O'Connell, R (on the application of) v The Parole Board & Anor [2007] EWHC 2591 (Admin)

Neutral Citation Number: [2007] EWHC 2591(Admin)Case No CO/8167/2006
IN THE HIGH COURT OF JUSTICE
QUEEN’S BENCH DIVISION
ADMINISTRATIVE COURT
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate 13/11/2007
Before
LORD JUSTICE LATHAMMR JUSTICE SIMON
Between
R (On the application of DAVID O’CONNELL)ClaimantTHE PAROLE BOARD(1)DefendantSECRETARY OF STATE FOR THE HOME DEPARTMENT(2)Defendant
(Transcript of the Handed Down Judgment ofWordWave International LimitedA Merrill Communications Company190 Fleet Street, London EC4A 2AGTel No: 020 7404 1400, Fax No: 020 7831 8838Official Shorthand Writers to the Court)
Phillippa Kaufmann (instructed by Bhatt Murphy, Solicitors) for ClaimantMichael Fordham QC & Ben Jaffey ( for Defendant Parole Board) instructed by the Treasury SolicitorSteven Kovats & Mark Vinall ( for Defendant Secretary of State) instructed by the Treasury SolicitorHearing Hearing dates: 15 th October 2007
Judgement
[1]This claim raises fundamental issues as to the function and status of the Parole Board. It does so in the context of a challenge to the decision of the Board on the 18th July 2006 refusing to direct the claimant’s release on licence under section 247 of the Criminal Justice Act 2003 (the 2003 Act). The challenge was based on four grounds. First, the decision was one which entitled him to the protection of Article 5(4) of the European Convention on Human Rights. Second, the Board does not have the necessary independence which is required for any body carrying out functions under Article 5(4). Third, the Board failed, in breach of both its common law obligation of fairness, and its obligations pursuant to Article 5(4), to give the claimant an oral hearing. Fourth, the Secretary of State’s directions to the Parole Board as to the test to apply when coming to its decision are unlawful.[2]This claim was originally heard by this court differently constituted together with the claims of three others claimants. The cases of the other three claimants all raised the issue of whether or not the Board had established objective independence of the executive so as to be Article 5(4) compliant. There was no dispute in those cases as to the applicability of Article 5(4). The court decided to deal with the discrete issue of independence, and, because of the lack of time, adjourned the balance of this claimant’s argument. It concluded as far as the other three claimants were concerned that the Parole Board did not have the independence required by Article 5(4). It also concluded that common law also required such independence; and the Board did not meet the requirements of the common law. It accordingly made declarations to both effects in the cases of the three other claimants. It made a declaration in this claimant’s case that the Board did not meet the requirements of the common law. We therefore have to determine whether or not the claimant has made out his first, third and fourth grounds.

The First Issue

[3]For the determination of the first issue, the only relevant facts are that on the 20th May 2005, the claimant pleaded guilty to an offence of assault occasioning actual bodily harm against his wife on the 14th May 2005. On the 26th July 2005 at the Crown Court, he was sentenced to an extended sentence under section 227 of the Criminal Justice Act 2003 composed of a custodial period of two years and a licensed period of three years. There were terms attached to his licence period which are irrelevant for the purposes of this issue.[4]His release from custody is governed by the provisions of section 247(2) of the 2003 Act which provides:
“As soon as: (a) a prisoner to whom this section applies has served one-half of the appropriate custodial team, and (b) the Parole Board has directed his release under this section, it is the duty of the Secretary of State to release him on licence.” (a) a prisoner to whom this section applies has served one-half of the appropriate custodial team, and (b) the Parole Board has directed his release under this section, it is the duty of the Secretary of State to release him on licence.”
[5]The question raised by the first issue is whether detention during the second half of the custodial period of an extended sentence under the 2003 Act is justified by the original sentence, so that there is no separate authority for the detention engaging Article 5(4) or whether in the second half of the custodial period, detention is justified on a fresh legal basis, that is the decision of the Parole Board not to direct release.[6]It may be helpful to set out first the relevant provisions of Article 5 of the ECHR. “1. Everyone has the right to liberty and security of person. No one shall be deprived of his liberty save in the following cases and in accordance with a procedure prescribed by law: (a) The lawful detention of a person after conviction by a competent court; ...... (a) The lawful detention of a person after conviction by a competent court; ...... 4. Anyone who is deprived of his liberty by arrest or detention shall be entitled to take proceedings by which the lawfulness of his detention shall be decided speedily by a court and his release ordered if the detention is not lawful. …..”[7]Where a person is detained, therefore, simply by reason of the original sentence of the court after conviction, Article 5(1)(a) justifies the detention throughout that period. In such cases it is said that the guarantees of Article 5(4) are incorporated once and for all in the sentencing exercise: De Wilde, Ooms and Versyp –v- Belgium No 1 (1971) 1EHRR 373. This will be the case where there are no early release provisions or where early release provisions are automatic, in other words do not require an executive or any other determination. Article 5(4), however provides a crucial guarantee against the arbitrariness of detention “where new issues of lawfulness are capable of arising, periodically, thereafter.” Benjamin and Wilson-v- United Kingdom (2003) 36 EHRR 1 at para 3. This critical concept of arbitrariness is echoed in particular by Lord Bingham in R –v- (Giles) Parole Board [2004] 1AC 1 at paragraph 10. This concept has been applied consistently in Convention jurisprudence to indeterminate sentences imposed in our courts so as to require Article 5(4) compliant supervision of detention after the period identified as necessary for punishment and deterrence: see Stafford –v- United Kingdom (2002) 35 EHRR 1121, at para 87. That is because the continued detention is based upon an assessment of the danger, if any, that the prisoner would present on release into the community, a matter which could change over time, therefore requiring periodic assessment for which judicial oversight is necessary if it is not to result in the possibility of arbitrary decisions of the executive. This will apply to all indeterminate sentences, whether mandatory or discretionary life sentences, detention during Her Majesty’s Pleasure, or imprisonment for public protection. 8. The question with which we are concerned arises out of the special nature of an extended sentence imposed under section 227 (or section 228) of the 2003 Act. By section 227(2) an extended sentence under this section comprises “the appropriate custodial term” and “the extension period” during which the offender is to be subject to a licence “of such length as the court considers necessary for the purpose of protecting members of the public from serious harm occasioned by the commission by him of further specified offences.” A sentence is mandatory in the case of any defendant who has been convicted of a “specified” offence (offences identified in Schedule 15 to the Act). The sentence differs from an ordinary determinate sentence in two important respects, both clearly aimed at preventing danger to the public. The “custodial term” is clearly that which is supposed to be equivalent to a commensurate determinate sentence. In normal circumstances the length of licence would simply be the unexpired portion of that sentence after early release. The first difference is therefore the extended licence which is intended to provide added protection for the public. The second is the effect of the special early release provisions in section 247 of the 2003 Act to which I have already referred, which make it plain that, unlike a defendant serving a determinate sentence, a person serving an extended sentence has to satisfy the Parole Board that it is no longer necessary for the protection of the public for him to remain in custody for the second half of the custodial period before he is entitled to release.[9]The claimant submits that this equates a prisoner serving an extended sentence to a prisoner serving an indeterminate sentence for the second half of the custodial period. Essentially the same question is raised, namely whether he remains a risk to the public, which might change over time. There is therefore, it is submitted, no distinction in principle, so that the protection of Article 5(4) is required.[10]There is no direct authority on the point. In R –v- Giles [supra] the court was concerned with a longer than commensurate sentence under Section 2(2)(b) of the Criminal Justice Act 1991. The appellant had been sentenced to a total sentence of seven years imprisonment pursuant to those provisions. The judge, in accordance with general practice, had not identified what would have been a commensurate sentence, and therefore the extent to which he had increased the sentence for the protection of the public. As a long term prisoner, he was entitled to be considered for parole after he had served one half of the sentence, and entitled to be released after he had served two thirds of his sentence. He claimed to be entitled, pursuant to Article 5(4) to a periodical review of the necessity for his continued detention once he had served one half of the notional punitive part of his sentence. The House of Lords rejected that claim on the basis that the court had, in determining the length of the longer than commensurate sentence itself determined the period necessary for the protection of the public, so that there was no question of arbitrariness such as to engage Article 5(4).[11]In R (Sim) –v- Parole Board [2004] QB 1288, the Court of Appeal considered the extent to which Article 5(4) applied in cases involving extended sentences imposed under section 85 of the Powers of Criminal Courts, (Sentencing) Act 2000. In that case the claimant had been recalled to prison during the period of extended licence following the end of the custodial term. Keene LJ with whom Ward LJ and Munby J agreed, held that Article 5(4) did apply to protect the claimant in relation to his recall, as it took place beyond the limits of the custodial term that had been imposed. He relied, in part, on the judgment of Kennedy LJ in R –v- Smith Parole Board No 2 [2004] 1WLR 421 in which Kennedy LJ held that recall during the period of a determinate sentence of a person who had been released on licence did not engage Article 5(4) because his right to liberty for the period up to the end of his sentence had been lost when he was sentenced. Keene LJ also concluded that the decision of the House of Lords in R –v- Giles (supra) was to the same general effect. But that did not affect administrative recall during the period of extended licence which was not a period during which detention had been ordered by the Court.[12]In R (West) –v- Parole Board and R (Smith) –v- Parole Board [2005] 1WLR 350 however, the House of Lords by implication, cast doubt on the reasoning of Kennedy LJ in Smith to which we have referred, and upon which Keene LJ to some extent relied in Sim (supra). Both appeals centred on the question of whether or not there should have been oral hearings. Both were claimants who were subject (as the judgment of Kennedy LJ indicated) to determinate sentences and were recalled during the licence period. Lord Bingham, Lord Slynn and Lord Hope all expressly held that Article 5(4) was engaged. Lord Walker agreed with Lord Bingham; and Lord Carswell agreed with both Lord Bingham and Lord Hope.[13]In R (Clift) –v- Secretary of State for the Home Department [2006] UKHL 54; [2007] 1 AC 484, which was concerned with the question whether or not the early release scheme was being operated in a manner which discriminated between long term prisoners who were being subject to deportation and those who were not, the House of Lords held that any provisions in domestic law for a right to seek early release fell within the ambit of the right to liberty under Article 5 so that differential treatment could give rise to potential complaints of discrimination under Article 14. In other words there were aspects of the detention and release regime which were capable of attracting the protection of Article 5(4). In R (Johnson) –v- Secretary of State for the Home Department [2007] 1WLR 1990, the Court of Appeal held that Article 5(4) entitled a prisoner who was a long term prisoner under the Criminal Justice Act 1991 to rely on Article 5(4) to claim that his application for consideration for early release after he had served one half of his sentence had been unreasonably delayed.[14]It seems to me, having considered all these authorities, that the question as to whether or not Article 5(4) is engaged is not answered by any formal analysis of the original order of the court in cases such as the present. The question is whether, bearing in mind its purpose, namely to prevent arbitrariness, it has a function to perform in the particular circumstances of the case in question. In the present case, the decision as to whether or not to direct release is critical to the claimant’s entitlement to release after he has served one half of the custodial period. That decision is capable of being an arbitrary decision unless controlled by a mechanism which is Article 5(4) compliant. In other words there is a clear purpose to be served by the Article in this context, in exactly the same way as it has a function to perform in the case of indeterminate sentences.[15]The third ground. The sentence in question was imposed for an offence of assault occasioning actual bodily harm. This arose out of an incident of domestic violence. His wife alleged that he had punched her repeatedly on the head, knocked her to the floor, where he kicked her, causing further injuries to her face. In the pre-sentence report, the claimant stated that he could not remember exactly what had happened due to the amount of alcohol that he had drunk. As the maker of the pre-sentence report stated, the offence formed part of a pattern of domestic violence prevalent in the relationship. In April 2004 he was sentenced to six months imprisonment for an offence of assault occasioning actual bodily harm, arising out of an incident in which he threw hot liquid over his wife causing her burns. In May 2005 he was sentenced to three months imprisonment for an offence of common assault on his wife. Then in June 2005 he was sentenced to five months imprisonment to be served concurrently with the earlier sentence for another incident of common assault when he cut his wife with a knife. He was still serving that sentence when the court imposed the sentence with which we are concerned.[16]In addition he had a substantial number of previous convictions for other types of offences. The last of these related to matters occurring more than ten years before the domestic violence offences. In relation to the latter, the problem was clearly related in large part to his consumption of alcohol. In the pre-sentence report, the probation officer expressed concern as to the claimant’s attitude which was to minimise the offence and show no insight at all into his behaviour. He concluded that there was a very high risk of harm to his wife. This remained the assessment of risk in the OASys Report of the 25th May 2006, which formed part of the material before the Parole Board when it made the decision under review.[17]Despite that assessment of risk, the probation officer providing the parole assessment supported the claimant’s application for release on licence subject to a stringent risk management and supervision plan. This would require him to be placed in a hostel, to undergo an assessment of his alcohol abuse and co-operate with any form of treatment, to be subject to other restrictive conditions, and in particular to attend an integrated domestic abuse programme. She recognised that a very real problem existed because the claimant’s wife clearly wished to be reconciled with him on his release despite the high risk of danger to her. The final report from the probation officer to the Board was, however in the following terms:
“5. Recommendation for release. The probation officer who prepared the original parole report supported release on the basis that there would be more opportunity in the community for the offender to address his attitudes and behaviour. Focused work on attitude and behaviour would involve one – one work with the case Manager as well as the attendance on the Integrated Domestic Abuse programme, the latter not being available in prison. However when this case was considered at a recent Multi-Agency Public Protection Arrangements Meeting reservations were expressed by the attendees. The attendees included the Police, Domestic Violence Liaison Officer and a member of the Victim Contact Unit both of whom had spoken to Mrs O’Connell. Mrs O’Connell was very clear that she herself did not want any license conditions imposed and did not want to engage with the LVO.”
[18]In addition to this material, and the reports from prison, which were generally good, the Parole Board had before it for the purpose of its consideration on the 18th July 2006, a detailed written representation from the claimant, in which he acknowledged the problem that he had with alcohol. He asserted an intention to “control my alcohol”. He made it clear that he intended to return to his wife, and indeed considered that she could provide support to enable him to avoid any repetition of the violence which had occurred in the past. He asserted his willingness to conform to any conditions which might be imposed on his release. He did not ask for an oral hearing.[19]It was against that background that the Parole Board came to the conclusion that it did. It noted that the relevant probation officers supported early release essentially because the claimant could be subjected to more intensive monitoring on licence than if he remained in an open prison. Its conclusions were expressed in the following paragraphs:
“The panel has considered all aspects of this case carefully. In coming to its decision the Panel balanced Mr O’Connell’s pattern of offending, his limited progress in developing insight into his use of instrumental violence and the acknowledged lack of appropriate provision to address this behaviour in custody against their duty to protect the public from the risk of serious offending during the period on licence when he might otherwise be in custody. The index offence in this case was one in a pattern of serious assaults against his wife resulting in the imposition of lengthening periods of imprisonment and finally an extended sentence. Mrs O’Connell wishes, for reasons best known to herself, to continue her relationship with Mr O’Connell and thus knowingly places herself in grave danger from him. The probation officers who are understandably concerned about this, have put in place a robust risk management and supervision plan which both aims to protect Mrs O’Connell and reduce Mr O’Connell’s risk of offending against her. However, in reality, much will depend on the couples willingness to be open and honest with the professionals charged with monitoring their relationship and in the level of control exercised over alcohol consumption. The argument that this plan offers more protection than if Mr O’Connell were to remain in prison seemed to the panel to be missing the point, which is whether or not the risk of re-offending and harm has reduced sufficiently to be manageable in the community. The Panel concluded that that risk remained unacceptably high and accordingly parole was refused.”
[20]It is submitted on behalf of the claimant that where issues of risk have to be evaluated in circumstances such as the present, consistent Convention jurisprudence makes it clear that an oral hearing is a necessary part of the protection required by Article 5(4). In this respect counsel has referred us in particular to Von Bulow –v- United Kingdom appl No 75362/01 7 January 2004, Wynne –v- United Kingdom (No 2) 2004 38 EHRR 42 and Hill –v- United Kingdom appl No 0.1936502 27 Jul 2004. Each of these cases concerned the pre-2003 regime for determining tariffs and, particular in release on licence for those serving life sentences. In each of those cases, when finding that there had been a breach of Article 5(4) the court recorded that the review by the Parole Board, which was considered insufficient for the purposes of Article 5 (4) was in part insufficient because there had been no oral hearing or examination or cross-examination of the witnesses relevant to the allegation that the applicant in question remained a risk to the public. Ms Kaufmann also referred us to Hussain –v- United Kingdom (1996) 22 EHRR 1. In the context of Article 5(4) the court there said:
“59. The court recalls in this context that in matters of such crucial importance as the deprivation of liberty and where questions arise which involve, for example, an assessment of the applicant’s character or mental state, it has held has that it may be essential to the proceedings that the applicant be present at an oral hearing. 60. The court is of the view that, in a situation such as that of the applicant, where a substantial term of imprisonment may be at stake and where characteristics pertaining to his personality and level of maturity are of importance in deciding his dangerousness, Article 5(4) requires an oral hearing in the context of an adversarial procedure involving legal representation and the possibility of calling and questioning witnesses.”
[21]In so far as the submission is to the effect that Article 5(4) requires an oral hearing in every case where the question is the assessment of risk to the public, I reject it. In the first three cases referred to in the previous paragraph, the court was not dealing with the particular facts of each individual case. It was identifying the characteristics of a hearing which was capable of being Article 5(4) compliant. I do not read the judgments as dealing with the question of whether in every case without exception there must be an oral hearing. The principle is accurately set out in paragraph 59 of Hussain. The question of whether or not an oral hearing will be necessary in any given case will depend upon the facts. I consider that the position in this respect under Article 5(4) is no different from the position at common law. This appears to me to be the view taken by the House of Lords in West and Smith (supra). In that case, Lord Bingham said at paragraph 35:
“The common law duty of procedural fairness does not in my opinion require the Board to hold an oral hearing in every case where a determinate sentence prisoner resists recall, if he does not decline the offer of such a hearing. But I do not think that the duty is as constricted as hitherto it has been assumed. Even if important facts are not in dispute, they may be open to explanation or mitigation, or may lose some of their significance in the light of other new facts. Whilst the Board’s task certainly is to assess the risk, it may well be greatly assisted in discharging it (one way or another) by exposure to the prisoner or the questioning of those who have dealt with him.” 22. At paragraph 50, Lord Slynn said: “There is no absolute rule that there must be an oral hearing automatically in every case. Where, however, there are issues of fact, or where explanations are put forward to justify actions said to be a breach of license conditions, or where an officer’s assessment needs further probing, fairness may well require that there should be an oral hearing. If there is any doubt as to whether the matter can be fairly dealt with on paper then in my view the Board should be pre-disposed in favour of an oral hearing. On any view the applicant should be told that an oral hearing may be possible though it is not automatic; if having been told the applicant clearly states that he does not want an oral hearing then there may not be such a hearing unless the board itself feels exceptionally that fairness requires one.”
[23]It is however relevant to note the comment by Lord Hope at paragraph 63 that the Parole Board was reluctant to hold hearings:
“…… in other than a very small portion of those cases which fall outside the categories of mandatory and discretionary life prisoners, extended prisoners and Her Majesty’s Pleasure detainees for whom it has been decided that continuing judicial supervision of detention is required to satisfy Article 5(1) and 5(4) Convention Rights.”
[24]To some extent the latter comment supports the claimant’s contentions. But it does not suggest, in my view, that Lord Hope considered that an oral hearing was a necessary requirement of such supervision. The question remains as to whether or not at the end of the day the answer to the question whether or not the claimant poses a relevant risk requires as a matter of fairness his presence at an oral hearing in order to determine the issues raised by his application. I confess that I have not found it an easy question to answer. It seems to me that the Parole Board should be pre-disposed to holding an oral hearing in such cases. That would certainly be the case where there is any dispute of fact, or any need to examine the applicant’s motives or state of mind. But in the present case, I do not read the Parole Board decision as being one which could have been affected in any way by anything further that the claimant could have said beyond that which he had set out in his written representation. What stands out a mile from the material before the Parole Board is the fact that the applicant and his wife clearly intended to be together as soon as they could after his release, and that whatever steps were taken by the claimant himself, his wife was not prepared to engage with the Domestic Violence Liaison Officer nor was she happy with license conditions. It is difficult in those circumstances to see how the Parole Board could have come to any other decision even if it had heard from the claimant in person. I do not accordingly consider that in this particular case, the lack of an oral hearing amounted to a breach of article (5)(4) or the claimant’s entitlement at common law to a fair hearing.[25]Fourth Ground. The issue raised by this ground is the test which should be applied by the Parole Board when determining the question of risk under section 247(3) of the 2003 Act. This provides:
“The Parole Board may not give a direction under sub-section (2) unless the Board is satisfied that it is no longer necessary for the protection of the public that the prisoner should be confined.”
[26]It is submitted that the risk from which the public require protection is the same risk as that which required the imposition of an extended sentence in the first instance. In other words in cases where there has been the imposition of a sentence of life imprisonment, imprisonment for public protection or an extended sentence pursuant to the provisions of Chapter 5 of the 2003 Act, the question that the Parole Board should ask when considering release is whether of not the offender continues to meet the criteria of dangerousness in section 229 of the 2003 Act, and not their usual and more general test as suggested by the Secretary of State in the directions.[27]It is, however, accepted on behalf of the claimant that in the present case that the former is the test which appears to have been applied by the Parole Board. It follows that the issue is not a live issue. Although there is much force in the present claimant’s argument, I do not consider that it would be appropriate to determine the question of whether or not there may be some other test which would be appropriate in different circumstances. It may be necessary to consider the question with some care, in the light of the fact that section 247(3) does not in terms refer back to section 229 of the 2003 Act, but only in a case in which the issues arises on the facts.[28]For the reasons that I have given above, although I consider that Article 5(4) is engaged, I would accordingly reject the claimant’s claim under the third ground. Mr Justice Simon: I agree.

Cited in 8 later judgments