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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 >> Bulled, R (on the application of) v Secretary Of State For Home Department [2001] EWCA Civ 1068 (29 June 2001) URL: http://www.bailii.org/ew/cases/EWCA/Civ/2001/1068.html Cite as: [2001] EWCA Civ 1068

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IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM HIGH COURT OF JUSTICE
ADMINISTRATIVE COURT
(MR JUSTICE NEWMAN)

		Royal Courts of Justice Strand London WC2 Friday, 29th June 2001

Friday, 29th June 2001

1. LORD JUSTICE DYSON: This applicant is a British citizen but a United States resident who was convicted in 1996 of rape and two counts of indecent assault. He was sentenced to eight years imprisonment. He has always strenuously denied his guilt. According to the records this was his second conviction for rape, the first having been a conviction as long ago as 1978 in the United States. The Parole Board considered whether to release him and ultimately refused, having concluded that he constituted too great a risk. That decision was made on 13th October 1999.
2. The applicant sought judicial review of the refusal by the Parole Board to grant him release on licence. This is a renewed application against the refusal by Newman J to grant him permission to apply for judicial review, that decision having been made on 12th April 2000.
3. The applicant raises a number of grounds of challenge. He contends that it was not lawful for the Board to take into consideration his American convictions for offences of dishonesty. He contends that the Board failed to have regard to his general medical and mental health evidence, in particular the fact that lithium chemotherapy was having an effect, he says, on the level of his libido and reference was made to a pain in the groin area as a result of a hernia operation in 1995. His final main point is that he is seeking to challenge the 1996 conviction. His appeal against conviction, or perhaps application for leave to appeal, I am unsure which, was dismissed by the Court of Appeal, Criminal Division, in May 1997. Permission to take the matter to the House of Lords was refused. I understand that he is attempting to refer the matter to the European Court of Human Rights.
4. The decision given by the Parole Board and their reasons were in the following terms:

"Mr Bulled is serving an 8 year sentence for the serious offences of rape and two counts of indecent assault on women who had gone to him for advice and assistance. It is of extreme concern that this is his second conviction for rape. In addition he has a number of unrelated convictions in America that have incurred custodial sentences and deportation orders on two occasions. It is acknowledged that Mr Bulled has undertaken some educational qualifications that may assist his future employment and has participated in life and social skills. However, the panel can find no evidence that his risk of sexual re-offending has diminished. He has not progressed within the prison system and found himself unable to complete an enhanced thinking skills course. He has little insight into his offences or the trauma that he caused his victims, whose trust he betrayed. He expresses himself as the victim, manipulated by the women responsible for his present circumstances and it has not been possible to challenge these views by way of structured offender related courses. The panel concludes therefore that the risk indicated by his offending remains too high for release on parole licence."

5. In making that decision the Parole Board was applying the directions that had been issued by the Secretary of State under section 32(6) of the Criminal Justice Act 1991. So far as material they provide as follows:

"1. In deciding whether 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 offender would otherwise be in prison and whether any such risk is acceptable. This must be balanced against the benefit, both to the public and to the offender, of early release back into the community under degree of supervision which might help rehabilitation and so lessen the risk of re-offending in the future. The Board shall take into account the 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 so doing.

(c) in the case of a violent or sexual offender, whether the prisoner has committed other offences of sex or violence, in which case the risk to the public of release on licence may be unacceptable.

(d) that the risk of violent or sexual offending is more serious than the risk of other types of offending."

6. There was a good deal of material before the Board which it is to be assumed was taken into account when the Board made its decision. This included a Prison Parole Assessment Report dated 7th April 1999 by Rhys Morgan, a probation officer, who said:

"My impression is that Mr Bulled tends to minimise and excuse his offending and is reluctant to take any significant direct responsibility for his behaviour. Given his record of previous convictions and his attitude towards the current offence, the risk of his committing further offences will not have diminished."

7. There was also a Parole Assessment Report dated June 1999 which stated at paragraph 10 under the heading "Attitude to Offending Behaviour" that Mr Bulled insists that it (that is sexually inappropriate behaviour) was accepted but that it had taken place with the alleged rape victim. It stated:

"Mr Bulled insists that it was consensual and externalised the responsibility stating emphatically that he believes the allegations to have been fabricated by the victims. To emphasise his view, Mr Bulled cites difficulties with impotency. However, this is not consistent with the medical opinion reported at the time. In discussing his record of offending, Mr Bulled denied any violent convictions and did not mention his conviction for Rape in 1978. Contrary to his account to Mr Morgan of the 1980 ABH conviction, Mr Bulled told me that he could not understand why this appeared on his record as he had, in fact, himself been assaulted by a woman.

11. I have found it difficult to engage Mr Bulled in thinking about his offending."

8. Under the heading "Management at Risk":

"22. Whilst Mr Bulled's dishonest offending may, to some extent, reflect manic episodes of his psychiatric condition, it is of grave concern that he is apparently unable to accept any level of responsibility for his violent and sexual offending, and further that he locates blame so firmly within his victims whom he states manipulated him for their ends....

23. ... Mr Bulled has two separate convictions of Rape and two violent convictions. He expresses no remorse for his victims and attributes to them much of the responsibility for his current circumstances. In my opinion, Mr Bulled represents a substantial risk to women, and particularly those women in whose lives he can assume a position of trust or authority. There is, in my view no evidence to suggest that the risk of repetition is anything other than high."

9. There was also a report from a medical officer of 7th June which in answer to the question "Are there any medical psychiatric factors which may be relevant to consideration for earlier release on licence", the officer had circled the answer "no", and he referred to some disorder which dates back to 1978:

"Mental state currently stable on medication which includes lithium carbonate. No psychiatric contraindication to parole. However I am concerned that he has not addressed his sex offending behaviour because he maintains his innocence."

10. It is clear to me that the Parole Board did take into account the fact that the applicant has continued to maintain his innocence of the sexual offences for which he was convicted in 1996, but I am in no doubt that it did not regard that as conclusive of the extent of the risk that he presented of sexual offending. In this regard it is highly significant that the Parole Board regarded it as a matter of "extreme concern" that this was his second conviction for rape, that is to say the previous conviction was a relevant consideration too. The main thrust of the probation officer's report was that the applicant's conduct. When taken as a whole, showed that the risk of re-offending remained high.
11. In my judgment the applicant has not shown any realistic prospects of succeeding with any of the grounds of challenge that he seeks to advance. The convictions for dishonesty in the United States were very much a subsidiary part of the Board's reasoning. As for the evidence about the lithium chemotherapy, the medical officer referred to it, but it is clear that it did not meet his concerns. He advised that there were no medical factors which were relevant to early release on licence. So far as the convictions in 1996 were concerned, it was not open to the Parole Board to assess the chances that those convictions may be set aside. As the Lord Chief Justice said in the case of Oyston, BAILII: [2000] EWCA Crim 3552 at paragraph 43, a decision of the Divisional Court dated 1st March 2000: the Parole Board must assume the correctness of any conviction.
12. For all these reasons, I am driven to refuse this application.
(Application for permission to appeal refused)