Robson, R v Parole Board and Another
| Jurisdiction | England & Wales |
| Judge | MR JUSTICE CRANSTON |
| Judgment Date | 28 January 2008 |
| Neutral Citation | [2008] EWHC 248 (Admin) |
| Court | Queen's Bench Division (Administrative Court) |
| Docket Number | CO/1803/2007 |
| Date | 28 January 2008 |
[2008] EWHC 248 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
Royal Courts of Justice
Strand
London WC2A 2LL
Mr Justice Cranston
CO/1803/2007
Mr Stephen Field (instructed by McLarty & Co) appeared on behalf of the Claimant
Mr Ben Watson (instructed by Treasury Solicitor) appeared on behalf of the Defendant
This judicial review raises issues as to the treatment of the claimant who, although for some ten years was a mandatory life prisoner, subsequently became a discretionary life prisoner as a result of his successful appeal to the Court of Appeal, Criminal Division. In particular, the issues raised are whether the system for reviewing his detention operated in accordance with the requirements of Article 5 of the European Convention on Human Rights, and whether the decisions made or not made by those operating the review machinery have been compliant with public law principles.
Facts
The claimant was convicted of murder and wounding with intent following a trial at the Crown Court in Newcastle in 1996. The offences related to events in the previous year when he had killed his friend by stabbing him in the stomach with a knife, and then wounded his own sister by slashing her in the face with a knife. He was sentenced to life imprisonment for murder, with a concurrent sentence of five years for wounding with intent. The specified period for the purposes of the life sentence was originally set at 11 years by the trial judge, but that was increased to 14 years by the Lord Chief Justice. Accordingly, his tariff expiry date was the middle of 2009.
In custody the claimant spent his time at a number of different prisons. From the report of Mr Steven Doggett, a probation officer, which was before the Court of Appeal in 2006, we know that he undertook various programmes whilst in custody. At HMP Durham he completed two low intensity programmes focusing on anger management and drink and drug abuse. At HMP Gartree he completed the Reasoning and Rehabilitation Programme. At HMP Swaleside he failed to complete the intensive long-term Cognitive Self-Change Programme. He himself described this failure as due to difficulties in settling at that prison. He began to suffer from depression, and there was a self-harm attempt. Subsequently, he was transferred to HMP Acklington. There he attempted, albeit unsuccessfully, the Healthy Relationships Programme, a failure possibly connected, in Mr Doggett's view, with the breakdown of his marriage and his own deteriorating mental health. However, he did complete another course, Enhanced Thinking Skills.
In 2005 it seems that the claimant was first recommended for the PASRO and CALM courses. PASRO stands for Prisons Addressing Substance Related Offending, and CALM stands for Controlling Anger and Learning to Manage it. PASRO is currently available in 44 prison establishments, that number having increased in recent years. It is a cognitive behavioural programme and addresses how temperament and socioeconomic situations contribute to the development of problematic levels of substance use and crime in individuals over their lives. CALM aims to help offenders reduce the intensity, frequency and duration of negative emotions associated with their offending. CALM is available at 23 prison establishments. The programme lasts for 24 sessions of two to two and a half hours and includes up to three individual sessions.
Let me return to the chronology. The next significant event for our purposes was the claimant's Parole Board review on 18 August 2006. At this point, of course, he was still serving a mandatory life sentence for murder. For the sake of completeness, the statutory background of the Parole Board Review is set out in the Crime (Sentences) Act 1997. Section 28(7) of that Act and allows prisoners sentenced to life imprisonment to require the Secretary of State to refer their cases to the Parole Board once the minimum term has been served and every two years thereafter. Under section 28(6)(a) of that Act, the Parole Board can only order release of a person if the case has been referred by the Secretary of State.
In its report of August 2006, which was the prisoner's first review, the Parole Board said that the claimant's time in custody had been eventful. It noted that while he had done several courses to address identified risk factors of alcohol and drug abuse, violence, use of weapons and anger, he had also continued to use drugs, as evidenced by several adjudications for possessing drugs, and he had failed several drugs tests. Concern had also been expressed about his behaviour, which had been so bizarre on occasion as to raise doubts about his mental health. The board noted that there was no support amongst report writers for a move to open conditions. It noted that the issue of his mental health had been raised again, as was the need for further work to address identified risk factors, particularly anger and drug abuse:
“The Panel, after carefully considering all the evidence, is satisfied that the risk is still too high to warrant a transfer to open conditions and therefore does not recommend such a move.”
I interpolate to make the obvious comment that the threshold test for open conditions is less demanding than for release into the community. I continue the quote:
“The work which has been identified as still outstanding will need to be completed and concerns about his mental health resolved before a transfer to open conditions can be safely or appropriately contemplated.”
Three months later in November 2006 the Court of Appeal gave judgment in a decision to which I have alluded: R v Robson (Michael) [2006] EWCA Crim 2749. The court allowed the claimant's renewed application for leave to appeal against his conviction for murder out of time. The appeal was brought on the basis that the trial judge had misdirected the jury on the defence of diminished responsibility where there was evidence of alcohol consumption. The Court of Appeal concluded that the verdict was unsafe and allowed the appeal to the extent that the conviction for murder was quashed and a verdict of manslaughter substituted. The Court of Appeal then turned to the issue of sentence. It received evidence from three forensic psychiatrists: one who had originally been instructed for the defence at the claimant's trial; one originally instructed for the prosecution at that trial; and the consultant psychiatrist who had been treating the claimant in custody since January 2006. It also had the evidence of Mr Doggett, as I have said, who had been the claimant's external home probation officer since September 2005.
Each of the consultant psychiatrists recalled the continuing ongoing mental health problems facing the claimant. Mr Doggett described the various programmes which he had been offered, as I noted earlier, and the court recorded his conclusion on these in paragraph 49 as follows:
“In sum, while he has made some very good progress with general offending behaviour programmes, he has struggled with the more intensive and challenging programmes and 'there is still a strong argument that further intervention is required'.”
The Court of Appeal concluded that a discretionary life sentence was necessary. At paragraph 54 it said:
“A defendant suffering from the mental disorders found by the three psychiatrists who gave evidence for the defence, who was likely to be rendered all the more dangerous by reason of his addiction to misuse of drugs and alcohol, who could give no explanation for his offending since he said he did not remember the events, and who had killed his close or best friend and slashed in anger at his sister with whom he was living and to whom he was bonded, had plainly committed offences of sufficient seriousness and would for a wholly uncertain period remain dangerous to the public and constitute a sufficiently high risk of committing further grave offences likely to cause serious harm as not only to justify but require a life sentence…”
The court then went on in paragraphs 55 on 58 to set the specified minimum period. It decided that that should be eight years, which would be reduced by one year and 107 days to take into account the period spent on remand. Accordingly, the claimant's early release would be considered after six years and 258 days, so that his tariff had therefore expired on 29 June 2003. The court then concluded at paragraph 59 as follows:
“It follows that he is entitled to be considered for early release by the Parole Board immediately. We recognise that the Parole Board has a heavy workload and responsibility. Nevertheless, having regard to the time which the appellant has spent in prison, we would direct the Board, if we have power to do so, alternatively urge it, to consider the appellant's case as soon as possible. Their consideration of his case is, of course, entirely a matter for them, as the appellant should understand.”
The Court of Appeal, in making that pronouncement, had not been informed of the decision of the Parole Board of August 2006. I return to that later.
In late November 2006, the relevant Life Review and Recall Section was notified of the changes to the claimant's tariff following the Court of Appeal's decision. Due, it is said, to the unusual circumstances of the claimant,...
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