Scott Henley-Smith v Secretary of State for Justice
| Jurisdiction | England & Wales |
| Judge | Mrs Justice Lang |
| Judgment Date | 28 July 2017 |
| Neutral Citation | [2017] EWHC 1948 (Admin) |
| Docket Number | Case No: CO/3419/2016 |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 28 July 2017 |
[2017] EWHC 1948 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
Mrs Justice Lang DBE
Case No: CO/3419/2016
Philip Rule (instructed by Irvine Thanvi Natas Solicitors) for the Claimant
Melanie Cumberland (instructed by the Government Legal Department) for the Defendant
Hearing date: 29 June 2017
Approved Judgment
The Claimant applies for judicial review of the failure of the Defendant to consult upon, and then exercise, the power within section 128 of the Legal Aid, Sentencing and Punishment of Offenders Act 2012 ("LASPO 2012") as a means of relaxing the test for the release of prisoners serving sentences of imprisonment for public protection ("IPP").
Permission was refused on the papers by Holroyde J., but granted at an oral hearing by Leigh-Ann Mulcahy QC, sitting as a Deputy High Court Judge, on 23 November 2016.
The Claimant
On 10 September 2007, the Claimant pleaded guilty to offences of false imprisonment, assault, criminal damage and harassment against his girlfriend. Between 1996 and 2006, he had been convicted of 9 offences of assault, rape, false imprisonment, criminal damage and harassment, all against women with whom he had an intimate relationship. He had been sentenced to 4 determinate sentences of imprisonment of up to 5 years in length, a community rehabilitation order and a restraining order. He had undertaken courses and programmes to address his offending behaviour but had still re-offended.
In the light of his previous convictions for specified offences, and having regard to the other information before him, the sentencing judge assessed him as dangerous, applying section 229 of the Criminal Justice Act 2003 (" CJA 2003"), and finding that there was a significant risk that the Claimant would cause serious personal injury to women with whom he was in a relationship by committing further offences specified in Schedule 15 to the CJA 2003. He was sentenced to IPP for the offence of false imprisonment (which has a maximum sentence of life imprisonment), with sentences of four months imprisonment concurrent for each of the other offences. In respect of the offence of false imprisonment, the Judge stated that, had a determinate sentence been appropriate, he would have imposed a term of imprisonment of 4 years, discounted by one third to a period of 2 years and 8 months to reflect his guilty plea. The minimum term for the sentence of IPP had to be calculated at one half of the notional determinate sentence — 1 year and 4 months – to take account of the fact that he would have been eligible for release after serving one half of the determinate sentence.
The Claimant's minimum term ended in 2008 but he remains in prison because, on review, the Parole Board has concluded, on several occasions, that it was necessary to continue to detain him for the protection of the public.
On 5 May 2010, following an oral hearing and consideration of a detailed dossier of reports, detailing courses undertaken and 1:1 sessions with a consultant clinical psychologist, a Parole Board panel concluded that, although he had made very significant progress, a cautious approach was justified in the light of his deeply entrenched violent and abusive behaviour. The panel considered that there was a more than minimal risk that, if released, he would behave violently and abusively again, and so the safety of any future partner made it necessary that he should undergo a period of testing in open conditions prior to release.
On 28 January 2013, following an oral hearing and consideration of a detailed dossier of reports, a Parole Board panel agreed with the assessment of his Offender Manager that the Claimant posed a very high risk of harm within relationships, and his past offending history indicated that he would resort to violence against partners. His poor behaviour in open conditions had led to his recall to closed conditions. He committed some breaches of the rules, which led to him losing his employment. He had formed a relationship with a woman and he was observed behaving in an aggressive and controlling manner towards her. He withheld the existence of the relationship from his Offender Supervisor and Psychologist, and they considered that, despite the programmes he had successfully completed, he was either unable or unwilling to put that learning into practice in a way which gave them confidence that the risk of further offending was reducing. They recommended further assessments. None of the professionals, apart from the independent psychologist, recommended that the Claimant be returned to open conditions or released, and the panel agreed with their assessments.
On 4 January 2016, following an oral hearing and consideration of a detailed dossier of reports, a Parole Board panel concluded that the Claimant had to remain in custody to protect the public, because he represented a high risk to women, and there was a high likelihood he would re-offend. He had been assessed as not meeting the criteria for psychopathic disorder, although he met the criteria for dissocial and narcissistic personality disorder. He had also been assessed as not having a diagnosable personality disorder although the panel was satisfied he had dysfunctional personality traits. He did not have a mental disorder which would merit transfer under the Mental Health Act. The panel accepted the recommendation that he should be given another opportunity to progress to open prison and to put into practice what he had learned from his offending behaviour work.
Following this recommendation, the Claimant was transferred to an open prison where he will remain, subject to further review by the Parole Board.
The issue in the claim for judicial review
The Claimant submitted that the sentence of IPP was unjust because he had served nearly ten years imprisonment and he was subject to indefinite detention whereas, if he had been given a determinate sentence, or even an extended sentence, he would have been released some time ago.
The Claimant submitted that it was widely recognised that the sentence of IPP was unsatisfactory and could operate unfairly, particularly when imposed upon prisoners with short tariffs, many of whom were not given sufficient opportunity to demonstrate the required reduction of risk whilst in prison, and for whom sentences of indefinite duration were disproportionate.
As a result, section 123 of LASPO 2012 abolished the sentence of IPP with effect from 3 December 2012. However, Parliament only abolished it prospectively, not retrospectively, and so existing sentences of IPP continued to be lawful.
Section 128 of LASPO 2012 (as amended in April 2015) gave the Defendant power to seek to vary the test to be applied by the Parole Board when deciding whether or not to direct the release of an IPP prisoner, by means of a statutory instrument which would be subject to an affirmative resolution procedure by Parliament. Section 128 provides, so far as is material:
" Power to change test for release on licence of certain prisoners
(1) The Secretary of State may by order provide that, following a referral by the Secretary of State of the case of a discretionary release prisoner, the Parole Board—
(a) must direct the prisoner's release if it is satisfied that conditions specified in the order are met, or
(b) must do so unless it is satisfied that conditions specified in the order are met.
(2) "Discretionary release prisoner" means—
(a) an IPP prisoner,
…..
(4) An order under this section is to be made by statutory instrument.
(5) A statutory instrument containing an order under this section may not be made unless a draft of the instrument has been laid before, and approved by a resolution of, each House of Parliament.
"IPP prisoner" means a prisoner who is serving one or more of the following sentences and is not serving any other life sentence—
(a) a sentence of imprisonment for public protection or detention in a young offender institution for public protection under section 225 of the Criminal Justice Act 2003 (including one imposed as a result of section 219 of the Armed Forces Act 2006);
(b) a sentence of detention for public protection under section 226 of the Criminal Justice Act 2003 (including one imposed as a result of section 221 of the Armed Forces Act 2006); "life sentence" has the same meaning as in section 34 of the Crime (Sentences) Act 1997.
….."
The Defendant has not exercised his power under section 128 LASPO 2012 and therefore, by virtue of section 28(6) Crime (Sentences) Act 1997, the Parole Board can only recommend release of an IPP prisoner if it is "satisfied that it is no longer necessary for the protection of the public that the prisoner should be confined".
The Claimant's challenge was founded upon the expectation that his prospects of being released by the Parole Board would be improved if the test for release was relaxed.
Grounds of challenge
The Claimant relied upon five grounds of challenge to the Defendant's non-exercise of his powers under section 128 LASPO 2012.
Ground 1. The Claimant submitted that it was apparent from the Parliamentary debates on the LASPO 2012 bill that Parliament enacted section 128 LASPO 2012 to provide a means of alleviating or resolving the problems which it recognised that existing IPP prisoners faced. Parliament clearly intended that the test for release applied by the Parole Board under the Crime (Sentences) Act 1997 should be relaxed. Therefore the Defendant was acting inconsistently and incompatibly with the legislative purpose by failing to exercise the powers conferred under section 128 LASPO 2012...
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