The King (on the application of Dean Dobson) v Secretary of State for Justice
| Jurisdiction | England & Wales |
| Judge | Mr Justice Fordham |
| Judgment Date | 17 January 2023 |
| Neutral Citation | [2023] EWHC 50 (Admin) |
| Docket Number | Case No: CO/3686/2022 |
| Court | King's Bench Division (Administrative Court) |
[2023] EWHC 50 (Admin)
Mr Justice Fordham
Case No: CO/3686/2022
IN THE HIGH COURT OF JUSTICE
KING'S BENCH DIVISION
ADMINISTRATIVE COURT
SITTING IN MANCHESTER
Michael Bimmler (instructed by Duncan Lewis Solicitors) for the Claimant
Simon Pritchard (instructed by Government Legal Department) for the Defendant
Hearing date: 9/12/22
Approved Judgment
I direct that no official shorthand note shall be taken of this Judgment and that copies of this version as handed down may be treated as authentic.
THE HON. Mr Justice Fordham
INTRODUCTION
This is a case about the procedural propriety and substantive justification for an adverse appeal decision concerning Release on Temporary Licence (“ROTL”). It is a case in which the judicial review Court has to decide disputed issues of fact on documentary evidence. There are also issues about whether defaults by the Defendant should in principle be reflected in any costs order, whether a delay objection can be raised at the substantive judicial review hearing, and whether “anxious scrutiny” applies.
ROTL is the subject of a policy (the “Policy”) entitled “Release on Temporary Licence Policy Framework” implemented on 16 May 2019, replacing an earlier Prison Service Instruction (PSI 13/2015). The version of the Policy relied on by both parties in these proceedings was reissued on 17 August 2021. It explains that ROTL “facilitates the rehabilitation of offenders, by helping to prepare them for resettlement in the community once they are released” and is “intended … to reduce reoffending in the long term”. The “policy outcomes” are described as including that offenders granted ROTL “will benefit from resettlement opportunities which in turn will safely prepare them for permanent release back into the community”, and that offenders eligible for ROTL “will continue to undergo a thorough risk assessment”, with ROTL “applied consistently and fairly and in a way which supports the resettlement of the prisoner, while ensuring the protection of the public remains central to the process”. I will return later to certain procedural duties and entitlements under the Policy (§§45–50 below). The test for ROTL is identified (see the Policy at §4.1) in Rule 9(4) of the Prison Rules 1999 (SI 1999 No. 78), which provides:
A prisoner shall not be released under this rule unless the Secretary of State is satisfied that there would not be an unacceptable risk of his committing offences whilst released or otherwise failing to comply with any condition upon which he is released .
The Claimant is aged 52 and is a prisoner in open conditions at HMP Haverigg. He was convicted in the Crown Court in 2007 of four offences committed in September 2004, January 2006 and May 2006. He was sentenced on 19 April 2007 to an IPP sentence (that is, an Indeterminate Prison Sentence for Public Protection) with a minimum term which was reduced on appeal to 3 years 41 days, together with a Sexual Offender Prevention Order. His minimum term (tariff) expired on 30 May 2010. He seeks judicial review, with the permission of Choudhury J granted on 11 February 2022, of the decision of Deputy Governor (“DG”) Bailey for the Defendant on 8 July 2021. By the impugned decision, DG Bailey rejected the Claimant's appeal by way of Complaint (30 June 2021) against the decision of Acting Deputy Governor (“ADG”) Woodburn (8 June 2021). ADG Woodburn had declined to approve the Claimant's ROTL. The Claimant's case is that DG Bailey's decision was procedurally flawed and/or unreasonable. The remedy sought is to quash the decision of DG Bailey and remit the matter for reconsideration afresh.
Two straightforward ancillary applications were before the Court. Both parties applied for permission to adduce further witness evidence. The Claimant's application is to adduce a brief witness statement with exhibits by the Claimant's solicitor Mr Bellusci, responding to the position taken by the Defendant in raising a delay issue. The Defendant's application is to adduce a brief witness statement of Ms Fisher, responding to the position taken by the Claimant about DG Bailey's ‘second-hand’ witness statement description of what happened regarding the provision of documentation in June 2021. Each party sensibly accepts that the application made by the other should be granted, and with no cost consequences. I agreed and announced at the substantive hearing that I would grant both of these applications.
BACKGROUND
The Transfer Recommendation
A Recommendation in the Claimant's case was made by the Parole Board in a reasoned decision on 21 October 2019, concluding as follows:
The Panel accepted that for you to make further progress in developing a resettlement plan, and for your risk factors to be further tested, largely through monitoring your progress and engagement with professionals in open conditions that a recommendation for open conditions was appropriate. Therefore, the panel recommends to the Secretary of State that you are progressed to open conditions .
The Transfer Decision
The Transfer Recommendation was accepted by the Defendant, by a decision dated 3 December 2019 taken by Becca Humphrey of HM Prison & Probation Service (the “Transfer Decision”). The Transfer Decision was headed “Outcome of Parole Board Review” and stated as follows (I have inserted paragraph numbering in square brackets; OPAL is Older Prisoners Activities and Learning):
[1] As you know the Parole Board has recommended your transfer to open prison. [2] The Secretary of State has now considered the Parole Board recommendation, and agrees with this view for the reasons given by the Panel and considers that the following factors to affect your risk are: [2a] Sexual preoccupation; [2b] Sexual interest in children; [2c] Child abuse supportive beliefs; [2d] Predatory pursuit of sexual gratification; [2e] Difficulties solving problems; [2f] Lack of consequential thinking skills; [2g] Lifestyle and associates. [3] The panel noted that you have engaged with the Moving Forward group and work with OPAL. [4] The Parole Board were informed that you are an Enhanced prisoner on the IEP scheme, with no new adjudications. [5] The panel concluded that due to the lack of insight into your risk factors, open conditions was considered the best way to assess your progress. [6] You should now discuss options for transfer to open prison with your offender supervisor, who will arrange your move. [7] The responsibility for addressing your risk reduction rests with you. However the Secretary of State has identified from the information contained within your dossier the following further interventions in open conditions to help you address these factors. Please note that the Secretary of State cannot guarantee to place you on these specific interventions as there are limits on the availability of resources. In addition, some interventions have entry requirements and may not be appropriate for you following these assessments. In these circumstances other offending behaviour courses/interventions may be considered to help you reduce your risks. [8] It is for your offender manager or supervisor to identify relevant interventions for you as part of your sentence plan in order to address your risk of harm and risk of re-offending, subject to available resources. [9] Your review period is therefore set at 12 months and is for the following: [9a] Honestly engage with the professional staff working around you in order to identify the best ways to reduce your outstanding risks; [9b] To be tested in conditions of lesser security and abide by the rules and the regime of an open establishment; [9c] To demonstrate your ability to comply with ROTL conditions; [9d] To remain adjudication free; [9e] Maintain Enhanced status on the IEP scheme; [9f] Please note that, whilst you may apply for ROTL at any time after your arrival to open conditions, you may not be temporarily released until at least 3 months after your arrival. ROTL is not a right and will only be granted after a full risk assessment showing that it is safe for you to be trusted in the community. ROTL will only be granted for a specific purpose, linked to your sentence plan and resettlement goals, such as employment or spending time with family. Any failure to comply with any of the conditions of ROTL may mean it is cancelled and could also mean you are sent back to closed conditions. Failure to return from ROTL will mean that in future you are ineligible to be considered for transfer to open conditions save in exceptional circumstances. [10] Your next parole review process will be undertaken in accordance with the Generic Parole Process, a centrally monitored review process. Your review process is expected to take 26 weeks to complete, as it involves the preparation of reports and co-ordination of various parties, including the Public Protection Casework Section, the Prison Service and the Parole Board. Your parole review will commence in April 2020, and the month for consideration by the Parole Board is October 2020. (6 months later). [11] You will be notified by the Parole Board nearer the time about the exact dates .
The ROTL Risk Assessment: “Trilogy of Documents”
The Manuscript (handwritten) Version of the appealed decision of ADG Woodburn (8.6.21) completed a set of three documents known collectively as the “ROTL Risk Assessment”. This Trilogy of Documents was: (1) a “Risk Assessment” written by the Prison Offender Manager (“POM”) Carole Smith (updated on 1 June 2021) (§8 below); (2) “Board Recommendations” (dated 21 May 2021) of the ROTL Board (whose members were POM Smith and, as ROTL Board Chair, Senior Probation Officer (“SPO”) Sean Carroll) (§9 below); and then (3) the Manuscript...
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