The Queen (on the application of Gregory McGetrick) v Parole Board and Another
| Jurisdiction | England & Wales |
| Judge | Lord Justice Pill,Lord Justice Toulson,Lord Justice Tomlinson |
| Judgment Date | 14 March 2013 |
| Neutral Citation | [2013] EWCA Civ 182 |
| Docket Number | Case No: C1/2012/0944 |
| Court | Court of Appeal (Civil Division) |
| Date | 14 March 2013 |
[2013] EWCA Civ 182
Lord Justice Pill
Lord Justice Toulson
and
Lord Justice Tomlinson
Case No: C1/2012/0944
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
LORD JUSTICE STANLEY BURNTON &
MR JUSTICE KING
Royal Courts of Justice
Strand, London, WC2A 2LL
Mr Sam Grodzinski QC (instructed by Bhatt Murphy) for the Appellant
Mr Ben Collins (instructed by Treasury Solicitor) for the Respondents
Hearing date : 29 January 2013
This is an appeal against a judgment of the Divisional Court (Stanley Burnton LJ and King J) dated 4 April 2012 whereby they dismissed a claim for judicial review made by Mr Gregory McGetrick ("the appellant") ( [2012] EWHC 882 (Admin)). The appellant sought a declaration in relation to an application he had made to the Parole Board ("the Board"). The issue in the appeal is whether the Board has power to make an interlocutory direction requiring evidence submitted by the Secretary of State to the Board, in this case allegations and evidence of offences that were untried ("untried material"), to be excluded from the final dossier of material taken into account by the particular panel of the Board deciding on whether to release a prisoner on licence.
The facts
The Divisional Court related the basic facts:
"2. On 6 May 2005, following guilty pleas, the Claimant was sentenced to seven years' imprisonment plus an extended licence period of three years, under section 85 of the Powers of Criminal Courts (Sentencing) Act 2000. The sentence was imposed in relation to two different sets of offences, the first concerning possession of firearms and ammunition; and the second concerning possession of a large number of indecent images of children on his computer.
3. In sentencing him, the Judge at Northampton Crown Court stated:
'I bear in mind that it does not appear that you had those images other than for your own gratification in some form or another and therefore this is an important mitigating factor. I know not why you got involved in such offending, but that you undoubtedly did is all too apparent by the number of images the court has had to consider. Those are serious matters but they do lack, fortunately, some of the various factors such as distribution, production and matters of that sort, which would require the court to pass a severer sentence'.
After noting that the Claimant had no previous convictions, the Court imposed the sentence referred to above.
4. On 4 February 2009, following an oral hearing the previous month, the Parole Board directed that the Claimant be released on licence, his risk being found sufficiently low to warrant such release. His licence included as condition 9 a condition "Not to own or use a computer… capable of accessing the internet… without the prior approval of your supervising officer" and as condition 11 a condition "Not to have unsupervised contact with children under the age of 16 without the prior approval of your supervising officer". He was released on 23 February 2009.
5. On 18 September 2009, the Secretary of State recalled the Claimant to prison. This followed an incident in which the Claimant was seen by a police officer to have spoken to two school girls aged around 9 years old in a public place "for a couple of seconds". The girls' evidence to the police officer was that the Claimant, who had had been walking with his mobile phone to his ear, had said "I'm fed up getting voicemail". This was considered by the probation service and the Secretary of State to be a breach of condition 11 of his licence. He was then seen to enter an internet cafe and to access a number of websites including Google, email sites, and a "dirty dating" website which contained images of partially clothed adult women. This was a breach of condition 9.
6. The Claimant's case was initially considered by the Board on the papers, and then at an oral hearing in August 2010. The Board's assessment was that "you currently pose a medium risk of serious harm to children and the public and a low risk of reconviction". However the Board considered that it had insufficient evidence to make a final decision about re-release, and directed the Claimant's Offender Manager, Ms Pauline Hughes, to arrange for the Claimant to be assessed for the Internet Sex Offenders Programme (ISOP)."
At a further hearing of the Board in November 2010, a series of further risk assessment reports was placed before the Board by the Secretary of State. The judgment continued:
"7. The next hearing of the Board was on 3 November 2010. At that hearing, a series of further risk assessment reports were placed before it in an updated dossier prepared by the Secretary of State. The updated dossier included the untried material. That material consisted of a Case Summary that had been prepared by the CPS prior to the Claimant's Crown Court trial. In addition to referring to the allegations of possessing firearms and indecent images of children on which he had been convicted, the Summary included allegations that the operator of the Claimant's computer had, at some point before his arrest in September 2004, exchanged images with other internet users and had boasted in emails of raping two children and having a "very loving relationship" with his 9-year-old daughter. It referred to the fact that the Claimant had been subsequently arrested on suspicion of indecent assault on children unknown and charged with specimen offences including distributing an indecent photograph of a child and sending obscene and menacing messages via email. In addition, the untried material included prosecution witness statements from the police relating to these allegations. No indictment was ever pursued in relation to any of these matters, and the Claimant was not convicted of any offence in connection with them."
The appellant's Offender Manager in the probation service stated that the information supported his assessment that the appellant is at a risk of contact offences towards children. The Manager's report referred to the untried material in detail and spoke of a "heightened risk related to contact offences" arising from it.
The updated parole dossier also contained a detailed report from Ms Julia Long, a Chartered Forensic Psychologist. In her opinion, the recent reports "appear to have reverted to making assertions about risk that have no empirical basis and seem merely linked to an absence of understanding of Mr McGetrick's offending behaviour."
On behalf of the appellant, his solicitor made representations to the Board in relation to the untried material. He also referred to Prison Service Order ("PSO") 6000 which provides:
"… pre-trial prosecution evidence, such as witness statements… must not be included in the dossier as they do not necessarily set out the circumstances of the offence as established in court: they are liable to challenge by the prisoner and could mislead the Parole Board…"
PSO 6000 deals with what ought not to be included in the dossier for the panel appointed to deal with the case but does not bear upon the power of the Board if material which is, or is alleged to be, misleading or inappropriate is included in the dossier. The Secretary of State's decision as to what to include in the dossier could be challenged by way of judicial review but that is submitted to be an inappropriate and insufficient remedy for a prisoner.
The Board's response to the solicitor was contained in a letter dated 8 November 2010 from the Chairman of the panel appointed to decide the case:
"The Panel considered that this was a matter of importance to the Parole Board, which could not be interpreted by individual members. [Counsel for the Claimant] indicated that should we decide that the answer was as submitted by [the Secretary of State], he would then request an adjournment to argue his point on judicial review. The Panel therefore adjourned your hearing to a date to be fixed, once your solicitors, NOMS and the Parole Board have satisfactorily agreed this matter or the point has been decided by the Administrative Court. …"
In a further letter dated 23 February 2011, the Board's Head of Casework wrote to the appellant's solicitor, communicating the decision of the Chairman of the Board:
"Whether the Rules strictly apply or not, directions have so far been asked for and given as if they do, which seems eminently sensible. My conclusion is that the allegations, for good or ill, form part of the material before the Panel. It is therefore for the panel to decide whether it is relevant, and if it is, to come to a conclusion as to the weight it should give to it. The Panel also has an obligation to act fairly. If it concludes that the allegations not relied on at the trial are relevant, but that it cannot fairly determine whether or not they have been made out, it would have to give them little or no weight, which would, in turn, affect its view of the reliance it could place on any reports which did rely on them."
The statute
Section 239 of the Criminal Justice Act 2003 ("the 2003 Act") provides:
"The Parole Board
(1) The Parole Board is to continue to be, by that name, a body corporate and as such is-
(a) to be constituted in accordance with this Chapter, and
(b) to have the functions conferred on it by this Chapter in respect of fixed-term prisoners and by Chapter 2 of Part 2 of the Crime (Sentences) Act 1997 (c 43) (in this Chapter referred to as "the 1997 Act") in...
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