R (Robson) v Parole Board and Others [Administrative Court]
| Jurisdiction | England & Wales |
| Judgment Date | 28 January 2008 |
| Date | 28 January 2008 |
| Court | Queen's Bench Division (Administrative Court) |
Administrative Court, CO/1803/2007
Cranston J
S Field (instructed by McLarty &Co) for R; B Watson (instructed by the Treasury Solicitor) for the Defendant
Whether there had been a breach of Art 5 ECHR in relation to arrangements made for a life sentence prisoner whose status had changed from a mandatory lifer whose tariff had not expired to a discretionary lifer whose tariff had expired.
R was convicted of murder and wounding with intent; his tariff, fixed at 14 years, was due to expire in mid-2009. He undertook various offending-behaviour courses, not all successfully; in 2005, it was suggested that he undertake 2 specific courses available in a limited number of prisons (PASRO and CALM). In August 2006, the Parole Board indicated its view that R had to undertake work relating to various issues before his transfer to open conditions could be recommended.
In November 2006, the Court of Appeal quashed R's murder conviction and substituted a verdict of guilty of manslaughter on the basis of diminished responsibility; it also held that a discretionary life sentence was proper, and set the tariff at 8 years less time spent on remand before the trial, which meant that it had expired in June 2003. The Parole Board then further considered his case in July 2007: it did not direct release or recommend transfer to open conditions, and endorsed the suggestion that he undertake the PASRO and CALM courses. In September 2007, R was transferred to HMP Kingston, which offered both courses; owing to concerns about his mental health, he was transferred to another prison for a month and missed the start date for one of the courses. On his return to HMP Kingston, he was assessed for and offered a place on a PASRO course commencing in April 2008 and a CALM course commencing in October 2008; it was decided that he should not do both courses at the same time in light of their intensive nature and his failure to complete all previous courses. A further Parole Board hearing was set for January 2009.
In judicial review proceedings, he argued that the failure to provide him with expedited access to the relevant courses, without which he could not demonstrate a reduced risk, meant that there had been a failure to provide him with a meaningful parole review, as required by Art 5(4) ECHR, and that this meant that his detention breached Art 5(1) ECHR.
1. This judicial review raises issues as to the treatment of the claimant who, although for some 10 years was a mandatory life prisoner, subsequently became a discretionary life prisoner as a result of his successful appeal to the Court of Appeal, Criminal Division. In particular, the issues raised are whether the system for reviewing his detention operated in accordance with the requirements of Art 5 of the European Convention on Human Rights, and whether the decisions made or not made by those operating the review machinery have been compliant with public law principles.
Facts
2. The claimant was convicted of murder and wounding with intent following a trial at the Crown Court in Newcastle in 1996. The offences related to events in the previous year when he had killed his friend by stabbing him in the stomach with a knife, and then wounded his own sister by slashing her in the face with a knife. He was sentenced to life imprisonment for murder, with a concurrent sentence of 5 years for wounding with intent. The specified period for the purposes of the life sentence was originally set at 11 years by the trial judge, but that was increased to 14 years by the Lord Chief Justice. Accordingly, his tariff expiry date was the middle of 2009.
3. In custody the claimant spent his time at a number of different prisons. From the report of Mr Steven Doggett, a probation officer, which was before the Court of Appeal in 2006, we know that he undertook various programmes whilst in custody. At HMP Durham he completed 2 low intensity programmes focusing on anger management and drink and drug abuse. At HMP Gartree he completed the Reasoning and Rehabilitation Programme. At HMP Swaleside he failed to complete the intensive long-term Cognitive Self-Change Programme. He himself described this failure as due to difficulties in settling at that prison. He began to suffer from depression, and there was a self-harm attempt. Subsequently, he was transferred to HMP Acklington. There he attempted, albeit unsuccessfully, the Healthy Relationships Programme, a failure possibly connected, in Mr Doggett's view, with the breakdown of his marriage and his own deteriorating mental health. However, he did complete another course, Enhanced Thinking Skills.
4. In 2005 it seems that the claimant was first recommended for the PASRO and CALM courses. PASRO stands for Prisons Addressing Substance Related Offending, and CALM stands for Controlling Anger and Learning to Manage it. PASRO is currently available in 44 prison establishments, that number having increased in recent years. It is a cognitive behavioural programme and addresses how temperament and socioeconomic situations contribute to the development of problematic levels of substance use and crime in individuals over their lives. CALM aims to help offenders reduce the intensity, frequency and duration of negative emotions associated with their offending. CALM is available at 23 prison establishments. The programme lasts for 24 sessions of 2-2 hours and includes up to 3 individual sessions.
5. Let me return to the chronology. The next significant event for our purposes was the claimant's Parole Board review on 18 August 2006. At this point, of course, he was still serving a mandatory life
sentence for murder. For the sake of completeness, the statutory background of the Parole Board Review is set out in the Crime (Sentences) Act 1997. Section 28(7) of that Act and allows prisoners sentenced to life imprisonment to require the Secretary of State to refer their cases to the Parole Board once the minimum term has been served and every 2 years thereafter. Under s28(6)(a) of that Act, the Parole Board can only order release of a person if the case has been referred by the Secretary of State.
6. In its report of August 2006, which was the prisoner's first review, the Parole Board said that the claimant's time in custody had been eventful. It noted that while he had done several courses to address identified risk factors of alcohol and drug abuse, violence, use of weapons and anger, he had also continued to use drugs, as evidenced by several adjudications for possessing drugs, and he had failed several drugs tests. Concern had also been expressed about his behaviour, which had been so bizarre on occasion as to raise doubts about his mental health. The board noted that there was no support amongst report writers for a move to open conditions. It noted that the issue of his mental health had been raised again, as was the need for further work to address identified risk factors, particularly anger and drug abuse:
"The Panel, after carefully considering all the evidence, is satisfied that the risk is still too high to warrant a transfer to open conditions and therefore does not recommend such a move."
I interpolate to make the obvious comment that the threshold test for open conditions is less demanding than for release into the community. I continue the quote:
"The work which has been identified as still outstanding will need to be completed and concerns about his mental health resolved before a transfer to open conditions can be safely or appropriately contemplated."
7. Three months later in November 2006 the Court of Appeal gave judgment in a decision to which I...
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