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England and Wales High Court (Administrative Court) Decisions
You are here: BAILII >> Databases >> England and Wales High Court (Administrative Court) Decisions >> Knights v The Parole Board of England and Wales  EWHC 411 (Admin) (02 March 2018)
Cite as:  EWHC 411 (Admin),  4 WLR 51
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QUEEN'S BENCH DIVISION
Strand, London, WC2A 2LL
B e f o r e :
(sitting as a Deputy Judge of the High Court)
| James KNIGHTS
|- and -
|THE PAROLE BOARD OF ENGLAND AND WALES
Ms Catherine Rowlands (instructed by the Government Legal Department) for the Defendant
Hearing dates: 31 January 2018
Crown Copyright ©
Charles Bourne QC :
Introduction and Background
"1. The sentence of imprisonment for public protection ("IPP") was introduced into the law by section 225 of the Criminal Justice Act 2003 ("the 2003 Act"). It provided for the mandatory imposition of an indeterminate sentence upon offenders who presented a significant risk to the public of causing serious harm from further serious offending and could follow conviction for a number of specified offences which carried a maximum punishment of imprisonment for ten years or more. The judge was required to specify the minimum period before which there was no eligibility for parole: this was calculated by reference to one-half of the conventional (but hypothetical) determinate sentence that would otherwise have been imposed. Parole, however, fell to be considered by the Parole Board which had to be satisfied that it was no longer necessary for the protection of the public that the offender be detained.
2. A statutory presumption of dangerousness and restrictive exceptions to the imposition of an IPP meant that offenders qualified for the sentence having committed crimes which would have justified a conventional determinate sentence measured in weeks or months as well as years. As a result, some offenders became eligible for parole very quickly whereupon their cases required consideration by the Parole Board. The result was well-documented problems for the National Offender Management Service and the Parole Board which were both overwhelmed by the large number of prisoners requiring assessments, sentence plans and access to courses to enable them to demonstrate their safety for release.
3. In an attempt to address concerns that offenders were being detained for months and years following parole eligibility either because they could not access courses or because of delays at the Parole Board, the criteria for the imposition of the sentence were amended by section 13 of the Criminal Justice and Immigration Act 2008 ("the 2008 Act"). The effect of the amendments were, first, to remove the mandatory requirement to impose IPP and to give judges the power to impose it when certain criteria were met; secondly, to remove the presumption of dangerousness in section 229; and, thirdly, to restrict the imposition of IPP to those offenders who had relevant previous convictions or where the offending warranted a determinate sentence of at least four years. On 8 May 2008, the Act was granted Royal Assent and the relevant provisions were brought into force on 14 July 2008: see article 2(1) and Schedule 1, paragraph 4 of Criminal Justice and Immigration Act 2008 (Commencement No 2 and Transitional and Savings Provisions) Order 2008 (SI 2008/1586), which was published on 17 June 2008.
4. Problems remained with the operation of the sentence and, by section 123 of the Legal Aid, Sentencing and Punishment of Offenders Act 2012 ("LASPO"), the sentence of IPP was abolished being replaced by a new life sentence the imposition of which was obligatory (unless unjust) following conviction for a second time of one of a defined group of violent or sexual offences where both previous and current offences have been met by or would call for, determinate sentences of ten years or more: see Schedule 15B to the 2003 Act, as inserted by Schedule 18 to LASPO. There is also a new form of extended sentence: see section 226A of the 2003 Act, as inserted by section 124 of LASPO . These provisions came into force on 3 December 2012 but were not made retrospective so that existing IPP sentences remained to be served by those upon whom they had been imposed notwithstanding that the sentence had been abolished."
"13. What happened following the imposition of the sentence is set out in detail by Laing J in her judgment at paras 6-24 which I gratefully adopt. In short summary, on 30 July 2008 a sentence objective was set for the Claimant which required him to complete a core sex offenders treatment programme ("SOTP"), followed by further SOTPs in the community after his release. In August/September 2008 initial paperwork was sent to the public protection casework section ("PPCS"), for which the Secretary of State is responsible.
14. On 26 February 2009 the Claimant's tariff expired but he had not then completed the SOTP. A first review by the Parole Board was originally scheduled for this date and was delayed (by agreement) to allow him to do so. In October 2009, the course having been completed in July 2009, his case was put forward for intensive case management consideration. This review noted that neither the structured assessment of risk and need ("SARN"), nor the post-programme review report from the SOTP were available. The next hearing was deferred until February 2010.
15. The SARN was completed on 10 December 2009. It concluded that the Claimant presented a "very high risk of sexual re-offending", and recommended an extended SOTP (which could not be completed in the community). At the time, the Claimant was detained in HMP Wayland, which had closed its sex offender wing and associated programmes. As a result, that month, he was transferred to HMP Bure although its programmes department was not set up until March 2010 and it was not fully staffed until April.
16. On 4 January 2010, the SARN was received by Psychiatric and Psychological Consultancy Services from HMP Wayland; it was provided to the Parole Board on 2 March 2010 when the hearing was deferred until 12 July 2010: given the conclusion that had been reached, this was not, perhaps, surprising. In any event, the hearing was further deferred when it transpired that the analysis of the psychologist instructed by the Claimant and the prison psychologist were significantly different. Further delay arose from the difficulty of finding a date on which both psychologists could attend. The Claimant began the extended SOTP in June 2011.
17. On 1 August 2011, some 30 months after the expiry of his tariff, the Claimant's case was reviewed for the first time. The board concluded that he represented "a high risk of serious harm to children and a medium risk to a known adult". It was asserted that he "continued to pose an unacceptably high risk of committing an offence which could cause serious harm and the level of this risk is such that it could not be managed in the community". He was therefore unsuitable for either release or a move to open conditions. The following month, the Claimant received notice that the review period set by the Secretary of State was 18 months (to allow for the extended SOTP a post-programme SARN and an assessment period thereafter).
18. Meanwhile, on 28 July 2011, the Claimant was granted leave to appeal his sentence out of time but, on 5 October 2011 the Court of Appeal (Criminal Division) dismissed the appeal: see  EWCA Crim 2533. In concluding that the judge was entitled to decide that the presumption of dangerousness should not be disapplied, the court (at para 30) made plain that its "central concern" was his moving to more serious contact offences that gave rise to a significant risk of serious harm, with the offences of downloading and distributing images offences looked at in the context of his other activities.
19. Thus, the Claimant continued to serve his sentence. The extended SOTP was completed in November 2011 and, six months later, a claim for judicial review was intimated, being issued in August 2012. In that month, the Claimant started a course ("Better Lives Booster") which he completed in November 2012 during which month an oral hearing before the Parole Board was directed. The SARN was completed in January 2013 and, by letter dated 2 May, the Board directed his release to approved premises. This was effected on 1 July 2013.
20. On 19 September 2013, for breach of his licence by failing to disclose the true nature of further offending to his offender manager, the Claimant was recalled to prison. On 28 January 2014, a further Parole Board directed his release, again to approved premises. That release was effected on 12 March 2014 with the result that the hearing before Laing J was held after the Claimant had been released and while he was on licence.
21. To bring the story up to date, on 28 November 2014, the Claimant admitted further breaches of his licence (not involving the commission of offences, but including having unsupervised contact with children) as a result of which, on December 2014, he was again recalled. Directions were issued by the Parole Board but a further hearing arranged for May 2015 was deferred because of late provision of reports. On 26 November 2015, the Board declined to direct release and accepted the recommendation of the prison psychologist that he should undertake a further programme. As a result, the Claimant remains in custody."
"5.(1) For all cases which have been referred to the Board, the Board chair must appoint one member of the Board to constitute a panel to consider the release of a prisoner or advise the Secretary of State in accordance with Part 3 (proceedings on the papers).
14. [ ]
(4) In a case of a prisoner serving an IPP sentence, where the Board is considering the release of a prisoner, within 14 weeks of a case being referred to the Board, the single member appointed under rule 5(1) must decide that
(a) the prisoner is suitable for release;
(b) the prisoner is unsuitable for release, or
(c) the case should be directed to an oral panel.
(5) When a single member appointed under rule 5(1) makes a decision that the case should be directed to an oral panel under this rule, that member may at the same time make any directions relating to the hearing that is to take place before an oral panel.
(6) Where the Board has a duty to advise the Secretary of State with respect to any matter referred to it by the Secretary of State, the Board may advise the Secretary of State without an oral hearing.
(7) The decision or advice of the single member must be recorded in writing with reasons for that decision, and the written record provided to the parties within a week of the date of the decision.
15.(1) Where a single member appointed under rule 5(1) has made a decision (referred to in this rule as a "provisional decision") that a prisoner is unsuitable for release under rule 14(1)(a), 14(3) or 14(4)(b), the prisoner may apply in writing for an oral panel to determine the case.
(2) A prisoner who makes an application under paragraph (1) must serve the application, together with reasons for making the application, on the Board and the Secretary of State, within 28 days of the provision of the written record under rule 14(7).
(3) If no reasons have been served in accordance with paragraph (2) after the expiry of the period specified by that paragraph, a provisional decision made under rule 14(1)(a), 14(3) or 14(4)(b)
(a) becomes final, and
(b) must be provided to the parties by the Board within 35 days of provision of the written record under rule 14(7).
(4) If reasons are served in accordance with paragraph (2), the decision whether the case should be determined by an oral panel must be taken by a member of the Board who
(a) is a duty member, and
(b) is not the single member appointed under rule 5(1) who made the provisional decision.
(5) If the decision taken under paragraph (4) is that the case should not be determined by an oral panel, a provisional decision made under rule 14 becomes final."
"Once this programme, and any post programme reports are completed, the panel recommend that a further review of your release on licence may be appropriate. A detailed risk management plan is provided which, subject to your outstanding treatment needs having been met, appears to be an effective plan to manage you safely in the community. This plan will require a willingness on your part to engage with the licence conditions on a meaningful basis."
"The panel has considered your case against the principles set out in the cases of Osborn, Booth and Reilly  UKSC 61 concerning oral hearings. The panel does not find that there are any reasons for an oral hearing at this stage. Therefore, your case is being decided today on the papers. However, if you believe that your case should proceed to an oral hearing, you are invited to submit representations to the Parole Board within 28 days of receipt of this decision."
"I would like to make the panel aware that I have accepted a place on the HSP and will start this intervention shortly. It is predicted this will be completed by late July/early August. Had the panel granted an oral hearing in my case the likelihood is that it would've been around July/August and I would've requested a deferral until September/October to enable completion of HSP and updated addendum reports. It is my belief that following completion of HSP the professionals in my case, and therefore the panel, are likely to be reassured that I am able to manage my risk factors, and that a period of 8 weeks or so beyond the programme completion target will allow sufficient time for brief updated reports. The provision of an oral hearing in the autumn will allow the panel to question either my HSP therapist or another suitably qualified person as to my progress with managing risk and level of insight."
"Thank you for your careful consideration of these representations and I hope that you are able to see that there is some merit to deferring the conclusion of this review until an oral hearing in the autumn. Such a deferred decision with directions for updated reports beforehand has many benefits, including reduced administrative burden for the Secretary of State and the Parole Board, shorter update reports required from Offender Supervisor/Manager rather than full reports. Obviously from my perspective the benefit is the opportunity for release some 6 months earlier than the likely next review date of March 2018, and bearing in mind all the delays I have suffered gaining Parole hearings or access to courses I would hope that you would see this as compassionate and humane, particularly as I have always tried my best to learn how to manage my risk and behave in a socially responsible and conscientious way I've made mistakes on licence, but I accept responsibility for these and ask for the opportunity to try again and do better at the earliest time."
"We confirm that you have submitted personal representations requesting an oral hearing. The basis for your request includes: you will have completed HSP by early August 2017, updated reports could be submitted within a few weeks of completion, your TSP post-programme report was not considered and you are now taking anti-libidinal medication.
The MCA Duty Member has carefully considered the dossier of 242 pages which included your TSP report, the negative paper decision and your personal representations. On this occasion, they do not agree that your case meets the criteria for an oral hearing.
They also considered whether it was appropriate to defer your review but current Parole Board policy is not to defer a review for more than four months. This simply does not allow sufficient time for completion of the HSP and post-programme reports to be provided.
The paper decision is therefore final and your current review is now concluded in accordance with the Parole Board Rules.
** On successful completion of the Healthy Sex Programme, it may be appropriate to ask the Secretary of State to consider brining your next review forward. This review would be assisted by provision of:
Healthy Sex Post-Programme Review report
Updated SPR-L and PAROM 1 that take account of the HRP recommendations."
"Everyone 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."
Indeterminate sentence prisoners whose tariff period has expired are therefore entitled to a review, in accordance with a procedure which has a judicial character, of whether their continued detention is necessary for the protection of the public. It has repeatedly been accepted that the Parole Board possesses the essential features of a court for this purpose.
"i) In order to comply with common law standards of procedural fairness, the board should hold an oral hearing before determining an application for release, or for a transfer to open conditions, whenever fairness to the prisoner requires such a hearing in the light of the facts of the case and the importance of what is at stake. By doing so the board will also fulfil its duty under section 6(1) of the Human Rights Act 1998 to act compatibly with article 5(4) of the European Convention for the Protection of Human Rights and Fundamental Freedoms, in circumstances where that article is engaged.
ii) It is impossible to define exhaustively the circumstances in which an oral hearing will be necessary, but such circumstances will often include the following:
a) Where facts which appear to the board to be important are in dispute, or where a significant explanation or mitigation is advanced which needs to be heard orally in order fairly to determine its credibility. The board should guard against any tendency to underestimate the importance of issues of fact which may be disputed or open to explanation or mitigation.
b) Where the board cannot otherwise properly or fairly make an independent assessment of risk, or of the means by which it should be managed and addressed. That is likely to be the position in cases where such an assessment may depend upon the view formed by the board (including its members with expertise in psychology or psychiatry) of characteristics of the prisoner which can best be judged by seeing or questioning him in person, or where a psychological assessment produced by the Ministry of Justice is disputed on tenable grounds, or where the board may be materially assisted by hearing evidence, for example from a psychologist or psychiatrist. Cases concerning prisoners who have spent many years in custody are likely to fall into the first of these categories.
c) Where it is maintained on tenable grounds that a face to face encounter with the board, or the questioning of those who have dealt with the prisoner, is necessary in order to enable him or his representatives to put their case effectively or to test the views of those who have dealt with him.
d) Where, in the light of the representations made by or on behalf of the prisoner, it would be unfair for a "paper" decision made by a single member panel of the board to become final without allowing an oral hearing: for example, if the representations raise issues which place in serious question anything in the paper decision which may in practice have a significant impact on the prisoner's future management in prison or on future reviews.
iii) In order to act fairly, the board should consider whether its independent assessment of risk, and of the means by which it should be managed and addressed, may benefit from the closer examination which an oral hearing can provide.
iv) The board should also bear in mind that the purpose of holding an oral hearing is not only to assist it in its decision-making, but also to reflect the prisoner's legitimate interest in being able to participate in a decision with important implications for him, where he has something useful to contribute.
v) The question whether fairness requires a prisoner to be given an oral hearing is different from the question whether he has a particular likelihood of being released or transferred to open conditions, and cannot be answered by assessing that likelihood.
vi) When dealing with cases concerning recalled prisoners, the board should bear in mind that the prisoner has been deprived of his freedom, albeit conditional. When dealing with cases concerning post-tariff indeterminate sentence prisoners, it should scrutinise ever more anxiously whether the level of risk is unacceptable, the longer the time the prisoner has spent in prison following the expiry of his tariff.
vii) The board must be, and appear to be, independent and impartial. It should not be predisposed to favour the official account of events, or official assessments of risk, over the case advanced by the prisoner.
viii) The board should guard against any temptation to refuse oral hearings as a means of saving time, trouble and expense.
ix) The board's decision, for the purposes of this guidance, is not confined to its determination of whether or not to recommend the prisoner's release or transfer to open conditions, but includes any other aspects of its decision (such as comments or advice in relation to the prisoner's treatment needs or the offending behaviour work which is required) which will in practice have a significant impact on his management in prison or on future reviews.
x) "Paper" decisions made by single member panels of the board are provisional. The right of the prisoner to request an oral hearing is not correctly characterised as a right of appeal. In order to justify the holding of an oral hearing, the prisoner does not have to demonstrate that the paper decision was wrong, or even that it may have been wrong: what he has to persuade the board is that an oral hearing is appropriate.
xi) In applying this guidance, it will be prudent for the board to allow an oral hearing if it is in doubt whether to do so or not.
xii) The common law duty to act fairly, as it applies in this context, is influenced by the requirements of article 5(4) as interpreted by the European Court of Human Rights. Compliance with the common law duty should result in compliance also with the requirements of article 5(4) in relation to procedural fairness.
xiii) A breach of the requirements of procedural fairness under article 5(4) will not normally result in an award of damages under section 8 of the Human Rights Act unless the prisoner has suffered a consequent deprivation of liberty."
"[ ] are likely to apply to most indeterminate sentence prisoners who have served their minimum terms. That is not to say that they will necessarily apply on every occasion when such a prisoner's case is considered by the board: a prisoner's case may be considered in different circumstances and at different intervals of time. Bearing in mind however that the continued detention of a post-tariff prisoner must be justified by his continuing dangerousness as independently assessed by the board, and taking account of the importance of what is at stake, it will in most cases be necessary as a matter of fairness that he should have an opportunity to appear in person before the board. That is consistent with the common law, as explained earlier."
Ground 1: the Defendant's Refusal to Grant an Oral Hearing
The Parties' Submissions
"His progress would then be reported in a Structured Assessment Risk Need (SARN) report, which is completed approximately six months after completion of HSP. This is to allow a consolidation period after the programme in order for prisoners to demonstrate the outlined objectives within the SARN."
I bear in mind that this evidence post-dates the decision under challenge and I cannot be sure that its contents were in the mind of the decision maker. However, I have been given no reason to doubt the accuracy of this description of how the HSP works in practice, and it seems probable that the Defendant will have been aware of the likely timescales.
Ground 2: the June 2015 Policy Document
"The new guidance advises Parole Board member [sic] that the maximum period for deferral should not normally exceed 4 months. This guidance has been updated to enable cases to conclude more swiftly, with fewer delays to their original target dates. The largest proportion of deferrals relate to prisoners who are seeking to enhance the outcome of their review by seeking more time to complete lengthy offending behaviour programmes or periods of release on temporary license (ROTLs). The Management Committee felt that there was a need for clearer direction as to the Board's overall approach to granting deferrals in these circumstances. By applying the updated guidance, more cases will conclude on time, rather than suffering lengthy deferrals, but will also remain fair to the prisoner by concluding in these timeframes."
"1.1 It is recognised that decisions to defer must be based on the individual circumstances of the case before the panel and that the Parole Board has a duty to provide a fair hearing. This guidance aims to assist members by indicating where the threshold is likely to lie between deferring a case to ensure a fair hearing and deciding to proceed and conclude the case against a prisoner's wishes, on the basis that the panel considers that a fair hearing can be provided by concluding without a deferral for more information."
"3.3 At either stage, panels should consider: i) Whether additional information is required in order to make the assessment of risk and provide a fair hearing and it will be available within a short specific timescale; and ii) Whether the information is materially likely to affect the decision as to whether either an oral hearing is required (at MCA stage), or the eventual outcome (at pre-listing or listed stage).
3.4 If the circumstances don't meet these criteria, then a decision to defer should not generally be made.
3.5 Members should also consider whether a case has been deferred previously; there are some cases where one deferral after another is granted and the danger is becoming drawn in to sentence progression and failing to provide the speedy review of detention that is required. Members should guard against deferrals which seek to assist the offender, but run the risk of actually delaying his progress."
"3.6 Examples of deferral requests that should not normally be granted
a. Where the prisoner is about to commence a course or wishes to complete a course, and a report is unlikely to be available within 4 months. The panel should take into account that a successfully completed course may not be of use without a subsequent period of monitoring to see if lessons learned are being put into practice. The panel should also take into account where the outcome of the course is unlikely to be a material factor (see b. below).
b. Where a prisoner is approaching the end of a course but where the outcome is unlikely to be a material factor, for example, where multiple risk factors are present and it is clear to the panel that the course report will have little effect on the overall assessment of risk or the potential outcome.
c. To enable a transfer to another establishment to take place for courses or therapy to begin. Timescales here are very uncertain and are likely to delay the case for many months, or even years.
d. Where a prisoner recently arrived in open conditions wishes to be assessed for, and complete home leaves and/or undertake booster work. Prisoners in open conditions will not be permitted to take unescorted leave until they have been assessed by the Prison Service. Unless evidence is available to say that reports will be written within a short period of time, the process is likely to take at least 6 months e. Where a prisoner wants to await the outcome of criminal proceedings. The member should consider the available reports and decide whether sufficient material is there about the alleged incident(s) to enable the panel to reach a decision, potentially with the benefit of oral evidence, as to whether the risk of further 3 offences is acceptable, regardless of whether a crime has actually been committed. Remember, the Parole Board is not required to adopt the criminal standard of proof. However, where the prisoner is pleading not guilty to an offence and court case is soon to be concluded it would be advantageous to defer for the outcome as this is likely to affect the proposed risk management plan and recommendation of the Probation Officer and may avoid the need to seek to enquire into the circumstances of the offence prior to the conclusion of the criminal proceedings.
3.7 Examples of deferral requests more likely to be appropriate to grant
a. The prisoner is about to complete offence related work and the report will be available soon and the information is likely to affect the outcome of the review and/or the ability to fairly assess the risk.
b. A material witness is unable to attend on the date of the panel. This type of request will require the panel to consider the reason given by the witness and decide whether it is reasonable or not. Members should consider alternative stand-ins, or whether attendance by telephone or video link may assist in securing attendance. Members are also reminded that they may direct one of the parties to apply for a Witness Summons, where appropriate.
c. The prisoner needs more time to obtain legal representation. Indications are that the courts will afford the prisoner a lot of leeway in this area, but this should be balanced against fairness generally. A determinate prisoner whose SED or NPD is within a few months is unlikely to achieve a meaningful oral hearing or an oral hearing at all if the case is deferred. It may actually be fairer to provide an oral hearing without representation, than none at all. Members will need to consider the stage the case is at and relevant time periods in these circumstances.
d. A prisoner in open conditions has completed most of what is required but is nearing the end of a crucial course or needs to complete a limited number of home leaves which have commenced or will do so imminently, or where the release plan is not yet in place but is likely to be soon. An alternative to deferral for such cases might be where this information is ascertained very shortly before an oral hearing date. In such cases, members can consider whether it is better to go ahead with the oral hearing and seek to adjourn on the papers for updated reports/detailed risk management plan and subsequent written submissions. There is a danger here that a panel will need to reconvene, but it is put forward as a possible alternative to consider rather than a deferral on the day or a few days before a listed hearing."
Ground 3: the Defendant's Refusal to Defer the Decision
"This is to allow a consolidation period after the programme in order for prisoners to demonstrate the outlined objectives within the SARN. This timetable has been agreed with professionals managing Mr Knights, and it is not possible for Mr Knights to complete this work and have a completed SARN report within 12 months. Notwithstanding, as set out above, that Mr Knights would also need to demonstrate that he has consolidated his learning before his next review.
The Secretary of State in his letter of 9 May 2017, has stated, 'Should the necessary work be completed in advance of the set period, the Secretary of State may consider bringing the review date forward'. Therefore until such time, Mr Knight's next review period will remain at 18 months."