Vigrass, R (on the application of) v Parole Board of England and Wales [2017] EWHC 3022 (Admin)

If this Transcript is to be reported or published, there is a requirement to ensure that no reporting restriction will be breached. This is particularly important in relation to any case involving a sexual offence, where the victim is guaranteed lifetime anonymity (Sexual Offences (Amendment) Act 1992), or where an order has been made in relation to a young person.This Transcript is Crown Copyright.  It may not be reproduced in whole or in part other than in accordance with relevant licence or with the express consent of the Authority.  All rights are reserved.CO/2962/2017[2017] EWHC 3022 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN’S BENCH DIVISION
THE ADMINISTRATIVE COURT
Venue Royal Courts of JusticeDate Thursday, 23 rd November 2017
Before
MR JONATHAN SWIFT QC(Sitting as a Deputy Judge of the High Court)
Between
Vigrass, R (on the application of)ClaimantParole Board of England and WalesDefendant
B E T W E E N:
THE QUEEN
ON THE APPLICATION OF
VIGRASS Claimant
- and -
PAROLE BOARD OF ENGLAND AND WALES Defendant
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This transcript has been approved by the Judge.
A P P E A R A N C E S
MR J BUNTING (instructed by Bhatia Best) appeared on behalf of the Claimant.
THE DEFENDANT was not present and was not represented.
J U D G M E N T
[1]The claimant, Gareth John Vigrass, is currently serving a life sentence imposed on 6th September 2002 as a result of his conviction on a charge of wounding with intent. The minimum term was set at four years.[2]The claimant was released on licence on 9th March 2016, but on 27th May 2016 was recalled and his licence revoked, following his arrest for an assault. On 14th July 2016 the claimant pleaded guilty to an offence of assault by beating.[3]On 15th July 2016 the Secretary of State for Justice referred the claimant's case to the Parole Board pursuant to s.32 of the Crime (Sentences) Act 1997:
"Recall of life prisoners while on licence (1) If recommended to do so by the Parole Board in the case of a life prisoner who has been released on licence under this Chapter, the Secretary of State may revoke his licence and recall him to prison. (2) The Secretary of State may revoke the licence of any life prisoner and recall him to prison without a recommendation by the Parole Board, where it appears to him that it is expedient in the public interest to recall that person before such a recommendation is practicable. (3) A life prisoner recalled to prison under subsection (1) or (2) above - (a) may make representations in writing with respect to his recall; and (b) on his return to prison, shall be informed of the reasons for his recall and of his right to make representations. (4) The Secretary of State shall refer to the Parole Board - (a) the case of a life prisoner recalled under subsection (1) above who makes representations under subsection (3) above; and (b) the case of a life prisoner recalled under subsection (2) above. (5) Where on a reference under subsection (4) above the Parole Board - (a) directs in the case of a life prisoner to whom section 28 above applies; or (b) recommends in the case of any other life prisoner his immediate release on licence under this section, the Secretary of State shall give effect to the direction or recommendation. (6) On the revocation of the licence of any life prisoner under this section, he shall be liable to be detained in pursuance of his sentence and, if at large, shall be deemed to be unlawfully at large."
[4]The Secretary of State's notice of referral stated as follows:
"1. GARETH JOHN VIGRASS's licence was revoked by the Secretary of State on 27/05/2016 under section 32(1) of the Crime (Sentences) Act 1997 as amended. 2. This case is referred to the Parole Board in accordance with section 32(4) of the Crime (Sentences) Act 1997 in order for the Parole Board to consider whether to direct the prisoner's immediate release under section 32(5) of the 1997 Act. 3. If immediate release is not directed, the Board is asked to consider whether the offender is ready to be moved to open prison conditions. If, having paid due regard to directions issued by the Secretary of State under section 239(6) of the Criminal Justice Act 2003, the Board decides to make such a recommendation, it should comment on the degree of risk involved. 4. The Board is asked to give full reasons - which will be disclosed to the prisoner - for any decision or direction it makes."
[5]The Parole Board considered the claimant's case at a hearing on 14th December 2016. The Parole Board's decision is set out in a letter dated 19th December 2016. The Board decided against release. It addressed that issue in its reasons at paragraph 8 of the decision letter. The claimant does not challenge that decision.[6]However, the decision letter did not address the matter put to it by paragraph 3 of the Secretary of State for Justice's notice of referral, that is to say whether the claimant was ready to be moved to open prison conditions. The question of transfer to open conditions is referred to at paragraph 1.2 of the decision letter as a matter which the Parole Board had been asked to address, but that issue is not otherwise referred to in the decision letter.[7]The claimant's claim in these proceedings is that the Parole Board was wrong not to address whether or not he should be transferred to open conditions. The claimant seeks a quashing order directed to the decision of 19th December 2016.[8]The Parole Board filed an acknowledgment of service, but only to the effect that in this case, as in all others in which a decision of it is challenged, the Parole Board adopts a "neutral position". This apart, the Acknowledgment of Service did no more than note that the claim form had been issued on 20th June 2016, outside the required three month period for commencement of proceedings for judicial review.[9]The question of whether the claimant's challenge had been commenced in time and if not, whether it should nevertheless be permitted to proceed was addressed by John Cavanagh QC, Deputy High Court Judge, when he considered the application for permission to apply for judicial review on the papers in an order dated 2nd October 2017. He granted permission to apply for judicial review. He also extended time for commencement of the claim, taking into account the merits of the claim and also the matters referred to by the claimant's solicitor, Mr Martin Bridger, in the witness statement served with the claim form.[10]In the proceedings before me today, the claimant is represented by Mr Jude Bunting of counsel. The Parole Board is not represented and as foreshadowed in the Acknowledgment of Service, has not put in any document or evidence or submission in defence of the claim.[11]That being so, the position in terms of my decision on liability is straightforward. Whether or not the claimant was ready to be transferred to open conditions is a matter that the Secretary of State for Justice referred to the Parole Board. The Parole Board realised that issue was within the scope of the referral, but, I suspect through oversight, did not address that issue in the course of its decision letter. That being so, the Parole Board fell into error by failing to comply with the Secretary of State for Justice's request for an opinion on whether the claimant was ready to move to open conditions.[12]In his skeleton argument for this hearing, Mr Bunting very fairly seeks to address arguments that might be put against him, most obviously an argument to the effect that given the reasons stated by the Parole Board in the course of reaching their conclusion refusing to recommend the claimant's release on licence, the same reasons would also compel the conclusion that the claimant was not suitable for transfer to open conditions.[13]Mr Bunting says in his skeleton argument, and I agree, that any such argument would be a non sequitur. That must be right. Whether or not the claimant is suitable for transfer to open conditions should be addressed in terms by the Parole Board, which is after all the expert body, rather than by this court by some process of inference.[14]For these reasons, this application for judicial review must succeed.[15]I now turn to the question of relief. As I said, in the claim form the claimant sought an order quashing the Parole Board's decision of 19th December 2016. I consider that a quashing order would be inappropriate so far as the Parole Board in the decision letter addresses and reaches a conclusion on whether or not the claimant should be released on licence (which was one part of the matters referred to it by the Secretary of State for Justice). There is no challenge to that decision. Therefore, there is no reason to quash it.[16]The better course of action in this case, which in the course of submissions today Mr Bunting accepted, is to make a mandatory order directed to the Parole Board requiring it to produce a further decision letter addressing the point set out at paragraph 3 of the Secretary of State for Justice's referral letter, namely:
"If immediate release is not directed, the Board is asked to consider whether the offender is ready to be moved to open prison conditions. If, having paid due regard to directions issued by the Secretary of State under section 239(6) of the Criminal Justice Act 2003, the Board decides to make such a recommendation, it should comment on the degree of risk involved."
[17]For the avoidance of doubt, I leave it to the Parole Board to determine what procedure should be adopted for the purpose of complying with the mandatory order, and in particular whether further representations should be sought from the claimant and if so, whether those representations should be sought from him in writing or in the course of a further hearing. THE JUDGE: So Mr Bunting, that deals with liability. It deals with relief. Costs, is the next issue I suppose. MR BUNTING: I recognise the Parole Board adopted a neutral approach in these proceedings. I can't in those circumstances seek an order for costs against them. All I ask is that the court make an order for detailed assessment of the claimant's publicly funded costs. THE JUDGE: Of course. Yes, I'll certainly make that order. So no order for costs save for an order for detailed assessment of the claimant's publicly funded costs. If you would be so kind as to include that in the order as well, together with the relevant statutory provision, that would be very much appreciated. MR BUNTING: Yes. I'm very grateful. THE JUDGE: I don't think there's anything more required at this point. MR BUNTING: I'm very grateful. THE JUDGE: Thank you for your assistance.

Cited in 3 later judgments