The King on the application of Zarak McKoy v The Secretary of State for Justice
| Jurisdiction | England & Wales |
| Judge | Elizabeth Cooke |
| Judgment Date | 01 December 2023 |
| Neutral Citation | [2023] EWHC 3047 (Admin) |
| Year | 2023 |
| Court | King's Bench Division (Administrative Court) |
| Docket Number | Case No: CO/4733/2022 |
[2023] EWHC 3047 (Admin)
UPPER TRIBUNAL JUDGE Elizabeth Cooke SITTING AS A DEPUTY HIGH COURT JUDGE
Case No: CO/4733/2022
IN THE HIGH COURT OF JUSTICE
KING'S BENCH DIVISION
ADMINISTRATIVE COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
Mr Carl Buckley (instructed by Reece Thomas Watson solicitors) for the Claimant
Mr William Irwin (instructed by the Government Legal Department) for the Defendant
Hearing date: 22 November 2023
Approved Judgment
This judgment was handed down remotely at 11.00am on 1 December 2023 by circulation to the parties or their representatives by e-mail and by release to the National Archives.
UPPER TRIBUNAL JUDGE Elizabeth Cooke SITTING AS A DEPUTY HIGH COURT JUDGE
The Claimant, Mr Zarak McKoy, is serving a discretionary life sentence. He seeks judicial review of the Defendant's decision, dated 14 September 2022, to reject the advice of the Parole Board that he be transferred to open prison conditions.
The Claimant was represented by Mr Carl Buckley and the Defendant by Mr William Irwin, both of counsel, to whom I am most grateful.
The factual, legal and policy background
The Claimant is now aged 30. In 2015 he was found guilty after trial of two offences of wounding with intent to cause grievous bodily harm and of possession of a firearm with intent to endanger life. His victims, one male and one female, sustained very serious injuries and have suffered lasting trauma. The Claimant had previous convictions for robbery and violence. He was sentenced to life imprisonment with a tariff of nine years and 114 days which will expire on 11 July 2024.
Because his tariff has not expired there is no question yet of the Claimant being released. But in a pre-tariff review (explained below) in June 2022 the Parole Board recommended that he be transferred to open conditions. The Defendant rejected that recommendation on 14 September 2022, and that is the decision sought to be reviewed.
The relevant law and policy can be summarised as follows.
Section 12(2) of the Prison Act 1952 states that a prisoner may be lawfully confined in such prisons as the Defendant directs and:
“may by direction of the Secretary of State be removed during the term of their imprisonment from the prison in which they are confined to any other prison”.
Section 47 of the Act empowers the Defendant to make rules for the classification of prisoners, and rule 7 of the Prison Rules 1999/728 provides that prisoners shall be classified in accordance with directions of the Secretary of State having regard to specified matters. In practice as is well known a prisoner will be held in a category A, B or C prison in closed conditions or in category D in open conditions. Generally a period in open conditions is an important prelude to release on licence.
Section 239(2) of the Criminal Justice Act 2003 provides as follows:
“It is the duty of the [Parole] 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”.
A transfer to open conditions is a matter which is relevant to the early release of a prisoner, and therefore section 239(2) gives the Defendant a discretionary power to ask the Board for advice on whether a prisoner is suitable for transfer to open conditions. The Parole Board provides advice, but the decision is the Defendant's; by contrast, decisions about release are for the Parole Board to make.
The Defendant has issued directions to the Parole Board, pursuant to section 239(6) of the Criminal Justice Act 2003, about the matters that it must consider before recommending a transfer to open conditions for a prisoner serving an indeterminate sentence (an “ISP”). The Directions provide at paragraph 7 that
“The Parole Board must take the following main factors into account when evaluating the risks of transfer against the benefits:-
a) the extent to which the ISP has made sufficient progress during the sentence in addressing and reducing risk to a level consistent with protecting the public from harm, in circumstances where the ISP in open conditions may be in the community, unsupervised, under licensed temporary release;
b) the extent to which the ISP is likely to comply with the conditions of any such form of temporary release (should the authorities in the open prison assess him as suitable for temporary release);
c) the extent to which the ISP is considered trustworthy enough not to abscond; and
d) the extent to which the ISP is likely to derive benefit from being able to address areas of concern and to be tested in the open conditions environment such as to suggest that a transfer to open conditions is worthwhile at that stage.”
Where an inmate has no more than three years before his tariff expiry he can be considered for a “pre-tariff review” in which the question of transfer to open conditions is considered, and that process was followed in the present case. It is governed by the Generic Parole Process Policy Framework (“GPPPF”) which states at paragraph 5.4.1:
“Pre-Tariff ISPs are eligible to have their case referred to the Parole Board to consider their suitability for transfer to open conditions up to three years prior to their TED. In order to target Parole Board and HMPPS resources effectively, the Secretary of State only refers those pre-tariff cases to the Parole Board where there is a reasonable prospect of the Board making a positive recommendation. Prior to a scheduled pre-tariff review, a pre-tariff sift will take place to ascertain whether an ISPs pre-tariff review should take place”.
So as Mr Buckley observed, it can be inferred from the fact that the Claimant's case was referred to the Parole Board that a judgement had been made there was a reasonable prospect of a positive recommendation.
As noted above, in this context the Parole Board can only advise. The Defendant's assessment of that advice is described in Part 2, paragraph 3.4 of the GPPPF:
“All indeterminate sentenced prisoners will have their cases reviewed by the Public Protection Casework Section (PPCS) to ascertain whether all three of the criteria in the current test for open conditions has been met (see guidance 5.8.2) and that there is a reasonable prospect of the Parole Board making a positive recommendation that they progress to open conditions. This takes place before a decision made about whether a case should be referred to the Parole Board for a recommendation around suitability for open conditions”
The GPPPF goes on to say this:
“5.8.2 PPCS may consider rejecting the Parole Board's recommendation if the following criteria are met:
• The Parole Board's recommendation goes against the clear recommendations of report writers without providing a sufficient explanation as to why;
• Or, the panel's recommendation is based on inaccurate information
5.8.3 The Secretary of State may also reject a Parole Board recommendation if it is considered that there is not a wholly persuasive case for transferring the prisoner to open conditions at this time.”
The Defendant's decision to reject the Parole Board's recommendation was stated to be made on that third basis, that there was not a wholly persuasive case for transfer to open conditions. The other two are therefore irrelevant to these proceedings.
The Parole Board's advice
The Parole Board was provided with a 296-page dossier including reports from the Claimant's Prison Offender Manager (“POM”) and Community Offender Manager (“COM”), and gave directions for evidence to be produced by psychologists. It conducted an oral hearing on 31 May 2022 at which the Claimant was represented and gave evidence, as did the POM, the COM, a member of the Prison Security Team, a psychologist instructed by the prison service and a psychologist instructed by the Claimant. A personal statement from one of the Claimant's victims was read to the panel.
The Parole Board produced a 10-page decision in which it first set out the details of the offences for which the Claimant is now imprisoned and summarised his previous offences. It set out what were said to be the Claimant's “risk factors”, with which it said it agreed, namely “pro-criminal associates; use of violence and weapons; vengeful thinking; poor thinking skills; living in an environment characterised by aggression and an antisocial orientation; and poor response to treatment and supervision.” It set out some of the Claimant's troubled background.
The panel went through the Claimant's record in custody, observing that in the early years he accumulated a number of adjudications for possession of unauthorised articles, disobeying orders, using threatening, abusive or insulting words, and poor behaviour towards staff. On one occasion a cell phone was found concealed in his cell. In 2018 the Claimant completed the Self Change Programme (“SCP”), and after that staff recorded an improvement in his behaviour.
Nevertheless, the panel recorded:
“In September 2018, you were downgraded to Basic due to your alleged involvement in an act of concerted indiscipline along with others which included serious assaults on staff and extensive damage to a residential unit. Generally, you have been said to display manipulating behaviour after your requests were refused…
You received an adjudication for disobeying a lawful order in July 2019. On another occasion 2019, a body scan had revealed that you had foreign objects in your anal cavity. There were further adjudications in July/August 2020 for using threatening abusive or insulting words and behaviour and in December 2020 for two offences of possession of an unauthorised article.
It was alleged that on 3 July 2020, you became angry and...
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