The Queen (on the application of Aswad Browne) v The Parole Board of England and Wales

JurisdictionEngland & Wales
JudgeHHJ McKenna
Judgment Date31 August 2016
Neutral Citation[2016] EWHC 2178 (Admin)
Docket NumberCase No: CO/5649/2015
CourtQueen's Bench Division (Administrative Court)
Date31 August 2016

[2016] EWHC 2178 (Admin)

IN THE HIGH COURT OF JUSTICE

QUEEN'S BENCH DIVISION

ADMINISTRATIVE COURT

Royal Courts of Justice

Strand, London, WC2A 2LL

Before:

HHJ McKenna

(Sitting as a Judge of the High Court)

Case No: CO/5649/2015

Between:
The Queen (on the application of Aswad Browne)
Claimant
and
The Parole Board of England and Wales
Defendant

Mr Philip Rule (instructed by Taylor Haldane Barlex Solicitors LLP) for the Claiamnt

Ms Zoe Leventhal (instructed by GLD) for the Defendant

Hearing dates: 20 July 2016

Approved Judgment

HHJ McKenna

Introduction

1

The Claimant, a determinate sentence prisoner, recalled to prison following his release on licence, seeks Judicial Review of the decision of the Parole Board of England and Wales ("The Defendant") by letter dated 11 August 2015 ("The DL") not to direct his re-release following an oral hearing convened on 25 July 2015.

2

The Claimant was sentenced on 15 June 2011 to six years and three months' imprisonment for burglary and assault occasioning actual bodily harm ("ABH"). He was initially released on licence on 25 March 2014 but recalled on 12 January 2015 following his arrest for two breaches of a non-molestation order imposed upon him in November 2014. The Claimant was convicted by his plea on both counts at Basildon Magistrates Court on 12 January 2015 and sentenced to 56 days in prison (28 days for each count).

3

Permission to seek judicial review was granted on the papers by Mr. David Elvin QC sitting as a deputy High Court Judge who, when granting permission, made the following observations:

" While the Court generally leave matters of judgement on release to the Parole Board, the claim is on balance arguable."

4

The Claimant's grounds of challenge are three-fold as follows:

i) Failure to apply a presumption in favour of release;

ii) Unfair assumptions against the Claimant made by the Defendant in the absence of a fair procedure for the determination of disputed matters or proper enquiry and investigation contrary to Common Law and / or Article 5(4) of the European Convention of Human Rights – that is to say procedural unfairness;

iii) Irrational or wrongful assessment of a high risk of serious harm to the Claimant's ex-partner rendering it necessary to detain and / or failure to have regard to material evidence and considerations.

5

In summary, the Defendant's response to these three grounds is as follows:

i) There was no necessity as a matter of law for the Defendant expressly to refer to the presumption in favour of release. Moreover, it is clear from the reasoning contained in the DL that the Defendant did in fact apply such a presumption, but having assessed the Claimant's risk, it concluded, based on all the available evidence, that that risk was "not manageable in the community" thus necessitating detention.

ii) The Defendant made no assumptions and drew no inferences concerning the veracity of the assault allegation, nor was it obliged so to do. In any event the decision was not based on the disputed allegation alone but on a number of relevant considerations.

iii) The assessment of risk was within the boundaries of rationality and took into account all relevant considerations.

Factual Background

6

The factual background is non-controversial and I adopt in very large part, and with gratitude, the Defendant's counsel's summary.

7

The Claimant, who was born on 6 November 1982, is a determinate sentence prisoner who was sentenced on 15 June 2011 to 6 years and 3 months for burglary after a guilty plea and for ABH. The burglary offence had involved the Claimant and his associates, dressed in balaclavas and hoods, attacking the owner of the property, a single female. In the Judge's judgment he stated " This Burglary began, not with a break-in, but with great planned violence towards the victim. The violence was inside her own garden, three of you subjected her to intensive violence…this was every householder's worst nightmare." The ABH offence involved the Claimant driving over a Police Officer's foot recklessly which caused an injury to the Officer's ankle.

8

At the time of the offence the Claimant had a history of offending dating back to 2004 when he was convicted of offences of possessing an offensive weapon (a knife), possessing cannabis and having no driving insurance. The Claimant was sentenced to imprisonment for possession of the knife. In 2005 the Claimant was sentenced to imprisonment for possessing ammunition. In 2006 the Claimant was convicted of threatening behaviour and in 2007 he was convicted of attempted robbery and sent to prison for 30 months. In 2008 the Claimant was convicted of possessing cocaine.

9

The Claimant was released on licence on 25 March 2014. Condition 5(i) of the licence required the Claimant to:

"be well behaved, not commit any offence and not do anything which could undermine the purposes of your supervision, which are to protect the public, prevent you from re-offending and help you re-settle successfully into the community"

10

On 11 November 2014 the Claimant telephoned his Probation Officer to explain that he would not be attending his appointment on that day because he feared he would be recalled due to an assault allegation from his ex-partner and mother of his two children. Limited information is known about the incident. The DL stated as follows:

"Few facts were available in relation to the alleged assault except that the victim had a clump of hair missing. You have two daughters one of whom was said to be present during the assault."

11

It appears that Essex Police were called but the victim did not wish to press charges. The victim did however apply for and obtain, without notice, a non-molestation order in the family court on 11 December 2014, which was served upon the Claimant on 19 December 2015, though he denied having been aware of it at that time. The order prevented the Claimant from, inter alia, "communicating with the applicant whether by letter, text, or otherwise except through solicitors".

12

According to the DL, following the allegation of assault, the Claimant's Offender Manager advised him not to have any contact with his ex-partner, the police issued a harassment warning and the Claimant was prohibited from having contact with his ex-partner for 28 days.

13

The Claimant complied with the harassment warning. However, in breach of the non-molestation order, the Claimant called and texted his ex-partner on 24 December 2014 and then phoned his ex-partner on 8 January 2015 on three occasions. The ex-partner also received calls on a withheld number and her buzzer was rung several times – although there is no evidence that this was the Claimant.

14

On 12 January 2015 the Claimant pleaded guilty and was convicted of two counts of breaching the non-molestation order at Basildon Magistrates Court. The court sentenced him to 56 days imprisonment (28 days per count). The Claimant was subsequently recalled to prison on the same day for breach of condition 5(i) of his licence, requiring no offences to be committed.

15

On 18 February 2015, a member of the Defendant directed an oral hearing and the submission of a brief addendum from the Offender Manager and a brief conduct and progress report from the Offender Supervisor.

16

Re-release was supported by the Offender Manager responsible for supervising the Claimant when he was in the community, Ms McGowan. She had been his offender manager for over three years. Neither of the other two report writers felt that they knew the Claimant well enough to be able to make a recommendation as to his suitability for re-release.

17

The Claimant completed several courses whist in custody, including victim awareness; domestic and relationship abuse; interpersonal skills; and anger management and family relationships. No course reports or certificates were included in the short dossier considered by the Defendant's panel.

18

An oral hearing via videolink before a panel member of the Defendant took place on 27 July 2015. The DL was issued on 11 August 2015.

The Decision under challenge

19

Under the heading "Introduction" the Defendant's panel referred to the test it should apply, namely " the Defendant is empowered to direct your re-release only if it is satisfied that it is no longer necessary for the protection of the public that you should continue to be confined"

20

Under the heading " Panel's Assessment of Current Risk", the following appears:

"You have been assessed of presenting a low static risk of reoffending (OGRS), a medium risk of general reoffending (OGP) and a low risk of violent reoffending (OVP). You have also been assessed as presenting a high risk of causing serious harm to a known adult, a medium risk of serious harm to children, members of the public and staff members (presumably because of your offence of assaulting a police officer by running over his foot).

In coming to its own assessment of risk the panel took account of the very serious and violent nature of the index offence of burglary that involved preplanning and targeted offending. The panel was particularly concerned about the violence that was used against the victim in order to get her to comply. Little is known by your offender Supervisor or Offender Manager about the extent of the violence and your part in it. In your evidence to the panel you minimised your responsibility for running over the police officer's foot, describing it as an accident, and that you reacted out of shock, not knowing who the person was. You have previous convictions for offences of violence, albeit that they are not for such serious offences.

...

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1 cases
  • Aswad Browne v The Parole Board of England & Wales
    • United Kingdom
    • Court of Appeal (Civil Division)
    • 20 Septiembre 2018
    ...as a judge of the High Court), heard the judicial review application on 20 July 2016. His judgment was dated 31 August 2016 ( [2016] EWHC 2178 (Admin)). Having set out the facts and the legal framework, from [32] onwards, the judge went through each of the grounds. He rejected the claim on......
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