient for us to state that when a case is referred to the Board, a panel is established to hear the case. The Ministry of Justice through NOMS (the division of the Ministry that operates the probation and prison services) provides the Board with what is called a dossier which is then given to the panel. The dossier is provided on the understanding that it remains the property of the Ministry. The dossier contains the prisoner's records, including those of his progress through the prison system, the courses taken and views on the likelihood of re-offending. If there is a previous decision of a panel, such a decision letter will be included. That dossier is then used at the hearing. At the conclusion of the hearing, the dossier is returned to the Ministry which keeps it for at least 20 years after release.
The Board itself keeps files in relation to each case referred to it. The policy in relation to such files is set out in the Parole Board's "Freedom of Information Publication Scheme".
i) Files for prisoners serving a determinate sentence in respect of whom any action is taken are kept until one day after the expiry date of the prisoner's sentence and then destroyed.
ii) Files for prisoners serving indeterminate sentences (including IPP) are destroyed 9 months after the end of the review, or if there has been some action taken, 9 months after the completion of the action.
During the hearing notes will be made by the panel. The Board used to have panel administrators who took notes at the hearing, but there is only one such person now employed; he is only available for some single members hearings. The Guidance given by the Parole Board contained in its Oral Hearings Guide (2012) states:
" 4. Order of evidence
It is important to remember that the chair has wide discretion over how the hearing is conducted. Although the following part of this guide can be taken as the norm, proceedings are nevertheless subject to directions the chair, in discussion with co-panellists, may make to the contrary. Unless one of the parties applies for the chair to direct otherwise, all participants...
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