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You are here: BAILII >> Databases >> England and Wales High Court (Administrative Court) Decisions >> Lillycrop, R (on the application of) v Secretary Of State For Home Department [1996] EWHC Admin 281 (27th November, 1996) URL: http://www.bailii.org/ew/cases/EWHC/Admin/1996/281.html Cite as: [1996] EWHC Admin 281 |
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1. The three Applicants, Martin Lillycrop, Ronald George Powell and Andrew Scott, are prisoners serving sentences for sexual offences. Each of them denied his guilt at trial and thereafter has continued to maintain he is not guilty of the offences of which he was convicted. Each of them has either refused to take part in any form of treatment designed to address his offending behaviour or has been considered unsuitable for such treatment by reason of his continuing to deny his guilt.
2. The applications before the Court are for judicial review, by leave, of the decision made in respect of each Applicant by a panel of the Parole Board not to recommend him for early release on licence from prison.
3. Each of the Applicants is serving a sentence of imprisonment for a term of 4 years or more and is accordingly a "long-term prisoner" as defined by section 33(5) of the Criminal Justice Act 1991. Section 35(1) of that Act provides that after a long-term prisoner has served one-half of his sentence, the Secretary of State may, if recommended to do so by the Parole Board, release him on license. If such discretionary release is not granted the prisoner will not be entitled to be released as of right until he has served two-thirds of his sentence at which point it becomes the duty of the Secretary of State to release him by virtue of section 33(2) of the 1991 Act.
4. The effect of these provisions, which apply to the Applicants Lillycrop and Scott, are, we perceive, as follows. No long-term prisoner will be released until he has served one half of the sentence imposed upon him. This period will represent the minimum length of sentence for punishment, retribution and deterrence. All long-term prisoners will be released after they have served two-thirds of their sentence (subject to internal prison disciplinary punishments). Discretionary release under the provisions of section 35(1) of the 1991 Act affects only that part of the sentence between one half and two thirds of its stated length. For long-term prisoners serving 4 years the window of opportunity for early release is relatively short, namely 8 months. However, for prisoners serving much longer sentences plainly the affect of early release can be very considerable indeed.
5. In addition section 37 of the 1991 Act provides that where a long-term prisoner is released on license the license shall remain in force until the date on which he would (but for his release) have served three-quarters of his sentence. The license may contain conditions and a failure to comply with those conditions may result in the revocation of the license and his return to prison.
6. The position in respect of the Applicant Powell is somewhat different. He was an existing prisoner at the time when the relevant provisions of the 1991 Act came into effect in October 1992. Accordingly section 35(1) of that Act must be read subject to paragraph 8(6) of Schedule 12 to the 1991 Act. This provides that section 35(1) applies to existing prisoners whose sentence is for a term of more than 12 months as if the reference in that section to one half of the sentence were a reference to one third of that sentence or 6 months whichever is the longer. Thus the Secretary of State had the power to authorise the release of the Applicant Powell on license at any time after he had served one third of his sentence if such release was recommended by the Parole Board.
7. There are no statutory criteria that the Parole Board is required to apply when considering whether to recommend release on license of a long-term prisoner. However, section 32(6) of the 1991 Act provides that:
8. Pursuant to that power the Home Secretary issued directions to the Parole Board which came into force on 13th May 1996. Those directions provide, so far as is material to these applications as follows:
9. Those Directions were in force at the time when a panel of the Parole Board considered the application of Scott. However, at the time a panel of the Board considered the applications of Lillycrop and Powell an earlier Direction was in force, the relevant part of which was as follows:
10. The wording and effect of the Directions in force in 1995 were considered by this Court in R -v- Secretary of State for the Home Department ex parte Zulfikar (unreported 21st July 1995 CO 1411-94). The Applicant had been convicted of a single offence of arson within intent to danger life and a sentenced to 8 years imprisonment.
11. He denied his guilt and continued to do so whilst serving his sentence. He was refused parole on the ground that he had not addressed any of the issues that brought him into prison in the first place, in particular the offence.
12. In considering the situation of a prisoner who continued to deny his guilt in prison and therefore was not prepared to undertake any form of counselling, or treatment, Stuart-Smith LJ at page 23 F said:
13. Whilst the new Directions were not available to the panels considering the cases of Lillycrop and Powell, the decision of Zulfikar was, with the guidance contained therein.
14. Each of the Applicants denied his guilt at trial and continues to deny it whilst serving his prison sentence. It is submitted on behalf of the Applicants that continuing denial of the commission of the offences leading to imprisonment should not be regarded by the panel of the Parole Board as a positive factor indicating risk but as a circumstance which neither adds to nor detracts from the application for parole. Thus it is said that whilst the Parole Board may certainly take a completion of a course of treatment as a positive factor in favour of any Applicant the failure to complete such a course because of a denial of the commission of the offences leading to imprisonment should not be taken as a negative factor. In our judgment this submission over-simplifies the position.
15. We consider that the Parole Board must approach its consideration of any application for parole on the basis that the Applicant has committed the offences of which he has been convicted. It is not the function of the Parole Board to investigate possible miscarriages of justice or to give effect in their considerations to any personal misgivings they may have about the correctness of any particular conviction.
16. That being so, where the pattern of offending behaviour is such that there is a significant risk of a further offence being committed, particularly an offence of a violent or sexual nature, and an Applicant has not demonstrated by his conduct in prison that such risk has been reduced to an acceptable level, then a recommendation for parole is unlikely to be made. Part of that conduct in prison to which a panel of the Parole Board will inevitably and rightly look will be the extent to which an Applicant has examined the behaviour which has led to his imprisonment. Where because of denial that the offence has been committed no such examination has taken place it will be more difficult for an Applicant to satisfy the Board that the risk he posed when he was sentenced to a term of imprisonment has been reduced to an acceptable level. We repeat and emphasise that each case must turn on its own particular facts.
17. Statistically, there will always be a risk of a further offence being committed at a time when the prisoner would otherwise be in prison. The task of the Parole Board is to assess the extent of that risk and to determine in the light of that assessment whether the risk is small enough to contemplate early relief. It should be noted that the Directions to which we have referred place emphasis on the violent or sexual offender, and in particular the fact that the risk of further violent or sexual offending is more serious than other types of offending and that where a prisoner has committed other offences of a sexual or violent nature the risk maybe unacceptable.
18. For the reasons clearly set out in Zulfikar with which we respectfully agree it is an impermissible approach for the Parole Board to say in respect of an Applicant: "This man denies his guilt; therefore, without considering the circumstances further, we will not recommend parole". However, a denial of guilt coupled with an unwillingness to address offending behaviour is a factor to which the Board must have regard in assessing the risk to the public of further offending. It will be for the Parole Board to determine in each case the extent to which, if at all, this factor should influence their determination.
19. There is no statutory obligation upon the Parole Board to give the reasons for its decision. However, the Home Office Circular 85/1992 promulgated after the introduction of the Discretionary Conditional Release Scheme by the Criminal Justice Act 1991 provides as follows:
20. Although this instruction does not have the force of law, with the increasing emphasis on the importance of openness in the conduct of the decision-making process with reference to the granting of parole it is now the universal practice to give reasons to the prisoner affected. The demands of natural justice and fairness require such disclosure.
21. In our judgment the decision letter should contain a succinct and accurate summary of the reasons leading to the decision reached. When formulating their reasons the members of a panel are not required to create some elaborate formal exegesis, or a detailed analysis of the facts they have considered and the application of those facts to the relevant law. The purpose of the reasons is to tell the prisoner in broad terms why parole has not been recommended, bearing in mind that in most cases the prisoner will himself have been provided with the documentation available to the Board.
22. The reasons must be such that the prisoner will know why a decision unfavourable to him has been reached. The whole of the reasoning process of the Board need however not be set out. In particular, while it is clear that the Board must have regard in coming to its decision to matters favourable to the prisoner which are included in the dossier, the Board need not set out in its decision letter the matters pointing towards release which it has taken into consideration. The contrary has not been submitted in front of us.
23. It is the case of each Applicant that the relevant decision letter, seen in the context of the dossier of information before the decision-making body, shows that the decision making process has been ill focused and superficial. Each panel has failed to direct itself in accordance with the proper principles, with the result that undue weight has been attached to the fact of continued denial of guilt and the consequent failure to undertake any form of treatment at the expense of all other relevant considerations.
24. On behalf of the Respondents it is submitted that the decision letter in each case does identify the essential reasoning process of the Parole Board, a reasoning process which is rational and reasonable it itself. The reasoning process, it is said, is the same in each case: the pattern of offending behaviour is such that there is a significant risk of further serious offending and in each case the Applicant has not demonstrated by his conduct in prison that such risk has been reduced to an acceptable level.
25. However, in support of their case in respect of each Applicant the Respondents seek to rely upon affidavits to expand upon and in certain cases explain the reasoning processes of the panel who reached the decisions challenged by each of the Applicants.
26. The affidavits relied on by the Respondents were sworn by Mr Terence Harvey, a Senior Executive Officer seconded to the Parole Board. Two objections are raised in respect of this evidence. First, it is submitted that the affidavits contain objectionable hearsay; second that it is inappropriate to seek to supplement ill-focused decision letters by such evidence because of the risk of ex post facto rationalisation.
27. As to the first objection, it is clear that Mr Harvey did not attend the meetings of the panels at which the challenged decisions were reached, nor, so far as we are aware, was he a party to the drafting of the decision letters. Mr Harvey attests that in setting out the reasoning of the Parole Board he has relied upon instructions given to him by the members of the panel who considered the cases of Powell and Scott. He gives no detail of the way in which he obtained those instructions nor does he exhibit any contemporaneous notes of discussions held by the panels concerned.
28. As to the Applicant Lillycrop Mr Harvey simply attests that the reasoning of the Parole Board which he sets out is true to the best of his knowledge and belief, without giving any source for that belief.
29. There is clear judicial precedent for the admission of and reliance on such evidence by this Court in similar circumstances. In R v The Parole Board (ex parte Gittens) (Divisional Court Ralph Gibson LJ and Smith J unreported 26th January 1994) the Court was considering a challenge to a decision of a Discretionary Life Panel of the Parole Board. It was submitted on behalf of the Applicant in that case that as a matter of good practice and procedural fairness the Parole Board should be required to provide an affidavit or affidavits from the members of the panel themselves. There was, it was said, a danger of unfairness in allowing Civil Servants to assume the task of drafting the affidavit in explanation of a questioned decision.
31. A similar situation was considered by Buxton J in R v The Secretary of State for the Home Department ex parte Zulfikar (No.2) (unreported 1st May 1996). This was an application for judicial review in respect of the Parole Board's second bite of the cherry at Mr Zulfikar's application for parole consequent upon the quashing of their first decision in Zulfikar No.1. An affidavit sworn by a member of the Parole Board's secretariat who may well not have been present at the meeting of the relevant panel was relied upon by the Respondents. Buxton J was prepared to rely upon the content of the affidavit, saying at page 16 C:
32. As to the second objection - that in principle it is wrong for the decision maker to be allowed to amplify his reasoning set out in the decision - it has to be said that these decisions lie uneasily with other decisions in the field of judicial review where it has been sought to amplify and explain reasons given by a decision-making body after that decision has been communicated to the person affected by it. If, as we have held, the purpose of the decision letter is to inform the prisoner why parole has not been recommended in sufficient detail so that he can understand the reasons why the conclusion has been reached it is prima facie unacceptable that a prisoner must move for judicial review in order to obtain an intelligible explanation of the decision.
33. The position under Section 64 of the Housing Act 1985, where if a local authority are not satisfied that the Applicant is homeless or are satisfied that he is intentionally homeless they must give their reasons, is clear. In R v London Borough of Croydon ex parte Graham 26HLR 286, considering the obligation under section 64 to give reasons, Steyn LJ said:
34. These cases, of course, were concerned with an express statutory obligation to give reasons. Indeed, in ex parte Ermakov Hutchison LJ was careful to emphasise that his conclusions on the amplification of reasoning was with reference only to the provisions of the Housing Act. That said, however, the careful and clear reasoning set out in ex parte Ermakov , a decision not available to the Court in ex parte Gittens , is in our considered judgment the proper approach which should be adopted in relation to the admission of evidence sought to explain reasoning in the decision making process of the Parole Board in cases such as those now under consideration.
35. Accordingly we conclude that where evidence is proffered to elucidate correct or add to the reasons contained in the decision letter a Court should examine the proffered evidence with care, and should only act upon it with caution. In particular, a Court should not substitute the reasons contained in proffered evidence for the reasons advanced in a decision letter. To do so would unquestionably raise the perception, if not the reality, of subsequent rationalisation of a decision that had not been properly considered at the time.
36. However, we are not persuaded that, given the limited extent to which such evidence is likely to be acted upon by a Court, a senior Civil Servant should not be permitted to give such evidence provided always that the source of his knowledge and belief is clearly stated in his affidavit.
38. The Applicant seeks to quash the decision of a panel of the Parole Board dated 17th January 1996 not to recommend him for release on parole license and to impose conditions on his Non-parole Release Date (NPD) parole license and asks that this Court should by mandamus direct the Parole Board to reconsider whether or not to recommend his release.
39. The background to his case is as follows. In October 1993 at his trial at Maidstone the Applicant was convicted of rape and assault occasioning actual bodily harm. He was acquitted of an alternative offence of causing grievous bodily harm and also acquitted of an offence of kidnap. All the offences related to the same victim and concerned a single sequence of events over one night. The Applicant's defence to the charge of rape was that of consent. He was sentenced to 5 years' imprisonment for the rape and 2 years' imprisonment concurrent for the assault. Leave to appeal against conviction was refused.
40. The Applicant, who is now 41 years of age, has one other conviction recorded against him, an offence of indecent assault upon another woman for which he was sentenced to 9 months imprisonment in 1989.
41. He became eligible for parole on 24th January 1996 but was not considered suitable for release. The panel who considered his case gave the following reasons for its decision:
42. The Parole Board directed that the NPD parole license should include conditions that he reside at an approved probation hostel and thereafter reside as directed by his supervising officer; that he must not seek to approach or communicate with his victim without prior approval of his supervising officer; and that he must comply with any requirements reasonably imposed by his supervising officer for the purpose of ensuring that he addresses his offending behaviour problem. No objection is raised to the first and second of those conditions. The Form 86A challenged the imposition of the third. However, before us Mr Turner did not pursue the attack, accepting that such an attack was premature since no requirement had yet been imposed and none might be.
43. In the case of Lillycrop, as we have pointed out, the affidavit sworn by Mr Harvey seeking to amplify and explain the reasons given by the panel does not attest to the source of Mr Harvey's knowledge and belief for the giving of that amplification. In those circumstances we wholly ignore his affidavit in considering this application.
44. Put shortly, the Applicant's case is that the reason given for the panel's decision is simply that he is too high a risk to justify early release because he refuses to accept that he is guilty of the offence of rape and therefore does not accept that he needs treatment to address his offending behaviour.
45. For the Respondents, it is submitted that the panel did not say that the Applicant's refusal to admit he committed the rape disqualified him from parole; rather the panel decided not to recommend that he be released on parole and to impose conditions on his non parole license because the seriousness of the offences for which he had been convicted and the Applicant's lack of insight into his offending behaviour were such that his release would pose an unacceptable risk to the public.
46. The panel considered the Applicant's case in the light of the Direction applicable in January 1996 as explained by this Court in Zulfikar. The decision was to focus primarily on an assessment of the risk to the public of a further offence being committed. The starting point of that assessment must be the offences of which the Applicant had been convicted.
47. The panel had available to them a Summary of Evidence prepared by a police officer before the Applicant's trial. This summary included a description of a forceable abduction of the victim of the rape from her home to that of the Applicant. That allegation plainly formed the basis of the charge of kidnapping, of which the Applicant was acquitted. It was submitted that the panel may have acted in part upon that feature of his case; however, in our judgment an examination of the material available to the panel and the basis of their decision does not support that proposition and we reject it.
48. In the course of argument we suggested that out of an abundance of caution where a pre-trial summary of evidence was provided for the use of the Parole Board, the document should clearly be marked as such. The Respondents undertook to give consideration to that suggestion.
49. The panel was also provided with a number of reports on the Applicant's general progress whilst serving his sentence, a summary of an interview conducted by a member of the panel with the Applicant, and the Applicant's comments on those documents.
50. The Prison Assessment for the Parole Board described the Applicant as a model prisoner, with strong family ties. The author of the Assessment wrote:
51. Other reports were in more guarded terms. Considering the likelihood of the Applicant avoiding re-offending before the sentence fully expires Mr Clayton, the Prison Probation Officer, wrote:
52. A Parole Assessment Report prepared Ms Edge, a probation officer from the Inner London Probation Service, contained the following observation:
53. In his parole interview the Applicant was asked about his previous conviction for indecent assault. He described meeting a neighbour in a pub, and inviting her back to his flat where he "tried it on". Mr Lillycrop was expecting a £50 fine; instead he was imprisoned for 9 months. He emphatically denied that he was guilty of the offence of rape, whilst admitting that he had sexual intercourse with his victim. The only violence he inflicted upon her was a couple of slaps. He had been told by the Governor that he was not suitable for the Sex Offenders Treatment Programme (SOTP). The interviewer asked the Applicant if he had considered that programme as he had one previous sex offence on his record. The Applicant said it was unlawful to hold a previous conviction against him. When it was explained to the Applicant that a previous conviction is one among many factors that help determine future risk the Applicant's attitude was that the previous offence was a "one off" stupid thing that happened and he was not prepared to consider the SOTP.
54. The consistent theme running through all the documents before the panel was an adamant and vehement denial that the Applicant was guilty of the offences of which he had been convicted. We say offences deliberately: whilst the Applicant admitted that he had struck his victim twice, he did not accept that he had inflicted upon her the injuries which formed the basis of the charge of assault occasioning actual bodily harm. Further, he sought to minimise and dismiss as irrelevant his previous conviction for indecent assault.
55. It was for the panel to reach its own assessment of the extent of the risk to the public of re-offending if the Applicant was released on parole. In the light of the material before them they were, in our judgment, clearly entitled to conclude as they did that the Applicant's insight into his offending behaviour appeared limited and that until he addressed that offending behaviour he would be too high a risk to justify early release. There is no basis for concluding that the panel refused to recommend release simply because the Applicant refused to admit his guilt. The reasons contained in the decision letter, whilst shortly stated, sufficiently identified the basis of the decision reached, which was a reasonable and rational decision in all the circumstances.
57. The Applicant seeks to quash the decision of a panel of the Parole Board dated 18th April 1996 not to recommend his release on license and asks that this Court should by mandamus direct the Parole Board to reconsider whether or not to recommend his release.
58. In September 1992 the Applicant was convicted of 5 sexual offences committed between 1976 and 1980. The charges were counts of buggery, indecent assault on a male under 16 and indecent assault on a girl under 13. He was sentenced to a total of 8 years imprisonment. The victims were nephews and nieces of the Applicant, visiting their grandmother who then lived at the same address as the Applicant. The offences were specimen charges, which represented a course of conduct extending over about 4 years. The Applicant is 46 years of age and has no relevant previous convictions.
59. In March 1994 the Applicant's appeals against conviction and sentence were dismissed. He became eligible for parole in May 1995. In June 1995 the Parole Board considered his case and did not recommend parole. The letter giving the reasons for that decision said:
60. The Applicant's case was considered again in April 1996. Again the Parole Board decided not to recommend release on license, giving as its reasons the following:
61. The thrust of the Applicant's case is that in reality he has been refused parole solely because of his refusal to admit guilt and that such a decision on that basis was irrational, unfair and not reached on the applicable principles of law. The Respondents do not accept that the refusal was so based and maintain that the decision was reasonable, rational and adequately explained in the decision letter.
62. As with Lillycrop, the panel considering this Applicant's case had to do so in the light of the Direction applicable in April 1996 as explained by this Court in Zulfikar. Again, they were required to focus primarily on an assessment of the extent of the risk to the public if the Applicant was released on licence.
63. The panel had available to them not only reports prepared for the consideration of the Applicant's case leading to the decision challenged before us, but also the documents considered by the panel when refusing to recommend release in October 1994. The consistent theme of all the documentation is to the effect that the Applicant emphatically denies that he has committed any criminal offence and that accordingly he was not prepared to undertake the SOTP because in his view there was nothing to address.
65. No doubt that report significantly influenced the decision of the panel not to recommend his release in June 1995, a decision reached before the judgment of this Court in Zulfikar.
66. The further material available to the panel when considering the challenged decision included a Prison Assessment which neither recommended nor commented adversely on release on parole. That report did, however, include the opinion that a continued stay in prison may persuade the Applicant to undertake some offence related work. The Prison Probation Officer, considering the possibility of re-offending, wrote:
67. The external Probation Officer, in an undated report received by the Parole Board in January 1996, wrote:
69. There was, in our judgment, plainly material before the panel entitling them to conclude that the risk of the commission of further offences if the Applicant was granted parole was substantial and unacceptable. However, the only reason given by the panel in their decision letter for concluding that he remained an unacceptable risk for release was that the Applicant had not done any work to address his offending behaviour. It is common ground that whilst he continued to deny the offences no useful purpose would be served by his undertaking such work, in particular the SOTP. On its face, therefore, the decision letter suggested that the only reason parole was not recommended was because of the Applicant's continued denial of guilt with the inevitable consequence that he would not undertake offence-related treatment. In our judgment where a prisoner has been convicted of offences committed many years ago, as these were, and where there is no suggestion that he has offended in the intervening years between the commission of the offences and his eventual conviction, it will only be in exceptional circumstances that such a consideration can properly be regarded as determinative.
70. Mr Harvey, in his affidavit in relation to Powell's application, considerably expands on the reasoning processes of the panel. He says that the circumstances of the offences indicated to the panel that the Applicant presented a potentially high risk to children, particularly any who might enter his home. Against that background the panel were of the view that they needed to see persuasive evidence that he had confronted and tackled his propensity for such offending if they were to be satisfied that the risk of his re-offending had been reduced to an acceptable level. They were concerned by the report that the Applicant was "very bitter" towards the victims which appeared to be borne out by his statement referred to above. The panel noted that none of the prison and probation staff had made a positive recommendation in favour of parole, had regard to the Prison Probation Officer's comments about the very real risk the Applicant posed and agreed with that assessment. Mr Harvey asserts that the wording of the panel's decision revealed the need, perceived by them, for powerful positive evidence on the Applicant's behalf to overcome the risk posed and were particularly concerned that there had been nothing done by the Applicant in custody that could be taken to balance or reduce the high level of risk associated with conviction for serious sexual offences against children.
71. If that was indeed the reasoning process of the panel in our judgment they failed to convey that to the Applicant in the reasons they offered. The affidavit of Mr Harvey goes beyond the elucidation of the panel's reasons and in effect provides further reasons for the decision reached. Looking at the decision letter alone, the Applicant has, as is submitted on his behalf, been refused parole solely because of his refusal to admit guilt.
72. It may well be that the panel did follow the approach attributed to them by Mr Harvey but in our judgment the reasoning the panel have actually given potentially reveals an erroneous approach on their part which cannot be cured by the introduction of the additional material placed before us Mr Harvey's affidavit.
73. The reasons make no reference to the counter-balancing factors of the staleness of the offences, the absence of any further offending after 1980 which is potentially relevant to the finding that he has a present propensity for such offending and the possibility of imposing conditions in a parole licence to address any residual risk. Accordingly we propose to quash the decisions not to recommend the Applicant's release on license from prison and require the Parole Board to reconsider the matter.
74. The Applicant seeks to quash the decision of the Parole Board dated 17th June 1996 not to recommend him for release on parole license and asks that this Court should by mandamus direct the Parole Board to reconsider whether or not to recommend his release.
75. The background to his case is as follows. In February 1993 at his trial at Maidstone the Applicant was convicted of 11 sexual offences committed between 1985 and 1989 on his 3 step children. The charges he faced were specimen counts of rape, indecent assault, and indecency with a child. There was a specific count of attempted buggery. He was sentenced to 7 years imprisonment on the charge of rape with shorter concurrent sentences in respect of all other offences. These were unquestionably premeditated and violent sexual offences on vulnerable victims committed whilst the Applicant was in a position of trust at a time when the step children were aged between about 9 and 12.
76. The Applicant is 45 years of age with relatively minor previous convictions for offences of a wholly different nature.
77. The Applicant became eligible for parole in July 1996 but was not considered suitable for release on parole license. Giving the reason of the panel in a letter dated 17th June 1996 the Parole Board said:
78. A consideration of this Applicant's case took place after the promulgation of the new Directions. We repeat that those new directions emphasised the serious nature of violent or sexual offences and expressly required the panel to take into account the nature and circumstances of the original offence and the Applicant's attitude towards those offences when in custody. Again, however, the primary consideration of the panel was the assessment of the risk to the public.
79. As with the other Applicants the theme running through the documentation before the panel was to the effect that the Applicant consistently denied that he had committed any of the very serious sexual offences alleged against him. Because of his denial of guilt the Applicant was not prepared to take part in any sex offender courses.
80. The material before the panel included a Prison Assessment which spoke of the Applicant's willingness to co-operate with prison rules and regulations and the opinion that he would continue to do so upon release. The author of the assessment wrote:
81. That was not the universal perception of the Applicant: a parole assessment provided by the Wing Probation Officer spoke of one prison officer regarding the applicant as a manipulative hypocrite. That same report disclosed that the Social Services who have been involved with the abused children considered the Applicant to be a risk. The Wing Probation Officer's Report concluded:
82. The external Probation Officer concluded that it was very difficult to assess the risk of further offending. She wrote:
83. In giving their reasons for the decision in this case the panel drew attention to the very serious nature of the offences of which the Applicant had been convicted, the potentially high risk to the young children of any woman with whom he might form a relationship in the future, and self-evidently had regard to the fact that the Applicant had formed similar relationships in the past and was thus likely to do so in the future. The decision thus identified the reasons why the risk of re-offending was unacceptable in a way which was clearly understandable to the Applicant, who himself was provided with the documentation upon which the panel relied.
84. In our judgment the affidavit of Mr Harvey does no more than confirm the basis of the panel's reasoning process. Those reasons conveyed to the Applicant the essence of their rationale for finding him unsuitable for parole, namely the nature of his offences and the high degree of risk to which they pointed and his failure to do anything to reduce that serious risk. The original reasons given are both lawful and adequate.
86. As a postscript, we observed in the course of argument that it would, as has been said on a number of previous occasions, be helpful in such cases for the sentencing remarks of the trial judge to be available to the panel considering the question of parole. We are glad to be assured that the sentencing remarks will be available in respect of all long-term prisoners from January 1997.
87. MISS SMITH: I appear for the respondent Secretary of State. With regard to your proposed order in Mr Powell's case, Mr Powell's next review by the Parole Board is due presently at the end of April of next year. Preparation for that review is now under way; new reports are being prepared for the dossier. It is the Secretary of State's submission that an order that the Parole Board should reconsider Mr Powell's and come to a new decision on the old evidence would not be useful, and would, in effect, be academic. The reports in his dossier which were before your Lordship --
88. LORD JUSTICE SCHIEMANN: Clearly the Parole Board must consider it in the light of the material available to them when they reconsider. The difficulty is that one wants to get on with it as fast as one can.
89. MISS SMITH: The Parole Board are prepared to undertake to expedite Mr Powell's next review, as far as they reasonably can.
91. MISS SMITH: My lord, the reports in the old dossier are over a year old. They are stale and out-of-date. They do not take into account the progress over the past year. The Parole Board want to take that into account in reconsidering.
92. LORD JUSTICE SCHIEMANN: Is there any suggestion of any regress -- if I can put it that way -- on the part of the prisoner?
93. MISS SMITH: My Lord, I do not think there is. However, I have been instructed that Mr Powell may have made progress over the past year and that there are positive changes the Parole Board would want to take into account.
94. LORD JUSTICE SCHIEMANN: I can see that, and it would be open on the old material, as a matter of law, to the Parole Board not to come to the same decision as they came to last time, but you say the fairness to the man requires that they consider the new material.
95. LORD JUSTICE SCHIEMANN: Clearly it does in the sense that it may work to his advantage. Can I hear what Mr Turner says about this?
96. MR TURNER: What we are concerned about is if the next review does not take place until April then Mr Powell will have achieved nothing by this challenge because the next review would have taken place in April in any event.
97. Obviously we see the sense of the point my learned friend makes that if there is new material available, particularly if it is advantageous to Mr Powell, it should be put in the scales together with the existing material. But we submit that as long as it is not going to affect the review that will take place in April in any event, that there ought to be a further review now on the old material, together with such material as can be on obtained now, new material.
98. LORD JUSTICE SCHIEMANN: If there is nothing adverse to him, I see the force of that. Clearly if there had been a sudden adverse development in the last six months, well your client will have to live with that. That does not seem to be the case. You are prepared as far as you are concerned to have a reconsideration on whatever material is to hand, without prejudice, if no recommendation is made, to a full reconsideration again in April with all the new material?
99. MR TURNER: Yes indeed, although it is difficult to see how it can take the best part of six months to obtain some reports that we see in these dossiers. I know the reporting officers have other tasks to do as well as this, but if this matter were given some priority then one would have thought that the matter could have been dealt with on a completely new basis very expeditiously.
102. MISS SMITH: I am instructed that presently there will be no further material available, and any reconsideration will be solely on the basis of the old material. The Parole Board is effectively in the hands of the prison regarding the new material. We are awaiting a dossier from the prison and obviously do not have control over how long they take. We have made strong representations to the prison probation that they should expedite their probation dossiers as far as they can.
103. LORD JUSTICE SCHIEMANN: Who these days is "C"? There is another letter from the chaplain; there is a letter from a wing officer.
104. MISS SMITH: There will also be a prison assessment report, a probation assessment report, and reports from both the prison and the outside probation officers.
105. MR TURNER: We are confident that certainly the outside probation officer will deal with the matter expeditiously and in as far as control over prison service is concerned, of course the Home Secretary has ultimate control over the prison service as well.
106. LORD JUSTICE SCHIEMANN: The Parole Board has to meet and there has to be enough time for it to read what material it has. I am minded for the moment, subject to any further representation, to say that the Parole Board shall come to a conclusion by 16th January. Does that create any insuperable problems?
107. MR TURNER: Do I understand you to mean that would be on the information then available on 15th January, and if full information not available that would be without prejudice to a full review in April?
108. LORD JUSTICE SCHIEMANN: If you cannot get the information together then the man should not be prejudiced by it in relation to the April date, but if you can get it together then clearly in those circumstances another review in April would be rather a waste of time or is likely to be a waste of time unless there is something different.
109. So we will allow the application of Powell and direct that his case be reconsidered before 15th January. I suspect that if the Home Office or the Parole Board indicates to the prison authorities that appropriate reports now arriving in good time will save work a month later, they might be able to make the extra effort.
110. MR TURNER: May I deal briefly with the position of Scott and Lillycrop? You have dismissed the applications on behalf of those two prisoners. The problems raised in these cases are not limited to these two cases. They are to some extent the tip of the iceberg. I have been involved in another three cases where relief has been conceded without a substantive hearing on very similar terms. Bearing in view the continuing nature of the problem, we would seek your Lordships' leave to appeal this matter to the Court of Appeal believing that it is not a criminal cause or matter as properly defined, so the Court of Appeal would be the proper route of appeal. We would seek to contest your Lordships' judgment in that High Court.
111. LORD JUSTICE SCHIEMANN: Is it common ground that this is not a criminal cause or matter? Sometimes it seems a very difficult judgment.
112. MR TURNER: It is a very difficult area in itself. We have, on the applicants' side, looked at the authorities quite extensively. There are recent cases such as B v. T (James Bulger), all concerned with parole and early release. Those have all gone the route of Divisional Court, Court of Appeal and then House of Lords.
113. LORD JUSTICE SCHIEMANN: That accords with my instincts in the matter, and Miss Smith does not take a different view.
114. MR TURNER: It does not result in trial and punishment, it is an administrative decision affecting the punishment that has already been imposed.
115. LORD JUSTICE SCHIEMANN: No, we are not minded to grant leave in these cases. One would hope you would garner, as far as points of principle are concerned, as much as you need from the judgment.
116. MR TURNER: Finally the question of costs. All the applicants are legally-aided with nil contributions. You may feel in the circumstances no order for costs would be appropriate and in that case I would invite your Lordship to grant legal aid taxation.