R Sam Dexter v Secretary of State for Justice

JurisdictionEngland & Wales
CourtQueen's Bench Division (Administrative Court)
JudgeKate Grange
Judgment Date20 November 2020
Neutral Citation[2020] EWHC 3184 (Admin)
Docket NumberCase No: CO/1705/2020
Date20 November 2020

[2020] EWHC 3184 (Admin)

IN THE HIGH COURT OF JUSTICE

QUEEN'S BENCH DIVISION

ADMINISTRATIVE COURT

Royal Courts of Justice

Strand, London, WC2A 2LL

Before:

Kate Grange QC (sitting as a Deputy Judge of the High Court)

Case No: CO/1705/2020

Between:
The Queen on the application of Sam Dexter
Claimant
and
Secretary of State for Justice
Defendant

and

The Parole Board of England and Wales
Interested Party

Philip Rule (instructed by Duncan Lewis Solicitors) for the Claimant

Julian Blake (instructed by the Government Legal Department) for the Defendant

Hearing date: 21 October 2020

FINAL JUDGMENT

Kate Grange QC (sitting as a Deputy Judge of the High Court):

INTRODUCTION

1

The Claimant, Mr Dexter, was convicted of serious violent and sexual offences and given an indeterminate sentence for public protection (“an IPP”) with a minimum custodial term of 6 years, less time on remand. Having served the term specified, his case was reviewed by the Parole Board. After he had spent a period of time in open prison conditions pursuant to their recommendation, the Parole Board concluded that detention was no longer necessary for the protection of the public and directed him to be released, subject to additional licence conditions, including a period of residence at Norfolk Park Approved Premises (“AP”) in Sheffield. The Claimant had to wait just over 2 1/2 months (81 days) for a bed at Norfolk Park AP before he was released. His claim relates to that period of detention which he challenges as unlawful detention.

2

His claim is advanced under three main headings, which reflect the pleaded grounds for judicial review, as follows:

i) Ground 1: failure to effect the Claimant's release within a reasonable time. The delay is said to be in breach of public law duties and/or in breach of section 28(5) of the Crime (Sentences) Act 1997.

ii) Ground 2: “negligent detention”.

iii) Ground 3: Unlawful detention contrary to Article 5 ECHR.

PROCEDURAL HISTORY

3

On 11 May 2020 the Claimant filed an application for judicial review accompanied by an application for expedition as he remained in prison at that time. On 12 May 2020 Johnson J ordered that the application for permission for judicial review and (if granted) the substantive judicial review should be heard at a rolled up hearing on 22 May 2020. The Claimant was released to Norfolk Park AP on 21 May 2020 and the hearing was subsequently adjourned and re-listed by an order of Knowles J dated 16 June 2020. An application by the Defendant for the matter to proceed to a written permission decision was refused by Goose J on 13 July 2020. The rolled up hearing came before me on 21 October 2020.

4

Mr Dexter has provided a witness statement dated 19 May 2020 and he also relies on a statement from his solicitor, Ms Sangeetha Vairavamoorthy, dated 21 August 2020. The Secretary of State relies on two witness statements, the first from Mr Ian York, Head of the Public Protection Casework Section in the Public Protection Group at Her Majesty's Prison and Probation Service, dated 19 May 2020 and the second from Ms Joanne Oliver, Head of Operations for Residential and Accommodation Support Services at Her Majesty's Prison and Probation Service (HMPPS), dated 12 October 2020.

RELEVANT FACTS

5

Mr Dexter was born on 19 November 1992 and is now aged 28. In October 2012 when aged 19 he was sentenced to an IPP for offences of burglary with intent, grievous bodily harm (x 2) and indecent assault. Mr Dexter had entered the home of an elderly couple and after punching the male householder several times, he sexually assaulted the female resident and seriously injured her. Both victims required treatment in hospital and suffered lasting trauma. The female victim sustained a broken hip. The tariff or minimum term was set at 6 years, less time served on remand. That period expired on 12 April 2018. On 21 August 2018 the panel of the Parole Board recommended that he should be moved to open conditions and a review period of 15 months was set to allow for that transfer and to permit further assessment of the risks he posed on release. He moved to open conditions on 22 November 2018. As part of the next review, the Parole Board convened an oral hearing which took place on 23 January 2020.

6

On 23 June 2019, in advance of the Parole Board hearing, his Offender Manager, Ms Judith Spence, provided an assessment report and current risk management plan. At that time Mr Dexter had been accepted by Norfolk Park AP for “ROTL” (release on temporary licence) purposes, but the Offender Manager had not been advised whether a bed space would be available for him if released. It was noted at that time that, should the Parole Board decide to release Mr Dexter, the probation service would require at least 6 weeks in order to secure accommodation for him.

7

On 17 January 2020 the Offender Manager provided an addendum report for the Parole Board. In that report she recommended that Mr Dexter was suitable for release from custody, provided that the risk management plan was implemented which would ensure his risk could be safely managed in the community. That risk management plan provided for Mr Dexter to be accommodated for a period of time in Approved Premises on release, following which he would go to live with his mother in Barnsley. The Offender Manager indicated that she was “ awaiting the outcome of the referral” which was a referral to Norfolk Park AP. She reported that Mr Dexter had been on day releases and was now on his fourth ROTL in Norfolk Park AP for periods of three or more days. She explained that: “ There have been no issues at the hostel, he has engaged with staff and complied with the rules. He has also had contact with probation on all his release to the hostel.” She indicated that, should a bed not become available at Norfolk Park AP, Mr Dexter had provided an alternative address in Sheffield which was still to be assessed.

8

In the witness statement of Ian York he explains that this alternative accommodation was ultimately considered by the Probation Service not to be appropriate for Mr Dexter's initial release, albeit it would be suitable once Mr Dexter had spent a period of time at an AP.

9

At the Parole Board hearing on 23 January 2020 the Panel considered the dossier consisting of 245 pages which included the 17 January 2020 update from the Offender Manager. The Panel also heard oral evidence from the Offender Manager and from Mr Dexter's Offender Supervisor, Ms Sarah Edmondson. By its written decision dated 9 February 2020, 17 days later, the Parole Board directed release subject to additional licence conditions. In its written decision the Panel Chair apologised for the delay in issuing the Parole Board's decision letter; the Chair indicated that “ some personal matters” had led to an unexpected delay. The Panel went on in its decision to evaluate the risk management plan put forward by the Offender Manager which included the immediate management and reduction of risks through confirmed employment and residence initially at Norfolk Park AP. It was noted that the regime at Norfolk Park AP would include a curfew, a key worker and structured activities and supervision. The Parole Board's conclusion was as follows:

“The Panel concluded that it is no longer necessary for the protection of the public that you remain confined in custody. The panel assessed that your risk of causing serious harm in the community could now be managed and therefore directs your release. As an indeterminate sentence prisoner, you will appreciate that the date for this will be determined by the Secretary of State. You will also appreciate that the panel's decision remains a provisional one, subject to the ‘reconsideration mechanism’ (which is explained at the foot of this letter)…” (emphasis in original)

10

The ‘reconsideration mechanism’ referred to at the end of the Panel's conclusions was a reference to the fact that the Parole Board decision was “provisional” for 21 days from the date it was issued to the parties. That was also made expressly clear at the very end of the decision letter where it was explained that, within that time, relevant parties might apply for the decision to be reconsidered on the basis that it was either ‘irrational’ or ‘procedurally unfair’ or both. If no such applications were received then the decision would become final after 21 days. These were new procedures introduced in the Parole Board Rules 2019 (which came into force on 22 July 2019) following the decision of the Divisional Court in R (on the application of DSD and NBV) v (1) Parole Board of England and Wales and (2) Secretary of State for Justice [2019] QB 285 which concerned the high-profile challenge to Parole Board procedures in the John Worboys case.

11

The Panel's main conclusion was reiterated in the Introduction to the decision letter which stated:

“The Panel has decided to direct your release. Subject to there being no adverse developments, you will be released, at a date determined by the SofS, once all necessary arrangements have been made…” (emphasis in original)

The panel considered that a number of additional licence conditions were “ necessary and proportionate” to manage Mr Dexter's risks in the community. The first of those was to reside at Norfolk Park AP as directed. The panel made clear that Mr Dexter must not leave to reside elsewhere, even for one night, without obtaining the prior approval of his supervisor and thereafter must reside as directed by his supervising officer.

12

As explained in Mr York's witness statement, a placement at Norfolk Park AP was secured on 23 January 2020 (i.e. the same day that the oral parole board hearing took place) to begin on 3 February 2020. That date was fixed in anticipation of a Parole Board direction. However the Parole Board made clear that it would not issue its decision by that date. As a...

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