The King on the application of Richard Matthews v The Parole Board for England and Wales
| Jurisdiction | England & Wales |
| Judge | Mr Justice Fraser |
| Judgment Date | 29 March 2023 |
| Neutral Citation | [2023] EWHC 694 (Admin) |
| Docket Number | CO/2473/2023 |
| Year | 2023 |
| Court | King's Bench Division (Administrative Court) |
and
[2023] EWHC 694 (Admin)
THE HONOURABLE Mr Justice Fraser
CO/2473/2023
IN THE HIGH COURT OF JUSTICE
KING'S BENCH DIVISION
ADMINISTRATIVE COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
Mr Stuart Withers (instructed by Reece Thomas Watson Solicitors) for the Appellant
Ms Rebecca Hadgett (instructed by Government Legal Department) for the Respondent
The Interested Party was not represented and did not appear
Hearing date: 21 March 2023
Draft distributed to parties: 24 March 2023
Covid-19 Protocol: This judgment is to be handed down by the judge remotely by circulation to the parties' advisers by email and release to the National Archive. The date for hand-down is deemed to be 29 March 2023.
This is a hearing for judicial review of a decision by the Parole Board on 11 April 2022 refusing to recommend the transfer of the Claimant, a serving prisoner, to open conditions. There are two grounds. On the first ground, permission to bring judicial review was granted by Eyre J on 6 October 2022; he refused permission on the second ground. The Claimant renewed his application for permission on the second ground and this was granted by Stacey J on 25 October 2022.
Introduction
The Claimant is a serving prisoner who was sentenced on 28 May 2008 to two sentences of imprisonment for public protection (“an IPP sentence”). IPP sentences are no longer available, although there are a number of prisoners still serving such sentences, which were passed upon them before this particular type of sentence was abolished in 2012. They are effectively life sentences, but when passed would also specify a minimum term, that period being the time that the prisoner would have to spend in custody prior to becoming eligible for release. The first offence for which the Claimant was sentenced was for conspiring to cause grievous bodily harm with intent, and for that the minimum term was specified by the sentencing judge as 6 years. The second offence was for possession of a firearm with the intention of committing an indictable offence, for which the minimum term was set at 3 years and 9 months. The minimum term set when an IPP sentence was imposed is also, sometimes, referred to as a “tariff”. Both these offences by the Claimant arose in the context of serious drug dealing, and in particular the Claimant's involvement in the punishment shooting of a rival drug dealer, who had been lured to a meeting with the Claimant and other defendants. The Claimant received no separate penalty for two other offences, namely possession of a handgun, and possession of class A drugs with intent to supply.
The Defendant, the Parole Board for England and Wales (“the Parole Board”), was established in 1968 under the Criminal Justice Act 1967. Its present establishing statutory provisions are section 239 and Schedule 19 to the Criminal Justice Act 2003 (“ CJA 2003”). As is widely known, the Secretary of State for Justice (“the Interested Party”) has oversight of all the functions of the Ministry of Justice, and also fulfils the functions of the Lord Chancellor. The Interested Party has remained neutral in these proceedings, which is in accordance with the usual approach of the Secretary of State for Justice when decisions of the Parole Board are challenged by way of judicial review.
The Claimant became eligible for release on 18 July 2013 as he had served both of the minimum terms or tariffs set under the IPPs. This eligibility does not automatically entitle a prisoner serving an IPP sentence to be released, and his release on licence in fact took place on 2 March 2015. However, after his release, his liberty was not of considerably extended duration, due to the way of life he to which he reverted. He was arrested again on 12 April 2018 for a number of fresh offences of drug dealing, as well as suspicion of his involvement with other firearms, including a sub-machine gun found in a plastic shopping bag, together with ammunition. Unsurprisingly, given the nature of these offences, and also because he remained subject to the provisions of the two IPP sentences imposed in 2008, he was detained in custody. In respect of two of these later drug offences he pleaded guilty on 8 August 2018, these offences being conspiracy to supply class A drugs of two types, namely both heroin and cocaine. On 18 February 2019 he also pleaded guilty to possession of criminal property, namely a sum of in excess of £38,000 in cash. On 22 February 2019 he was acquitted of the firearm offences. On the same day as his acquittal, he was sentenced to a determinate sentence of 9 years for the drug and criminal property offences. He is therefore currently in custody.
He becomes eligible for, though not entitled to, release on 23 August 2023, as that is the half-way stage of his 9 year determinate sentence, once time in custody prior to his sentencing is taken into account. That date is therefore what is known as his conditional release date. An important step in the sequence of release of such long-term prisoners on licence is their move to open conditions. The Claimant is currently a category C prisoner and is in HMP Highdown. His case has been reviewed by the Parole Board, and his most recent review was fixed for early 2021. What occurred thereafter is relevant to his application for judicial review, and therefore I will identify events in a little more detail than might otherwise be the case.
On 12 April 2021, Ms Marianne Beck, the Claimant's Prison Offender Manager submitted a report for the Claimant's parole review. This stated that he was an enhanced level prisoner, had no adjudications, had a trusted job within the prison, and had gained numerous positive entries for his work ethic. The report recommended his transfer to open conditions and stated: “In view of the progress Mr Matthews has made since returning to custody, I believe his risk can be managed in open conditions. This would give him the opportunity to demonstrate that he is managing his risk factors and make positive steps towards resettling into the community. My recommendation is therefore for Mr Matthews to be transferred to open conditions.”
On 28 April 2021, Ms Holly Bradley, the Claimant's Community Offender Manager also submitted a report. This report also recommended his transfer to open conditions. Ms Bradley stated: “I am of the view that his risk can be effectively managed in open conditions, due to his current exemplary behaviour in custody, and open conditions would provide Mr Matthews with the opportunity to demonstrate and implement his learning from the completed accredited programmes. It will also provide Mr Matthews to make steps toward resettlement in the community while demonstrating he can manage his known risk factors.”
The OASys assessment (‘Offender Assessment System’) which was attached to Ms Bradley's report was completed by her and dated 24 April 2021. This system is a diagnostic tool used in the consideration of offenders and potential re-offending. That assessment provided further reasons as to the benefits of the Claimant progressing to open conditions. These included that such a transfer would enable the Claimant to work with the resettlement team to look for secure accommodation upon release; to work closely with the education, employment and training team to improve his vocational skills to secure employment; to undergo a period of release on temporary licence; and to apply and internalise skills learnt from offender behaviour courses.
On 27 May 2021, the Claimant's then-solicitors sent representations requesting an oral hearing before the Parole Board. They pointed out that the Claimant would, if so transferred, “be able to obtain employment and undertake overnight releases ahead of his next parole review.” On 10 June 2021, the Parole Board reviewed the submitted reports, together with the legal submissions and adjourned his case to seek further information. Thereafter, the Interested Party confirmed to the Parole Board that he sought its advice as to whether the Claimant was ready to be moved to open prison conditions, and the Parole Board directed the Claimant's case to an oral hearing.
The updated reports that were submitted by Ms Bradley again recommended open conditions. These stated: “My recommendation remains unchanged, that is for Mr Matthews to progress to open conditions due to him completing all core risk reduction work available to him in HMP Highdown. A move to open conditions would provide Mr Matthews would the opportunity to demonstrate and implement his learning from these risk reduction courses and accredited programmes, and to plan for resettlement into the community”. There was no change from the previous recommendation by the Prison Offender Manager (who had now changed from Ms Beck to Ms Bryson) regarding his transfer to open conditions. At the oral hearing, on 7 January 2022 the Claimant appeared before a two member panel of the Parole Board. He was represented by his then-solicitors (a different firm of solicitors from those who represent him now in these proceedings). The issue before the panel was whether it should recommend the Claimant's transfer to open conditions to the Secretary of State.
After the panel had heard the evidence and closing submissions, it decided to adjourn the Claimant's case for further information. The reason for the adjournment was that the panel felt that it could not conclude the Claimant's case without a clear understanding of the prosecution case which led to his recall in 2018 and trial in 2019. The panel directed further evidence from his most recent trial, including an MG5, MG4, prosecution opening note, all the witness statements...
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