Indeterminate sentence prisoners

Abstract

Indeterminate sentence prisoners

Parole Board’s approach to unproven allegations validated

Having subjected his then partner, their infant daughter, and his partner’s brother to a hostage-taking siege when she had changed the locks at her home to exclude him, M. had threatened to kill her with a knife when armed police sought to negotiate the victims’ safe release. He had a prior conviction for assault involving violence to a previous partner. He incurred imprisonment for public protection (IPP) in late 2007. Having progressed to open conditions in 2012, he had been released in late November 2013.

Having failed to notify his supervising officer of a new relationship, M. was recalled after an incident at that partner’s home where it was claimed that he had grabbed her by the throat, causing one of her male friends to intervene. M. later denied using physical aggression, claiming that the male friend had been aggressive towards him, causing the encounter to become verbally heated. His by now ex-partner opted not to involve herself in criminal proceedings against M., retracting her initial statement, to spare her teenage son from having to give evidence.

Following review by the Parole Board in 2014, M. was progressed again to open prison. However, in 2017, he was returned to closed conditions, having allegedly breached the terms of temporary licence by visiting a sauna catering for gay and bisexual men and by failing to disclose a further developing intimate relationship. The woman concerned in the latter (AW) had complained to a Domestic Abuse Intervention Service that when she had told M. that she no longer wished to continue their relationship he had persistently sought to contact her and her friends, sending her numerous unwanted messages and letters. Contrary to AW’s account, he later claimed that they had been simply friends, not sexual partners, albeit that he accepted that they had discussed having a child together on his release. He disputed that he had harassed her and it was concluded that there was insufficient evidence to charge him with an offence under the Protection from Harassment Act 1997. He was, however, issued with a Protection from Harassment Letter.

Following an oral hearing at which all witnesses, including three psychologists, unanimously recommended M.’s release, the Parole Board panel declined to direct this, instead recommending his return to open prison. Ahead of the hearing, the Board had sought unsuccessfully through directions to obtain further information relating to the alleged 2014 assault and 2017 harassment. In the course of the hearing, M. had acknowledged sending reports about him to friends and others without authorisation. The Board’s decision included the following observations:

You continue to minimise your offending behaviour, minimised the seriousness of your dishonesty over relationships, and minimised your actions in harassing AW after she ended your relationship. Your disclosure that you had sent professional reports to close friends and a future employer without first discussing it with your [community probation officer] or indeed the report authors raised further concerns over your ability to see beyond your own perspective; all professional witnesses expressed ‘confidence that you were being open and honest with them’, yet none were aware of your actions in sending out reports containing highly sensitive information around victims and your offending history. In the panel’s view, your actions bring them full circle to the concerns outlined by the trial judge that, despite appearing to have many protective factors in place such as employment, education and support, you hold a ‘blank spot’ in respect of relationships and still have an inability to see outside your own perspective.

In seeking to challenge the Board’s decision by means of judicial review, on grounds of procedural unfairness and improper reliance on the Board’s ‘flawed’ Guidance on Allegations (March 2019), it was argued that the Board should not have taken into account the 2014 allegation of assault and the 2017 allegation of harassment when reaching its decision. In the alternative, it was claimed that, even if it had been necessary or appropriate for the Board to take into account the 2014 and 2017 allegations, the Board had not been in a position to establish the relevant disputed facts and should therefore have disregarded such allegations as unproven. As summarised in the ensuing judgment of the Administrative Court, the particular issue at stake ‘is how the Board should treat allegations of misconduct or criminal offending which have not been proved, in other words, which have not been established to either the civil or criminal standard of proof’.

Referring to the 2018 judgment of the Divisional Court in R (DSD and NBV & Ors) v The Parole Board of England and Wales & Others & John Radford (the Worboys case) which had stated that ‘there is no implied limitation on the nature or temporal character of the information the Parole Board may take into account in assessing risk: the only constraint is that the board must act fairly’, McGowan J. observed that ‘where the Board is aware of allegations which may be relevant to its decision-making, consideration of them will be expected’ and it might even be said that the Board was ‘bound to consider the allegations in question as part of its public law duty to act rationally’ and to give ‘paramount importance’ to ‘protecting innocent members of the public from the risk of serious harm’. It is not required to apply the principle of ‘the presumption of innocence’ that prevails in criminal prosecutions. There will be instances where allegations, either individually or cumulatively, indicate significant risk to the public but cannot be ‘proved’ for whatever reason. ‘The Board might find that there is a significant chance, short of a probability, that a given allegation was true, and legitimately consider this as part its global assessment of risk’.

A distinction should be drawn between a ‘mere allegation’ (one which has no evidential basis whatsoever, which cannot be relevant to the Board’s decision-making process) and allegations with a prima facie evidential basis. In respect of the 2014 and 2017 allegations, McGowan J. was satisfied that there was sufficient evidential material for the Board to have made at least some findings of fact, in the context of well-established concerns about M.’s relationships or friendships with women, derived particularly from the index offence and his prior conviction.

The factual basis underpinning the 2014 and 2017 allegations was not particularly strong. And there is no doubt that the Board would have been in a better position to assess the truth of the allegations had it obtained the reports and statements in advance of the oral hearing. However, these are matters which go to the weight which the Board was entitled to place on the allegations. So long as there was a sufficient factual basis, however limited, on which to take the allegations into account, the Board was not acting unfairly.…I do not consider that the Board’s approach was irrational.

Further, the Board’s decision made clear that the key issues for the panel were M.’s willingness to comply and his ability to be ‘open and honest with professionals over relationships and close friendships’. ‘These matters do not appear to have depended substantially on the 2014 and 2017 allegations.’ Further, M. had not sought to make any pre-hearing representations regarding possible additional directions to be made in anticipation of the oral hearing.

Finally, McGowan J. ruled that the Board’s Guidance on Allegations is consistent with these principles and does not adopt a ‘no smoke without fire’ approach to allegations. It makes clear that the Board may decide to attach no relevance and/or weight to any allegation if that is appropriate. Accordingly, no rehearing of M.’s case was directed.

R (on the application of MORRIS) v PAROLE BOARD for ENGLAND and WALES, [2020] EWHC 711 (Admin).

Extended sentence valid for indeterminate recallees?

In two linked but otherwise unrelated appeals, the appellants had each incurred indeterminate sentences, B. receiving an IPP for robbery and R. mandatory life for murder in the course of robbery. Each had been released on licence. Within four months, B. had committed a further armed robbery. R had resorted to robbery 15 months following his release. By point of sentence for their new offences, each had, unsurprisingly, been recalled to prison following revocation of licence. Each incurred an extended sentence, B for 10 years and four months (a custodial term of 64 months’ imprisonment with an extended licence period of five years) and R. for 11 years (a custodial term of eight years with an extended licence period of three years).

On appeal, they jointly argued that the Crown Court either had no power to impose an extended sentence or that it had involved an impermissible exercise of discretion. Their re-release on indefinite licence would be determined by the Parole Board exercising responsibility to review their progress under their indeterminate sentences. The purpose of the extension period in respect of an extended sentence is to provide protection when the licence period that would result from a determinate sentence would be inadequate and in their case would provide no additional protection. Further, because they would be eligible for release under an extended sentence only after serving two-thirds of the custodial element (not the halfway point as would apply for a determinate sentence), an extended sentence could have an unjustified consequence of delaying their rerelease if the Board were otherwise to determine that they no longer needed to remain confined.

In summary, in dismissing the appeals, the Court of Appeal ruled that a judge is required to consider whether it is appropriate on the merits of the case to impose an extended sentence, without taking into account the fact that the defendant has been recalled on licence, and should ignore the delayed early release provisions that would apply to an extended sentence. The criteria for an extended sentence had been met in each case.

R v BAKER, R v RICHARDS, [2020] 2 Cr App R(S) 23.