The King on the application of Allan Overton v Secretary of State for Justice
| Jurisdiction | England & Wales |
| Judge | Mr Justice Eyre |
| Judgment Date | 07 December 2023 |
| Neutral Citation | [2023] EWHC 3071 (Admin) |
| Court | King's Bench Division (Administrative Court) |
| Docket Number | Case No: AC-2022-CDF-000155; CO/4386/2022 |
[2023] EWHC 3071 (Admin)
Mr Justice Eyre
Case No: AC-2022-CDF-000155; CO/4386/2022
IN THE HIGH COURT OF JUSTICE
KING'S BENCH DIVISION
ADMINISTRATIVE COURT
Cardiff Civil and Family Justice Centre
2 Park Street
Cardiff
CF10 1ET
Carl Buckley (instructed by Reece Thomas Watson) for the Claimant
Tom Leary (instructed by the Government Legal Department) for the Defendant
Hearing date: 23 rd November 2023
Approved Judgment
This judgment was handed down remotely at 10.00am on 7 th December 2023 by circulation to the parties or their representatives by e-mail and by release to the National Archives.
Introduction.
On 12 th October 2012 the Claimant was sentenced to imprisonment for public protection for two offences of attempted rape, seven offences of sexual activity with a child, and two offences of causing a child to engage in sexual activity. The tariff period was set at four years and expired in September 2016. The Claimant remains in prison. He has consistently denied his guilt in respect of these offences.
On 20 th June 2022 following an oral hearing four days earlier the Parole Board recommended to the Defendant that the Claimant be transferred to the open prison estate.
By his decision of 26 th August 2022 (“the Decision”) the Defendant declined to accept that recommendation and concluded that the Claimant should remain in a closed prison environment.
Pursuant to permission granted by HH Judge Lambert the Defendant seeks judicial review of the Decision on two grounds. The first ground is rationality and there the Claimant contends that the Defendant's failure to accept the recommendation was irrational. In that regard it is said that neither limb of the Defendant's two bases for rejecting the Parole Board's recommendation was rational. As to that the Defendant says that each limb of the reasons for rejecting the recommendation was rational but that the Decision was lawful even if only one was. The second ground is that of procedural fairness. There it is said that the Defendant's approach to the question of whether a transfer of the Claimant to open conditions would undermine public confidence in the criminal justice system was unlawful. This was either because the Defendant was applying an unpublished policy or set of criteria or, if there was in fact no such policy or set of criteria, because the Defendant was exercising his discretion in an arbitrary manner. The Defendant says that he was not applying an unpublished policy and that the criteria which were being applied were adequately articulated in the Generic Parole Process Policy Framework (“the GPPPF”) to which I will refer below.
The Legislative and Policy Framework .
Section 12(2) of the Prison Act 1952 provides that prisoners:
“shall be committed to such prisons as the Secretary of State may from time to time direct …”.
By rule 7 of the Prison Rules 1999 prisoners:
“shall be classified, in accordance with any directions of the Secretary of State, having regard to their age, temperament and record and with a view to maintaining good order and facilitating training and, in the case of convicted prisoners, of furthering the purpose of their training and treatment…”
Under section 239 of the Criminal Justice Act 2003 the Secretary of State can seek the advice of the Parole Board in respect of various matters including questions of a prisoner's categorisation and of a prisoner's suitability or otherwise for a transfer to open conditions. The section empowers the Secretary of State to give the Board directions as to the matters it is to take into account when discharging its functions including when giving such advice.
The Defendant has published the GPPPF. This sets out the procedures to be followed by the Defendant's staff when involved in the generic parole process. Those staff include those in the Public Protection Casework Section of HM Prison and Probation Service (“the PPCS”). The GPPPF has gone through a number of iterations both before and since the Decision. The version in force at the time of the Decision contained the following passage at 5.8.2 in the section dealing with the transfer to open conditions of prisoners serving indefinite sentences:
“The Secretary of State (or an official with delegated responsibility) will accept a recommendation from the Parole Board (approve an ISP for open conditions) only where:
• the prisoner is assessed as low risk of abscond; and
• a period in open conditions is considered essential to inform future decisions about release and to prepare for possible release on licence into the community; and
• a transfer to open conditions would not undermine public confidence in the Criminal Justice System.”
The Decision and the Background to it .
In addition to the offences for which he is now imprisoned the Claimant's previous convictions include two separate instances of sexual assaults against boys aged 6 and 7 respectively together with convictions for the possession of indecent images. A Parole Board panel which considered the Claimant's case in 2019 said that his offending history showed “an established pattern of offending against boys and the use of grooming to support [his] access to victims”.
It is not clear from the papers whether the current offences were actually committed while the Claimant was on licence from a previous sentence for indecent assault on a male under 14 years. However, it is clear that the grooming relationship leading up to the offending began when the Claimant was on that licence and that the Claimant concealed the extent of his contact with the victim from his offender manager.
At section 2 of the reasons for its June 2022 recommendation the Parole Board set out its analysis of the Claimant's current psychological condition. The evidence before the panel was agreed. The recommendation noted at 2.14 and 2.15 that the Claimant's stance of denying his offending meant that he was unlikely to be suitable for further treatment including the Healthy Sex Programme designed to explore his sexual interest in children. As a consequence the psychologists concluded that “little further in terms of risk reduction work can be achieved within a closed prison environment”. At 2.16 – 2.18 various factors were noted including the Claimant's difficulty in recognising risk situations and his need for support structures. These factors meant that it was necessary for the Claimant to move to an open prison rather than directly into the community. At 2.19 the Parole Board opined that:
“There is no reason to suggest that a move to open prison would undermine the public confidence in the Criminal Justice System; Mr Overton is now 7 years over tariff and would not benefit further from remaining in a closed prison.”
Risk was addressed at section 3 of the Parole Board recommendation. A medium probability for further sexual offences was predicted and it was noted that if there were to be further offending by the Claimant against children then there was the potential for significant and long-lasting harm to such children. At paragraph 3.2 this point was made:
“However, Mr Overton's offending to date has all taken place after he has been able to ingratiate himself into a family as someone who can be relied upon and trusted. Given the length of time that such a process takes, it seems unlikely that risk would become quickly imminent for a contact sexual offence. The panel agree that he should remain managed as a potential high risk of serious harm offender.”
The Parole Board's conclusion was stated as follows at section 4.
“4.1. Mr Overton has been a repeat sex offender, offending against young boys who have been placed in his care or trust. Working with him on addressing risk has been hampered by both his continued denial of any wrongdoing and his Autistic traits.
4.2. Nevertheless he has completed Horizon and TSP and all professionals involved in his care and supervision agree that nothing further is likely to be achieved from remaining in closed prison. He will continue to need very close support and monitoring in the open estate and ongoing re-enforcement of earlier learning with exposure to real world situations to help him avoid risky situations.
4.3. All professionals in the case, along with the panel consider that a move to open prison is now an essential step in his sentence progression and it would be difficult to consider release in the future without this happening.
4.4. There are no indications that he presents with any risk of absconding and being so far over tariff, and having completed all offending behaviour work expected of him, confidence in the Criminal Justice System is unlikely to be undermined by such a progression bearing in mind that all professionals support such a move.
4.5. Mr Overton is not seeking release and that is not recommended by professionals. The panel agree that he still needs to remain confined in prison for the protection of the public.
4.6. However, for the reasons explained in the preceding paragraphs, Mr Overton's progression to open prison is considered to be essential and the benefits outweigh any risk to the public. Such a move is now being recommended by the panel to the Secretary of State.”
The Decision was made on behalf of the Secretary of State by a casework team within the PPCS.
Having set out the background shortly and having identified the criteria which were to be satisfied the Decision stated that the Defendant had reached a different conclusion from that of the Parole Board and had concluded that the two final criteria in section 5.8.2 of the GPPPF were not satisfied.
The Decision then summarised the evidence which was considered to support that conclusion. This evidence...
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