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Neutral Citation No. [2003] NIQB 34
Ref:
KERF3932
Judgment: approved by the Court for handing down
Delivered:
20/5/03
(subject to editorial corrections)
IN THE HIGH COURT OF JUSTICE IN NORTHERN
IRELAND QUEEN'S BENCH DIVISION
(JUDICIAL REVIEW) -----
IN THE MATTER OF AN APPLICATION BY NEVILLE
PEART FOR JUDICIAL REVIEW -----
KERR J
Introduction
- This is an application by
Neville Peart, a prisoner currently serving a sentence
of imprisonment in HMP Magilligan, for judicial review
of the decision of the Parole Board for England and
Wales refusing his application for parole.
Background
- On 28 November 1997 the
applicant was arrested in England on charges of
importing drugs. While on remand awaiting trial on those
charges he was transferred to Scotland to face two
charges of assault. He pleaded guilty to those charges
and was sentenced on 6 May 1998 to a period of five
years and six months imprisonment on each charge, the
sentences to run concurrently.
- On 21 May 1998 the applicant
was transferred from Scotland to England under the Crime
(Sentences) Act 1997 on a restricted basis. The transfer
document specified that the applicant would remain
subject to the law of Scotland relating to release from
prison, supervision while released on licence and recall
from release on licence. For all other purposes he was
subject to the rules and regulations governing prisons
in England.
- On 22 July 1998 the
applicant was convicted by a jury of three offences of
importing drugs. He was given three concurrent sentences
of nine years and six months, three years and five
years. It was ordered that these offences should be
served concurrently with the sentence that had been
imposed in Scotland.
- On 11 March 1999 the
applicant was transferred to Northern Ireland. This was
again on a restricted basis. Once again the transfer
document specified that he would remain subject to the
provisions relating to release and supervision that
applied in England and Wales. He was transferred to HMP
Maghaberry on 24 March 1999 and from there to HMP
Magilligan on 23 September 1999.
- On 8 January 2002 two thirds
of the sentence imposed in Scotland expired. Section 1
(2) of the Prisoners and Criminal Proceedings (Scotland)
Act 1993 provides: -
"After a long term prisoner has served two thirds
of his sentence the Secretary of State shall release
him on licence."
A "long term prisoner" is defined by
section 27 of the Act as a person serving a sentence of
four years or more. The applicant would have been
entitled to be released on 8 January 2002, therefore, if
he had only been serving the sentence imposed by the
Scottish court.
- In April 2002 the applicant
was notified that he would become eligible to apply for
parole in October 2002 and was invited to make
application for parole, which he duly did on 7 April
2002. A prison assessment form was completed for the
Parole Board. This was in glowing terms. It recorded
that he had attended a drugs awareness course and the
STOP (the Stop, Think and Change) programme. The
probation officer's report for the Parole Board was also
in positive terms. It referred to anger management as
being an "outstanding target" from his
sentence plan. On this point the probation officer
stated: -
"As Mr Peart's sentence has progressed there has
been no evidence of anger problems and Mr Peart
himself feels that this is not a relevant issue for
him. I believe that Neville Peart has made sincere
efforts to address his offending behaviour whilst in
prison and while he is currently waiting assessment
for the enhanced thinking skills programme as an
alternative to anger management this would not be
regarded as essential to be undertaken prior to
release."
- On 9 August 2002 the Parole
Board wrote to the applicant informing him that they had
found that he was not suitable for early release on
licence. The letter acknowledged that the applicant had
used his time constructively in prison but concluded
that he had not fully addressed "the factors that
led him to commit a serious offence of violence, within
his stormy relationship with the victim". The
letter concluded with the following paragraph: -
"The panel is of the view that Mr Peart remains
too high a risk of violence, particularly towards his
ex partner, to justify early release at this time. He
should complete the thinking skills course for which
he has applied and further explore his attitude to his
ex partner in preparation for his next parole review.
Parole denied."
The judicial review application
- The applicant advanced four
principal arguments.
1. The English Parole Board did not have jurisdiction
to deal with the Scottish sentence.
2. The decision to refuse parole was unreasonable in
the Wednesbury (Associated Provincial Picture
Houses Ltd v Wednesbury Corporation [1948]
1 KB 223) sense.
3. The refusal of parole constituted a violation of
article 5 of the European Convention on Human Rights
4. The Parole Board failed to give adequate reasons
for its decision.
Jurisdiction
- It was common case that
the transfer document by which the applicant moved from
Scotland to England required that decisions as to the
applicant's release from prison on the Scottish sentence
were to be taken as if the applicant were still subject
to the provisions applicable for those purposes under
the law of Scotland. But Mr Maguire on behalf of the
respondent argued that when the English Parole Board
came to consider the question of the applicant's parole
it was bound to treat the sentences passed in Scotland
and those passed in England as a single term of
imprisonment under section 51 (2) of the Criminal
Justice Act 1991. Thus the Board was required to deal
with the application for parole on the basis that the
applicant's suitability for release should be determined
not only in relation to the offences for which the
applicant had been sentenced in England but also taking
into account the Scottish offences.
- The Parole Board is
constituted under section 32 (1) of the 1991 Act. It is
required by section 32 (2) to advise the Secretary of
State for the Home Department with respect to any matter
connected with the early release or recall of prisoners.
Under section 32 (6) the Secretary of State may give
directions as to the matters to be taken into account by
the Board in advising him. For the purposes of this case
the relevant directions are as follows: -
"1. In deciding whether or not to recommend
release on licence, the Parole Board shall consider primarily
the risk to the public of a further offence being
committed at a time when the prisoner would otherwise
be in prison and whether any such risk is acceptable.
This must be balanced against the benefit, both to the
public an the offender, of early release back into the
community under a degree of supervision which might
help rehabilitation and so lessen the risk of
re-offending in the future. The Board shall take into
account that safeguarding the public may often
outweigh the benefits to the offender of early
release.
2. Before recommending early release on licence, the
Parole Board shall consider whether:
(1) The safety of the public will be placed
unacceptably at risk. In assessing such risk the
Board shall take into account:
(a) the nature and circumstances of the original
offence;
(b) whether the prisoner has shown by his attitude
and behaviour in custody that he is willing to
address his offending behaviour by understanding
its causes and its consequences for the victims
concerned, and has made positive effort and
progress in doing so;
…"
- Section 51 (2) of the 1991
Act as amended provides: -
"For the purposes of any reference in this Part,
however expressed, to the term of imprisonment to
which a person has been sentenced or which, or part of
which, he has served, consecutive terms and terms
which are wholly or partly concurrent shall be treated
as a single term if—
(a) the sentences were passed on the same occasion; or
(b) where they were passed on different occasions, the
person has not been released under this Part at any
time during the period beginning with the first and
ending with the last of those occasions."
Mr Maguire argued that the effect of this provision
is that the applicant's two terms of imprisonment were
to be treated as one; the Board was therefore required
to consider the two sets of concurrent sentences as a
single term.
- An identical provision to
section 51 (2), section 27 (5) of the Prisoners and
Criminal Proceedings (Scotland) Act 1993, applies to
Scotland. The enactment of this subsection suggests that
the respective provisions are designed to apply only to
sentences passed in the same jurisdiction. Neither
section 51 (2) of the 1991 Act nor section 27 (5) of the
1993 Act applies in the other jurisdiction –see
section 102 (4) of the 1991 Act and section 48 (5) of
the 1993 Act.
- At the time that the
English Parole Board was deciding in April 2002 whether
to recommend the release of the applicant, the issue of
parole on the Scottish sentence had expired because he
was entitled to be released unconditionally in relation
to that sentence on 8 January 2002. If Mr Maguire's
argument were accepted, however, that issue would be
revived because the Scottish sentence would be deemed to
be part of the single term that the Parole Board had to
deal with in determining whether to recommend the
applicant's early release.
- I cannot accept the
suggestion that the effect of section 51 (2) of the 1991
Act is to require the English Parole Board to treat the
sentence imposed in Scotland as forming part of the
single term it was required to consider in recommending
whether the applicant should be released. Quite apart
from the fact that two separate provisions (said in each
item of legislation not to apply in the other
jurisdiction) were deemed appropriate for England and
Wales and Scotland, so to hold would involve either a
parallel jurisdiction in both jurisdictions over both
sets of sentences or the nullifying of the terms on
which the applicant was transferred from Scotland to
England.
- It does not follow,
however, that the English Parole Board was required to
ignore the Scottish sentence or the offences for which
it was imposed. The Direction from the Home Secretary
contains the instruction that the Board consider primarily
the risk to the public of a further offence. It seems to
me that the Board cannot fulfil that function if it
fails to have regard to a previous conviction that bears
directly on the issue of possible re-offending.
- Mr Treacy suggested that
the Board was obliged to confine its consideration to
the possibility of the applicant committing further
drugs offences but I cannot accept that argument. The
Direction enjoins the Board to consider whether there is
a risk to the public of a further offence; to
restrict the Board to a consideration only of the type
of offence for which the prisoner is serving his current
sentence and to require the Board to ignore any other
offence which might indicate a strong propensity to
re-offend would impose an artificial fetter on the
Board's function and potentially seriously undermine the
efficacy of the parole system.
- An interesting question
arises as to whether the Board's decision can be allowed
to stand if it wrongly considered that it was bound to
treat the two sentences as a single sentence for the
purposes of section 51 (2) of the 1991 Act. The letter
from the Board of 9 August 2002 refusing parole stated:
-
"Mr Peart was sentenced to nine and a half years
for importing Class A and Class B drugs, to run
concurrently with a five and a half year sentence for
offences of violence against his ex-partner and her
female friend"
The letter then went on to deal with the
circumstances of both sets of offences. On behalf of the
respondent Mr Maguire submitted that the Board was
"mandated" by the legislation to treat both
sets of sentences as a single sentence.
- Notwithstanding his
submission as to the effect of the legislation Mr
Maguire claimed that it had not been established that
the Parole Board had in fact treated both sets of
sentences as a single sentence and he reminded me that
it was for the applicant to establish this, referring to
Supperstone & Goudie on Judicial Review at
17.8, where it is stated that "throughout the
course of the hearing, the legal burden of proof (as
distinct from the evidential burden), remains on the
applicant".
- The tenor of the letter
from the Parole Board makes it unmistakably clear, in my
opinion, that it considered that both sets of sentences
should be regarded, for the purpose of the Board's
deliberations, as a single sentence. I am satisfied that
the Board considered that it should deal with the
question of the applicant's entitlement to parole on the
Scottish sentence. For the reasons that I have given, I
consider that the Board was wrong to follow this course.
What is the effect of that error?
- The Board was obliged to
take account of the circumstances of the offences for
which the applicant was sentenced in Scotland. It was
required to make an assessment of the impact that those
offences had on the risk of the applicant's
re-offending. This is essentially the same exercise as
that which the Board carried out, albeit in the mistaken
belief that it was necessary to treat both sets of
sentences as a single sentence. It is inconceivable that
the Board would have reached a different conclusion if
it had approached the question in the proper manner.
- I am satisfied, therefore,
that if the Board had confined its consideration of the
Scottish sentences to an assessment of their relevance
to the issue of the applicant's propensity to re-offend,
it would have arrived at the same conclusion that it in
fact reached, viz that the risk of that occurring
militated against a recommendation that he should be
released on parole. Although, therefore, I am satisfied
that the Board approached its task on an erroneous
basis, I consider that, since it would have reached the
same conclusion if it had dealt with the matter in the
correct way, I should exercise my discretion to refuse
the applicant relief on this ground.
Was the decision Wednesbury unreasonable?
- The applicant claimed that
the Board had failed to take into account that he had
been unable to participate in the enhanced thinking
skills course because no places were available, rather
than any reluctance on his part. It was also pointed out
that the probation officer considered that it was not
essential that he undertake this while in custody. The
applicant was willing to submit to a condition on the
grant of parole that he should undertake this course. He
is entitled to be released in any event on 18 May 2004,
his non-parole eligibility date. If that date arrives
without the applicant having been accommodated on a
course in prison there will be no opportunity to require
him to take the course.
- A number of other matters
were canvassed by the applicant as having been ignored
by the Parole Bord. These included that he was not being
given priority for the enhanced thinking course because
the Prison Service did not believe that he posed a risk
of further offending associated with a recurrence of
loss of control and the fact that the ETS course had not
been included in the applicant's sentence management
plan.
- There is no evidence that
the Parole Board failed to have regard to these matters.
Information relating to them was available in the papers
considered by the Board. The fact that explicit
reference to them is not found in the letter
communicating its decision is not to be taken as an
indication that it ignored these matters. In a further
letter to the applicant's solicitors of 29 August 2002
the Board acknowledged the difficulties that prisoners
experience in attending courses and the fact that it is
frequently not the fault of prisoners that they are
unable to secure a place on programmes such as ETS. It
was clearly alive to the fact that the applicant had not
been able to secure a place on the course.
- The offences that gave
rise to the Scottish sentences were extremely serious.
The applicant claimed to be unable to remember having
inflicted the injuries on his former partner although
she had been stabbed no fewer than eighteen times. There
is evidence that he was prone to violent outbursts in
the past. Although he has been well behaved while in
prison and appears to have used his time constructively,
one could not say that the Parole Board's decision that
he should undertake an enhanced thinking course which
would address anger management before he was considered
for parole was unreasonable.
Article 5
- Article 5 of the European
Convention on Human Rights guarantees the right to
liberty and security of person. It provides that no one
shall be deprived of his liberty except in accordance
with a procedure prescribed by law. The applicant claims
that the Parole Board has violated this right by having
regard to the Scottish sentence which is, to all intents
and purposes, spent. The effect of the Parole Board's
decision, the applicant says, is to increase the penalty
of the Scottish sentence.
- The fundamental flaw in
this argument is that it fails to take account of the
fact that the applicant is still liable to be detained
on the sentence imposed in England. The Parole Board has
jurisdiction to deal with the case on account of the
English sentence but it must take its decision as to
whether the applicant should be recommended for release
on licence by having regard, inter alia, to the
circumstances of the Scottish offences.
- Article 5 (1) (a)
recognises that the detention of a person after
conviction by a competent court is lawful. It is well
established that where a person is convicted and is
sentenced to a period of imprisonment which the court
considers commensurate with the offence, the decision of
the sentencing court constitutes the necessary
compliance with article 5 – see De Wilde, Ooms
& Versyp v Belgium [1970] 1 EHRR 373. In this
case the detention of the applicant is on foot of the
order of the English court. No violation of the
applicant's article 5 rights arises, therefore.
Reasons
- In R v Secretary of
State v Home Department ex parte Lillycrop & others
[1996]
EWHC Admin 281, the Divisional Court in England said
this about the giving of reasons by the Parole Board: -
"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."
- I agree with this
analysis. The essential reason that the Board refused to
recommend parole in Mr Peart's case was that they
considered that there was an unacceptable risk that he
would resort again to violence, particularly in relation
to his former partner. The Board considered that it was
necessary that he undertake the ETS course before parole
could be recommended. Both these reasons were
communicated to the applicant. I consider that the
requirement to give reasons was fulfilled, therefore.
Conclusions
- Although I have decided
that the Parole Board did not have jurisdiction to treat
the Scottish sentences as forming a single sentence with
the sentences imposed by the English court, I have
concluded that the Board was required to take into
account the circumstances of the Scottish offences and
that it was bound to have reached the same conclusion if
it had dealt with those sentences in the proper fashion.
In the exercise of my discretion I therefore refuse
judicial review on that ground. None of the other
grounds advanced on behalf of the applicant has been
made out and the application must be dismissed.
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