Allen, R (on the application of) v Parole Board [2009] EWHC 3492 (Admin)

Case No CO/2834/2009[2009] EWHC 3492 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
Venue Royal Courts of JusticeDate Tuesday, 1 December 2009
Strand
London WC2A 2LL
B e f o r e:
HHJ PEARL
(SITTING AS A DEPUTY HIGH COURT JUDGE)
Between
THE QUEEN ON THE APPLICATION OF ALLENClaimantv
Between
PAROLE BOARDDefendant
Computer-Aided Transcript of the Stenograph Notes ofWordWave International LimitedA Merrill Communications Company165 Fleet Street London EC4A 2DYTel No: 020 7404 1400 Fax No: 020 7404 1424(Official Shorthand Writers to the Court)
MR H SOUTHEY (instructed by CONINGHAMS) appeared for ClaimantMR T BULEY (instructed by THE TREASURY SOLICITOR) appeared for Defendant
J U D G M E N T
[1]THE DEPUTY JUDGE: Mr James Goudie QC, sitting as a Deputy High Court Judge, granted permission on the papers on 12 June of this year to challenge, by way of judicial review, the decision of the defendant, that is the Parole Board for England and Wales, by a decision letter dated 23 December 2008, to refuse the claimant's application for release under section 28 of the Crime and Sentences Act 1998. In his observations when granting permission, Mr Goudie QC said:
"It is not clear that the Parole Board applied the correct standard of proof in accordance with Re D. The grounds are arguable."
[2]Mr Southey raises in effect two challenges, both in his skeleton argument and in his submissions before me. First of all, he said that the Parole Board in their decision relied upon an allegation, that the applicant, Mr Allen, had assaulted a former partner, and he says that the first issue is whether the Parole Board applied the correct standard of proof. The second matter which arises is whether the Parole Board erred when making the finding that Mr Allen had breached the terms of his licence conditions. It is submitted on behalf of Mr Allen that the matters relied upon by the Parole Board did not demonstrate breaches of licence conditions.[3]I deal with the first of these challenges, and it is important to refer, right at the outset, to the decision letter of the Parole Board. In their decision letter, it appears in the documentation at page B13, the panel said as follows:
"The panel is satisfied that there is evidence of domestic violence based upon the statement of Miss Ellis [who as I understand it was Mr Allen's then partner] and her contemporaneous complaint to the police."
The Parole Board went on to say, in the next sentence:
"The panel does not accept the explanation first given in your evidence [that is Mr Allen's evidence to the panel] that this was her ploy to have you out of the property in order to improve her claim to benefit."
[4]Read in isolation, and adopting and applying a literal approach to those words, I have to say that I do agree with Mr Southey in his submissions. As indeed I understand Mr Buley would concede, the words suggest that all that is needed to make a finding of domestic violence in these circumstances, that is in front of a Parole Board, is that, "there is evidence of domestic violence", which is the way in which the panel chose to express itself. If this is what the Parole Board actually did in reaching its conclusion, then clearly there is an error of law.[5]I have given considerable thought to the submission by Mr Southey as to what the panel meant in choosing those words and I have decided that I am unable to read the words in the way that he has urged me so to do. It seems to me that the panel were faced with two conflicting stories as to what happened. They had, on the one hand, an extract from the statement provided by Miss Ellis, which appears in the documentation at C59. It is important to read out, if only in brief, an extract from that because at the end of that page, it is said:
"As he [Mr Allen] came towards me, I was backing up into the spare room. Gary then started to strangle me; his hands were round my neck. He was squeezing my neck, he was literally squeezing it, and I was being pushed back into the laundry basket."
It then goes on to say:
"I had tonsillitis and my throat was seriously swollen. And then I just remember I used to do karate as a child so I put my hands in between his arms and pushed them away. I then pushed him in his chest."
Also, it is important to draw attention to the fact that there was a telephone call made by Miss Ellis to the police and I have seen a copy of the telephone conversation.[6]The evidence, therefore, is presented as I have described by Miss Ellis. In contrast, there is evidence presented to the Board by Mr Allen, and that is set out very clearly in the decision letter. It paints a very different picture indeed and it is suggested, by Mr Allen, that the story really is, to put it on one basis, a story which was made up, or certainly wholly exaggerated, to enable Miss Ellis to gain benefits of one kind and another. Indeed, it is suggested that C54 in the documents, which is the evidence that was given by Mr Allen to the Parole Board and its contemporaneous notes of the Parole Board hearing, when he was asked specifically questions relating to this matter it was said by Mr Allen that the police told him that a lot of young women in the area did the same thing, that is complain about domestic violence in order to get the locks changed for free. In any event, faced with this conflict of evidence, the Board went on to say this:
"The panel does not accept the explanation first given in your evidence to the panel, that this was her ploy to have you out of the property in order to improve her claim to benefit."
[7]It is also the case, as Mr Buley draws to my attention, which I accept, that in the previous paragraph to the one that I have been concentrating on, which is the one under challenge, the panel make very clear findings about breaches of residence and work requirements. And in the following paragraph the panel specifically say that it does not make any findings in relation to images on his computer, save as to say that "you were aware of these images as they were the ones of yourself and you had chosen to retain them".[8]When it comes to questions relating to risk and the assessment of risk, the following paragraph, which I will not read out, deals with risk assessment, deals with the understanding and management of risks, and therefore it is my view, when read in this way, both by adopting the common sense ordinary approach to the particular sentence under challenge, and also when put into the context of the previous and succeeding paragraphs, it is my decision that the Board are making findings in relation to domestic violence and that they apply the appropriate standard of proof in that they reject the submissions made by Mr Allen. They reject his story and, in those circumstances, they make appropriate findings. I do not agree with Mr Southey that they were doing anything else. I certainly do not agree that they were making assessments of risk.[9]As I have said, the decision letter has to be read as a whole and it is not, in my view, an appropriate challenge to take one sentence out of context and apply it in a literalistic way. The courts have said on many occasions that it is not a proper approach to read decisions of this kind, Parole Boards and other jurisdictions of that kind, in the same way as one would need to read a statute. Looked at in this way, it is my finding that the panel made an overall finding on the issue of domestic violence in their decision letter.[10]I turn now to the matters relating to the breaches of the condition in the licence. It is important, in brief, to refer to the licence, which is signed in May of 1993. The licence, in paragraphs 4 and 5, reads as follows:
"The Secretary of State hereby authorises the release on licence on a number of conditions: 4) He shall reside only where approved by his Probation Officer; and 5) He shall work only where approved by his Probation Officer and shall inform his Probation Officer at once if he loses his job."
[11]As to residence, I have had referred to me case law on the meaning of residence and the contrast which can be drawn between, on the one hand, "residence", and on the other hand, simply "staying". I have looked at the case law but I have to say that, in this particular case, it is of no real assistance, obviously dealing with very different circumstances and dealing with matters that are not relevant in the case before me this afternoon. I have looked at the evidence in this case as set out in the documents that appear before me and I have to find that there is abundant evidence to show that Mr Allen was living, and I use that word, with his father on three or four days a week at the relevant time. For instance, if one looks in the bundle, C88, there is a witness statement of one of the brothers, I.t. is quite clear there. And if one looks also at C90 and C51, on the evidence that was in front of the panel, it cannot be demonstrated that the finding of the panel of a breach was in anyway irrational.[12]I agree with Mr Buley that if the challenge in this regard is as to adequacy of reasons, and that was not how, as I understand it, the case was put by Mr Southey, there is evidence of a clear breach of licence relating to residence and that is set out, in my view, in sufficient and adequate reasoning by the panel at the foot of their decision letter B12. It says:
"The evidence is abundantly clear that you were staying at your father's house on a regular basis without notifying your supervisors."
The next sentence I think contains a typing error, I understand that it is accepted that the next sentence says:
"You clearly were aware of the need to keep them informed and seek their approval, as on other occasions, when it suited you, you did seek their approval."
It seems to me, and it is my finding, that that is a sufficient reason for the finding made by the panel in relation to residence.[13]I turn therefore, finally, to the question of employment. As far as that is concerned, the issue I think is very simply put: did Mr Allen have approval? The evidence that I have seen is that the approval was not given for work generally, for odd jobs taken, as it were, as they came up. The Board itself say in terms that Mr Allen admitted that he should have been more diligent in giving details of his work plans, that is very expressly said in their decision. Given that admission, again, my finding is that the statement at the foot of page B12 is a statement based on the evidence they heard and a statement which provides adequate reasoning. Similarly, so the panel said, "you did not advise your supervising officer on a regular basis of your work commitments".[14]In those circumstances, and for the reasons that I have just given, the challenge to the decision of the Parole Board is dismissed on all three grounds.[15]MR BULEY: My Lord, I am very grateful. Just for the avoidance of doubt, there are no applications on my side.[16]THE DEPUTY JUDGE: Thank you very much.[17]MR SOUTHEY: My Lord, I have two applications, one I suspect is less controversial than the other. The one that is not controversial, I hope, is an application for assessment of the claimant's publicly funded costs.[18]THE DEPUTY JUDGE: That is not controversial, you get that.[19]MR SOUTHEY: The second one is an application for permission to appeal, in particular, my Lord, I recognise always the difficulties faced by any advocate trying to persuade a judge who has just come to a firm conclusion that they may be wrong, but in this case, your Lordship recognised that the language, the key sentence, particularly in relation to the first issue, did support effectively the claimant's argument. It was only when the decision was then read as a whole that your Lordship reached the conclusion that your Lordship reached. It is certainly my submission that that matter, the fact that the language itself supported effectively the claimant's submissions, means that at least there is an arguable appeal point here, the language.[20]THE DEPUTY JUDGE: I am not surprised by your application but perhaps you are not surprised that I would take the view this is an application that you may have to take elsewhere. I refuse leave to appeal.[21]MR SOUTHEY: Thank you, my Lord.[22]THE DEPUTY JUDGE: Thank you very much for your assistance.