Case No: CO/10980/2011

Neutral Citation Number: [2012] EWHC 1233 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN’S BENCH DIVISION
ADMINISTRATIVE COURT
Sitting at:
Leeds Combined Court
1 Oxford Row
Leeds
West Yorkshire
LS1 3BG

Tuesday 10 April 2012

Before:

HER HONOUR JUDGE BELCHER

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Between:

	THE QUEEN on the application of BOYLAN	
Claimant	
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THE PAROLE BOARD	

Defendant	
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(DAR Transcript of 
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Mr Stanbury (instructed by Henry Hyams & Co) appeared on behalf of the Claimant.
Mr Slater (instructed by Treasury Solicitors) appeared on behalf of the Defendant.
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Judgment
HER HONOUR JUDGE BELCHER:

1.	This is the substantive hearing of the Claimant’s application for judicial review of a decision of the Parole Board dated 9 September 2011 in which the Parole Board refused to convene an oral hearing.  Permission was granted by His Honour Judge Shaun Spencer QC on 3 January.  

2.	The background to the matter is as follows.  The Claimant was sentenced to 15 years  imprisonment for four offences of wounding with intent, and one offence of violent disorder.  That sentence was imposed on 17 April 2003.  There is no doubt at all that the Claimant did well in the course of serving that sentence and he was released early, On 29 June 2010 the Parole Board recommended release and there was a direction for his release by the Secretary of State.  On 7 July 2010 the Claimant was duly released and on 11 November 2010 he was recalled following a breach by him of one of his licence conditions.  The licence condition in question was a condition that he should not enter any licensed premises or registered clubs without the prior approval of his supervising officer.  That is found at condition No. 12 in the licence, which also happens to be at page 12 in the Bundle.  Having breached that condition he was recalled to prison.

3.	On 24 January 2011 his case was reviewed by the Parole Board and no directions were given for his release.  By an addendum representation dated 6 April 2011 the Claimant’s Offender Manager supported a re-release on licence.  The matter came before the Parole Board for review on 20 July 2011 when it was dealt with on paper and no direction was made for release.  On 31 August the Claimant’s solicitors submitted written representations requesting there be an oral hearing and on 9 September that application was refused.  That is the decision challenged and which I shall inevitably come to in more detail shortly.

4.	I have mentioned that the condition breached was condition No 12 in the licence. Without going into the full background facts, it is perhaps appropriate to deal with the particular circumstances of the breach.  There were in fact two breaches of this licence condition, although undoubtedly the one is far more significant than the other.  The first in time and which is the more significant was the entry onto licensed premises by Mr Boylan at a time when it is clear from the paperwork that the terms of the curfew which had been imposed on his release had been reduced.  On release he was given a curfew from 7pm until 7am, but as he appeared to be progressing well it is clear from the addendum report of his Offender Manager (page 39 of the Bundle) that the licence conditions were relaxed to the extent that his curfew was amended from September 2010 to 11pm to 7am.  He had also begun to have weekend home leave to his brother’s address, that is his brother John Boylan and not his brother Michael Boylan, being of some significance since there is also a licence condition that he is not to contact or associate with Michael Boylan without the prior approval of the supervising officer.

5.	It is clear from the report at page 39 that the breach of licence occurred when the curfew had been amended and he was seen by off-duty police officers in licensed premises in Leeds during the evening in October 2010.  Shortly thereafter there was another breach and at the time of the second breach the first breach was not known to the relevant authorities.  The second breach occurred in circumstances where the Claimant was advised that there had been an accident involving a member of his family and whom he believed to be his son.  On attending at the scene of the accident he discovered that the victim of the accident was in fact his brother, Michael Boylan, whom he is not to contact or associate with under the terms of his licence, who had, it appears, himself been released on temporary licence.  The Claimant, Paul Boylan, then went into licensed premises to request that an ambulance be called.  Of significance, he then reported that breach himself to his Offender Manager.  Technically, of course, he had come into contact with Michael Boylan, but he was issued with a warning, no doubt because the somewhat unusual circumstances and the emergency situation confronting him were accepted as acceptable reasons in the circumstances.  It was after that that the earlier breach, a breach which Paul Boylan had never himself disclosed, came to the attention of the authorities, and his Offender Manager then initiated the procedure for his recall to prison.  He was recalled by order on 11 November 2010, the breach being specified as a breach of the condition not to enter licensed premises or registered clubs without prior approval of the Supervising Manager.  That document appears at pages 1 and 2 in the Bundle.

6.	For the purposes of this application, the Claimant’s case is that the decision not to hold an oral hearing was unfair and there is no dispute between the parties that, in dealing with that issue, I effectively sit as an appellate court, that is I must exercise my own primary judgment as to the fairness of that decision.  This is not a situation in which the more general principles of administrative law, Wednesbury unreasonableness or matters of that sort apply.

7.	It seems to me that, on analysis, there is very little in dispute as regards the law as between counsel who appear before me and I propose to go through the law as set out in paragraph 7 of the Claimant’s skeleton, which I do not understand Mr Slater, who appears for the Defendant, to dispute.  Indeed, insofar as he has addressed me on certain matters, when I re-visit the Claimant’s skeleton it seems to me that those matters are set out there and accepted.  From paragraph 7 of the Claimant’s skeleton it is submitted that the relevant principles emerge from the two leading authorities – counsel accept that these are the leading authorities – R(Osborn & Booth)v The Parole Board [2010] EWCA Civ 1409 and R(Smith & West) v The Parole Board [2005] 1 WLR 350.  

8.	The first proposition set forth in the Claimant’s skeleton is that the question of whether an oral hearing is required is one of fairness.  The second proposition is that, whilst the Board’s task is to assess risk, it may well be assisted in discharging it by exposure to the prisoner or the questioning of those who have dealt with him.  That is a reference to a statement from the judgment of Lord Bingham.  Pausing there, Mr Slater, who appeared for the Defendant, referred me to that being put in context and that Lord Bingham at the time of his decision was dealing with a Parole Board that was institutionally reluctant to have Parole Board hearings.  He made the point  -- very fairly – that, if the issue were simply that the Board might be greatly assisted by exposure to a prisoner, it would be hard to imagine a case where no such hearing would be appropriate.  

9.	Proposition 3 put forward is that, where there are issues of fact or where explanations are put forward to justify actions said to be in breach of licence or where the probation officer’s assessment needs further probing, fairness may well require that there should be an oral hearing and, if there is doubt as to whether the matter can fairly be dealt with on paper, then the Board should be pre-disposed in favour of an oral hearing.  That is taken from the speech of Lord Slynn in the Smith and West case.  

10.	Proposition 4 is the emphasis on the utility of the oral procedure in assisting in the resolution of the issues before the decision maker.  That is a matter of significance and a matter I shall come back to.  There is no suggestion that an oral hearing is necessary where the decision maker is able fairly to conclude, having regard to the material before it and the issues in play, that an oral hearing can realistically make no difference to its decision.  That is taken from the judgment of Carnwath LJ (as he then was) in Osborn & Booth at paragraph 38.

11.	Proposition 5 is that, in deciding whether an application has no reasonable prospect of success, the Board must always bear in mind the power of oral persuasion.  

12.	Propositions 6 and 7 are that the approach, as I have already said, is not one of the Wednesbury test.  Rather I must exercise my own primary judgment to the fairness of the decision.  Proposition 8 is that the question of whether the decision is unfair is an appellate rather than a review question, not to be approached by simply asking whether it went outside a broad band of discretion.  That is the same point again.

13.	Proposition 9 is that the question of fairness should be judged in the context of the circumstances identified and evaluated by the Board, including their appraisal of the material already available, formed with the expertise which the court does not share, and their resulting assessment of what will be needed to satisfy it that release will not put the public at risk.

14.	Proposition 10 is that, insofar as findings of fact ascertained or evaluated by the tribunal are recorded, they will be the basis on which the appellate court gauges the fairness of what the tribunal decided to do, and ultimately the question for the court is whether the decision not to grant an oral hearing was unfair.

15.	It is also right to point out – as I referred to in the course of submissions and indeed is referred to in both parties’ skeletons – there is no one right and fair answer.  Whilst the decision for me is not a question of whether the decision fell within a broad range of discretion, the question is: was the decision fair or, was it not unfair?  That is recognised specifically in the judgment of Sedley LJ in the Osborn case and, in particular, at paragraphs 58 and 59.  Having considered a previous decision he says this:
“58. Thus the recognition that fairness is a question of law has two implications which may be in tension with one another. It means first and foremost that whether a step or decision was unfair is an appellate question, not a review question, and so is not to be approached by simply asking whether it went outside a broad band of discretion. In fact I question whether discretion is the correct word for most such decisions: they are, or ought to be, exercises of judgment.” 

16.	As I have already mentioned, both counsel accept that there is no one right answer.  The question is whether the decision is a fair one not the fair one and that, it seems to me, inevitably follows from the statement that these matters are exercises of judgment.  If it were not a question of exercising judgment, then it would be like a mathematical equation with one right answer.  The judgment goes on to say:
“Secondly, however, many such decisions turn on facts which it was for the tribunal to ascertain and to evaluate. If and insofar as such findings are recorded by the lower tribunal, they will be the basis on which the appellate court gauges the fairness of what the tribunal decided to do.”

Therefore I have to consider whether the decision that an oral hearing was unnecessary was unfair in all the circumstances.  That is a primary decision for me to make, exercising my judgment based upon the facts and findings before the Parole Board at the time that decision was made.

17.	I turn then to the relevant decisions in this case.  I have already mentioned the circumstances of the breach of licence and the addendum report of the Offender Manager, Melissa Bowden, recommending and supporting re-release.  There were also written submissions from Mr Boylan’s solicitors in support of release.  They address his progress on licence.  They address the circumstances of the licence recall.  They assess his progress in custody and they submit that his focus is now such that he would remain focussed; that the recall had underlined the need to remain focussed and to abide by all licence conditions; and that he consents to the same.  The final sentence says that he has a good working relationship with his Offender Manager and it is anticipated that, given all the positive factors referred to, he should succeed this time.

18.	The Parole Board decision on paper, as I have already said,  was to decline to release Mr Boylan.  The decision is at pages 45 and 46 of the Bundle and sets out the evidence considered by the panel, the updated reports and matters of that sort.  Then, under “Conclusion and Recommendation”, it sets out the circumstances and it says that the positive behaviour since recall is to his credit: 
“However, the panel has to take into account your extensive history of offending which has included many offences of violence against the person.  As a consequence you are assessed as posing a high risk of causing serious harm and the risk management plan reflects this by proposing stringent conditions to manage the risk.”

It then goes on as follows:
“If re-released now you would be on licence until 2017.  Your offending history indicates that you have offended regularly since 1971 and there have been no discernible breaks in the pattern, aside from when you have been in custody.  You have certainly not been able to remain offence free for anything like the period that you would be on licence.  It may be that you have turned a corner and that you are motivated to lead a law abiding life.  However, in the view of the panel, particularly given the circumstances of your recall which indicated continuing poor consequential thinking skills, work to address cognitive deficits should be undertaken in closed conditions.  This will give you further skills to use to avoid reoffending.  At the current time, for these reasons, the panel made no recommendation as to release.”

19.	There is then a letter from Mr Boylan’s solicitors dated 31 August in which they seek an oral hearing.  Amongst other things, the emphasis is on the issue of risk in that letter, and they submit that a hearing is necessary in order to determine whether the risk posed by Mr Boylan has reduced sufficiently to allow him to be released.  They point to the fact that at a hearing questions can be asked of both the Offender Supervisor and Manager as to their final recommendation based on risk assessment.

20.	In response to that is the decision which is under challenge (which appears at pages 49 and 50 in the Bundle) and which states that there will be no oral hearing.  The reasons given are that the Recall Panel took into account all the representations and that the giving of live evidence is not required at this stage.  The decision goes on to say this:
“However, I note that although the Recall Panel balanced the positive evidence against the negative evidence in the dossier, there was no explicit reference to the potential benefit of your re-release or how this was assessed in relation to your assessed risks.  Therefore, in the interests of fairness, I recommend to the Ministry of Justice that your case should be considered for a further paper review.”

21.	Mr Stanbury, who appears for the Claimant, submits that is a most unusual aspect of this case and that, in effect, there is a member of the Parole Board recognising that the decision made by the Parole Board is deficient in some respect, because it has referred it back for further assessment on paper.  As I pointed out in the course of that submission, there is a difference between the need for an oral hearing and the question of whether the matter needs to be reconsidered on paper if there has indeed been an omission in that respect.

22.	Mr Slater, who appears for the Defendant, points out that in any event this is a case about the need for an oral hearing and that, if there was a deficit in the decision for making no such explicit reference – which he does not concede – that is a matter which should have been challenged in substantive grounds for judicial review and that is not the remedy which the Claimant seeks.  Therefore, he submits, the question as to whether there was no explicit reference to the potential benefit of re-release and how this was assessed in relation to assessed risks is not the issue before this court.  I accept that submission.  It seems to me that the real issue before this court is whether there was a need for an oral hearing and that, in essence, is the issue upon which I have been addressed most fully.  Mr Stanbury, in his submissions, conceded at the outset that it was perfectly reasonable, on one reading of the evidence, for the Parole Board to conclude that this Claimant had been given a chance, had messed up by breaching his licence conditions and had been returned and was to be retained inside until he had undertaken the Thinking Skills Programme.  However, he submitted, the concern here is not with the conclusion but with the process and his submission is that they could only fairly reach that conclusion after an oral hearing.

23.	Pausing there, I shall refer to the Parole Board Practice Guidance for Oral Hearings, version 1, dated January 2011 and which appears at tab 6 in the authorities Bundle.  In essence, there are three circumstances in which a determinate prisoner or recall prisoner may have an oral hearing.  The first is where the prisoner disputes the circumstances of the recall, and the facts of the recall are central to the question of risk and release.  It is conceded that does not apply here.  Secondly, where the prisoner argues that the recall incident was justified for some reason or was not as serious as alleged and this affects the assessment of risk.  Again, it is conceded that that is not the case here.  The third and final category is any case where the assessment of risk requires live evidence from the prisoner and/or witnesses.  That, therefore, is the issue in this case.  Was there the need for live evidence in order to enable the Parole Board to properly assess the risk in this case?

24.	Mr Stanbury submitted that the question to be explored was whether the recall had a salutary effect on the Claimant.  The case put forward on his behalf by his solicitors is that it had had a salutary effect and he now fully realised the importance of complying with his licence conditions.  Mr Stanbury submitted that the issue for the Parole Board and for an oral hearing, therefore, would be to test the sincerity of that statement, whether it really had had that salutary effect and to hear evidence of the professional views of the Offender Manager, who had known the Claimant (albeit only for a period of four months during his release on licence), but the same Offender Manager who had instigated the recall but nevertheless supported the re-release.  Mr Stanbury has put it in this way: was the fact of a breach of licence conditions necessarily indicative of risk and indicative of the likelihood of further offending?  In making the risk assessment, he submitted, the Parole Board should necessarily have heard from the Claimant in order to assess whether its conclusions as to the risk were in fact borne out.  Therefore, he submitted, the assessment of risk requires live evidence from the Claimant and his witnesses and that there is a live issue as to how relevant the recall was as to the question of future risk.  He also submitted that it is not clear from the decision to refuse a hearing that the decision-maker in fact grappled with any of the issues raised by the Claimant’s solicitors as to the need for an oral hearing to consider the question of what the risk is.  He submitted that there must -- at very least -- be a doubt as to whether an oral hearing was needed and that the benefit of any such doubt should be given to the Claimant and that there should be an oral hearing.

25.	Mr Slater, who appears for the Defendant, submitted that the test is whether this court could reach the conclusion with confidence that the Board’s conclusion on the procedure was not fair.  The test, he submitted, is not: would it not have been better if Mr Boylan was sitting in front of the Board with his Offender Manager and being asked questions?  If that were the test there would be no case in which it could be said that an oral hearing was not required.  There is dispute between the parties as to exactly what it is that the Parole Board itself decided and therein, in my judgment, lies the nub of the issue and, indeed, the pointer to the solution to this case.  The Claimant says that the decision means that the Claimant needs the opportunity to prove that he has turned the corner.  In paragraph 12 of his skeleton Mr Stanbury, for the Claimant, puts it in this way:
“The Claimant’s positive custodial behaviour and expressed commitment to change could be taken to indicate that the risk he poses may not be what it once was.  The paper panel on 20th July acknowledge the possibility that the Claimant had turned a corner.  The Defendant submits that the Claimant has attached undue weight to that comment but there is no avoiding that it was said and that it is highly relevant.  Certainly the panel took other matters into account, including the possibility of the Claimant undertaking risk-reduction work in custody, but the fact remains that if the Claimant has turned a corner then he would have a reasonable argument that he should be released without the need for him to complete that work.  The only way of fairly determining whether in fact he had turned a corner would, as his solicitors submitted at the time, be by exposing him to questioning at an oral hearing.”

In other words, the Claimant’s case is that the question in issue is whether or not he had in fact turned a corner.  That, they submit, can only be fairly resolved by questioning the Claimant himself at an oral hearing.

26.	Mr Slater submits that the phrase in question, “It may be you have turned a corner and that you are motivated to lead a law abiding life”, is the Board’s characterisation of views expressed in the Claimant’s representation, which is that the Claimant had changed.  Paragraph 43 of Mr Slater’s skeleton reads:
“Properly construed in context, the phrase means ‘It may be, as your representations maintain, that you have changed; however, we take the view, particularly given the circumstances of your recall, that you have not.”

27.	As I indicated to Mr Slater, I find it very difficult to read the decision in that way and I consider that in fact there is a middle ground, which is this: “It may be that you have turned a corner and are motivated to lead a law-abiding life; we will give you the benefit of the doubt on that, but it is clear that you still have poor consequential thinking skills and that these need to be addressed in closed conditions.”  That is the way I construe that particular part of the Parole Board’s decision.  I will read it again.  It says:
“It may be that you have turned a corner and that you are motivated to lead a law abiding life.  However, in the view of the panel, particularly given the circumstances of your recall which indicated continuing poor consequential thinking skills, work to address cognitive deficits should be undertaken in closed conditions.”

In other words, in my judgment, giving the Claimant the benefit of any doubt there might have be and accepting that he may very well have turned a corner and be motivated to lead a law-abiding life, nevertheless, the Parole Board took the view that the circumstances of the recall, and of course implicit in that the breach of licence, indicate continuing poor consequential thinking skills and the need to address those by offending related work undertaken in closed conditions.

28.	It seems to me, therefore, that, whatever the position as regards the question of turning the corner, the issue for the Parole Board was that there was clear evidence of a failure to carry out proper consequential thinking, of continuing poor consequential thinking skills and that those needed to be addressed by work undertaken in closed conditions.

29.	Mr Slater submitted that either of my construction of the decision or his construction leads to the conclusion that an oral hearing was wholly unnecessary, as the determination of all factors in the Claimant’s favour would not alter the fact that, in managing the risk, the Parole Board considered that further work was required in closed conditions.

30.	Mr Slater submitted that the Parole Board already knew that it was said on the Claimant’s behalf that he was a changed man and that he was putting constructive time into good, charitable works.  They knew that.  It was set out in the solicitors’ representations and there were reference letters from members of the charity in question.  Those references are set out at pages 22 and 23.  The Board plainly knew that he was regarded as a valuable member of that team from those references.  Mr Slater submitted that the Board had all the information that it needed.  It had positive information about this conduct outside the prison; his progress in custody; that there were no problems when he was institutionalised; and it had the full explanation for the breach of condition.  It knew his family were disappointed and it had taken into account, as is clear in the decision letter, the solicitor’s representations, representations from the Claimant himself and from his daughter (the latter two being matters which are not available to the court).  More importantly, submitted Mr Slater, the Board knew that the Claimant had expressed motivation to comply in the future and that is clearly set out in the submissions to the Board.  Mr Slater submitted, therefore, that if the test was: could any useful, new information be imparted by the Claimant on questioning?, then the answer must, he submitted, be “No”.  All things capable of being expressed orally were before the Board and taken into account by the Board.  He put the matter this way, that if credibility had been at the heart of the matter then he would accept that fairness would require a hearing.  But, he submitted, the decisive facts are not matters which are capable of being affected by any oral persuasion and that it would be improper to interfere with the decision.  He submitted that either this Claimant has shown by his breach of the licence conditions that he is not motivated to comply with those conditions or he has shown that he is motivated to comply but that he lacks the skills to do so.  The Board had all the information that it needed to deal with those issues and an oral hearing would have made no difference.

31.	In my judgment the thrust of the Parole Board decision is clearly the need for further work to address cognitive deficits, work which, in the decision of the Parole Board, needs to be undertaken in closed conditions.  That is perhaps unsurprising given that, once released on licence, within a very short period of time Mr Boylan found himself in breach of his licence conditions.  

32.	The argument put forward on behalf of the Claimant puts the emphasis on the question of whether the Parole Board has the information properly to determine whether the Claimant has in fact turned the corner.  In my judgment that was not the basis of the Parole Board’s decision.  It did not, in my view, make any finding to the effect either that he had turned or a corner or that he had not.  It was prepared to assume that he had turned the corner: 

“It may be you have turned a corner and that you are motivated to lead a law-abiding life”.  

However, it then went on to say: 

“However, in the view of the panel, particularly given the circumstances of your recall which indicated continuing poor consequential thinking skills, work to address cognitive deficits should be undertaken in closed conditions.”

In my judgment that is the reason the Parole Board gave for not granting parole.  That is the underlying reasoning and basis upon which I must consider whether it was unfair – as is alleged by the Claimant – for the Board to decline an oral hearing.  Given that is, in my judgment, the underlying reasoning for the Parole Board’s decision, I am satisfied that an oral hearing would have made no difference at all and have had no impact at all on that issue.  What the Claimant seeks is an oral hearing to impact upon the question that he has turned a corner, but, as I have already indicated, I am not satisfied that that was an issue of fact which in any way impacted on the final decision and that, in any event, the Parole Board was willing to assume that in the context of its decision.  

33.	Therefore an oral hearing in my judgment would have added nothing.  It would simply have given the offender and his Offender Manager the opportunity to emphasise orally that he had turned a corner and that he was now motivated to lead a law-abiding life.  None of that would in any way detract, in my judgment, from the view the Parole Board went on to express, namely that the circumstances of the recall were such that there were “continuing poor consequential thinking skills” and “work to address that should be undertaken in closed conditions.”

34.	The suggestion that evidence from Mr Boylan himself to the effect that the salutary effect of being recalled is such that he would recognise the licence conditions does not, in my judgment, assist the Claimant.  What the Parole Board is faced with is a man who has breached his licence conditions, conditions imposed specifically with a view to minimising the risk to the public.  However motivated he may be - and it appears from all the paperwork before me that he is motivated to try and lead a law-abiding life – the fact remains that he breached a licence condition, thereby displaying an absence of, or at very least poor, consequential thinking skills.  The Parole Board took the view that is what needed to be addressed, particularly in circumstances where he would be released on licence for a significant period of time, up to six years, and where he, in the space of four months, had committed a breach.  Whilst there is no evidence he had in fact consumed alcohol, the fact remains that he was in breach of a licence condition.  That displays poor consequential thinking skills.  Consequential thinking skills are relevant for compliance with all licence conditions, those themselves being relevant to risk and the likelihood of future offending.  The likelihood of future offending is plainly affected by a man’s ability to follow matters through, comply with requirements of licence conditions and matters of that sort.  

35.	Where, in my judgment, the Claimant’s submission falls down is based on the assumption that there was a decision here as to whether or not he had in fact turned a corner and whether he was in fact motivated to lead a law-abiding life.  I do not consider that was the basis for the Parole Board’s decision.  Had it been, and had it been decided against him,  I would be willing to accept that is a matter which would depend on credibility and would otherwise merit exploration with him.  In any event, however,  I am not satisfied it was decided against him.  Indeed, on my reading of the decision, it was assumed in his favour, albeit perhaps not expressed as clearly as it might have been.  

36.	I am quite clear that the substance of the decision is the decision that further work needs to be undertaken in closed conditions to address the continuing poor consequential thinking skills evidenced by the circumstances of the recall.  That being the substance of the decision, in my judgment it was entirely fair for a decision to be made that an oral hearing was not necessary since it did not require live evidence to assess the risk.  In those circumstances, the application must fail.