R Secretary of State for Justice v The Parole Board of England and Wales
| Jurisdiction | England & Wales |
| Judge | Lord Justice William Davis,Mr Justice Garnham |
| Judgment Date | 27 May 2022 |
| Neutral Citation | [2022] EWHC 1282 (Admin) |
| Docket Number | Case No: CO/1547/2022 |
| Court | Queen's Bench Division (Administrative Court) |
and
[2022] EWHC 1282 (Admin)
Lord Justice William Davis
and
Mr Justice Garnham
Case No: CO/1547/2022
IN THE HIGH COURT OF JUSTICE
ADMINISTRATIVE COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
Sir James Eadie QC and Jason Pobjoy (instructed by GLD) for the Claimant
Nicholas Chapman (instructed by GLD) for the Respondent
The Interested Party appeared in person by videolink from prison.
Hearing date: 25 May 2022
Approved Judgment
This judgment will be handed down remotely by circulation to the parties' representatives by email and release to The National Archives. The date and time for hand-down is deemed to be 10.30am on 27 May 2022.
Lord Justice William Davis and
These are the written reasons for the decision we announced at the conclusion of the hearing on 25 May 2022.
Introduction
Leslie Johnson is now aged 58. In 1997 he was convicted of rape of a male under the age of 16 and two associated offences of indecent assault. The offences involved two boys. He was sentenced to 8 years' imprisonment. In 2006 he breached the notification requirement imposed at the time of the 1997 conviction. In 2016 he pleaded guilty on the day of his trial to 7 offences of sexual assault of a male child under 13. The offences were committed between 2011 and 2014. There were two victims who were aged between 10 and 12 at the time of the assaults. On 22 July 2016 Mr Johnson was sentenced to an extended determinate sentence. The custodial term was 6 years 4 months. The extended licence period was 4 years.
Mr Johnson became eligible for release on parole on 11 October 2020. The oral hearing of his case was delayed until 8 February 2022. On 14 February 2022 the Parole Board (“the Board”) decided to direct Mr Johnson's release on parole. Because the decision was eligible for reconsideration, the decision was provisional at that stage. The Secretary of State for Justice (“SSJ”) applied for reconsideration of the decision.
The decision was reconsidered by a judicial member of the Board. On 16 March 2022 the application was refused. The SSJ now applies for permission to apply for judicial review of (a) the decision of the Board of 14 February 2022 to release Leslie Johnson and (b) the decision of 16 March 2022 refusing the application for reconsideration.
On 6 May 2022 Mr Justice Swift ordered that the claim for judicial review should be considered at a rolled-up hearing. We shall give permission to apply for judicial review so that we can move immediately to consider the substantive merits of the claim.
The decisions
The panel of the Board which conducted the oral hearing on 8 February 2022 had a dossier consisting of 470 pages of historic material and current risk assessments. We have been provided with that dossier. The panel had reports from two psychologists, Sophie Carter and Lucy Humphrey. Lucy Humphrey gave evidence at the hearing. The risk assessments conducted by those psychologists identified risk factors as follows:
• Trauma resulting from physical and sexual abuse sustained by Mr Johnson as a child at the hands of more than one adult male, this trauma being a key risk factor underpinning other risk factors.
• Sexual offending involving multiple victims and multiple offence types.
• Limited awareness on the part of Mr Johnson of the impact of his actions upon the victims. This included continued denial of the offences of which he was convicted in 1997.
• Problems with coping with stress evidenced by incidents whilst in custody showing that he can “flip” when stressed.
• Denial of any sexual interest in young males despite repeated offences against young male victims.
• Lack of support in the community.
• Problems with supervision evidenced by the commission of the offences between 2012 and 2014 when Mr Johnson was subject to sex offender registration but did not inform the relevant agencies of his contact with children and by the previous conviction for breach of a notification requirement.
The panel agreed with the assessment of the risk factors provided by the psychologists. The panel noted the conclusion of Lucy Humphrey that there had been no reduction in the role of these risk factors in relation to future offending. Her view was that Johnson presented a medium risk of sexual reoffending and a high risk of serious harm. The risk was not imminent but the likelihood of reoffending would increase rapidly if he became destabilised when exposed to stress. She observed that Mr Johnson had committed offences in 2012 to 2014 when subject to sex offender registration. Her conclusion was that the risk he presented was not manageable in the community. She considered that work to address Mr Johnson's trauma was core risk reduction work which needed to be completed whilst he remained in custody.
Mr Johnson's community offender manager, Danielle Crook, also gave evidence. In her opinion his risk of sexual re-offending was high. Although the risk was not imminent, she considered that Mr Johnson could offend between a release in February 2022 and the date of his conditional release on 21 November 2022 at the expiry of the custodial term, notwithstanding the apparently robust controls built in to a risk management plan.
The panel acknowledged the concerns expressed by the witnesses about the work needed to treat Mr Johnson's trauma. However, the panel did not consider that it was necessary that this work should be completed before release. The critical finding of the panel was that any re-offending by Mr Johnson would follow the pattern of his previous sexual offending, namely against children who had been known to him for some time in the context of family or quasi-family relationships. Thus, “there would be a period of grooming before any further offending….therefore…that risk was not imminent”. This was repeated in the panel's conclusions: “The Panel's view was that Mr Johnson presented a high risk of serious harm but that risk was not imminent and was very unlikely to occur in the short time prior to (his release in November 2022)”.
The panel further accepted that Lucy Humphrey and Danielle Crook did not support release. However, the panel considered that the proposed risk management plan in the community was robust and supportive and would be sufficient to manage Mr Johnson's risk of harm in the period up to 21 November 2022. The ultimate decision was described as “finely balanced”. The conclusion was that it was no longer necessary for the protection of the public that Mr Johnson should remain confined. The risk of harm presented by Mr Johnson could be managed in the community with licence conditions directed in particular at preventing him having contact with children.
The SSJ's application for reconsideration of the decision of 14 February 2022 was based on three interconnecting grounds. Each ground referred to the alleged irrationality of the decision. First, he argued that the panel had failed properly to apply the test for release and had failed to consider all of the evidence relating to risk. The submission was that the panel, in considering only the immediacy of further offending, applied the wrong test. Second, the SSJ said that the panel failed fully to explain why they did not follow the recommendations of Lucy Humphrey and Danielle Crook. Whilst the panel was entitled to reach a decision contrary to the recommendation of professionals, it was required to give clear reasons for doing so. Third, the reasoning of the panel was, in part, contrary to their own findings.
The judicial member of the Board who considered the SSJ's application dealt with each ground in turn. In relation to the first ground, the judicial member said this:
“ …in cases of extended sentences, the Parole Board's considerations of risk are circumscribed. Where an oral hearing panel are requested to consider release during the period of parole eligibility (between PED and CRD), the Panel are empowered only to consider risk as it applies between any potential release by the Panel and the CRD. The panel in this case correctly identified this requirement and the decision was based upon the consideration of risk during this prescribed period”
The CRD (conditional release date) in this case was 21 November 2022. The judicial member concluded that the panel considered appropriately the likelihood of offending in the period up to that date. He said that the proposition that the panel should have considered public protection beyond that date was wrong. He stated:
The panel are not empowered or under a duty to consider public protection beyond the CRD. Legislation imposes a licence period by statute which addresses public protection beyond the CRD date. For that reason, the panel correctly and appropriately were only empowered to consider risk as between any release date and the CRD.
On the particular facts of Mr Johnson's case the judicial member said that the panel were entitled to consider that there would be a high likelihood of a period of grooming prior to any sexual offence being committed.
As to the second ground the judicial member identified four factors to which the panel referred and which he determined were a satisfactory explanation for the panel's decision not to follow the recommendation of the professionals. These can be summarised thus. The risk of serious harm would be unlikely to occur within the period leading up to 21 November 2022. Were Mr Johnson to become destabilised in that period, there would be warning signs. His recent conduct and behaviour indicated that he would engage properly with those supervising him in the community.
As to the final ground the judicial member said that the submissions of the...
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