Knights v The Parole Board of England and Wales, Court of Appeal - Administrative Court, March 02, 2018, [2018] EWHC 411 (Admin)

Resolution Date:March 02, 2018
Issuing Organization:Administrative Court
Actores:Knights v The Parole Board of England and Wales

Case No: CO/3536/2017

Neutral Citation Number: [2018] EWHC 411 (Admin)




Royal Courts of Justice

Strand, London, WC2A 2LL

Date: 02/03/2018

Before :


(sitting as a Deputy Judge of the High Court)

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Between :

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Mr Philip Rule (instructed by ITN Solicitors) for the Claimant

Ms Catherine Rowlands (instructed by the Government Legal Department) for the Defendant

Hearing dates: 31 January 2018

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JudgmentCharles Bourne QC :

Introduction and Background

  1. This judicial review claim arises from the Claimant's request to the Parole Board for an oral hearing to consider his parole review. He challenges first, the refusal of that request, second, the Defendant's policy of not agreeing to defer parole reviews for a period of longer than four months, and third, the exercise of that policy by a refusal to defer the review in his case. I granted permission for the claim at a hearing on 9 November 2017.

  2. The Claimant is a serving prisoner who on 26 June 2008 was sentenced to imprisonment for public protection (IPP) for offences of making, possessing and distributing indecent images of children.

  3. The law relating to IPP sentences was summarised in the judgment of Sir Brian Leveson P (with whom Thirlwall LJ and Gilbart J agreed) in another case brought by this Claimant, Knights v Secretary of State for Justice [2017] EWCA 1053 (Civ), [2017] 4 WLR 134:

    ``1. The sentence of imprisonment for public protection (``IPP'') was introduced into the law by section 225 of the Criminal Justice Act 2003 (``the 2003 Act''). It provided for the mandatory imposition of an indeterminate sentence upon offenders who presented a significant risk to the public of causing serious harm from further serious offending and could follow conviction for a number of specified offences which carried a maximum punishment of imprisonment for ten years or more. The judge was required to specify the minimum period before which there was no eligibility for parole: this was calculated by reference to one-half of the conventional (but hypothetical) determinate sentence that would otherwise have been imposed. Parole, however, fell to be considered by the Parole Board which had to be satisfied that it was no longer necessary for the protection of the public that the offender be detained.

  4. A statutory presumption of dangerousness and restrictive exceptions to the imposition of an IPP meant that offenders qualified for the sentence having committed crimes which would have justified a conventional determinate sentence measured in weeks or months as well as years. As a result, some offenders became eligible for parole very quickly whereupon their cases required consideration by the Parole Board. The result was well-documented problems for the National Offender Management Service and the Parole Board which were both overwhelmed by the large number of prisoners requiring assessments, sentence plans and access to courses to enable them to demonstrate their safety for release.

  5. In an attempt to address concerns that offenders were being detained for months and years following parole eligibility either because they could not access courses or because of delays at the Parole Board, the criteria for the imposition of the sentence were amended by section 13 of the Criminal Justice and Immigration Act 2008 (``the 2008 Act''). The effect of the amendments were, first, to remove the mandatory requirement to impose IPP and to give judges the power to impose it when certain criteria were met; secondly, to remove the presumption of dangerousness in section 229; and, thirdly, to restrict the imposition of IPP to those offenders who had relevant previous convictions or where the offending warranted a determinate sentence of at least four years. On 8 May 2008, the Act was granted Royal Assent and the relevant provisions were brought into force on 14 July 2008: see article 2(1) and Schedule 1, paragraph 4 of Criminal Justice and Immigration Act 2008 (Commencement No 2 and Transitional and Savings Provisions) Order 2008 (SI 2008/1586), which was published on 17 June 2008.

  6. Problems remained with the operation of the sentence and, by section 123 of the Legal Aid, Sentencing and Punishment of Offenders Act 2012 (``LASPO''), the sentence of IPP was abolished being replaced by a new life sentence the imposition of which was obligatory (unless unjust) following conviction for a second time of one of a defined group of violent or sexual offences where both previous and current offences have been met by or would call for, determinate sentences of ten years or more: see Schedule 15B to the 2003 Act, as inserted by Schedule 18 to LASPO. There is also a new form of extended sentence: see section 226A of the 2003 Act, as inserted by section 124 of LASPO . These provisions came into force on 3 December 2012 but were not made retrospective so that existing IPP sentences remained to be served by those upon whom they had been imposed notwithstanding that the sentence had been abolished.''

  7. The Claimant was sentenced on 26 June 2008. If he had been sentenced after 14 July 2008, less than three weeks later, he would not have been eligible for an IPP. Nevertheless, that sentence was lawfully passed and he remains subject to it. An appeal against it was dismissed by the Court of Appeal (Criminal Division) on 25 July 2017. An application for judicial review, claiming that his continued detention infringed the Human Rights Act 1998, was dismissed by Elisabeth Laing J on 11 February 2015 and an appeal was dismissed on 25 July 2017 by the Court of Appeal whose judgment is quoted above and below.

  8. That judgment of the Court of Appeal then summarises the onward progress of the Claimant's sentence:

    ``13. What happened following the imposition of the sentence is set out in detail by Laing J in her judgment at paras 6-24 which I gratefully adopt. In short summary, on 30 July 2008 a sentence objective was set for the Claimant which required him to complete a core sex offenders treatment programme (``SOTP''), followed by further SOTPs in the community after his release. In August/September 2008 initial paperwork was sent to the public protection casework section (``PPCS''), for which the Secretary of State is responsible.

  9. On 26 February 2009 the Claimant's tariff expired but he had not then completed the SOTP. A first review by the Parole Board was originally scheduled for this date and was delayed (by agreement) to allow him to do so. In October 2009, the course having been completed in July 2009, his case was put forward for intensive case management consideration. This review noted that neither the structured assessment of risk and need (``SARN''), nor the post-programme review report from the SOTP were available. The next hearing was deferred until February 2010.

  10. The SARN was completed on 10 December 2009. It concluded that the Claimant presented a ``very high risk of sexual re-offending'', and recommended an extended SOTP (which could not be completed in the community). At the time, the Claimant was detained in HMP Wayland, which had closed its sex offender wing and associated programmes. As a result, that month, he was transferred to HMP Bure although its programmes department was not set up until March 2010 and it was not fully staffed until April.

  11. On 4 January 2010, the SARN was received by Psychiatric and Psychological Consultancy Services from HMP Wayland; it was provided to the Parole Board on 2 March 2010 when the hearing was deferred until 12 July 2010: given the conclusion that had been reached, this was not, perhaps, surprising. In any event, the hearing was further deferred when it transpired that the analysis of the psychologist instructed by the Claimant and the prison psychologist were significantly different. Further delay arose from the difficulty of finding a date on which both psychologists could attend. The Claimant began the extended SOTP in June 2011.

  12. On 1 August 2011, some 30 months after the expiry of his tariff, the Claimant's case was reviewed for the first time. The board concluded that he represented ``a high risk of serious harm to children and a medium risk to a known adult''. It was asserted that he ``continued to pose an unacceptably high risk of committing an offence which could cause serious harm and ... the level of this risk is such that it could not be managed in the community''. He was therefore unsuitable for either release or a move to open conditions. The following month, the Claimant received notice that the review period set by the Secretary of State was 18 months (to allow for the extended SOTP a post-programme SARN and an assessment period thereafter).

  13. Meanwhile, on 28 July 2011, the Claimant was granted leave to appeal his sentence out of time but, on 5 October 2011 the Court of Appeal (Criminal Division) dismissed the appeal: see [2011] EWCA Crim 2533. In concluding that the judge was entitled to decide that the presumption of dangerousness should not be disapplied, the court (at para 30) made plain that its ``central concern'' was his moving to more serious contact offences that gave rise to a significant risk of serious harm, with the offences of downloading and distributing images offences looked at in the context of his other activities.

  14. Thus, the Claimant continued to serve his sentence. The extended SOTP was completed in November 2011 and, six months later, a claim for judicial review was intimated, being issued in August 2012. In that month, the Claimant started a course (``Better Lives Booster'') which he completed in November 2012 during which month an oral hearing before the Parole Board was directed. The SARN was completed in January 2013 and, by letter dated 2 May, the Board...

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