Emirsoylu, R (on the application of) v The Parole Board [2007] EWHC 2007 (Admin)

Case No CO/2184/2007[2007] EWHC 2007 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
Venue Royal Courts of JusticeDate Tuesday, 14th August 2007
Strand
London WC2A 2LL
B e f o r e:
MR JUSTICE OUSELEY
Between
THE QUEEN ON THE APPLICATION OF OMUR EMIRSOYLUClaimantv
Between
THE PAROLE BOARDDefendant
Computer-Aided Transcript of the Stenograph Notes ofWordWave International LimitedA Merrill Communications Company190 Fleet Street London EC4A 2AGTel No: 020 7404 1400 Fax No: 020 7831 8838(Official Shorthand Writers to the Court)
Mr H Southey (instructed by Bhatt Murphy) appeared for ClaimantMr A Sharland (instructed by the Treasury Solicitor) appeared for Defendant
J U D G M E N T
[1]MR JUSTICE OUSELEY: This is a challenge to the decision of the Parole Board dated 15th December 2006 in which it concluded that the claimant's recall to prison from his release on extended licence was justified and set a further review date no later than 1st December 2007.[2]The claimant was sentenced on 26th October 2004 to 30 months' imprisonment with an extended licence period of three years. The licence period does not expire until December 2009. He pleaded guilty to sexual assault on a five year old girl and to indecent exposure. The claimant was born in the Turkish part of Cyprus and came to live with his parents in the United Kingdom in 1995, when he was 20. Since his arrival in the UK, he has offended on a number of occasions in a way in which, as the Parole Board records, the pre-sentence report described as "a disturbing pattern of sexual offences". He had also committed other non-sexual offences. His attendance in relation to a probation order for an indecent assault in 2000 had been poor.[3]On his release on 16th September 2005, he was required, as part of the licence, not to commit any other offences and permanently to reside at a particular hostel. On 28th November 2005 there was an incident close to the hostel in which a 12 year old girl complained of an assault and described a man who appeared similar to the claimant. But the claimant, though arrested, was not picked out at an identity parade and he was released on 1st December, the same day that he had been arrested. He was released late in the evening. He did not return to the hostel by the due time, nor make any telephone call to explain his circumstances, but instead telephoned his brother-in-law and went to stay with him.[4]The Secretary of State recalled the claimant to prison, saying that he had breached conditions of his licence in two ways. The first was the offence alleged to have been committed by him on 28th November 2005, a further indecent assault on a young girl, and the second was the failure to return to the hostel after being bailed by the police. The Probation Service report and request for recall had described the circumstances of the alleged offence and the fact of the failure of the claimant to return to bail. The general response to supervision was described. It was said that he had attended appointments on a weekly basis and had expressed his motivation not to re-offend, preliminary work had been completed around fantasies and thought-stopping techniques, but "very limited progress" had been made because of the claimant's limited understanding of English. He was assessed as high risk or very high risk on different scales. The last sentence of the risk assessment says:
"In the light of allegations that he has committed a further offence, I am concerned that the current licence conditions are insufficient to control the risk."
The senior manager's comment was that the latest allegation and the failure to reside as directed and the risk he posed to the public gave great cause for concern and he endorsed the recommendation for recall which was put into effect. The line manager commented that he was not sure that the claimant could be managed effectively in the community, intervention seemed to have little effect.[5]The recall was considered and upheld on paper by the Parole Board in January 2006. It initially came on for an oral hearing in October 2006. The claimant and the Secretary of State were represented. The home probation officer, at least, was present, but did not give evidence at that hearing. The hearing was adjourned in order for further police evidence to be provided. The claimant was contending that he had not committed the alleged offence, and indeed in May 2006 the Crown Prosecution Service had decided that it was not going to bring any charges against him.[6]When the matter resumed on 15th December 2006, the claimant was again represented through solicitor and counsel, as was the Secretary of State. Written submissions were made on his behalf as well as oral submissions. The panel heard the evidence about the offence and concluded in its determination, for the reasons which it gives relating to the evidence, that on the balance of probabilities the allegation that the claimant had committed this alleged offence in November was not proven and so it disregarded the evidence against the claimant. However, it took the view that the failure to return to the hostel was serious. It had heard evidence from the claimant and his brother-in-law about the events surrounding his failure to return to the hostel when released on police bail. The claimant had been late on two previous occasions and had received a written warning in respect of each of those.[7]The Parole Board did not accept the evidence given by the claimant as to why he had not returned. It was said that he might have been tired, stressed and confused. The panel said:
"However, it did not accept the construct put by your counsel on the reason for your failure to return to the hostel. The panel was of the view that your absence from the hostel was both deliberate and premeditated; this was the third time that you had done it and you had taken a calculated risk in terms of what penalty was likely to be applied."
It then reached its own view in relation to whether recall was justified. It said:
"You are assessed as presenting a high risk of reconviction for a sexual offence and the safe management of this risk in the community requires from you a correspondingly high level of co-operation with supervision. This you have failed to demonstrate and the panel has concluded that, at the time when you were recalled, effective supervision was no longer possible. Thus recall was justified."
It took the view that structured work to address offending behaviour needed to be completed before it could be said that the risk of re-offending could be managed in the community whether in the UK or elsewhere and it therefore considered the claimant unsuitable for re-release at present. The case was to be reviewed no later than 1st December 2007.[8]Mr Southey for the claimant contends that the decision that recall was justified and that the case should be reviewed not later than 1st December 2007 was unlawful. He submits that the panel, in reaching its conclusion on risk, did not have before it probation officers' reports predicated on the factual finding that the claimant had not committed the November 2005 offence. He submits that the Parole Board ought to have adjourned its hearing in order to obtain probation reports which were based upon that finding of fact, and the same would apply no doubt to the lack of excuse for the third breach of the residence condition; alternatively, he submits that the Parole Board should have fixed a further date for a brief time after the December 2006 decision, so as to consider such revised reports. He submits that the Parole Board had a power and a duty to bring such revised reports to its mind.[9]It is necessary therefore to say a little about the Probation Service reports which the Parole Board in fact did have before it.[10]Of course it had the pre-sentence report for the index offence which identified the emerging and disturbing pattern of sexual offences and the failure of a previous probation sentence to prevent a lapse into further offending. The assessment of the claimant's risk in relation to further similar offences was high and the risk of harm to the public and children in particular was high. Those considerations underlay the sentence of the court for the index offences. They also mean that the risk which the claimant poses is not dependent on the unproven allegation of the November offence, but is predicated on the material which justified the extended sentence in the first place.[11]The Parole Board had before it a report from the home probation officer of 23rd May 2006, in which the probation officer notes the absence of prosecution for the offence allegedly committed in November 2005 without endorsing the innocence of the claimant. It notes that he had attended all his probation appointments before recall and had attended key work sessions at the hostel, and appointments with his Basic Skills Tutor in English. It comments that individual supervision was intended to focus on helping him recognise distorted attitudes, high risk situations and to develop strategies to help avoid re-offending. It said that he had co-operated during supervision, "however progress was slow". There was an assessment that he seemed to feel that now he had acknowledged the problem, that would be sufficient to stop him from re-offending. The report then went through the history of offending, focusing on the sexual offences. It made no reference in this context to the November 2005 allegation. It concluded that he clearly had a sexual attraction to children which he needed to address, that he had on several occasions acknowledged a problem and was motivated to stop but had made very little progress in reducing his risk. Instead, he had established a pattern of committing predatory sex offences. His risk was assessed as between high and very high. The officer could not say whether his risk was manageable in the community because she did not know if the specialist intervention he required would be available.[12]The Parole Board also had two seconded probation officer assessment reports. The first of 23rd May 2006 refers to the alleged offence and to the admitted breach of the residence condition. It again referred to his various previous offences, but in the risk assessment itself makes no reference to the alleged November 2005 offence. It says, however, that he had not taken any responsibility for his index offences and had opted not to undertake the Sex Offenders Treatment Programme at the prison. The conclusions and recommendations referred, however, both to failure to comply with supervision and to the committing of further serious offences. It was said that although the claimant had had the opportunity to address the problems relating to his offending behaviour, he had not displayed any motivation to engage in any programmes. Until those issues were addressed, the risk was high and not manageable in the community.[13]There was a second report because the claimant had been transferred to a different prison and this was provided in October 2006. It sets out the basis of recall, referring to the allegations of offending and of non-residence. The probation officer refers to what had happened in prison after recall, referring to a reasonable level of motivation to meet targets. However, it adopted the risk assessment which I have referred to from the previous probation reports. The summary was to the effect that he presented a very high risk and had not completed work since recall that would evidence any reduction in those levels of risk.[14]After the hearing before the Parole Board in October 2006 had been adjourned for the police to give further evidence, the Parole Board contacted the Home Office and the claimant to see if they required the attendance of the home probation officer and perhaps others at the resumed hearing. Both parties said that they did not require the attendance of the probation officer. The claimant did so in the full knowledge that the submissions and argument from his counsel were that he did not commit the alleged November 2005 offence and that that should fall out of the reckoning. Neither in submissions before the hearing or at the close of the hearing did counsel for the claimant suggest that the attendance of the probation officer was necessary, or that there should be an early review if the Parole Board concluded, accepting her submissions, that the claimant had not committed the alleged offence. It is clear from the submissions that were made in writing that the claimant's counsel was very well aware, because it was her contention and there was no prosecution, that such a conclusion from the Parole Board was on the cards. That was also a point which she pursued in oral argument as recorded in paragraph 25 of the Parole Board's decision.[15]Not merely was there no suggestion that the probation officer should attend, there was no submission orally or in writing that the Parole Board should obtain further reports from the Probation Service in the event that it concluded that the claimant had not committed the offence. It was not said that they had a duty to obtain that information or a further assessment on that basis before they could reach a decision, nor was it suggested that an early review should be the mechanism for obtaining it. Indeed, it is striking that in the first letter written on 9th February 2007 by solicitors for the claimant to the Parole Board, containing a lengthy analysis of why the decision was wrong, there was no suggestion at all that the Parole Board should have proceeded in the way now contended. That issue was not raised until it was raised as a subsidiary issue in a solicitor's letter of 1st March 2007. There is no challenge to any subsequent decision of the Parole Board. Mr Southey says that it probably did not have jurisdiction to reach a further decision on the review date. Be that as it may, the position is that the issue which it is now sought to raise was not raised before or at the hearing or for some time afterwards.[16]Mr Southey contends that first of all there is a public interest in the release of those who can be managed in the community both in their interest and in the interests of not detaining someone any longer in prison than necessary, and that public interest means that the Parole Board cannot act as if it were simply a judge deciding on inter partes litigation. It has an obligation to ensure that it has the material necessary for it to reach a proper decision on the issues which it has to grapple with. That submission, which draws on parts of the decision in The Queen (on the application of Roberts) v The Parole Board [2005] 2 AC 738, [2005] UK HL45, in particular at paragraphs 38 and 143, is supported also by what was said in The Queen (on the application of Clift) v Secretary of State for the Home Department [2007] 2 WLR 24, [2006] UKHL 54 at paragraph 18. As a general proposition, that was not disputed.[17]It was said that there was a particular obligation in this case on the Parole Board to obtain an assessment from the Probation Service based on the facts as found by the Parole Board. This was the central disputed factual issue which undermined the views expressed by the Probation Service; it was the only direct risk element, and there was another factor, namely the culpability of not turning up to comply with the residence condition, which had been raised. This was not a question of a second bite at the cherry - the Parole Board had a duty to review the continued detention of the claimant anyway, and it would not be right, even if there had been tactical considerations by counsel as to whether it would be better or not for them to have the probation officer's fresh assessment, to allow tactical decisions of that sort to determine how it decided its cases.[18]Mr Southey also helpfully referred me to the decision in R (Sim) v Parole Board [2004] QB 1288, [2003] EWHC 152 Admin, in which Elias J's decision was upheld by the Court of Appeal ([2003] EWCA Civ 1845). The particular passages from Elias J's decision, notably paragraph 65, are to the effect that the recalled prisoner should not be detained unless the board was positively satisfied that the public interest required him to be confined. An extended sentence would show that a risk had been identified and the board did not have to be satisfied that the risk was high, nor did it need evidence of behaviour itself directly linked to the risk of further offences. It was enough if the evidence showed that the arrangements for supervision in the community could not be sustained so as properly to control that risk.[19]What Mr Southey drew from that was that the obligation to be satisfied positively that an individual should be confined, and the need for evidence showing that the arrangements for supervision could not be sustained so as to control the risk, meant that the manageability of someone released on licence was crucial to the detention decision. He accepted that although of course the Parole Board was not bound by the assessment of the Probation Service, and it was its duty to reach its own assessment of risk, nonetheless the Probation Service assessment was the sort of information which was necessary for a lawful decision to be arrived at. It did not diminish his submission in that respect, he contended, that he accepted that on the material before it the Parole Board's decision could not be characterised as unreasonable. The burden of his contention was that a reasonable decision could have been to release or to recall and in that context a fresh assessment from the Probation Service would be the sort of material which a properly directed Parole Board should look for. In this context he relied on well-known passages from the decision in Secretary of State for Education and Science v Tameside Metropolitan Borough Council [1997] AC 1014.[20]In my judgment, the question is this: did the Parole Board act unlawfully in deciding not to adjourn or set an early review date for the purposes of considering its position in the light of a fresh Probation Service assessment? Could it reasonably take the view that it could come to a properly informed decision on risk without that material? There is no indication as to what the probation officers would have said if their view had been asked as to their assessment of risk in the light of the Parole Board's findings.[21]Mr Sharland, for the Parole Board, submits that it was obviously reasonable for the Parole Board to take the view that it did not need to adjourn or set a short review date in the light of the way in which both parties had not sought to have the probation officer present and had not suggested before or during the hearing, or indeed for two months afterwards, that any further assessment would be required, even though the inevitable consequence of the claimant's submissions being accepted was an asserted change in the factual basis of the Probation Service's assessment. Mr Sharland recognises that that may not always be a sufficient answer and that the public interest may require the Parole Board to seek information notwithstanding the stance which the parties may have taken before it, whether on full consideration by them or not. He is right to acknowledge the importance of that caveat. It is, however, in my judgment, very difficult for a claimant, who, with the benefit of legal advice, has not suggested that a fresh assessment was required before or during the hearing, to complain that the Parole Board has not done that which it was not suggested it should do. Mr Sharland's formulation was that it was not irrational or unreasonable to agree with what the parties had said and have regard to those views.[22]That is a potent answer, in my judgment, to Mr Southey's submissions here, but I recognise that it may not always be the conclusive answer. It will be relevant, in my judgment, for the Parole Board to look at its ability to reach a decision in the light of the information which it does have before it. The express stance of the parties would of course be important in that, but it would also have to reach a view about the importance of the factual issue now said to have changed, about what it obtained from the reports which it did have and what it might obtain from further reports. It seems to me clear, however, that the board did apply its mind to the question of whether any more was required, not just in the light of the parties' stance but in the light of the reports which it did have and the conclusions which it was contemplating arriving at.[23]It is important to note that it took a very severe view about the implication of the deliberate breach for the third time of the residence requirement. The assessment that the claimant presented a high risk of reconviction for a sexual offence is plain from all the reports and from the pre-sentence report onwards and is not something which is contingent upon the allegation that the claimant had committed an offence which the Parole Board found he had not.[24]The judgment that the safe management of that risk in the community required a correspondingly high level of co-operation with supervision is a point that if it is not a glimpse of the obvious, which it probably is, is one that does not require a reassessment from probation officers. If probation officers came up with a view that it did not, it would be a matter of some surprise. This is an example of the Parole Board fulfilling its duty in coming itself to a conclusion, not a startling or difficult conclusion, that safe management required a high level of co-operation with supervision. It was for the Parole Board to decide whether the failure to turn up at the right time on two occasions, and most importantly his attitude towards staying away on the third time, evidenced the high level of co-operation or its absence. The Probation Service had provided to the Parole Board the evidence about co-operation in terms of attending appointments and on courses so there was no further information about co-operation to be obtained. The conclusion that the necessary level of self-discipline had not been shown or co-operation with supervision was a matter entirely for the Parole Board's conclusion. It was also in a position to take on board what was said about the lack of progress. None of that, as can be seen from the extracts from the probation officers' reports which I have quoted, was predicated upon the allegation of November 2005 being true.[25]Accordingly, it is my judgment that the Parole Board complied with its duty to ensure that the public interest on both sides of the equation was examined and did have and properly could conclude that it had proper information as to the Probation Service's views.[26]This decision depends upon the relationship between the reports before it and the decision of the Parole Board. I am far from saying that in no circumstances would a change in the factual background mean that the same decision would emerge. But it is my judgment, looking at the way in which the Parole Board approached its decision, the factors that weighed with it, the content of the series of reports, and the way in which so much of the serious adverse points were not dependent upon the November 2005 allegation, that the Parole Board's decisions in December 2006 were wholly lawful. For those reasons, notwithstanding Mr Southey's advocacy, this application is dismissed.[28]MR SOUTHEY: My Lord, my lay client is not present in court. I am conscious of the fact that obviously he may wish to appeal, whatever my views may be. I would ask, if he does wish to appeal, for him to have 14 days to submit any grounds that he would wish to submit. I am just conscious of the fact that, as I say, I have no direct instructions.[29]MR JUSTICE OUSELEY: I will not be looking at them, I can tell you that, in 14 days. You might as well have longer than that.[30]MR SOUTHEY: 28 --

MR JUSTICE OUSELEY: You can have 28 days.

[32]MR SOUTHEY: Thank you, my Lord. Other than that, the only other application I have is my client is legally aided so I seek assessment for the purposes of Community Legal Services.

MR JUSTICE OUSELEY: You can certainly have that.

[34]I am grateful to you both.

Cited in 3 later judgments