R (Yusuf (Sahra)) v Parole Board
| Jurisdiction | England & Wales |
| Judge | Mr Justice Keith |
| Judgment Date | 22 June 2010 |
| Neutral Citation | [2010] EWHC 1483 (Admin) |
| Docket Number | Case No: CO/6919/2009,CO/6919/2009 |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 22 June 2010 |
[2010] EWHC 1483 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Before: Mr Justice Keith
Case No: CO/6919/2009
Mr Hugh Southey QC (instructed by Bindmans) for the Claimant
Mr Alexander Ruck Keene (instructed by the Treasury Solicitor) for the Defendant
Hearing date: 9 June 2010
Mr Justice Keith:
Introduction
Prisoners serving sentences of life imprisonment are called lifers. Their release depends on when their minimum term expires and when the Parole Board concludes that it is no longer necessary for the protection of the public that they should be confined. But it is rare for a lifer to be released without having spent some time in an open prison – or to use the language of the Prison Service, without having been transferred from closed to open conditions. Some time before the lifer's minimum term is due to expire – normally about three years before – the Secretary of State will request the Parole Board to advise on the lifer's suitability for transfer to open conditions. The issue which arises in the present case relates to when the Parole Board's consideration of a request of that kind can consist of a review of the written materials only or whether an oral hearing should be convened.
The facts
In the light of the relatively narrow issue which the claim raises, only a brief summary of the facts is needed. The claimant, Sahra Yusuf, comes from Somalia. She arrived in the UK in 1998 and claimed asylum here. She went to live in a hostel for asylum-seekers with her husband and two of her children, a boy aged 13 months, Abdi, and a daughter aged 2 months. On 6 September 2000, she killed Abdi by banging his head on the floor and shaking him. She was to claim that Abdi's death was an accident which had happened when he had fallen downstairs. That was what she maintained at her trial, refusing any suggestion that she might plead guilty to manslaughter. The jury disbelieved her account and convicted her of murder.
In the course of his sentencing remarks, the trial judge described the claimant as having killed Abdi in “an explosion of violence”. Her denial of any responsibility for Abdi's death – which continues to this day – made it difficult for the judge to come to any conclusion about what lay behind her attack on Abdi, but the judge's belief was that she had overheard her husband talking on the telephone, and what she had heard had made her fear that she might be left alone, either temporarily or permanently, to bring up her two young children. After passing the mandatory sentence of life imprisonment on her, the judge recommended that her minimum term should be 9 years. That was the minimum term (less the 44 days she had spent in custody prior to sentence) subsequently set by the High Court pursuant to section 269(3) of the Criminal Justice Act 2003 (“the Act”). Her minimum term expires on 15 October 2011.
Because her minimum term has not yet expired, there has been no question of the Parole Board (“the Board”) considering her eligibility for early release. However, on 12 August 2008, the Secretary of State requested the Board to advise him whether the claimant was ready to be transferred to open conditions. On 6 February 2009, the claimant's solicitors sent the Board an e-mail asking whether her transfer to open conditions would be considered at an oral hearing or on the papers only, expressing their “understanding that … pre tariff reviews are now heard orally”. The Board responded as follows:
“All pre-tariff cases are only heard on the papers by a single judicial member. This has always been the case. However, [following an inquiry by HM Inspectorate of Probation] the Parole Board changed its policy in that a transfer to open conditions cannot be recommended on the papers – if the judge feels there is any possibility of a transfer the case must be tested at an oral hearing.”
Following that exchange of e-mails, the claimant's solicitors did not take up the issue about an oral hearing again, and the question of the claimant's transfer to open conditions was considered by a single judicial member of the Board on 3 April 2009, not at an oral hearing, but on a review of the papers only. The member had the benefit of two sets of representations from the claimant's solicitors, as well as an independent psychological report on the claimant prepared by Dr Jackie Craissati, a chartered forensic and clinical psychologist. The member also had the claimant's prison file. The advice given to the Secretary of State by the member was that it would be premature to recommend the claimant's transfer to open conditions. The Secretary of State agreed with that advice, and on 21 May 2008 the claimant was informed of the decision that she would not be transferred to open conditions.
The advice which the member of the Board gave to the Secretary of State ran to five pages. There is no reference in the advice to why an oral hearing was thought to be unnecessary, but the fact that one did not take place means that the member of the Board must have concluded that one was not necessary. That is the decision which is challenged on this claim for judicial review. It is important to note that there is no direct challenge to the decision of the member of the Board to advise that the claimant should not be transferred to open conditions, although the reasons given by the member of the Board in the advice have been scrutinised because they are said to have an impact on whether fairness to the claimant required that her case be considered at an oral hearing.
The legal framework
The statutory provisions. In advising the Secretary of State that the claimant should not be transferred to open conditions, the Board was acting pursuant to section 239(2) of the Act, which provides:
“It is the duty of the Board to advise the Secretary of State with respect to any matter referred to it by him which is to do with the early release or recall of prisoners.”
The transfer of a prisoner from closed to open conditions is – at first blush, at any rate – no more than a re-categorisation of a prisoner's security classification, and on the face of it it has nothing to do with the prisoner's early release from prison or the prisoner's recall to prison. In fact, that is not right. A change in the prisoner's security classification is the consequence of any decision to transfer the prisoner to open conditions, not the cause of it. In any event, as I said at the beginning of this judgment, a lifer is very unlikely to be released without having spent some time in open conditions. That was what Irwin J found in R (on the application of Hill) v Secretary of State for the Home Department [2007] EWHC 2164 (Admin) at [5]-[7]. It is therefore common ground that for such prisoners their transfer from closed to open conditions is “to do with [their] early release”, since the earlier they are transferred to open conditions, the sooner they are likely to be released.
Ministerial directions. Section 239(6) of the Act provides, so far as is material:
“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 functions under this Chapter …”
Directions were given to the Board about the release and recall of lifers in August 2004. Those directions included directions for the transfer of lifers to open conditions. Para. 1 of those directions explained the link between such a transfer and their eventual release:
“A period in open conditions is essential for most life sentence prisoners (lifers). It allows the testing of areas of concern in conditions that more closely resemble those that the prisoner will encounter in the community often after having spent many years in closed prisons. Lifers have the opportunity to take resettlement leave from open prisons and, more generally, open conditions require them to take more responsibility for their actions.”
However, para. 2 of the directions made the point that the principal setting for work to be done in reducing the risks which a lifer poses is “the closed lifer estate”, and para. 3 said that the Board's emphasis was to be “on the risk reduction aspect and, in particular, on the need for the lifer to have made significant progress in changing his/her attitudes and in tackling behavioural problems in closed conditions, without which a move to open conditions will not generally be considered”. Para. 5 of the directions identified the main factors to be taken into account when evaluating the risk of a lifer's transfer to open conditions against the benefits to be derived from such a transfer, and para. 6 set out the various categories of information which should inform the assessment of that risk.
The Board's policy. Neither the Act nor the directions said anything about the circumstances when it is necessary or desirable to convene an oral hearing where the Board is considering whether to recommend the transfer of a lifer to open conditions. But in February 2007, the Board issued a statement which set out its policy on oral hearings for lifers. What is relevant for present purposes is that the statement included the Board's policy on oral hearings for lifers such as the claimant who had not yet served their minimum term but who were being considered for transfer to open conditions. The statement noted that the Board's practice had previously been “to consider these cases on paper unless there were circumstances that required evidence at an...
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