R (Smith) v Parole Board (No 2)
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE KENNEDY,LORD JUSTICE BROOKE,MR JUSTICE HOLMAN |
| Judgment Date | 31 July 2003 |
| Neutral Citation | [2003] EWCA Civ 1269 |
| Date | 31 July 2003 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | C3/2003/1419 |
[2003] EWCA Civ 1269
IN THE SUPREME COURT OF JUDICATURE
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT
ADMINISTRATIVE COURT LIST
(MR JUSTICE GOLDRING, MR JUSTICE SILBER)
Royal Courts of Justice
Strand
London, WC2
Lord Justice Kennedy
Lord Justice Brooke
Mr Justice Holman
C3/2003/1419
C3/2003/1420
MR ANTHONY SCRIVENER QC and MISS S WATSON (instructed by Rooney & Co of Birkenhead) appeared on behalf of the Applicant
MR DAVID PANNICK QC and MR P PATEL (instructed by Treasury Solicitor) appeared on behalf of the Respondent
The issue in this case is whether the proceedings before the Parole Board in relation to the revocation of the claimant's licence pursuant to section 39 of the Criminal Justice Act 1991 were fair. The claimant submits that for the proceedings to be fair an oral hearing was necessary.
Background.
On 8th May 1998 the claimant, born 30th July 1969, was convicted of rape and of making threats to kill. He had a number of previous convictions for violent offences. He was sentenced to 8 years imprisonment, which was reduced on appeal to 6 1/2 years, and he was made the subject of an extended licence, pursuant to section 44 of the 1991 Act. The effect of that was to extend the licence from the point at which it would normally have expired (after 3/4 of the sentence) to the end of the sentence.
On 23rd October 2000 the Parole Board considered his application and found he was not suitable for early release on licence. The letter advising the claimant of that decision referred to the index offences, his record and his failure to take advantage of some of the opportunities offered to him in prison. It contained this passage —
"While in prison Mr Smith began using Class A controlled drugs and continued this misuse when bailed. He failed a Mandatory Drugs Test in June 2000, incurring 21 ADAs, notwithstanding his contact with a Drugs Counsellor from December 1999."
The letter went on to say that in all the circumstances "the Board was not satisfied that the substantial risk indicated by the index offence had been reduced sufficiently for parole purposes".
Taking into account the period spent in custody prior to conviction, the appellant was released on licence after serving 2/3 of his sentence on 7th November 2001. As Mr Scrivener QC, for the claimant, pointed out, that was in accordance with section 33(2) of the 1991 Act which provides that —
"As soon as a long-term prisoner has served two-thirds of his sentence, it shall be the duty of the Secretary of State to release him on licence."
As a condition of his licence he was required to reside at Bradshaw House Probation Hostel, Bury. There were various other conditions, including a condition that he should not commit further offences, and that he should not act in such a way as to jeopardise the objectives of supervision.
On 22nd November 2001, because of suspicions about drug use at the hostel, the claimant and others were tested. He was found to be positive for cocaine, benzodiazepine and methadone. He admitted the use of cocaine, but denied using the other drugs and on 23rd November 2001 he was given a warning letter. In a subsequent letter he was told that testing arrangements were being organised to monitor the situation.
On 10th December 2001 the claimant was transferred to New Beswick House Hostel, Manchester, and on 15th January 2002 he tested positive for cocaine at Manchester Drug Centre. On 18th January 2002 he tested positive for cocaine and opiates at New Beswick House.
Steps to revocation
On 25th January 2002 the claimant's supervising probation officer David Carling recommended revocation of his licence on the basis that -
"Because of what we know about Mr Smith's drug use he presents an unacceptable level of risk in the community."
That recommendation was supported by the District Manager of the Probation service, David Brierly, on the basis that there were "serious concerns about risk". In his Licence Revocation Request Report Mr Carling stated that -
"Throughout his sentence Mr Smith has been assessed as presenting a high risk of harm."
He referred to a meeting held shortly before the claimant's release to discuss his release plan and to co-ordinate a strategy that would manage the risk issue. It included senior probation staff and Dr Carl Wilson, a consultant forensic psychiatrist. The meeting noted that substance abuse would be a serious factor in raising the levels of risk.
Mr Carling's report went on to deal with the history since release, including in particular the results of drug testing, and it acknowledged that "in every other way Mr Smith has complied with his licence conditions, including keeping appointments with Dr Wilson". But Dr Wilson drew attention to the effects of the claimant's drug abuse. He mentioned instability of mood with periods of depression and that the claimant had admitted to -
"regular use of crack cocaine and that he suffered from lethargy and depression when he was withdrawing from these substances."
Dr Wilson raised serious concerns as to that. Mr Carling said that, to his knowledge, nobody had actually seen the claimant when he had recently used crack cocaine, but, he said -
"We can only speculate what the effect of such a powerful stimulant could be on a man who is already volatile, impressionable and potentially dangerous. In addition there are serious concerns about the influence of other drug users and criminals with whom he is inevitably associating to get supplies and maintain his habit."
The case was submitted to the Parole Board, for it to decide whether to make a recommendation pursuant to section 39(1) of the 1991 Act. That section provides that if recommended to do so by the Parole Board the Secretary of State may revoke the licence of a prisoner who has been released on licence and recall him to prison. On 4th February 2002 the Parole Board recommended revocation of the claimant's licence, and on 6th February 2002 the Secretary of State acted in accordance with that recommendation. The claimant was recalled to prison, and received this explanation -
"It has been reported that you have failed to be of good behaviour, not to commit any offence and not to take any action which would jeopardise the objectives of your supervision, namely to protect the public, prevent you from re-offending and secure your successful re-integration into the community; in that you have tested positive on two occasions for drugs.
In view of the offences for which you were originally sentenced and your behaviour described above, the Home Secretary is no longer satisfied that it is right for you to remain on licence."
Section 39(3) provides that a person recalled to prison under section 39(1) -
"(a) May make representations in writing with respect to his recall; and
(b) on his return to prison, shall be informed of the reasons for his recall and of his right to make representations."
The claimant, by his solicitors, made written representations to the Parole Board on 20th March 2002. He admitted the use of crack cocaine, but denied using benzodiazopine or methadone. He also admitted a history of class A drug use, but contended that his drug use on licence was attributable to the environment in which he had been placed by the Probation Service. He said he had been drug free whilst in prison, and did not pose an unacceptable risk. His solicitors did not ask for an oral hearing, or challenge anything in Mr Carling's report.
Where a prisoner has been recalled under section 39(1) and makes representations under section 39(3), the Secretary of State is required by section 39(4) to refer his case to the Parole Board and section 39(5) provides that if the Parole Board recommends that the prisoner be released on licence the Secretary of State shall give effect to the recommendation. Otherwise it is provided by section 39(6) that —
"On the revocation of the licence of any person under this section, he shall be liable to be detained in pursuance of his sentence and, if at large, shall be deemed to be unlawfully at large."
Section 32 of the 1991 Act deals with the Parole Board, and the following subsections are material -
"(2) It shall be 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.
(3) The Board shall deal with cases as respects which it makes recommendations under this Part or Chapter II on consideration of -
(a) any documents given to it by the Secretary of State; and
(b) any other oral or written information obtained by it,
and if in any particular case the Board thinks it necessary to interview the person to whom the case relates before reaching a decision, the Board may authorise one of its members to interview and shall consider the report of the interview made by that member.
(6) The Secretary of State may also give to the Board directions as to the matters to be taken into account by it in discharging any function under this Part or Chapter II; and in giving any such directions the Secretary of State shall in particular have regard to -
(a) the need to protect the public from serious harm from offenders: and
(b) the desirability of preventing the commission by them of further offences and of securing their rehabilitation."
Directions have been given pursuant to section 32(6), and they begin -
"Recall of Determinate Sentence Prisoners subject to Licence
Where an offender is subject to a custodial sentence, the licence period is an integral part of the sentence, and...
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