REGINA v (1) THE PAROLE BOARD [2000] EWCA Crim 3552

IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
CROWN OFFICE LIST
(MR JUSTICE HOOPER)
[2000] EWCA Crim 3552Case No Case No. QBCOF 1999/1107/CVenue Royal Courts of Justice, The Strand, London
Between
REGINA(1) THE PAROLE BOARDAppellant(2) THE SECRETARY OF STATE FOR THE HOME DEPARTMENTEx parte OWEN JOHN OYSTONRespondent
Before
Lord Chief Justice of EnglandLord Bingham of CornhillLord Justice PillLady Justice HaleMR STEVEN KOVATS (instructed by the Treasury Solicitor) appeared onbehalf of THE APPELLANTMISS BEVERLEY LANG (instructed by Messrs David Price & Co, London WC1N 3DA) appeared on behalf of THE RESPONDENTDate 1 March 2000

THE LORD CHIEF JUSTICE: I will ask Lord Justice Pill to give the first judgment.

LORD JUSTICE PILL: This is an appeal by the Parole Board ("the Board") against a decision of Hooper J made on 14 October 1999 whereby the judge granted an application by Mr Owen Oyston, the respondent, to quash a decision of the Board made on 7 April 1999 refusing the respondent parole.

[3]The respondent had in May 1996 been convicted of and sentenced in the Crown Court at Liverpool for an offence of rape and an offence of indecent assault. He was sentenced to a total of six years' imprisonment. Both offences were alleged to have been committed within a short period of time on the same night on a 16-year-old girl.[4]The respondent denied, and continues to deny, his guilt of those offences or to do or say anything which might involve an admission of guilt. He appealed unsuccessfully to the Court of Appeal, Criminal Division, and has now appealed to the Criminal Cases Review Commission and to the European Court of Human Rights. The length of the respondent's sentence was such that, by virtue of section 35(1) of the Criminal Justice Act 1991 ("the 1991 Act") he became eligible for parole after serving half his sentence. By virtue of section 50 of the 1991 Act and the Parole Board Transfer of Functions Order (SI 1998/3218), the respondent would be released on parole if and only if the Board directed the Secretary of State to release him. If not previously granted parole, the respondent would be released after serving two-thirds of his sentence: section 33(2) of the 1991 Act.[5]In reaching its decision as to whether to release on parole the Board was required to apply directions made by the Secretary of State: section 32(6) of the 1991 Act.[6]The relevant direction was issued by the Secretary of State in 1996. It reads:
"1. In deciding whether or not to recommend release on licence, the Parole Board shall consider primarily the risk to the public of a further offence being committed at a time when the offender would otherwise be in prison and whether any such risk is acceptable. This must be balanced against the benefit, both to the public and to the offender, of early release back into the community under a degree of supervision which might help rehabilitation and so lessen the risk of re-offending in the future. The Board shall take into account that safeguarding the public may often outweigh the benefits to the offender of early release. 2. Before recommending early release on licence, the Parole Board shall consider whether: (1) the safety of the public will be placed unacceptably at risk. In assessing such risk the Board shall take into account: (a) the nature and circumstances of the original offence; (b) whether the prisoner has shown by his attitude and behaviour in custody that he is willing to address his offending behaviour by understanding its causes and its consequences for the victims concerned, and has made positive effort and progress in so doing. (c) in the case of a violent or sexual offender, whether the prisoner has committed other offences of sex or violence, in which case the risk to the public of release on licence may be unacceptable. (d) that a risk of violent or sexual offending is more serious than a risk of other types of offending. (2) The longer period of supervision that parole would provide is likely to reduce the risk of further offences being committed. (3) The prisoner is likely to comply with the conditions of his licence. (4) The prisoner has failed to meet the requirements of licensed supervision, temporary release or bail on any previous occasion and, if so, whether this makes the risk of releasing him on licence unacceptable. (5) The resettlement plan will help secure the offender's rehabilitation. (6) The supervising officer has prepared a programme of supervision and has recommended specific licence conditions."
[7]Thus the primary task of the Board is to consider the risk to the public if parole is granted.[8]We have also been referred to training guidelines which are issued to members of the Board by the Secretary of State. I need not set those out. They played no part in the current proceedings either before the judge or it appears before the Parole Board. I would only comment that the task of a decision maker cannot be made easier if he is acting under two sets of instructions or guidelines which are in very different language.[9]The respondent is a prominent and successful businessman of previously good character. He was 62 years old at the date of his conviction. In their decision letter refusing parole on licence the panel of the Board stated:
"A panel of the Parole Board considered your application on 07 April 1999 and found you not suitable for early release on licence. Reasons The panel gave the following reasons for their decision: (1) Mr Oyston was convicted of Rape and indecent assault of a young woman. (2) He has shown no remorse for these offences. (3) Whilst he has been of good behaviour in prison there is no evidence to show that he has gained insight or under-standing about the offences, and there is little in consequence to indicate that he has modified his behaviour and attitudes, shown victim empathy and developed strategies to avoid re-offending. (4) His appeal against conviction has been dismissed. (5) Whilst he is reported to have applied for the SOTP [Sexual Offenders Training Programme] and other courses to address issues other than sexual offending, including previous infidelity, his inability to accept responsibility for his offences has precluded him from the SOTP which requires an acceptance of wrong doing. (6) The panel are concerned at this lack of course work to help him gain insight. (7) There is in consequence little evidence that the risk of re-offending has been reduced. (8) He lacks a release plan with offence- focused work designed to reduce the risk and the panel in consequence of all the above factors does not therefore consider him suitable for early release."
[10](For the purposes of argument, Mr Kovats, for the Board, in his helpful skeleton argument has broken the letter down into several numbered sentences, and I will follow that numbering later in my judgment.)[11]Hooper J identified the issue before him as follows:[12]"Was the decision to refuse parole unlawful by reason of its alleged reliance upon the [respondent's] denial of guilt and the consequences which flowed from that denial?"[13]The issues have become somewhat wider in the course of submissions before this court. It is common ground that the principles relevant to the present issues are stated in the decision of the Divisional Court in R v the Secretary of State for the Home Department, ex parte Zulfikar (The Times, 26.7.95). Stuart-Smith LJ, with whom Butterfield J agreed, stated:
"Where a prisoner either pleads guilty or after conviction later accepts his guilt, it is plain that he is in a position to address his offending in the sense that he can examine his underlying motivation, unreasonable reactions to stress or provocation and anger management and suchlike matters. But there may be a variety of reasons why a prisoner will not accept his guilt. He may genuinely have been wrongly convicted. Although inwardly he may know he is guilty, he may be unwilling to accept that he has lied in the past or confront loss of face in accepting what he has hitherto denied. Where, for example, the offence is one of specific intent, he may genuinely have persuaded himself that he did not have the necessary intent. Such a man may in all other respects be a model prisoner. He may have behaved impeccably in prison, occupied his time constructively and shown himself trustworthy and reliable with a settled background to which to return. Should he be denied parole solely because of his attitude to the offence? In the majority of cases I think plainly not. Each case will depend upon its own circumstances and this Court should avoid trying to lay down principles which may well not be universally applicable. While I have no doubt that paragraph 1.3(b) should be taken into account in all cases, the weight to be attached to it will vary greatly. At one end of the scale is the persistent offender, in particular the persistent sex offender, who refuses to accept his guilt in the face of clear evidence and is unable to accept that he has a propensity to such conduct which needs to be tackled if he is not to offend again. In such a case it may well be a determinative consideration. At the other end of the scale is the first offender, where the motivation for the offence is clear and does not point to a likelihood of re-offending. In the majority of cases it is unlikely to be more than one of many factors to which undue weight should not be given."
[14]More recently in R v Secretary of State for the Home Department, ex parte Hepworth and others (unreported, 26 March 1997), Laws J stated:
"I hesitate to offer yet a further summary of the essential approach to be derived from the cases. I do so only to the extent that the following propositions, while of general application, bear particularly on the way in which Mr Tabachnik has put his case for the applicants: (1) The Parole Board must assume the prisoner's guilt of the offence or offences of which he has been convicted. (2) The Board's first duty is to assess the risk to the public that the prisoner might commit further offences if he is paroled. (3) It is therefore unlawful for the Board to deny a recommendation for parole on the ground only that the prisoner continues to deny his guilt. (4) But in some cases, particularly cases of serious persistent violent of sexual crime, a continued denial of guilt will almost inevitably mean that the risk posed by the prisoner to the public or a section of the public if he is paroled either remains high or, at least, cannot be objectively assessed. In such cases the Board is entitled (perhaps obliged) to deny a recommendation."
[15]In his judgment Hooper J set out the facts of the offences to which, by virtue of the direction, the panel of the Board was obliged to have regard in reaching a decision:
"In 1992 Oyston was having sexual relationships with a number of young models from M's agency, one such model was R (18-years-old). He had been having that relationship with her for 2 years. In 1992, as was the norm, M attended a Manchester restaurant and took a group of girls which included the 16 year old Miss A [the complainant in the two counts of rape and indecent assault] and R. At the end of the evening M took Oyston back to his home at Claughton Hall, Lancaster. They used M's Toyota Supra motor vehicle for the trip and they were accompanied by Miss A and R. Oyston sat in the rear of the vehicle with Miss A. She'd hardly spoken to Oyston when he took hold of her hand, undid his trousers, took out his penis and put her hand onto his penis. He caused her to masturbate him until his penis was hard. He then forced her head down onto his penis and put it into her mouth. He held her head down onto his penis. His hand was on her head, moving it up and down. He ejaculated in her mouth. When they got to Claughton Hall M stayed in the car whilst Oyston, R and Miss A went into the premises and Oyston took them both to his bedroom. Miss A sat in a chair while Oyston had consensual sex with R. Oyston then told Miss A to get into the bed, which she did because she was scared and because of what had happened to her in the car. She was also afraid of M who was outside and waiting for her. She got into bed and Oyston had sexual intercourse with her, she just lay still and didn't move. She didn't want to have sex, but felt that she had no choice."
[16]The respondent denies substantial parts of that account of the events of the night -- in particular the absence of consent.[17]In his judgment Hooper J also set out in some detail the reports which were before the Board. There was a prison report, including an assessment; the report of the seconded prison probation officer, Mr P James; reports from the prison chaplain and from Mr D Smith, another probation officer. Mr James and Mr Smith concluded that the risk of the respondent re-offending was respectively "low" and "probably low". It is not necessary for present purposes to set out the contents of the reports in any detail because of the stance taken by the parties at the hearing of this appeal. It is common ground that the risk of offending arose substantially from the respondent's lifestyle, which included associating with young women late at night, as witnessed by the circumstances in which the respondent found himself on the night of the alleged offences. He was attractive to women for reasons which included his wealth and his influence. He admitted having had relationships with other women. If his lifestyle were to change, the risk of his offending would be greatly reduced. Mr Kovats accepts that there was considerable evidence before the Board as to a possible change in lifestyle by the respondent and that the evidence was relevant to an assessment of the risk to which the members of the public were subject.[18]The respondent expressed an intention to change his lifestyle on release from custody and to spend more time with his family. The firmness and good faith of his intentions were substantially accepted by reporting officers. The prison assessment included this paragraph in relation to his family:
"His family ties are very, very strong. His family have encouraged him throughout and have been a source of strength. He has regular contact with his family by 'phone and visits, and I have witnessed the strong family bond between them."
[19]The reports to which I have referred also include substantial and favourable reference to the respondent's behaviour whilst in prison. We are told that that factor featured prominently before Hooper J. It has fallen into the background in the submissions to this court. In their decision letter the panel did refer to the respondent's good behaviour in prison.[20]Hooper J concluded that the Board had fallen into the error identified in ex parte Zulfikar. He quashed the decision and ordered that the respondent's application for parole be considered by a differently constituted panel. That has now been done with the result that the respondent has been released on parole.[21]Mr Kovats accepts that it is unlawful for the Board to deny parole on the ground only that the defendant continues to deny his guilt. Mr Kovats submits that the Board was entitled to, and did, express concern at the respondent's behaviour and attitudes in the context of the offences of which he was convicted. Mr Kovats accepts that it is the question of risk in the particular case which must be considered by the Board. He submits that, on the material before it, the Board was entitled to conclude that there was "little in consequence to indicate that he has modified his behaviour and attitudes, shown the victims empathy and developed strategies to avoid re-offending". The Board was rightly concerned at the "lack of course work" to help him gain insight. As the decision making body, the Board was entitled to conclude that there was "little evidence that the risk of re-offending has been reduced". In a context where the respondent's motivation for offending is unknown, the Board was entitled to base a decision to refuse parole on the lack of evidence that the respondent would not re-offend after release.[22]The Parole Board, it is submitted, had in mind the body of the material to which I have referred when reaching its decision. The panel was entitled to conclude that there was insufficient evidence that the risk of further offending had been reduced. It accepts that there may be cases where guilt is denied, but where a prisoner can demonstrate that he will modify his behaviour. The Board was nevertheless entitled to hold that those were not the present circumstances. Mr Kovats accepts that the letter was brief in relation to the particular circumstances of the case, but both the substance of the decision and the statement of reasons was lawful and appropriate.[23]For the respondent, Miss Lang submits that the Board did not assess the risk posed by this particular prisoner while considering all relevant factors, but determined the case by reference to one factor, that is the denial of guilt following which his inability to attend the Sexual Offenders Treatment Programme was inevitable, as was his inability to produce a release plan with "offence-focused work". Miss Lang draws attention to the substantial material in the reports which supports the view that the respondent was not a risk to the public. There is evidence (not referred to by the Board in the decision letter) of an intention to change lifestyle; that determination was expressed to all those who reported on him. There was, it is submitted, a clear causal connection between the respondent's former lifestyle and the offences committed; alter the lifestyle and the risk of offending is reduced. The risk should be considered in the context of a man of 65 years without previous convictions and with a supportive family. Moreover, the seconded prison probation officer reported that the respondent's "experience in prison will, in my view, also be a strong deterrent to any future behaviour".[24]I agree with the conclusion of Hooper J. There is, in my view, a real risk that the decision of the Board was taken only on the basis of the denial of guilt and the consequences which inevitably flowed from that denial. The letter reads as if risk is only capable of being assessed as low if the conditions set out in sentences 3 and 5 of the letter are established. I repeat part of sentence 3:[25]".... there is no evidence to show that he has gained insight or understanding about the offences, and there is little in consequence to indicate that he has modified his behaviour and attitudes, shown victim empathy and developed strategies to avoid re-offending."[26]That sentence closely echoes the language of paragraph 2(1)(b) of the direction. It indicates a frame of mind in the decision maker that it is only by the stated route that the respondent is able to persuade the Board that the present risk is a low one. That, in my view, is an erroneous approach. Having regard to the previous good character and the other circumstances referred to, a change of lifestyle was in this case a possible way of producing a conclusion that the risk was a low one. Sentence 3 suggests a mechanistic approach to paragraph 2(1)(b). Moreover, in the letter the expression "in consequence" appears on three occasions. That too suggests that the "consequences" in mind follow from the denial of guilt and the Board, rather than assessing the circumstances in the particular case, has had regard only to a situation in which the prisoner is able to achieve the consequences desired by reason of an acceptance of guilt.[27]In my judgment the Board has taken too narrow a view of paragraph 2(1)(b) of the direction. Moreover, as Mr Kovats accepts, and rightly accepts in my view, the test is a general one. The test is as to the current level of the risk to the public and it is essential in applying that test that all the circumstances of the particular case are considered. There is nothing in the decision letter to indicate that the evidence of the proposed change in lifestyle was a factor considered by the Board in reaching their decision. Mr Kovats submits that by implication it can be concluded that this factor was taken into account. In my judgment it was a central point which needed to be addressed both directly and specifically.[28]Moreover, the respondent was entitled to know that the point had been considered. There is upon the Board a duty to give reasons and it is submitted that, even if the substance of the matter was considered, the reasoning was inadequate. When considering the nature of the duty to give reasons, the classic exposition is that of Megaw J in In re Poyser and Mills' Arbitration [1964] 2 QB 467, 478, subsequently approved in the House of Lords in Westminster City Council v Great Portland Estates Plc [1985] AC 661 , 673:[29]"Parliament provided that reasons shall be given, and in my view that must be read as meaning that proper, adequate reasons must be given. The reasons that are set out must be reasons which will not only be intelligible, but which deal with the substantial points that have been raised."[30]That passage was also cited with approval more recently in Bolton Metropolitan District Council v Secretary of State for the Environment [1995] 3 PLR 37, 43. Lord Lloyd, with whom the other members of the Judicial Committee agreed, stated:[31]"What the Secretary of State must do is to state his reasons in sufficient detail to enable the reader to know what conclusion he has reached on the principal important controversial issues. To require him to refer to every material consideration, however insignificant, and to deal with every argument, however peripheral, would be to impose an unjustifiable burden."[32]I cannot accept Mr Kovats' submission that the reasoning has regard to the circumstances of this particular case. The evidence as to the change of lifestyle was, upon the determination of the central issue, a principal and an important issue. The letter wholly fails to address it.[33]A further point has arisen as to whether the Board was entitled to have the court consider a statement submitted, after the decision letter, by Mr Hennessy, a member of the panel. It is not necessary for present purposes to set out in full the contents of that letter, which claimed that parole was refused because of the risk of reoffending and not because the respondent denied the offences. The question arose in R v the Parole Board, ex parte Gittens (unreported, 26.1.94). Ralph Gibson LJ stated at page 28 of the transcript:[34]"In my judgment, the reasons which are required by Rule 15 to be recorded in writing and signed by the chairman of the panel, must not only be the reasons for and upon which the decision was made but must also, as required by well established principles of law, be intelligible and deal with the substantial points which have been raised."[35](That closely reflects the language of Megaw J in Poyser v Mills.)[36]"In the context of a hearing before the DLP, the reasons must explain why the DLP is not satisfied that it is no longer necessary for the prisoner to be confined. It should not, therefore, normally be necessary for any further explanation of the reasons for the decision to be given...."[37]The question of an elaboration of reasons was also considered in a different context by Hutchison LJ in R v Westminster City Council, ex parte Ermakov [1996] 2 All ER 302 , 315:[38]"The court can and, in appropriate cases, should admit evidence to elucidate or, exceptionally, correct or add to the reasons; but should.... be very cautious about doing so. I have in mind cases where, for example, an error has been made in transcription or expression, or a word or words inadvertently omitted, or where the language used may be in some way lacking clarity. These examples are not intended to be exhaustive, but rather to reflect my view that the function of such evidence should generally be elucidation not fundamental alteration, confirmation not contradiction."[39]In my judgment it is important in cases before the Parole Board that reasons which comply with the guidance in the cases to which I have referred should be given. The liberty of the subject is at stake. It is most undesirable if the reasons are not of such clarity that the Board feels impelled to seek to make a further statement to elaborate upon them or to explain them.[40]The object of the further statement is to establish that the mischief identified in ex parte Zulfikar was not present in this case. I would, and have been, prepared to look at the statement of Mr Hennessy with that in mind. This is not a case where an attempt is made to come within the type of situation contemplated by Hutchison LJ. The letter may afford evidence that considerations other than the conviction were in the minds of the members of the panel. However, with its continued emphasis upon the respondent's motivation for offending, it is of no assistance upon what has emerged at this hearing as the central point in the case, namely whether a material factor was addressed by the Board and whether that principal and important factor is sufficiently addressed in the decision letter. I have found no help in the additional statement of Mr Hennessy.[41]For the reasons which I have given I would dismiss this appeal.

LADY JUSTICE HALE: I agree.

THE LORD CHIEF JUSTICE: Convicted prisoners who persistently deny commission of the offence or offences of which they have been convicted present the Parole Board with potentially very difficult decisions. Such prisoners will probably not express contrition or remorse or sympathy for any victim. They will probably not engage in programmes designed to address the causes of their offending behaviour. Since they do not admit having offended they will only undertake not to do in the future what they do not accept having done in the past. Where there is no admission of guilt, it may be feared that a prisoner will lack any motivation to obey the law in future. Even in such cases, however, the task of the Parole Board is the same as in any other case: to assess the risk that the particular prisoner if released on parole, will offend again. In making this assessment the Parole Board must assume the correctness of any conviction. It can give no credence to the prisoner's denial. Such denial will always be a factor and may be a very significant factor in the Board's assessment of risk, but it will only be one factor and must be considered in the light of all other relevant factors. In almost any case the Board would be quite wrong to treat the prisoner's denial as irrelevant, but also quite wrong to treat a prisoner's denial as necessarily conclusive against the grant of parole.

[44]Thus in the present case the applicant's denial was a proper matter for consideration weighing against the grant of parole if it was judged to be an indication of future risk. But the papers before us would suggest that there were or may have been other matters indicative of a small or negligible risk of re-offending and so weighing in favour of parole. The applicant was well past middle age and had never offended before. His offences were committed within a very brief period of time. He appeared to be bitterly conscious of the suffering his conviction and imprisonment had imposed on his family. He himself had found it a profoundly traumatic experience. His burning ambition, it seemed, was to clear his name -- an ambition which would be fatally undermined if he were to be convicted again. While denying commission of the index offences, he had been willing to acknowledge and address his previous sexual behaviour and had indicated an intention to modify his way of life. The balance of opinion among those who reported on him in prison was that he presented a low risk of re-offending. These positive features might or might not be judged to outweigh the negative effect of his denial and other factors indicative of future risk. That would be a matter for the informed and experience judgement of the Board. It is certainly not a matter for this court. But it would engage the attention of the court if a prisoner's denial were treated as an all but conclusive indication of the risk of future offending.[45]The judge formed the opinion that the Board, as judged by its reasons letter, had fallen into the trap of treating the applicant's denial as all but conclusive. It is unnecessary to repeat the terms of that letter which my Lord has read. It included two statements of fact:
"Mr Oyston was convicted Rape and indecent assault of a young woman" and "
His appeal against conviction has been dismissed". It contained two clauses reflecting positively on his behaviour:
"Whilst he has been of good behaviour in prison" and "
Whilst he is reported to have applied for the SOTP and other courses to address issues other than sexual offending, including previous infidelity ...." It contained one conclusion:
".... the panel in consequence of all the above factors does not therefore consider him suitable for early release."
All the rest of the letter, as it seems to me, although relating to the applicant, would be true of almost anyone denying offences such as these. If, having read the letter, one asks why the Board has found the applicant not suitable for early release, the common sense answer would in my view be: because he denied guilt and in consequence has not taken the steps which he would otherwise have taken. There is nothing to indicate that account has been taken of any positive factors other than the two matters mentioned and nothing to indicate that any balancing exercise has been carried out. The letter as it stands does in my view suggest, as the judge held, that the applicant's denial and its consequences have been treated as all but conclusive against him.[46]It is accepted that the court may receive additional material to elaborate and expand the reasons given in a decision letter such as this, but the reasons for caution are obvious. The purpose of the letter, where parole is to be refused, is to explain why the prisoner's application has been unsuccessful, a matter of great moment to him. He wants to know the basis of the adverse decision and should be told it in the decision letter. Such letters are not to be construed in a pedantic and nitpicking spirit, and the court should be careful not to seize on occasional omissions and infelicities in such letters as a ground for granting judicial review. The prisoner is however entitled to an intelligible summary of the Board's reasoning, enough to show him that his application has been fairly considered and explain to him why the decision has gone against him. In the present case I do not think that the later affidavit can be taken to dispel the concern to which the terms of the decision letter give rise.[47]Mr Kovats, representing the Board, has invited the court to give guidance for the assistance of those who consider cases such as this and draft decision letters to prisoners. This is a request to which I would wish to respond, given the important and responsible task which the Board discharge and the undesirability of repeated court challenges to decisions of the Board. But it is difficult to give very specific guidance. Plainly the Board must in each case focus on the question of risk to which their decision is directed. Full account must be taken, as they affect any individual prisoner, of the matters listed in the Secretary of State's directions. It seems to me in general desirable that the Board should identify in broad terms the matters judged by the Board as pointing towards and against a continuing risk of offending and the Board's reasons for striking the balance as it does. Needless to say the letter should summarise the considerations which have in fact led to the final decision. It would be wrong to prescribe any standard form of decision letter and it would be wrong to require elaborate or impeccable standards of draftsmanship.[48]I agree that this appeal should be dismissed for the reasons given by my Lord, closely reflecting the reasons given by the judge.

ORDER

Appeal dismissed with costs.

Cited in 7 later judgments