![]() |
[Home] [Databases] [World Law] [Multidatabase Search] [Help] [Feedback] [DONATE] | |||||||||
England and Wales Court of Appeal (Civil Division) Decisions |
||||||||||
PLEASE SUPPORT BAILII & FREE ACCESS TO LAW
To maintain its current level of service, BAILII urgently needs the support of its users.
Since you use the site, please consider making a donation to celebrate BAILII's 25 years of providing free access to law. No contribution is too small. If every visitor this month gives just £5, it will have a significant impact on BAILII's ability to continue providing this vital service.
Thank you for your support! | ||||||||||
You are here: BAILII >> Databases >> England and Wales Court of Appeal (Civil Division) Decisions >> Hussain, R (on the application of) v The Parole Board for England and Wales & Anor [2017] EWCA Civ 1074 (20 July 2017) URL: https://www.bailii.org/ew/cases/EWCA/Civ/2017/1074.html Cite as: [2017] EWCA Civ 1074, [2017] WLR 3748, [2017] WLR(D) 499, [2017] 1 WLR 3748 |
[New search] [View without highlighting] [Printable RTF version] [View ICLR summary: [2017] WLR(D) 499] [Buy ICLR report: [2017] 1 WLR 3748] [Help]
ON APPEAL FROM HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION ADMINISTRATIVE COURT
MR JUSTICE HICKINBOTTOM
CO/1022/2015
Strand, London, WC2A 2LL |
||
B e f o r e :
CIVIL DIVISION
LORD JUSTICE DAVIS
and
LORD JUSTICE BEATSON
____________________
THE QUEEN (ON THE APPLICATION OF ANWAR HUSSAIN) |
Respondent |
|
- and - |
||
THE PAROLE BOARD FOR ENGLAND AND WALES - and - THE SECRETARY OF STATE FOR JUSTICE |
Appellant Intervener |
____________________
Tim Owen QC and Philip Rule (instructed by Bhatt Murphy Solicitors) for the Respondent
Tom Weisselberg QC and David Lowe (instructed by the Government Legal Department) for the Intervener
Hearing date: 4 July 2017
____________________
Crown Copyright ©
Lord Justice Davis:
Introduction
Background Facts
The legal context
"1. A period in open conditions can in certain circumstances be beneficial for those indeterminate sentence prisoners (ISPs) who are eligible to be considered for such a transfer.
2. Open conditions can be particularly beneficial for such ISPs, where they have spent a long time in custody, as it gives them the opportunity to be considered for resettlement leave (although there is no automatic entitlement to such leave and any decision to grant such leave will depend upon a careful assessment of risk). It is not necessary in every case, however, for an offender to spend time in open conditions in order for the Parole Board to direct their release.
3. The main facilities, interventions, and resources for addressing and reducing core risk factors exist principally in the closed prison estate. The focus in open conditions is to test the efficacy of such core risk reduction work and to address, where possible, any residual aspects of risk.
4. Prisoners who are not eligible for transfer to open conditions will be considered by the Secretary of State as to their suitability for the Progression Regime. For such prisoners, this is designed to be an alternative regime to open conditions; however, the Parole Board is not invited to advise the Secretary of State on the suitability of a prisoner for the Progression Regime.
5. A move to open conditions should be based on a balanced assessment of risk and benefits. However, the Parole Board's emphasis should be on the risk reduction aspect and, in particular, on the need for the ISP to have made significant progress in changing his/her attitudes and tackling behavioural problems in closed conditions, without which a move to open conditions will not generally be considered."
"In most mandatory lifer cases, a phased release from closed to open prison is necessary in order to test their readiness for release into the community on life licence. A similar approach will apply to many other indeterminate sentence cases, but decisions will need to be taken on a case by case basis. In general terms, the longer the time in custody served by an ISP, the more likely they are to require a period in open conditions as part of a phased release."
"Pre-tariff ISPs are eligible to have their cases referred to the Parole Board to consider their suitability for transfer to open conditions up to three years before the expiry of their tariff. In order to target Parole Board and NOMS resources effectively, the Secretary of State refers only those pre-tariff cases to the Parole Board where there is a reasonable prospect of the Board making a positive recommendation."
"1.1 The purpose of categorisation is to assess the risks posed by a prisoner in terms of:
- likelihood of escape or abscond
- the risk of harm to the public in the event of an escape or abscond
- any control issues that impact on the security and good order of the prison and the safety of those within it and then to assign to the prisoner the lowest security category consistent with managing those risks.
Two years is considered to be the maximum time a prisoner should spend in open conditions. However, assessment of a prisoner's individual risks and needs may support earlier categorisation to open conditions. Such cases must have the reasons for their categorisation fully documented and confirmed in writing by the Governing Governor. Indeterminate sentence prisoners (ISPs) will be considered for categorisation to open conditions in line with the provisions of PSO 4700 (PSI 36/2010)."
And at Section 5.4 this is stated:
"Two years is considered to be the maximum time a prisoner should spend in open conditions. However, assessment of a prisoner's individual risks and needs may support earlier recategorisation to D. Such cases must have the reasons for their categorisation fully documented and confirmed in writing by the Governing Governor."
At paragraphs 29 and 30 of Annex B to that guidance it is further said:
"Although each case is considered on its individual merits, a prisoner should not generally be categorised as Category D if they have more than 2 years to serve to their earliest release date. (Fuller guidance on eligibility dates can be found in Annex E.) Two years is considered to be the maximum time a prisoner should spend in open conditions. However, assessment of a prisoner's individual risks and needs may support earlier categorisation to D. Such cases must have the reasons for their categorisation fully documented and confirmed in writing by the Governing governor – see Part 2 of ICA1.
Prisoners serving an indeterminate sentence (ISPs) will be considered for category D in line with the provisions of PSO 4700 (PSI 36/2010)."
At paragraph 8 of Annex D the following is included as one of the points made:
"Two years is considered to be the maximum time a prisoner should spend in open conditions. However, assessment of a prisoner's individual risks and needs may support earlier recategorisation to D. Such cases must have the reasons for their categorisation fully documented and confirmed in writing by the Governing Governor (Annex E gives fuller guidance on release dates)."
(1) First, there is a right available to an offender such as the claimant to seek a review and reduction of his tariff in appropriate circumstances. That point has not featured before us.
(2) Second, there was a great deal of evidence and argument before the judge as to just how it was that the Parole Board in this case (as in many other cases) was not able to list for hearing within the time prescribed by the Rules. It is plain enough that was occasioned by the insufficency of resources available to deal with the huge volume of cases required to be considered by the Parole Board in the aftermath of the decision of the Supreme Court in R (Osborn) v Parole Board [2013] UK SC 61, [2014] AC 1115. But that point also does not form part of the present appeal.
(3) Third, there can be circumstances where the Secretary of State may decide to remove a prisoner from closed conditions to open conditions without involving the Parole Board at all. That too is not relevant in the present case.
(4) Fourth, the fact that when the claimant was eventually removed to open conditions he misbehaved and had to be returned to closed conditions is not of itself, as is accepted, an answer to the present claim. As Mr Owen put it, the principal focus here, in this particular case, is on the opportunity afforded: not on the actual outcome.
The relevant duties of the Secretary of State and the Parole Board.
"It is geared toward the prisoner having a reasonable opportunity to establish that he is safe to release at or within a reasonable time after the expiry of the tariff period. A failure before the tariff expiry may thus constitute a breach if it remains uncorrected so that he is deprived of such reasonable opportunity which he ought to have had…."
The judgment of Hickinbottom J
"94. As I have described, in pre-tariff cases, the Secretary of State identifies what he considers to be a reasonable opportunity through the Rules and his own guidance, promulgated in part to comply with the state's duties at common law and under the ECHR. As I indicate above (paragraphs 23-30), his own policy recognises that, where the risk-benefit analysis is appropriately positive, an ISP should be transferred to open conditions at a point about three years before the expiry of his tariff period. That is identified by the Secretary of State as the appropriate period in open conditions to give those prisoners a reasonable opportunity to prove themselves suitable for release at tariff.
95. Having made that assessment, it is incumbent on the state to satisfy the James public law duty, namely to establish and operate systems that will ensure that that reasonable opportunity is afforded. Here, it demands that appropriate prisoners are identified and are transferred to open conditions at or about that stage of their sentence. The Secretary of State has established what he considers to be an appropriate scheme, through the Rules and his guidance. They provide a timetable designed to ensure that, generally, prisoners are identified, assessed and transferred to open conditions at, or reasonable shortly after, the point three years from their expiry of tariff, if the assessment made of them is to the effect that the risk is sufficiently low for such transfer then. In an appropriate case, that timetable is triggered by the Secretary of State, who considers, first, whether the individual prisoner's case is one in which the Board might recommend transfer to open conditions at or about the three-year point; and, if so, to refer the prisoner to the Board for advice and a recommendation. In the Claimant's case, the Secretary of State triggered the timetable by making a reference to the Board about three years and four months before his tariff expiry."
At paragraph 97 he said this:
"In the Rules and policy, the Secretary of State thus defines "reasonable opportunity" to demonstrate, at tariff, that a particular prisoner would no longer present an unacceptable danger to the public, because they set a provisional review date and set mandatory time limits from the date of referral by which a case must be heard by the Board to ensure that that review date (and, thus, the date for transfer deemed appropriate by the Secretary of State) is met. The Rules and policy require the referral of a particular prisoner to the Board by the Secretary of State, when he assesses that there is a reasonable prospect of the Board recommending transfer, with a mandatory timetable that ensures that the prisoner will be afforded a reasonable opportunity to rehabilitate in open conditions and to satisfy the Board as to his level of risk at tariff expiry."
And then at paragraph 101 of his judgment he said this:
"In the Claimant's case, the Secretary of State assessed that an appropriate period for the Claimant to demonstrate a sufficiently reduced risk in open conditions was about three years. He considered that to be essential to afford the Claimant a reasonable opportunity to satisfy the Board as to his level of risk at tariff expiry. As a result of the failure of the Board to list the hearing in a timely manner, the Claimant had available only about thirty months in open conditions prior to his tariff expiry. That was less than the time in open conditions considered by the Secretary of State to be necessary to afford the Claimant that reasonable opportunity. There is no evidence – indeed, there is no suggestion – that that diminution in opportunity would have been "corrected" in some way prior to the Claimant's tariff expiry."
Arguments
Disposition
Conclusion
Lord Justice Beatson:
Lady Justice Gloster: