R Rowe v Parole Board for England and Wales
| Jurisdiction | England & Wales |
| Judge | Mr Justice King,MR Justice King |
| Judgment Date | 25 June 2013 |
| Neutral Citation | [2013] EWHC 3838 (Admin) |
| Docket Number | CO/13919/2012 |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 25 June 2013 |
[2013] EWHC 3838 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT SITTING AT LEEDS
Leeds Combined Court
1 Oxford Row
Leeds, West Yorkshire, LS1 3BG
Mr Justice King
CO/13919/2012
Miss Krause appeared on behalf of the Claimant
Mr Manknell (instructed by Treasury Solicitor) appeared on behalf of the Defendant
This claimant is some 46 years of age. In September 2005 he pleaded guilty in the Crown Court to one offence of making threats to kill his partner and two offences of section 47 assault, again against his partner. On that occasion he was sentenced on the threat to kill to a indeterminate sentence for public protection ("IPP") pursuant to section 225 of the Criminal Justice Act 2003. The minimum term specified to be served for the purposes of retribution and deterrence, was a short one, some 8 months which expired in May 2006.
As regards the other two offences he received concurrent extended sentences of 12 months.
The tariff having expired, the claimant being an indeterminate prisoner, his continuing detention is based in law solely on the basis of continuing future risk. It is common ground that the claimant in this position is entitled to regular and speedy reviews of the lawfulness of his continued detention.
The offences of assault, at least the second one, was committed against the partner while he was on bail subject to a condition that he was not to have anything to do with his victim. The circumstances of the assaults involved the claimant attempting to strangle his victim, the second in a more serious fashion than the first, with the intervention of a third party being responsible bringing it to an end. The sentencing remarks of the sentencing judge included observations as to the serious nature the two offences being within a couple of months of each other, and of the use of protracted and serious violence against his ex-partner.
These proceedings are a challenge to the decision of the Parole Board by a letter dated 25th September 2012, following a hearing on the 20th September 2012, refusing to recommend to the Secretary of State that the claimant be transferred to Category D open conditions, he currently being a Category C prisoner at HM Prison Stocken.
There in fact had been two matters before the Parole Board. First, the Parole Board were considering whether to direct the claimant's release on licence under section 28(5) of the Crime (Sentences) Act 1997 pursuant to a referral by the Secretary of State under subsection (6)(a). Referrals under the 1997 Act are solely for the purpose of reviewing the lawfulness of the lifer's detention, lifer comprehending someone under an IPP, on/or following tariff expiry, and any direction made is binding upon the Secretary of State.
It is common ground that as regards that issue, whether or not there should be a release direction, the Panel were solely concerned with whether the detention of the claimant was no longer necessary for the protection of the public. This is often described as the "threshold test". However, the Board were also considering in the alternative whether to recommend the transfer of the claimant to open conditions. This was pursuant to a referral by the Secretary of State under section 239(2) of the Criminal Justice Act 2003, under which it was the duty of the Board to advise the Secretary of State, with respect to any matter referred to it by him which is connected with the early release or recall of prisoners. Referrals under the 2003 Act are solely for the purpose of obtaining advice from the Board and are limited in practice to advice as to the lifer's suitability for open conditions. Any recommendation for transfer is not binding on the Secretary of State.
Again, it is common ground that the approach of the Parole Board and the test which they have to apply, in deciding whether to advise on the suitability for transfer to open conditions, is different from the threshold test. It is wider than the threshold test and encompasses more factors.
In the Decision Letter the role of the Panel in this context is put in this way:
"Alternatively the Panel has been asked to advise the Secretary of State as to your suitability for transfer to open conditions. In this context the Panel must be satisfied that your level of risk is compatible with safe management in open conditions when not only will you be subject to a minimal security regime, you are likely also to be released on temporary licence. In assessing your risk to the public and your suitably for a move to a category D establishment the Panel will have regard to the Directions of the Secretary of State to the Parole Board relating to the transfer to open conditions of life sentence prisoners."
Those Directions were made by the Secretary of State pursuant to his power under subsection (6) of section 32 of the Criminal Justice Act 1991. The Directions initially issued in 2004 were updated for present purposes to those issued in March 2011.
The introduction says as follows:
"(i) A period in open conditions is essential for most life sentence prisoners (lifers). It allows the testing of areas of concern that more closely resemble those that the prisoner will encounter in the community, often having spent many years in closed prisons. Lifers have the opportunity to take resettlement leave from open prisoners and more generally open conditions require them to take more responsibility for their actions.
(ii) The main facilities interventions and resources for addressing and reducing core risk factors exist principally in the closed lifer estate. In this context the focus in open conditions is to test the efficacy of such core risk reduction work and to address where possible any residual aspects of risk.
(iii) A move to open conditions should be based on a balanced assessment of risk and benefits. However, the Parole Board's emphasis should be on the risk reduction aspect and in particular on the need for lifer to have made significant progress in changing his or her attitudes and tackling behaviour problems in closed conditions, without which a move to open conditions will not generally be considered."
The directions under paragraph 4 are that before recommending the transfer of the lifer to open conditions the Parole Board must consider (a) all information before it, including any written or oral evidence obtained by the Board and (b) each case on its individual merits without discrimination on any grounds.
In paragraph 5 the Parole Board is enjoined to take:
"… the following main factors into account when valuing the risk of transfer against the benefits (a) the extent to which the lifer has made sufficient progress during sentence in addressing and reducing risk to a level consistent with protecting the public from harm, in circumstances where the lifer in open conditions would be in the community unsupervised under a licensed temporary release.
(b) the extent to which the lifer is likely to comply with conditions of any such form of temporary release.
(c) the extent to which the lifer is considered to trustworthy enough not abscond.
(d) the extent to which the lifer is likely to derive benefit from being able to address areas of concern and to be tested in a more realistic environment, such as to suggest that a transfer in open conditions is worthwhile at that stage."
There are further directions given in paragraph 6 as to information to be taken into account when assessing the risk in such matters.
I accept the rationale of the judgment of His Honour Judge Stephen Davies sitting as a judge of the High Court in D'Cunha [2011] EWHC 128 (Admin) at paragraph 59 in which he held that these Directions are mandatory which must be followed by the Parole Board in advising on a transfer to open conditions. This is a decision which I follow. Further, I accept that the characterisation of the then applicable Directions given by Smith J (as she then was) in paragraph 38 of her judgment in Gordon [2000] EWHC 414 (Admin) is a characterisation as applicable today as it was before her and the directions she was looking at. I agree with her that although it is not incumbent upon the Board to set out its thought processes in detail, or to mention every factor that they have taken into account, "the balancing exercise they are required to carry out is so fundamental to the decision-making process that they should make it plain that this has been done and to state broadly which factors they have taken into account."
The challenge to this decision falls under three heads. One and two are linked. First it is said by Miss Krause on behalf of the claimant that the decision reached by the Board was wholly against the weight of the evidence. It is said that the Parole Board put far too much weight upon the opinions of a trainee psychologist Miss Fleming, whose report and oral evidence was before the Board, in contrast to the evidence of the claimant's offender supervisor, offender manager and that of the consultant psychologist Dr Pratt, instructed by the claimant's solicitors. Miss Fleming had carried out some one-to-one work with the claimant in the summer of 2012. She had seen him on some six occasions over a probably 2 month period beginning in June 2012. She had also seen him on five occasions between April and June to discuss the prospect of his one-to-one work. I will return in due course to what she said in her "end of contact report" dated 7th August 2012 and what is recorded by the Panel in their...
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