Bowen & Anor, R (On the Application Of) v Secretary of State for Justice, Court of Appeal - Administrative Court, August 05, 2016, [2016] EWHC 2057 (Admin)

Resolution Date:August 05, 2016
Issuing Organization:Administrative Court
Actores:Bowen & Anor, R (On the Application Of) v Secretary of State for Justice
 
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Neutral Citation Number: [2016] EWHC 2057 (Admin)

Case No: CO/5850/2014 & CO/3179/2015

IN THE HIGH COURT OF JUSTICE

QUEEN'S BENCH DIVISION

ADMINISTRATIVE COURT

Royal Courts of Justice

Strand, London, WC2A 2LL

Date: 05/08/2016

Before :

Mrs Justice Whipple DBE

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Between :

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Philip Rule (instructed by Kesar & Co Solicitors) for the Claimants

Hugh Flanagan (instructed by the Government Legal Department) for the Defendant

Hearing dates: 12 & 13 July 2016

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2

Mrs Justice Whipple:

INTRODUCTION

  1. The Claimants, Mr Bowen and Mr Stanton, were both convicted of serious offences and sentenced to indeterminate sentences. In the case of Mr Bowen, his was a life sentence for murder, with a minimum tariff of 14 years. In the case of Mr Stanton, his was an indeterminate sentence for public protection (an ``IPP'') for a s 18 wounding with intent, with a specified term of 3 years, less time on remand. Each Claimant served the term specified. The Parole Board then reviewed their cases. In each case, the Parole Board concluded that detention was no longer necessary for the protection of the public, and directed them to be released, subject to additional licence conditions, including a period of residence at Mandeville House, an Approved Premises or ``AP''. Each Claimant had to wait some months for a bed at Mandeville House. Their claims relate to that period of waiting which they challenge as being, in whole or part, unlawful detention.

  2. The claims are advanced under three main headings, reflecting the pleaded grounds. They are as follows:

    i) Ground 1: Breach of Section 28 of the Crime (Sentences) Act 1997.

    ii) Ground 2: Unlawful detention contrary to Article 5 ECHR.

    iii) Ground 3: Breach of the James public law duty to provide sufficient Approved Premises.

  3. Mr Stanton in addition argued in his Grounds that there was excessive delay in effecting his release in breach of public law duties. This point was not pursued by him in argument separately from his arguments under Ground 1.

  4. Mr Bowen's Claim Form included a challenge brought under Article 8 ECHR. Permission was refused on the papers and it has not been pursued further. Mr Stanton's Claim Form included challenges by way of indirect discrimination against him including an alleged breach of the Public Sector Equality Duty. Permission was refused for those and they have not been pursued further.

  5. Before embarking on my analysis of the Grounds, I wish to record the unhappy procedural progress of these claims. Mr Bowen issued his claim on 15 December 2014. Mr Stanton issued his claim on 21 July 2015. Permission was granted in both cases, to Mr Bowen by Elias LJ on 28 October 2015 on a renewal to the Court of Appeal, and to Mr Stanton by Langstaff J following a renewal hearing on 18 February 2016. There were habeas corpus proceedings originally attached to each claim, but those fell away when each of the Claimants was, in fact, released from prison to Mandeville House. On 28 February 2016, the Claimants applied for both cases to be heard together. That application was granted by Order of Master Gidden dated 11 April 2016, with directions for the Defendant to serve its Detailed Grounds in both cases within 28 days. The Defendant in fact served its Detailed Grounds and supporting evidence on 21 June 2016, by which time the hearing was fixed for 12 and 13 July 2016 with a time estimate of 1.5 days. The Defendant applied for and was granted an extension of time. On 4 July 2016, directions were given by the Court staff under delegated powers for the Claimants to serve any responding evidence by Wednesday 6 July 2016. The Claimants' efforts to file their skeleton and supporting evidence electronically in the week of 4 July 2016 failed, for the simple reason that the wrong Administrative Court email address was apparently typed in. The Court only received these documents when a supplemental bundle was lodged after 4pm on Friday 8 July 2016. By this time, there were (at least) three separate tranches of materials: the original papers, the Defendant's papers lodged in June, and the Claimants' reply and skeleton lodged just before the hearing. In addition, there were diffuse Court papers, additional materials, and correspondence. A substantially revised index was emailed to the Court the day before the hearing, with an implicit request that the various additional papers listed in it should be interleaved in the now woefully out of date bundle which had been filed some weeks earlier. I regret that my preparation time was largely spent trying to make sense of an unwieldy stack of papers, from which several vital elements appeared to be missing. The appropriate step would have been, as Mr Rule's solicitors very fairly accepted at the hearing, for a fresh and comprehensive bundle to have been compiled and lodged in good time before the hearing, under cover of a letter clearly indicating that the bundle needed to be put before the Judge urgently because of the imminent hearing. Happily, a fresh and complete bundle was produced at the hearing, and I worked off that.

    SUMMARY OF THE FACTS

    Mr Bowen

  6. Mr Bowen was born on 2 June 1952. He is now 64. He was convicted of the murder of his wife and sentenced on 29 May 1998 to life imprisonment. The tariff was set at 14 years. It expired on 22 August 2011. On 12 September 2012, the Parole Board recommended a move to open conditions. That move was effected on 31 October 2012. A paper review on 14 January 2014 led to an oral hearing before the Parole Board. That hearing was originally set for 1 March 2014. Ms Leigh Jones, Mr Bowen's Offender Manager, contacted Mandeville House Approved Premises (``MHAP'') in February 2014 to explore the possibility of a place. She was told that no place would be available for Mr Bowen until 21 January 2015. The date of the oral hearing was subsequently changed to 30 October 2014 (for reasons unconnected with this judicial review application). Mr Bowen was already having periods of ``Release on Temporary Leave'' (or ``ROTL''), and these continued in the run-up to the Parole Board hearing; these took place with his son or daughter, both of whom lived in the South Wales area, or at Mandeville House. The probation service recommended that Mr Bowen should be released to an AP because his risk of harm was assessed as high at the point of release.

  7. Following the oral hearing, on 13 November 2014 the Parole Board directed release. In its decision letter, it addressed the documentary evidence before it (consisting of a dossier of 182 pages including psychological assessments) and oral evidence from Ms Leigh Jones, Mr Bowen's Offender Manager and Mr Mark Lewis, his Offender Supervisor, and from Mr Bowen himself. The Panel noted, amongst other things, that:

    ``... you are anxious to return to work but [the Panel] has no doubt that a gradual approach with a period in Approved Premises where you will not only be able to turn to your supervising officer but also your key worker, where you can show respect for the rules of the establishment before moving on perhaps to your son's home and then to employment, is likely to be of much greater benefit to you, allowing you to make the difficult steps necessary to achieve a resettlement smoothly...''

  8. The Panel took the view that Mr Bowen's risk of reoffending was now manageable within the community. The Panel directed additional licence conditions, including permanent residence at Mandeville House for as long as directed by his supervising officer, reporting requirements while resident at Mandeville House, and other conditions. Under the heading ``Evaluation of effectiveness of plans to manage risk'' the Panel noted the risk management plan put forward by Mr Bowen's Offender Manager, and that it was

    ``based on your residing at Approved Premises for 4-6 months, where you will be supported by your key worker .... The Panel endorses your additional licence conditions as being robust and comprehensive''.

    (It may be that the reference to 4-6 months was an error. It should have said 4-6 weeks.)

  9. Mr Bowen was released to Mandeville House on 21 January 2015. This was 69 days after the Parole Board decision. Mr Bowen remained at Mandeville House for eight weeks, and was then released into the community on licence.

    Mr Stanton

  10. Mr Stanton was born on 9 August 1974. He is now 41. He was sentenced to an indeterminate sentence of imprisonment for public protection (``IPP'') on 8 October 2010, for offences of wounding with intent to cause harm and unlawful wounding. The tariff or specified term was set at 3 years, less time on remand. That period expired on 24 May 2013. On 11 December 2013, the panel of the Parole Board recommended that he should be moved to open conditions. He moved to open conditions on 4 February 2014. Following the next review, the Parole Board convened an oral hearing which took place on 26 March 2015.

  11. On 13 February 2015, in advance of that hearing, Mr Stanton's offender manager, Ms Curley, emailed Mandeville House asking for a place for Mr Stanton (on the basis that placement in an AP was to form part of his risk management plan on release). Mandeville House responded that a place would become available in July, which was subsequently confirmed as 23 July 2015.

  12. At the hearing on 26 March 2015, the Parole Board considered the dossier consisting of 175 pages which included the proposed risk management plan, with the recommendation of residence at Mandeville House. It heard oral evidence from Mr Stanton's Offender Manager (Ms Edwards standing in for Ms Curley), his Offender Supervisor, and from him personally. By its decision dated 27 March 2015, the Parole Board directed release subject to additional licence conditions. The Panel evaluated the risk management plan, and noted that it was based around a period of residence at Mandeville House. It noted that he...

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