The Queen (on the application of Gary Allen) v The Parole Board for England and Wales

Hearing date: 17 th October 2012

INTRODUCTION

This case raises potentially significant issues as to the power of the Parole Board to make findings of fact regarding the index offence, and in particular, whether the Parole Board is entitled to make a finding as to the motive for the index crime in circumstances where the original sentencing judge made no positive finding himself.

By these judicial review proceedings, the Claimant seeks to quash a decision by the Parole Board on 2 ^nd August 2011 refusing to release the Claimant on parole. The Parole Board found that there was "a clear sexual aspect" to the index murder committed by the Claimant in 1976 and he continued to pose a risk to women. This finding contrasted with the finding some 35 years earlier by the trial and sentencing judge, Mr Justice Jubb, who in his report to the Home Secretary dated 10 ^th May 1976, said that the motive for the murder "remains a mystery".

THE FACTS

On 16 ^th October 1975, the Claimant (who was then called Gary Tree), murdered a 36-year-old woman, Mrs Rosenwold, for whom he did some work as a window cleaner. Mrs Rosenwold was found at the top of the first flight of stairs in her house. She had been stabbed 12 times. A pair of tights was knotted around her left forearm. The Claimant had taken £20 from her purse.

There were some indicia suggesting a possible sexual element to the offence. The Claimant's contemporaneous account to the police suggested a sexual encounter that had ended in brutality. The Claimant admitted to the police that he and Mrs Rosenwold the victim had gone up to her bedroom and he had been sitting with his arm around her on her bed, but that she had run off screaming after he had ejaculated prematurely in his trousers. He alleged that she had approached him with a knife and a struggle had ensued and he had stabbed her in a panic with her own knife. Seminal staining with a low density of spermatozoa was found externally on the victim's vagina, on the bedcover taken from the victim's bedroom and on a towel found in the Claimant's bedroom.

The Claimant elected not to give evidence at his trial. He was convicted of murder on 3 ^rd May 1976 at the Old Bailey and sentenced to life imprisonment. On 10 ^th May 1976, in his report to the Home Secretary, the trial judge, Mr Justice Jubb, wrote (emphasis added):

"The motive for the murder remains a mystery, and it is impossible to say whether there was any connection between the money (either that in the purse, or the wages money) and the murder, or whether any kind of sexual association existed between the two parties. There was no suggestion, except in the Defendant's statement, that Mrs Rosenwold was other than a perfectly respectable housewife."

—Released on parole

On 8 ^th May 1992, the Defendant's case came before the Parole Board. There was conflicting evidence before the Parole Board as to whether the murder was sexually motivated. Since 1979, the Claimant had denied any sexual contact between himself and the victim and claimed his police account was given when he was young, confused and frightened. The Claimant's probation officer and the Prison Department professional adviser expressed concerns about the Claimant's denial of the sexual element of his offence. It may not have been necessary, however, for the Parole Board to resolve these conflicts or concerns, because by 1992 all reporting officers considered that the risk presented by the Claimant was now low, whatever the motive for the offence. It was for this reason that the Parole Board recommended the Claimant for release on licence. The Claimant was released on licence on 21 ^st May 1992. He had spent 16 years in prison.

—Theft conviction

In September 2002, the Claimant was charged with theft. He failed to inform his Probation Officer of the charge. He used his current name (Gary Allen) when speaking to the police, and did not inform them that he was the same Gary Tree who had been convicted of murder. He was convicted and given 100 hours' Community Punishment.

—Second murder charge – parole revoked

On 21 ^st June 2005, the Claimant was charged with the murder of another woman in her 50s, Ms Jane Thrussell. She had been strangled. The circumstances of this murder bore some similarities to the Claimant's 1976 murder offence, in that the Claimant had undertaken odd jobs for the woman, whom he had befriended, and she was found with her hands bound.

The Claimant's licence was revoked by the Parole Board on 29 ^th June 2005.

—Hung jury

The Claimant was tried for the second murder on two occasions in 2007, but on neither occasion could the jury reach a verdict.

Other matters

Following revocation of the Claimant's licence, three other matters came to light which had a bearing on his parole. The first was that it was discovered that the Claimant had been involved in a domestic violence incident in 2001 when he had assaulted his partner, which he had not reported to his Probation Officer. The second was that the police also discovered disturbing sexual images on the Claimant's computer: namely, explicit images of himself, pornographic images of mature women, and voyeuristic images of women's bottoms, which he appeared to have photographed himself. The Claimant claimed the images of women were already on the computer. The third matter was that it transpired that, during his release on licence, the Claimant had not been honest with the Probation Service about his accommodation (residing in his father's home without approval) or his employment (he was working for lone females in similar circumstances to those of the original offence).

rd December 2008 —Parole Board review

The Parole Board reviewed the Claimant's recall at a hearing on 23 ^rd December 2008. It received evidence that women had requested 'no contact' conditions be placed on the Claimant, including his former partner whom he had assaulted, and another woman, Ms Lambert, for whom he had worked. The Parole Board decided that it would be inappropriate for the Claimant to be released at that point because: (i) he had committed breaches of the residence and work requirements of his licence; (ii) there was evidence of domestic violence; (iii) there were new inconsistencies in the Claimant's account of his index offence, demonstrating (along with other aspects of his evidence) insufficient insight into his offending; (iv) he had "further work to do on thinking skills, attitudes to women and victim awareness"; and (v) the risk of the Claimant committing further offences of serious harm was not manageable in the community.

—Claimant's first judicial review

The Claimant brought a judicial review challenge against the Parole Board's decision of 23 ^rd December 2008 on the grounds that it has not applied the correct standard of proof and the Claimant had not breached his licence conditions. The challenged was dismissed on 1 ^st December 2009 (see ( R(Allen) v Parole Board [2009] EWHC 3492). In his judgment, HHJ Pearl, sitting as a Deputy High Court Judge, cited the evidence Miss Ellis regarding the assault on her by the Claimant (the Parole Board having rejected the Claimant's allegation she was simply making it up in order to get her locks changed for free):

"As he [Mr Allen] came towards me, I was backing up into the spare room. Gary then started to strangle me; his hands were round my neck. He was squeezing my neck, he was literally squeezing it, and I was being pushed back into the laundry basket."

th July 2011 —Parole Board review

The Claimant's case came before the Parole Board again at an oral hearing on 18 ^th July 2011. At the oral hearing, the Parole Board had before it a large dossier of evidence and reports about the Claimant's time in prison and the Claimant's time on licence, running to 233 pages, together with further material from the Claimant's solicitor. The Parole Board also heard oral evidence from the Claimant himself.

Shortly before that hearing, the Metropolitan Police informed the Claimant's Offender Manager, Ms Lisa Doney, that they were reviewing the second murder in 2005 in light of new forensic leads not available at the time of the initial investigation. The Claimant remained the only suspect. Ms Doney indicated that in light of the new information, the National Offender Management Service (NOMS) could no longer support release.

nd August 2011 —Parole Board's Decision

In its reasoned Decision dated 2 ^nd August 2011, the Parole Board highlighted a number of risk factors regarding the Claimant, in particular: (i) there was "a clear sexual aspect" to the initial offence of murder in relation to which the Claimant was in denial; (ii) the denial of the sexual aspect of the offence meant that the Claimant had done no work to address that aspect of his offending which meant that the Board lacked reassurance that the Claimant was able to safely manage relationships; (iii) reassurance might have been provided by a prolonged period of properly monitored relationships with women, but there was no evidence of that in light of the Claimant's lack of openness in respect of...