O'Sullivan v Parole Board [2009] EWHC 2370 (Admin)

Case No CO/7474/2008[2009] EWHC 2370 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN’S BENCH DIVISION
ADMINISTRATIVE COURT
Sitting at:
Venue Manchester Civil Justice Centre
1 Bridge Street West
Venue ManchesterDate Monday, 6 th July 2009
M3 3FX
Before
MR JUSTICE IRWIN
Between
O’SULLIVANClaimantPAROLE BOARDDefendant
(DAR Transcript ofWordWave International LimitedA Merrill Communications Company165 Fleet Street, London EC4A 2DYTel No: 020 7404 1400 Fax No: 020 7404 1424Official Shorthand Writers to the Court)
Mr Wetherby appeared for Claimant.Mr Sheldon appeared for Defendant.
Judgment
[1]This application for judicial review on behalf of the claimant arises from a long history of detention on his part. The index offence of murder occurred on 7 July 1991, when the claimant was 16 years of age. The victim was a 53 year-old man who lived alone, and who it is said was in the habit of befriending adolescents who were homeless or otherwise in personal difficulties. The claimant had two co-defendants in the criminal proceedings, one of them a 17 year-old boy, and that 17-year-old’s 15-year-old girlfriend. There was an allegation that the deceased had had sexual intercourse with the 15 year-old girl.[2]That allegation, whether true or otherwise, led to a truly horrific series of assaults on the victim. The claimant and his male co-defendant punched the victim, attacked him with a chain, and kept him imprisoned in his own house. He went to outpatients at a local hospital, having emerged from the house with multiple abrasions, lacerations and bruising. Whilst he was at hospital, the claimant and his male co-defendant made two paraffin bombs.[3]On the victim’s return to the house, they attacked him again, forced him to walk to a secluded spot whilst punching and kicking him, and then doused him with paraffin and attacked him with the bombs. He caught fire, he was extensively burnt and they then left him. The deceased managed to pull off his clothing or most of it, crawled to his house, and someone helped him. He died in hospital some two days later. It will be obvious that this was a horrific crime and that the victim suffered terribly.[4]The claimant was convicted of murder following the trial. He denied his guilt. He was sentenced to be detained at Her Majesty’s Pleasure, with a tariff of 15 years, which expired on 9 July 2006. Therefore, at the time of the Parole Board hearing which is the subject of this challenge, he had served 16 years and 10 months; in other words, coming up to two years beyond the tariff. He was at that stage aged 33, located in Category C conditions, and the decision in question was his fourth review.[5]The identifying risk factors in the course of his Parole Board hearing included 21 previous convictions despite the claimant’s young age, for which he had been sentenced on two separate occasions. The range of those offences are not germane to this case, save that they did include two convictions for arson. The risk factors at the time were considered to be anti-social personality disorder not amenable to treatment, and an extreme and callous use of violence, including torture, and a number of other factors.[6]At the second review in August 2005, the panel recommended that the claimant should be transferred to open conditions, a view which was shared by the majority of the report writers preparing reports for that review. This recommendation was accepted by the Secretary of State. But before the move to open conditions could be implemented, the claimant refused or failed to supply a drug sample, allegedly made threats to kill a member of staff, and other concerns arose as to his volatile behaviour and negative attitudes. Hence the move did not take place. Subsequently the claimant was involved in an incident of self-harm related to his depression and feelings of helplessness.[7]At the third review in May 2007, that is to say the first review after the tariff period had expired, following a lengthy hearing, the panel set out detailed reasons in its decision letter dated 25 May 2007. The panel at that stage recommended that the claimant should be considered for removal to open conditions, but that that should not be acted upon for at least six months from that decision, so as to enable him to show that his, at that stage, brittle emotional state and unsettled behaviour had settled down, and that his conduct had stabilized. He had also at that stage quite recently self-harmed, and the panel was concerned that he should be able to show there had been no repetition of that behaviour in the course of his continued time in closed conditions before he was transferred.[8]The Secretary of State did not accept the panel’s recommendation from the third review. In his reasons notifying the claimant of this rejection, the Secretary of State set out his view that the risk could not be considered to have been sufficiently reduced to allow him to be moved to open conditions. Really the concern centred on a lack of emotional control in response to stress.[9]That was the position then, before the Parole Board hearing with which this judicial review is concerned. The Board met, initially looking at the papers on 11 February 2008, and then with a hearing on 21 April 2008 at HM Prison Risley. Of course, they were considering the exercise of their powers under Chapter 2 of the Crime (Sentences) Act 1997. The decision was promulgated on 7 May 2008.[10]The concerns which the panel addressed were really those arising from the previous history. The claimant had not sufficiently demonstrated reduced risk to allow for his release or his immediate transfer to open conditions. There was a concern as to the similarity between his recent, said to be unstable, behaviour and some relevant aspects of his behaviour in relation to the index offences. That similarity was said to arise because the index offences, involving extremely violent, premeditated and manipulative behaviour, had been triggered by his lack of emotional control at high levels of personal stress. In summarising matters that way, I am borrowing language without making a full quotation from the decision letter following the fourth review. Apart from those concerns, it was clear that the panel did feel extensive work had been done in closed conditions and that a number of the risk factors previously thought to be present had been dealt with. However it was the risk factors related to stress, emotion management, manipulation, victim empathy and possible personality disorder that concerned the panel at the beginning of this hearing.[11]After reciting some of the events which had taken place since May 2007, the panel made clear that there were a number of matters over that time which concerned them: in particular, the claimant’s marriage had broken down; he had had bad news about his own sister’s health; and he himself, having had a diagnosis of Crohn’s disease and surgery to his upper bowel, had necessarily undergone considerable health problems, which they felt, taken together with the other factors they had cited, were highly stressful events for the claimant and led them to consider that he had not yet had the period of stability that they had wished for.[12]Having set out that history, they identified the issues perfectly properly as follows:
“(i) Have the concerns of the Secretary of State at the last panel with regard to (a) your attitude to the index offences; (b) your personality disorder; (c) your reactions to stress and emotional upset; (d) your manipulative tendencies; and (e) your being able to demonstrate a period of stability, all been addressed? (ii) In the light of these outstanding concerns, and the recent assessments that have taken place, what are your remaining areas and levels of risk? (iii). Are you now able to be released? (iv). If you are not to be released, are you able to be transferred to open conditions? (v). What remaining areas of concern need to be addressed before your next review?”
All of those questions were perfectly fair formulations of the issues which arose for their consideration.[13]The panel in their decision letter recited, in paragraphs 24 to 31, the evidence from the psychologists, Miss Leanne McIlvaney, Mr Miller and Dr Pratt; from Mr Woods, the Lifer Manager concerned; from Senior Officer Swift and from the Offender Manager, Ann Cassidy, and the Seconded Probation Officer, Mr Entwhistle. Two or three specific parts of the recital of the evidence were subsequently challenged by the very witnesses themselves. The nub of what is said to have taken place in front of the panel is that all of the expert witnesses, bar none, it is said, (and I find) recommended at least transfer to open conditions, some being in favour of immediate release.[14]In paragraph 34 to 39 the various issues were addressed, and I deal with those stage by stage. As to the concerns of the Secretary of State and the panel at third review, the fourth panel were reassured as to some aspects. They found that the attitude to the index offences had been addressed satisfactorily. They also found that the concerns about possible personality disorder had been shown to have been addressed satisfactorily: which, in fact, means that the evidence was there was no personality disorder. The PCL-r score left no concerns as to the claimant’s possible inadequate response to offending behaviour interventions or as to the risk of future violent offending. However, they went on to find that, over the last 12 months, in a number of ways, the claimant had shown poor reactions to stress and to his emotions and shown himself still in their view to be one capable of instability and worrying conduct:
“This has been shown by your self-harming tendencies, by your reactions to physical pain, by your reactions to stress following the breakdown of your marriage and by your behaviour prior to and following your operations. You have also shown poor coping skills in placing yourself in the position of which you were reasonably suspected of involvement in the supply of prescribed drugs to others. Moreover you will be subject over the next few months to further possible very painful maintenance therapy, including possible chemotherapy, which will make huge demands on your as yet unproved ability to manage both stress and relations.”
On the second issue that they had identified, the panel went on to find that they considered the claimant remained at significant risk of inappropriate reaction to stress and his emotions, really as a result of their findings on the first issue. 15. On issue three, release, the panel considered that, firstly, the claimant was not yet ready for release, and, secondly that:
“Once your risk levels have been demonstrated to be sufficiently lower, you would need a further period in open conditions.” 16. As to issue four, the open conditions recommendation, they found that: “The previous panel and the Secretary of State both considered that you needed a period of time to demonstrate stability and an ability to manage stress and your emotions. You have not had that opportunity since May 2007 and, until you have had a period of at least 12 months’ stability, the panel considers that you would not be ready for open conditions.” 17. As to issue five, the panel found that the stress that the claimant would face over the next period and that would result from maintenance therapy and so forth were remaining areas of risk to be addressed. Their conclusion included a number of matters favourable to the claimant. The first sentence of the conclusion reads: “The panel was greatly impressed with you as an articulate, rational and exceptional person.”
However, they went on to say that they were still concerned by the nature of the index offences, by the need to show stability and that the claimant should demonstrate his ability to use internal coping strategies when faced with stressful situations, such as when he was undergoing further medical therapeutic interventions.[18]Even on the basis of the panel’s recited version of what they were told by the experts who appeared in front of them, it seems to me that there is no good reason given in the decision as to why the necessary further work could not be done and should not be done in open conditions. Of course, there was a full basis on which the panel could decline to recommend immediate release, but there had been a consensus before them that transfer, at least to open conditions, was appropriate. Of course, it is open to any panel to disagree with all of the expert evidence which is placed before them. Any properly constituted tribunal could do that, particularly one containing a reservoir of expertise and knowledge such as the Parole Board. But they simply failed to explain in this decision any full or appropriate reasons why transfer to open conditions should not take place.[19]As I have already indicated, following the hearing a number of concerns arose about the evidential position before the panel itself. Shortly after receipt of the decision letter, the claimant’s solicitor reviewed her notes of the hearing and was concerned about some aspects of the accuracy of the decision. She noted herself that all of the report writers and all those who had given evidence at the hearing had recommended that the claimant should either be released or transferred to open conditions, and yet that had not sounded in the decision. At about the same time, the claimant’s solicitor was contacted in an unforced and volunteered contact by the Seconded Probation Officer, and he indicated to her that he found the decision had been inaccurate in respect of his own evidence. The solicitor then contacted the Lifer Manager and the Chartered Forensic Psychologist, who had both provided reports and testified at the Parole Board hearing. Both agreed to read the decision in detail, and to consider if their views as expressed at the hearing were accurately represented in the reasons given by the court. Before very long both Mr Woods, the Lifer Manager, and Leanne McIlvaney, the chartered forensic psychologist, confirmed that the decision letter was inaccurate as to what they believed they had said and inaccurate in ways that were significant or relevant to the decision.[20]Mr Entwhistle wrote a letter which is before the court, dated 28 May 2008, and he says, having quoted part of the decision, that in contrast to the recital at paragraph 30, where he is quoted as saying that he could not identify the claimant “as being one of the few exceptional lifers who could satisfactorily released on licence from closed conditions”, that this was wrong. He, in his letter, stated that his own stance had always been that Mr O’Sullivan could be released directly from Category C conditions to the probation hostel without going to an open prison first. The reasons by the Board acknowledged that at the beginning, but denied it at the end. Mr Entwhistle went on to say in his letter that at the hearing he was never asked whether he regarded Mr O’Sullivan as “exceptional” or not, and certainly never made the assertion that he did not so identify him in the course of the hearing. He went on to point out in his letter that at the earlier hearing of 22 May 2007 he did suggest in his evidence that Mr O’Sullivan was such an exceptional prisoner and he further pointed out in his letter that, if he had been asked the question in 2008, he could think of no reason why he would not have repeated the evidence he had given previously on that very point.[21]Mr Woods, the Head of Lifer Management at HMP Risley, confirmed in a letter of 11 June to Miss Bender, that he confirmed that paragraph 28 of the decision letter “does not accurately represent the view that I provided to the panel”. He confirmed that he did say the claimant got frustrated by the way he had been treated in a number of areas, but he was not making a general point. He did not say that he “gets frustrated easily” and, in his letter, made it clear that his, Mr Woods’, view was the claimant’s frustration was understandable, in large measure because of the delays facing him in his progress towards eventual release. Mr Woods confirmed that he supported a progressive move to open conditions; but he said that that was so only if that was the panel’s decision. He confirmed that he had made it clear to the panel that his preferred option was that the claimant should be released from custody to live in approved premises in Manchester:
“The stress levels that John has encountered have largely been brought about because of the way that his medical condition has been handled and by being kept in Category C conditions where it is difficult for those particular medical conditions to be adequately dealt with.”
[22]Further, in an e-mail of 4 July, Leanne McIlvaney confirmed that she had just re-read the Parole Board’s notification regarding this claimant. She had, as she confirms in her e-mail, identified that stress and emotional management were risk factors still present in this case, but that she felt, and had given evidence to this effect, that the risk could safely be managed in open conditions. In order to address that, she had recommended that he complete the cognitive skills booster program to increase his decision-making and problem-solving ability, and that that would help him avoid stress-related problems in the future. She confirmed that he had done considerable work in this area. She pointed out that the Parole Board and the Secretary of State had stated that Mr O’Sullivan should remain in closed conditions to address these areas of risk, but that there were no recommendations for what form that work should take, and that she herself would find it useful if the Parole Board could state what work it is that they would wish Mr O’Sullivan to complete. So also, from the psychologist, Miss McIlveney, it is clear that there is at least some degree of inaccuracy in the way her views have been reported, and that she was in favour at least of transfer to open conditions.[23]The claimant, in his grounds, concludes by submitting that the decision of the Board was irrational because(a) the decision ran contrary to the recommendations of all the key reporters;(b) it failed to give any, or any sufficient reasons for departing from the evidence; and(c) it failed properly to record and reflect the evidence of key witnesses, including the Lifer Manager, Seconded Probation Officer and the prison psychologist.[24]In my judgment, the submissions are correct. It would have been extremely helpful in this case, involving someone who has been involved in offences of a really severe and terrible nature, if there had been a properly argued and presented acknowledgment of service and defence in time. For reasons which are contained in the ruling on the application, the defendants were to place a draft defence, though not an acknowledgment of service, before this court. That has not happened.[25]In this instance, it seems to me that there was a cogent case for the claimant. Entirely through the fault of the Treasury Solicitors, possibly with some contribution from the Parole Board themselves, there is no argued case before the court in time. I do bear in mind that the order sought is a moderate one and really involves the quashing of this decision and remission of the whole case for a fresh review by the Parole Board. It is in the highest degree unfortunate that Treasury Solicitors have themselves prevented the proper presentation of the case.[26]In any event, in the absence of such a properly presented case, I grant judicial review, quashing the Parole Board’s decision of 7 May 2008. The Parole Board are required to conduct a fresh review within a reasonable time and not later than 25 September 2009. I am told that the evidence for the next review is now in a high state of preparation. The reason for that time span is merely the holiday period and consequential difficulty in getting all the necessary expert witnesses together. Mr Justice Irwin: And now I will listen to an application for costs. Mr Wetherby: I would simply ask that the defendant pay the claimant’s costs. Mr Justice Irwin: There is no real possibility of agreement, is there? It has to be costs to be assessed if not agreed. Mr Wetherby: To be assessed if not agreed, quite right. Mr Justice Irwin: Yes, indeed. Costs in the order.

Cited in 9 later judgments