The King (on the application of Robert Sneddon) v Secretary of State for Justice
| Jurisdiction | England & Wales |
| Judge | Fordham J |
| Judgment Date | 21 December 2023 |
| Neutral Citation | [2023] EWHC 3303 (Admin) |
| Year | 2023 |
| Court | King's Bench Division (Administrative Court) |
| Docket Number | Case No: AC-2023-MAN-000042 |
[2023] EWHC 3303 (Admin)
Fordham J
Case No: AC-2023-MAN-000042
IN THE HIGH COURT OF JUSTICE
KING'S BENCH DIVISION
ADMINISTRATIVE COURT
SITTING IN MANCHESTER
Michael Bimmler (instructed by Bhatia Best Solicitors) for the Claimant
Myles Grandison (instructed by GLD) for the Defendant
Hearing date: 7.12.23
Draft judgment: 13.12.23
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.
Fordham J Fordham J Introduction
This is a case about when in law the Secretary of State for Justice (“SSJ”) can reject a Parole Board recommendation to transfer an indeterminate sentence prisoner to open conditions. The case features a policy which refers to rejection because “there is not a wholly persuasive case” (§6 below). It also features an earlier High Court judgment which spoke of “very limited parameters”, where a recommendation can be rejected if it appears “for good reason” to be “unjustified or inadequately reasoned” (§21 below).
The Claimant is aged 70. He has been in prison for 41 years. In July 1982, at the age of 29, he was sentenced to life imprisonment, with a minimum term of 10 years. That was a sentence relating to two offences of rape in 1980 and 1981. He was also sentenced in respect of 5 offences of indecent assault. The victims of the rapes and indecent assaults were aged between 10 and 16. The Claimant was 27. In 1982 the Claimant was also interviewed by the police in relation to two further rapes which had taken place in July and December 1979. The victims were aged 14 and 15. The Claimant did not admit to being the rapist. But by 2014 a ‘cold case review’ and DNA analysis exposed the truth. He pleaded guilty and in June 2015 was sentenced to two concurrent further life sentences, with a minimum term of 8 years. The judge described the protracted campaign of violent rapes which it was now known that the Claimant had perpetrated.
Following the February 1992 expiry of the 10 year tariff under the July 1982 life sentence, the Claimant was eventually assessed as suitable for transfer to open conditions. There followed four periods in open conditions. The position, as the Parole Board recorded, was as follows. First, there was a period of 2 years 10 months between April 2006 (aged 53) and February 2009. That period ended when the Claimant was reported to be in breach of his licence, during release on temporary licence, having been observed in areas where young people could congregate. Secondly, there was a period of 3 years 4 months between March 2009 (aged 56) and July 2012. That period ended when the Claimant was seen purchasing, consuming and concealing alcohol. Thirdly, there was a period of 8 months between January 2013 (aged 59) and September 2013. That period ended when the Claimant was alleged to have been involved in the drug culture at the open prison. It was subsequently acknowledged that no adverse adjudication had followed, and that the Claimant had produced a negative drug test. Fourthly, there was a period of 6 months between March 2014 (aged 61) and September 2014. That period ended because the Claimant was by now under investigation following the ‘cold case review’ and there was a concern about a risk of absconding rather than any failure in open conditions.
The 8 year tariff under the June 2015 life sentences expired on 26 June 2023. The Claimant's ‘post-tariff’ review is underway with a Parole Board hearing expected to take place sometime in 2024 but not yet scheduled. These proceedings arise out of the decision-making following a ‘pre-tariff’ referral. The SSJ referred the Claimant's case to the Parole Board on 24 March 2020. The Parole Board Panel was comprised of two independent members and a psychologist member. An oral hearing commenced on 22 September 2021 and was adjourned. It resumed on 3 February 2022. There was a 604 page dossier of relevant documents. There were reports and updating reports by the Prison Offender Manager (Stephen Gaughan), the Community Offender Manager (Justine Martinus) and the Prison Psychologist (Ffion Burke). All 3 of those professionals also gave oral evidence. The Claimant gave oral evidence and was questioned by the Panel members, who also questioned the professionals, including as to the implications of the Claimant's oral evidence. By a 14-page determination dated 15 February 2022, the Parole Board set out its reasoned recommendation that the Claimant be transferred to open conditions. By a decision letter dated 22 December 2022, the SSJ rejected that Parole Board recommendation.
What had happened between 15 February 2022 and 22 December 2022 was this. The first person to consider the Parole Board recommendation was the case manager (Bukie Awomolo), who recommended on 9 May 2022 that it be accepted. On 23 June 2022 the team leader (Conroy Barrett) recommended rejection. A negative decision letter was issued on 19 July 2022. In judicial review proceedings CO/3838/2022 that decision was withdrawn by way of a consent order. On 28 November 2022, the head of casework (Leah Goodrham) recommended rejection. The pro forma containing the May, June and November 2022 assessments was sent to the head of electronic monitoring operations (Ken Everett) on 6 December 2022. The covering email from Ms Goodrham provided the Parole Board's decision document and relevant reports. It informed Mr Everett of the test which he “should be applying”, quoting from §§5.8.2 and 5.8.3 of the policy framework (§6 below). Mr Everett's assessment as decision-maker, rejecting the Parole Board's recommendation, was added to the pro forma on 13 December 2022 and the fresh adverse decision letter was sent (under the name of Bukie Awomolo) on 22 December 2022. The claim for judicial review was then commenced in March 2023. I granted permission for judicial review on the papers on 17 July 2023. It is not unfamiliar for the permission-stage judge to deal with the substantive hearing. This can promote the efficient use of judicial resources, case-management and expedition, consistently with the overriding objective.
The 2021 GPP Policy Framework
I will start with a description of policies and directions. I was told that these have subsequently changed, but no submissions were made, or needed to be made, about later or current instruments. The SSJ's Generic Parole Process Policy Framework (30 August 2021) was applicable in this case. It describes (at §3.8.18) the Public Protection Casework Section (“PPCS”) as being responsible for deciding whether to accept or reject the Parole Board's recommendation for an indeterminate sentence prisoner to move to open conditions, taking into account the SSJ's Directions to the Parole Board (§11–12 below). The reference to rejection because “there is not a wholly persuasive case” is the third of three grounds set out in §§5.8.2 and 5.8.3 (the square-bracketed numbers here and in §§7–8 below are my insertions):
5.8.2 PPCS may consider rejecting the Parole Board's recommendation if the following criteria are met: [i] The panel's recommendation goes against the clear recommendation of report writers without providing a sufficient explanation as to why; [ii] 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 [iii] it is considered that there is not a wholly persuasive case for transferring the prisoner to open conditions at this time .
Predecessor Policies
In 2012, the SSJ had issued Prison Service Instruction 36/2012 (Generic Parole Process). This was the policy which featured in R (Gilbert) v SSJ [2015] EWCA Civ 802 (see §§10–11). PSI 36/2012 said this at §6.5:
6.5 … The parameters for rejecting a Parole Board recommendation for transfer to open conditions are very limited. The criteria for rejection are: [i] the panel's decision is inaccurate; [ii] the panel have acted irrationally, for example by recommending transfer to open conditions when most of the reports and especially the offender manager's report and psychologist report favour retention in closed conditions .
In 2015, the SSJ issued Prison Service Instruction 22/2015 (Generic Parole Process). PSI 22/2015 was the policy which featured in R (Kumar) v SSJ [2019] EWHC 444 (Admin) [2019] 4 WLR 47 (see §14). PSI 22/2015 said this at §6.4:
6.4 The parameters for rejecting a Parole Board recommendation for transfer to open conditions are very limited. The criteria for rejection are that the panel's recommendation: [i] either goes against the clear recommendations of report writers without providing a sufficient explanation as to why; [ii] or is based on inaccurate information. The Secretary of State may also reject a Parole Board Recommendation where [iii] he does not consider that there is a wholly persuasive case for transferring the prisoner to open conditions at this time .
This 2015 policy provision did three things. First, it repeated the first sentence (about “very limited parameters”) from PSI 36/2012 §6.5. Secondly, it rewrote the two criteria from PSI 36/2012 §6.5. Thirdly, it added a “third ground” (see Kumar at §53: §21 below). These criteria and this third ground became [i], [ii] and [iii] in the 2021 GPP Policy Framework §§5.8.2 and 5.8.3.
In 2020, the SSJ issued the Generic Parole Process Policy Framework (27 January 2020), §§5.8.1 and 5.8.2 of which contained the same text as §§5.8.2 and 5.8.3 of the 2021 GPP Policy Framework. This 2020 Framework was the policy which featured in R (John) v SSJ [2021] EWHC 1606 (Admin) (see §34); R (Stephens) v SSJ [2021] EWHC 3257 (Admin) (see §18); and R (Oakley) v SSJ [2022] EWHC 2602 (Admin) (see §22). It made...
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