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England and Wales Court of Appeal (Civil Division) Decisions
You are here: BAILII >> Databases >> England and Wales Court of Appeal (Civil Division) Decisions >> Watson, R (on the application of) v Parole Board  EWCA Civ 1321 (04 March 1996)
Cite as:  WLR 906,  EWCA Civ 1321,  2 All ER 641,  COD 72,  1 WLR 906
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COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE,
QUEEN'S BENCH DIVISION
(CROWN OFFICE LIST)
(MR. JUSTICE POPPLEWELL)
B e f o r e :
LORD JUSTICE ROSE
LORD JUSTICE ROCH
IN THE MATTER OF AN APPLICATION FOR JUDICIAL REVIEW
|R E G I N A|
|- v -|
|Ex parte David Adam Watson|
London WC2 Tel: 0171 404 7464 Official Shorthand Writers to the Court)
appeared on behalf of the Appellant
MR. S KOVATS (Instructed by The Treasury Solicitor)
appeared on behalf of the Respondent
Crown Copyright ©
"I am particularly concerned by his refusal to associate with a more age-appropriate group of homosexuals. Instead, he still indulges his interest in young men and is eagerly looking forward to the proposed age reduction of consenting homosexuals. However, he still denies having any sexual fantasies or urges towards young boys. He claims that he is mixing with the youths, as you no doubt heard from his Probation Officer, only to fulfil his needs to care for others. Yet he admits that he finds these dependent relationships somewhat rewarding. They are of course partly reminiscent of his original behaviour surrounding the index offences."
"I cannot say that David Watson is in imminent danger of reoffending. However, I regret that he is failing to make the progress that either his Probation Officer or I would wish. Moreover, by maintaining his association with youths, he is inevitably going to come into contact with boys and situations of temptation. In his seemingly arrogant way, he will not consider that this is a risk, nor that he need not even take it. I feel that unless he can change his attitude it is likely that he will fall into further trouble. He is of course extremely vulnerable to allegations and I doubt whether the youngsters he chooses to mix with will be that long in discovering the potential to blackmail him. However, he remains confident this will not be the case, despite discussing our frank concerns with him. "
"The Secretary of State revoked your life licence on 26 March 1994, under section 39(2) of the Criminal Justice Act 1991.
This action was taken after evidence was received indicating that you had allegedly suggested that a firearm be obtained on your behalf. It was also alleged at a later date, that you spoke of a plan to attack, and possibly kill a young man.
These recent developments have followed earlier events and concerns expressed by the Probation Service and Dr Mendelson, which resulted in the conditions of your licence being varied. In addition you have concealed from your supervising officer the fact that you had been cohabiting with a 17 year old boy since January 1994. Having regard to all the circumstances, in particular the offences for which you were sentenced to life imprisonment, the Secretary of State considered that your presence in the community no longer constituted an acceptable risk to the safety of others. For that reason, he decided to immediately revoke your life licence and recall you to prison."
"1. The pattern of your conduct since release on licence belies the assurances that you gave to the Board and falsifies the belief then held that you could be released without risk to the public.
2. This conduct has already led to changes in the conditions of your licence and you have received one warning letter on 23 March 1994.
3. Finally your offering accommodation to a boy of seventeen and hiding this fact from your probation officer makes recall inevitable."
"Discretionary Lifer Panel - 22 July 1994
1. On 26 March 1994 the Secretary of State revoked your life licence and recalled you to prison. This decision was confirmed by the Parole Board on 30 March 1994. Pursuant to Section 39(4) of the Criminal Justice Act 1991, a panel of the Parole Board convened on 22 July 1994 to consider your representations against recall. The Act requires the Board to direct your release only if it is satisfied that it is no longer necessary for the protection of the public that you be confined. The panel were not so satisfied and have therefore rejected your representations.
2. The panel carefully considered :-
(a) your history of offending, in particular your convictions for sexual offences against boys, some of them involving acts of violence ;
(b) your history whilst in hospital and in prison ;
(c) the reports and statements in the dossier, excluding the statement of Stephen Goodall which was disregarded by the panel following submissions by your Counsel ;
(d) your representations and other statements submitted by you ;
(e) the evidence of Ms Robinson, your Probation Officer ; and
(f) your evidence and the evidence of Mr Edwards, your legal representative, and the full submissions of your Counsel.
3. In rejecting your representations against your recall, the panel were wholly convinced, on the totality of the evidence that they heard, that you continue to present a very real risk to the public and that there is a substantial risk that if you were released you would again commit serious sexual offences against males under the age of consent.
4. The panel accepted and took into account the fact that you have not committed any criminal offence since your release on licence and that there was no condition in your life licence that you should not associate with male persons under the age of consent. Nonetheless, on the evidence, the panel was satisfied that by reason of your association with young men aged 17, with criminal convictions, drug addiction and no settled way of life, you exposed them and young members of the public and yourself to a substantial potential risk. They accepted the contention that you created an undesirable dependency of those youths on you. They took the view that the risk of these associations leading to serious sexual offending was very high. You were not honest and open with your supervising officer. You concealed the extent of your associations from her and then did not heed her advice and warnings that you must associate with more appropriate persons. You accommodated a young person, aged 17, in your room for a period of some months without disclosing this to your supervising officer or seeking her advice.
5. In coming to their conclusion, the panel took into account all the evidence that they heard, but particularly:-
(a) your own evidence. You told the panel that the young people with whom you were associating were, during the association, committing criminal offences to feed their drug and alcohol addiction. The panel had no doubt that you had no insight into or understanding of the risks you were running or the reasons why these associations were inappropriate ;
(b) the evidence of Mrs Robinson, whose evidence they accepted. She told the panel that she did advise you on a number of occasions that you should associate with more age appropriate persons and that you should not associate with criminally orientated youths, but that you ignored this advice and the warnings given to you by her. She said that she had told you that you must have an open and honest relationship with her but that you had concealed from her the extent of your associations and the fact that Stephen Goodall was living in your room with you
(c) the reports of Dr Mendelson. In his report of 16 February 19 94, Dr Mendelson said that he was particularly concerned with your refusal to associate with more age appropriate homosexuals. You were eagerly looking forward to the proposed reduction in the age of consent for homosexuals. You were failing to make the progress that the Doctor and the Probation Officer would wish. It is right that Dr Mendelson said "I cannot say that David Watson is in imminent danger of reoffending" but he went on to say that by maintaining your association with youths you are inevitably going to come into contact with boys and situations of temptation. Dr Mendelson said that you would not consider that there was a risk and that until you can change your attitude it is likely that you will fall into further trouble. The panel agreed with this view and detected no change of substance in your views. Until there is evidence of change you will continue to be a risk ;
(d) the statement of Mr Hearn, the Governor V, that you make no secret of your association with young males and that this makes you a risk ; and
(e) the statement of the Chaplain that it is your stubbornness to do things your way which gives greatest cause for concern.
5. The panel considered that it is essential that you should receive further assessment and treatment to lead to an understanding and insight into your potential for reoffending, with a view to your eventual release. They recommended to the Secretary of State that on completion of any assessment and treatment that is considered necessary your case should again be reviewed to see whether it is appropriate to transfer you to open conditions.
6. The decision of the panel not to direct your release is binding upon the Secretary of State. However it is a matter for him to decide whether to accept the recommendations that you undertake further assessment and treatment and that your case be referred back to the Board for a further review upon completion of such treatment."
"It shall be the duty of the Board to advise the Secretary of State with respect to any matter referred to it by him which is connected with the early release or recall of prisoners."
" (1) A life prisoner is a discretionary life prisoner for the purposes of this Part if -
(a) his sentence was imposed for a violent or sexual offence the sentence for which is not fixed by law ; and
(b) the court by which he was sentenced for that offence ordered that this section should apply to him as soon as he had served part of his sentence specified in the order.
(2) A part of a sentence so specified shall be such part as the court considers appropriate taking into account -
(a) the seriousness of the offence, or the combination of the offence and other offences associated with it ; and ...
(3) As soon as, in the case of a discretionary life prisoner -
(a) he has served the part of his sentence specified in the order ("the relevant part") ; and
(b) the Board has directed his release under this section,
it shall be the duty of the Secretary of State to release him on licence.
(4) The Board shall not give a direction under subsection (3) above with respect to a discretionary life prisoner
(a) the Secretary of State has referred the prisoner's case to the Board ; and
(b) the Board is satisfied that it is no longer necessary for the protection of the public that the prisoner should be confined.
(5) A discretionary life prisoner may require the Secretary of State to refer his case to the Board at any time -
(a) after he has served the relevant part of his sentence ; ...".
"(1) If recommended to do so by the Board in the case of a long-term or life prisoner who has been released on licence under this Part, the Secretary of State may revoke his licence and recall him to prison.
(2) The Secretary of State may revoke the licence of any such person and recall him to prison without a recommendation by the 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 person 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 Board -
(a) the case of a person recalled under subsection (1) above who makes representations under subsection (3) above ; and
(b) the case of a person recalled under subsection
(5) Where on a reference under subsection (4) above the Board -
(a) directs in the case of a discretionary life prisoner ; ....
his immediate release on licence under this section, the Secretary of State shall give effect to the direction "
"The details of any memorandum which the Board considered prior to making its recommendation for recall under section 39(1) of the Act or confirming the Secretary of State's decision to recall under section 39(2) of the Act, including the reasons why the Secretary of State considered it expedient in the public interest to recall that person before it was practicable to obtain a recommendation from the Board."
"The Act requires the Board to direct your release only if it is satisfied that it is no longer necessary for the protection of the public that you be confined."
(1) Even when released on licence, a discretionary life sentence prisoner remains subject to that sentence, passed because of the likelihood of danger to the public.
(2) By the time the Parole Board conducts its review under section 39(4) the prisoner is back in prison, continuing to serve his sentence.
(3) Section 39(4) prescribes no statutory test which the Board is to apply. But the Board's function under section 39(5) is almost exactly the same as that under section 34(3), namely to direct (or not) the prisoner's release. In the absence of express statutory provision, it is to be assumed that the same test is applicable.
(4) In exercising its practical judgment the Board is bound to approach its task under the two sections in the same way, balancing the hardship and injustice of continuing to imprison a man who is unlikely to cause serious injury to the public against the need to protect the public against a man who is not unlikely to cause such injury. In other than a clear case this is bound to be a difficult and very anxious judgment.
" (a) the need to protect the public from serious harm from offenders and
(b) the desirability of preventing commission by them of further offences and of securing their rehabilitation."
Section 34(4) provides:
"The Board shall not give a direction under ss (3) above with respect to a Discretionary Life Prisoner unless ....
(b) The Board is satisfied that it is no longer necessary for the protection of the public that the prisoner should be confined."
"It is submitted that, if the correct test were applied, there was insufficient evidence of renewed dangerousness to justify a recall ......"
Appeal dismissed. Legal Aid Taxation. Leave to appeal to the House of Lords refused.