Tinney, R (on the application of) v The Parole Board [2005] EWHC 863 (Admin)

Case No CO/5977/2004

[2005] EWHC 863 (Admin)

IN THE HIGH COURT OF JUSTICE

QUEEN'S BENCH DIVISION

THE ADMINISTRATIVE COURT

Venue Royal Courts of Justice

Date Thursday, 21st April 2005

Strand

London WC2

B E F O R E:

MR JUSTICE LEVESON

Between

THE QUEEN ON THE APPLICATION OF TINNEYClaimant

-v-

Between

THE PAROLE BOARDDefendant

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MR ARTHUR BLAKE (instructed by Messrs Somers-Blake) appeared for CLAIMANT

MR BRIAN KENNELLY (instructed by the Treasury Solicitor) appeared for DEFENDANT

J U D G M E N T

[1]MR JUSTICE LEVESON: This is an application pursued with the permission of the single judge to quash a decision of the Parole Board enunciated by letter dated 1st September 2004 refusing to grant the claimant parole from a sentence of 8 years' imprisonment imposed at the Central Criminal Court on 8th March 2002. By reason of the period which he had spent in custody prior to sentence, he became eligible for parole on 8th November 2004. His release date without parole is 12th March 2006.

[2]The decision is challenged on the basis that it was irrational for the Parole Board to conclude that there was no evidence that the risk of the claimant reoffending had been reduced to a level whereby he could be safely released into the community, and further more that the Parole Board had failed to take into account a number of factors as required by the Secretary of State, namely that his release plan involved such a high degree of supervision as to nullify any residual risk to the public, and further more that the unanimous view of the writers of the relevant reports was that the claimant had reformed his character.

[3]The Parole Board contends that, as the 1st September letter is said to demonstrate, it took all the relevant factors into consideration, there being ample evidence available to the Parole Board to allow it rationally to reach its decision to refuse the application for parole. Furthermore, it is contended that the Parole Board was entitled to conclude that in its view none of the evidence of the claimant's reform demonstrated that the risk of his reoffending had been reduced to a level whereby he could safely be released into the community.

[4]The background to this case is unusual, and the facts require to be outlined in some detail. The claimant is now 32 years of age. In January 1995, at the age of 22, he embarked upon what can only be described as a career of armed robbery. This was interrupted in June 1995 when he was sentenced at the Central Criminal Court to a term of 2 years' imprisonment for two offences of threats to kill and for carrying an imitation firearm with intent to resist arrest. After his release, he returned to armed robbery such that, according to the sentencing judge, between January 1995 and autumn 2000 he committed a large number of offences including, on the indictment: eleven offences of robbery with ten associated offences of possession of a firearm with intent to commit robbery, and two offences of attempted robbery. Thirteen further similar offences and an assault were also admitted and taken into consideration. The gravity of his criminality is revealed by one occasion in which he threatened two police officers with a loaded shotgun. The learned sentencing judge made it clear that had he fought the case and been convicted, the starting point would have been 24 years' imprisonment.

[5]In passing sentence, the learned judge outlined the mitigation, which is also relevant to the claimant's present position. Within days, if not hours, of his arrest he admitted what he had done, pleaded guilty at the first opportunity and, furthermore, he gave evidence for the Crown against two co-adventurers, each of which the learned judge described as a very dangerous man. The judge went on:

"I observed you giving evidence and I believe that you were entirely genuine when you expressed contrition and said you did, indeed, want to wipe the slate clean and start again. That was one of the reasons why you adopted the course you did: a feeling of real and genuine contrition."

[6]Giving evidence was not without consequences, which the learned judge also spelled out. He said:

"... the price you have had to pay and which you will have to pay is a high one. You are now isolated in a secure unit, and on your release you will be at serious risk of reprisal. You will need to be relocated, with a new identity, as has happened to your family already. It may very well be that you will be in danger for some time to come -- if not for a very long time -- so by adopting the course which you have, you have already had to pay that price."

[7]The experienced police officer responsible for dealing with the claimant provided a report to the Board. This included the observation:

"Through his dealings with the police and other authorities, I believe his attitude has changed for the better. He has had time to reflect on his past actions. He has become more mature through his experience and has a positive outlook to life. I hope he takes the opportunity he has given himself to become an upstanding citizen in society on his release. I doubt very much he will re-offend."

[8]The Parole Board also have the benefit of considerable up to date information from the prison and probation services. Although opportunity to attend courses is limited for those in the protected witness units, as this claimant has resided throughout his term, it was clear that he had attended those open to him and pursued personal study, obtaining an impressive number of educational qualifications.

[9]On the other hand, although his offending had been in large part to fund a very substantial measure of drug abuse, and, furthermore, that he had made a positive feature of having given up the use of drugs prior to his arrest, there is no doubt that in the summer of 2002 he had tested positive for cannabis. He explained this on the basis that he had used cannabis when going through a period of depression related to the time and to his sentence, as well as to concerns about his family. Following the failure, he attended a drugs and alcohol awareness course, undertook one-to-one counselling and volunteered to be subject to drug testing. Throughout the remainder of his term he has indeed remained free of all drugs.

[10]The prison assessment of the Parole Board made it clear that the claimant accepted responsibility for his actions and explained his own behaviour on the basis that he associated with a significant number of criminals during his formative years and saw opportunity for personal gain. He now acknowledged that there were many victims of his crimes and he displayed empathy with them.

[11]The report from the prison expressed a view as to his release. In answer to the question, "What, in your view, is the likelihood of the prisoner co-operating with [the Parole Board] while on licence and avoiding re-offending before the sentence fully expires?" the writer observed:

"I believe that he will co-operate fully with supervision on licence and that he will avoid reoffending before his sentence expires. "

He will be subject to a high level of supervision by the police and probation service and a release plan acceptable to both agencies will be in place."

[12]The writer expressed the view that the effect of a continued stay in custody would shorten the period of supervision which was essential for the successful resettlement of a protected witness, and then gave the following additional information, which it was believed the Parole Board should have before it:

"The summing up by the sentencing judge reflects the seriousness of this man's offences, but also goes to great lengths to commend his subsequent actions and the personal cost to him, describing his actions in giving evidence as 'admirable and courageous'. "

His actions have impacted on all of his family, a number of whom have been relocated and who will continue to be at risk long after his release, whether it is on parole or at the end of his sentence. He will also be in danger. "This has all impacted on him and despite this he has been increasingly positive during the two years that I have dealt with him on an almost daily basis. I have always found him to be open and honest in his dealings with me. "He does not underestimate the difficulties that he will face when he is released or the high level of support that he will need in order to successfully reintegrate into society. This is a difficult process under ordinary circumstances and particularly difficult for Protected Witnesses. "He sees the extended period on licence that will be achieved by release on parole at this stage as essential to this reintegration. I support this view. "He has worked hard in prison to prepare himself for release and has co-operated fully with the Prison Service and other agencies. I believe that he is aware that his continued cooperation is essential to succeeding in his aims and he should now be given the opportunity to build on that preparation, in the community."

[13]A probation parole assessment was prepared by the head of the Witness Support Unit for the National Probation Directorate, and thus a particularly experienced officer. He analysed risk assessment in this way:

"[The claimant] has a serious history of offending. He was first in trouble at 13 years, stealing cars and from them. At 16 years he was involved in a Grievous Bodily Harm offence. This escalated to drugs use and firearm offences. He has a history of violent offences. He has spent two periods in custody. He would be the first to admit that his previous convictions might indicate that his risk of further offending was high, and that the offences reflect the possible harm to the community. "

However, the mitigating factors to this high-risk assessment are the fact that he appears to have made a decision prior to arrest to give up his criminal lifestyle, and live a stable life. He also helped the police considerably. "During his sentence he has worked at his education, and we have carried out a thorough review of his offending behaviour, and he shows insight and remorse. "He will receive a high degree of support and oversight as a protected person when released and this aids his intention to remain crime free. "Hence on paper, [the claimant] appears to present a high risk of reoffending, and high risk of harm to the community. However, for the reasons stated, this risk is reduced considerably, and to manageable levels."

[14]The writer also observed that the claimant would need long term support, which he would obtain from the joint probation/police resettlement plan. He went on:

"He will always be at risk of sliding backwards (as evidenced by the positive drugs test), however I am of the view that he has shown more than sufficient progress and insight, not only to succeed on licence, but also to build positively on that experience. I would support his parole application."

[15]The claimant made an important contribution to the parole dossier. In his representations he said:

"I feel I am no longer at risk of offending simply because I will not be associating with any known criminals and have absolutely no intentions of ever becoming involved in those circles again as I know that by doing so, could cost me my life. Also after everything that I have done to leave my criminal past behind, I am not going to destroy all the good that has come from this experience as it would be counter productive and after the sacrifices that have been made by my family, it would be a great insult to them as well ..."

[16]I turn to the decision of the Parole Board and its reasons for refusing to grant parole. The decision starts by outlining the offences and the judge's remarks, his prior record and development in prison, including reference to his failed mandatory drugs test. It then outlines the resettlement plan as explained by the probation officer and goes on:

"The panel carefully balanced the benefits of early release to [the claimant] against the potential harm to the public should he re-offend. He has been involved in serious and violent offending over a prolonged period of time. In the past he has had a very serious drug habit. There is no actuarial risk assessment on the dossier but his record of violent offending would indicate a high risk of harm to the public. [The claimant] has clearly used his time in custody to good effect. However good custodial behaviour and his commendable co-operation with the authorities of themselves do not indicate that risk has been reduced. The panel could find no evidence that [the claimant]'s risk of re-offending had been reduced to a level whereby he could be safely released into the community. Parole was therefore refused."

[17]I turn to the law briefly. By virtue of section 32(6) of the Criminal Justice Act 1991, the Secretary of State has given directions to the Parole Board on consideration of release on licence, which include at paragraph 2:

"2. Before recommending early release on licence, the Parole Board shall consider whether: "(i) 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 doing so; "(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. "(ii) The longer period of supervision that parole would provide is likely to reduce the risk of further offences being committed. "(iii) The prisoner is likely to comply with the conditions of his licence. "(iv) 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. "(v) The resettlement plan will help secure the offender's rehabilitation. "(vi) The supervising officer has prepared a programme of supervision and has recommended specific licence conditions."

[18]It is clear that, in this case, the Board focused on subparagraph (i) of those directions.

[19]How should the Board approach its decision? Guidance is to be obtained from the decision of R v The Parole Board and The Secretary of State for the Home Department, ex parte Oyston (Owen John) (Unreported), 1st March 2000, in which Lord Bingham CJ provided the following assistance:

"46 ... 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 ... "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."

[20]Mr Arthur Blake, for the claimant, argues that the panel has failed to give any proper or adequate weight to those features which indicate a reduction of risk, such as the attitude of the claimant as evidenced by the sentencing judge, his liability to reprisals should he establish contact with criminals, and his involvement in witness protection. Further, he argues that the decision does not refer to the evidence of the police and other reporters of the impact of his entering the witness protection programme. As a result, he submits that the decision is irrational and perverse.

[21]Mr Brian Kennelly, for the Parole Board, however, submits that the decision demonstrates clear compliance with the approach advocated by Lord Bingham CJ in Oyston, to which I have just referred. The fifth paragraph sets out the matter, and points to the continuing risk of serious violent offending, his past serious drug habit and his offending suggestive of a high risk of potential harm. It also identifies the matters judged as pointing against a continuing risk, namely his use of time in custody to good effect. It then strikes the balance by observing that good custodial behaviour and commendable co-operation do not, of themselves, indicate that risk had been reduced, and that they found no evidence that risk had been reduced to a level which allowed safe release. He submits that Mr Blake is doing precisely what Oyston forbids, namely construing the letter in a pedantic and nit-picking manner.

[22]I return to the approach advocated by the Lord Chief Justice. What is the Board's reason for striking the balance and for saying that the risk is too great? The only answer is that there is no evidence that the risk of offending has been reduced to a level whereby he could safely be released. In the case of a prisoner returning to old haunts, with identical life pressures and temptations, this might well be sufficient; after all, the Board are entitled to be sceptical of claims to change, particularly in a man who has shown the capacity for crime at the level of this claimant. It is the Board that is charged with the responsibility of making that assessment.

[23]But this is not that case. The reason that the Board does not address is the real issue in this case, namely the extent of the reduction of the risk that is consequent upon the claimant(a) giving evidence for the Crown;

(b) deciding to enter the witness protection programme; and

(c) being willing to submit to resettlement away from all previous haunts and acquaintances so as to avoid the risk of reprisals. In my judgment, the claimant was entitled to know in broad terms why the Parole Board did not consider that these features, which clearly must have been substantial, reduced the risk of his committing further crime, but did not do so to a level which safely permitted his release.

[24]I ought to make it clear that I reject Mr Blake's submission that the decision of the Board is necessarily perverse or irrational. It is, in my judgment, insufficiently reasoned. It makes no reference to the effect of a protected witness status on his life outside prison, or to the fact that he will resettle away from old haunts, although these are clearly highly relevant. Neither does it provide a sufficient reason for its conclusion.

[25]As to the sentence that good custodial behaviour and commendable co-operation with the authorities of themselves do not indicate that risk has been reduced, I accept that this judgment of the Parole Board reflects a view which it is entitled to express, but it does not address the extent to which this claimant's particular circumstances as a protected witness, with all the life change and assistance that he will have, reduces risk.

[26]It may, perhaps, be that the lapse of 2002 revealed that even in the security of a prison he could not deal with the pressure, so that the risk of relapse is still too high when pressure increases following release. I am not saying that this is so, for it may also be thought that the misuse of drugs occurred within a few months of his sentence and that the claimant has demonstrated that he has responded to that lapse in a mature way by undertaking a course, counselling and voluntarily drug testing. That is not for me to decide, but rather for the Parole Board.

[27]I make it clear that I do not consider that these criticisms represent a pedantic or nit-picking approach to the decision. In my judgment these features are essential in order to explain to this claimant why his application, with its unusual background, was unsuccessful. In the circumstances, the decision of the Parole Board will be quashed. I shall direct a hearing before a new panel with updated evidence, but will hear submissions as to the timetable.

[28]MR BLAKE: My Lord, could I have one moment to discuss something with my learned friend?

MR JUSTICE LEVESON: Yes. (Pause).

[30]MR BLAKE: My Lord, having spoken to Mr Kennelly it will greatly help us if you would indulge us with an adjournment to make a phone call so that a realistic timetable can be put before you. I am told five minutes would be sufficient.

MR JUSTICE LEVESON: Oh, not two o'clock?

[32]MR KENNELLY: First of all, I apologise that there is no-one here for the Parole Board, so it is necessary to telephone, but we understand that a very quick call can be made.

MR JUSTICE LEVESON: Five to one, would that be sufficiently quick?

[34]MR KENNELLY: Yes, my Lord. Yes, it is better to be safe, so five to one, please.

MR JUSTICE LEVESON: Very good. (12.40 pm) 36. (12.55 pm)

[36]MR BLAKE: We are grateful for that, my Lord. I will let Mr Kennelly address your Lordship.

[37]MR KENNELLY: My Lord, I have spoken to the Board and we believe a review can be arranged within two weeks, although only, of course, on the basis of the existing reports. It may well be it will have to go before a differently constituted panel.

[38]MR JUSTICE LEVESON: Oh, obviously. How long would it take to have a review with up-to-date reports?

[39]MR KENNELLY: Well, it depends then on the length of the reports and the Parole Board could not give --

MR JUSTICE LEVESON: An undertaking, I understand that.

[41]MR KENNELLY: -- an undertaking as to hearing it within two weeks in that case. But, I have discussed with my learned friend as to whether it would be better to have a greater delay for up-to-date reports, and it would be difficult to improve on the existing reports and any point that they wish to make could be made in their submissions could be handled by way of a letter from the solicitors. We are happy for any points to go in like that.

[42]MR JUSTICE LEVESON: Yes, well, presumably that is a matter for the claimant, I suppose. What is the position, Mr Blake?

[43]MR BLAKE: My Lord, I have taken instructions and we are content with that, because it gives the opportunity for those who instruct me to make fresh submissions in any event -- although I think, in respect of the one aspect, which may be a problem, I do not think that can be addressed any further than it has been already.

[44]MR JUSTICE LEVESON: Well, I am not so sure. I would not necessarily assume that that is the only reason. I identified that as a possibility.

[45]MR BLAKE: Of course, my Lord, I am just saying that --

[46]MR JUSTICE LEVESON: Speaking for myself, but it is not my decision, I would have thought that the Parole Board would be assisted by updated information from the Probation Officer.

[47]MR BLAKE: Well, perhaps with that upon proviso that it would be of great assistance, I do not think that that would be difficult.

[48]MR JUSTICE LEVESON: But then it requires the co-operation of an outside agency, and I would not put Mr Kennelly on a time limit, because he is not responsible then for when the information comes in. This is not easy, Mr Blake, because you could say, well if we fail now we have another go in September or October, but that is not terribly sensible.

[49]MR BLAKE: No, I completely agree, my Lord. My anxiety is that if it were -- perhaps it would be -- I will speak to Mr Kennelly again, but I do not think it will be difficult. I think that the people in probation have been in touch with those instructing me, so I do not think that an addendum to a report from them, which would assist, would in any way affect that timetable.

[50]MR KENNELLY: My Lord, all we can offer is best endeavours.

MR JUSTICE LEVESON: Yes, absolutely and --

[52]MR KENNELLY: We would be happy to give an undertaking to use our best endeavours to obtain that date.

MR JUSTICE LEVESON: Well, I wonder whether I should not say four weeks.

[54]MR BLAKE: My Lord, yes.

[55]MR JUSTICE LEVESON: To encourage some updated information from the probation service, because that it the core material. It may be that something fundamental will undermine it, but I would have thought that it is unlikely that the prison service will be able to add very much, given what they said last time.

[56]MR KENNELLY: We are happy with that, my Lord, provided, of course, that it is clear that it will be best endeavours from us.

[57]MR JUSTICE LEVESON: Right, well, the Parole Board will use its best endeavours to arrange a further panel within four weeks. I will not make a specific order, but merely note that.

[58]MR BLAKE: In the light of the indications that your Lordship has given, will we need to obtain an addendum?

[59]MR JUSTICE LEVESON: Well, certainly I would encourage the parole board to obtain an addendum from the National Probation Directorate, but I am not insisting upon it, that is not my function.

[60]MR KENNELLY: No, my Lord. My Lord, the only other matter I mention is then, perhaps, for an assessment.

MR JUSTICE LEVESON: That is what you ask for?

[62]MR BLAKE: Yes, my Lord.

MR JUSTICE LEVESON: Very good, you have been granted it.

[64]MR BLAKE: My Lord, I am most grateful for your assistance, I am sorry we have kept you a little late.