R (Sim) v Parole Board
| Jurisdiction | England & Wales |
| Judge | Mr. Justice Elias |
| Judgment Date | 11 February 2003 |
| Neutral Citation | [2003] EWHC 152 (Admin) |
| Docket Number | Case No: CO/3307/2002 |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 11 February 2003 |
[2003] EWHC 152 (Admin)
The Honourable Mr. Justice Elias
Case No: CO/3307/2002
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINSTRATIVE COURT
Royal Courts of Justice
Strand,
London, WC2A 2LL
Mr. Edward Fitzgerald Q.C. & Mr. Kris Gledhill (instructed by Bhatt Murphy for the Claimant)
Miss Karen Steyn (instructed by the Treasury Solicitor for the Parole Board)
Mr. Nigel Giffin (instructed by The Treasury Solicitor)
The claimant was sentenced at Snaresbrook Crown Court on 17 February 2000 to what is termed an "extended sentence" of seven and a half years imprisonment. This comprised a custodial term of 30 months and an extension period of 5 years pursuant to Section 58 of the Crime and Disorder Act 1998 (now Section 85 of the Powers of Criminal Courts (Sentences) Act 2000). The claimant had been found guilty of two offences of indecent assault and one of indecency with a child under 14. The victim was the 7-year-old daughter of a friend. It was the claimant's first conviction for a sexual offence, and he has at all times continued to protest his innocence. He has in the past committed offences of violence. The judge when sentencing him did not expressly state the reasons for imposing the extended sentence, although he did refer to the claimant's "bad record" which included offences of violence.
The claimant was released from prison on 11 January 2001. This was the half way point in the custodial term of his sentence, after taking account of time spent in custody prior to trial. The terms of the licence required him to comply with the conditions imposed therein. They included the duty to be of good behaviour and not jeopardise the objectives of supervision (namely to protect the public, prevent re-offending and to secure reintegration into the community); to reside at the Basildon Bail Hostel and not to live elsewhere without the prior approval of the supervising officer; not to return to the hostel premises under the influence of alcohol; and generally to act in accordance with any reasonable instructions of his supervising officer. The licence was due to expire on 27 June 2006. On 20 July 2001 the claimant was recalled by the Home Secretary and returned to prison. On 1 August 2001 the Parole Board made a recommendation confirming that recall. The claimant exercised his right to make representations with respect to his recall and that resulted in a reference of his case to the Parole Board. Following an adjournment at the request of the claimant, that hearing eventually took place on 15 April 200The Board gave its decision on 17 April 2002 and that was to refuse to direct the claimant's release.
The claimant now seeks judicial review to quash that decision. He also seeks other related relief as I indicate below.
The background to his recall
On 17 July 2001 the claimant's supervising officer requested that he be recalled. Three factors were identified as the grounds for justifying this step. First, that the claimant did not return to the Bail Hostel on 14 July 2001 but only returned the next morning. Second, that on the 13 July 2001 the claimant had been arrested by the police with regard to an alleged indecent exposure to teenage girls; and third, that he had already received written warnings on 14 February and 26 June 2001 with regard to the fact that he had returned to the Hostel under the influence of alcohol. The supervising officer submitted that these factors demonstrated a breach of the conditions of his licence, and in particular the obligations "to be of good behaviour, not to commit any offence and not take any action which would jeopardise the objectives of your supervision".
On 19 July 2001 the Assistant Chief Probation Officer asked that the recall be carried out speedily. It appears that the police had indicated that he was at risk from other hostel residents and also that he was a "high risk sex offender and police have some intelligence about his activities but not enough to prosecute him." He was recalled on 20 July and the reasons given were essentially those relied upon by his supervising officer when making the request.
The hearing before the Parole Board
The Board had a dossier of material before it, including materials relating to his conduct in prison, his lack of offending behaviour, the allegations of returning to the hostel after consuming alcohol and allegations of aggressive behaviour at the hostel. By the date of the hearing it had become clear that the claimant was no longer suspected of the indecent exposure which had been an important factor triggering his recall; and furthermore the Parole Board accepted in its conclusions that it did not hold it against him that he failed to return to the hostel on the night of 14 July. He had given an explanation, which the Board found acceptable. It was recognised that the absence from the hostel may well have been caused as a result of the allegation of indecent exposure, which had understandably distressed him. Nonetheless the Board was satisfied that it was necessary in the interests of the public that he should continue to be confined. They summarised their conclusions as follows:
"There was not any evidence of any positive change of attitude towards your offences, there was a considerable body of evidence which the panel accepted that in an escalating pattern of seriousness, during your time at the hostel, you frequently returned to the hostel under the influence of alcohol in breach of condition (ix) of your licence, were aggressive towards other inmates and members of staff, showed no respect for the rules of the hostel and eventually were dismissed from your employment because of drunkenness. In short, the panel was quite satisfied you took many actions which would have jeopardised the objectives of your supervision – namely to protect the public and serve your successful reintegration into the community.
Further having heard the evidence from you about your state of mind at the time, the panel was reinforced in its view that at the time you could not be managed on licence and you have failed to appreciate the need for any offending behaviour work since, hence the panel was satisfied you continue to pose that risk.
The panel considered that against a background where you have failed to undertake work to address your offending, have repeatedly breached your licence conditions and, in particular, have shown no insight into your drinking habits and the effect that these have on your behaviour, the risk of your re-offending, were you immediately released, is high. The panel is accordingly of the unanimous view that your immediate release would present an unacceptable risk to the public of further offences being committed and your representations against recall are rejected."
The relevant legislation.
In cases where a defendant is sentenced for a violent or sexual offence, the courts have power to impose sentences which are more onerous than would be passed if the court were simply focussing upon the sentence which is commensurate with the seriousness of the offence. They can impose sentences which reflect not only the seriousness of the offence but also the risk of future offending. In very serious offences discretionary life imprisonment can be imposed. In other circumstances section 80 of the Powers of Criminal Courts (Sentencing) Act 2000 ("PCCA") empowers the court to pass a longer than usual custodial sentence in certain circumstances which are defined in subsection 2 as follows:
"……the custodial term shall be-
(a) for such term (not exceeding the permitted maximum) as in the opinion of the court is commensurate with the seriousness of the offence, or the combination of the offence and one or more offences associated with it; or
(b)where the offence is a violent or sexual offence, for such longer term (not exceeding that maximum) as in the opinion of the court is necessary to protect the public from serious harm from the offender."
An alternative option, as in this case, is for the court to pass what is termed an "extended sentence". The circumstances where this can be done, and the effect of such a sentence, are set out in section 85 of the PCCA (formerly section 58(1) of the Crime and Disorder Act 1998). The relevant provisions are as follows:
"(1) This section applies where the court-
(a) proposes to impose a custodial sentence for a sexual or violent offence committed on or after 30 September 1998; and
(b) considers that the period (if any) for which the offender would, apart from this section, be subject to a licence would not be adequate for the purpose of preventing the commission by him of further offences and securing his rehabilitation.
(2) Subject to subsections (3) to (5) below, the court may pass on the offender an extended sentence, that is to say, a custodial sentence the term of which is equal to the aggregate of-
(a) the term of the custodial sentence that the court would have imposed if it had passed a custodial sentence other wise than under this section ("the custodial term"); and
(b) a further period ("the extension period") for which the offender is to be subject to a licence and which is of such length as the court considers necessary for the purpose mentioned in subsection (1) above
(3) Where the offence is a violent offence, the court shall not pass an extended sentence the custodial term of which is less than four years.
(4) The extension period shall not exceed-
(a) ten years in the case of a sexual offence; and
(b) five years in the case of a violent offence.
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