Morton, R (on the application of) v Parole Board for England & Wales

Neutral Citation Number: [2009] EWHC 188 (Admin) IN THE HIGH COURT OF JUSTICE QUEEN'S BENCH DIVISION THE ADMINISTRATIVE COURT Case No. CO/8177/2008 Royal Courts of Justice Strand London WC2A 2LL Date: Monday, 26 January 2009 B e f o r e: SIR MICHAEL HARRISON - - - - - - - - - - - - - - - - - - - - - Between: THE QUEEN ON THE APPLICATION OF DAMION MORTON Claimant Defendant v PAROLE BOARD FOR ENGLAND & WALES - - - - - - - - - - - - - - - - - - - - - Computer-Aided Transcript of the Stenograph Notes of WordWave International Limited A Merrill Communications Company 190 Fleet Street London EC4A 2AG Tel No: 020 7404 1400 Fax No: 020 7831 8838 (Official Shorthand Writers to the Court) - - - - - - - - - - - - - - - - - - - - - Mr H Southey and Mr J Bunting (instructed by Chivers) appeared on behalf of the Claimant Miss L Busch (instructed by Treasury Solicitors) appeared on behalf of the Defendant - - - - - - - - - - - - - - - - - - - - - J U D G M E N T SIR MICHAEL HARRISON: Introduction This is an application for judicial review of a decision of the Parole Board dated 19 May 2008 refusing to grant the claimant parole. Permission was granted by Munby J on 13 October 2008 when he remarked that, without much enthusiasm, he was persuaded that the case was arguable. He also said that the issue of an extension of time for making the claim should be decided at the substantive hearing. The claimant is serving an eight-year prison sentence for rape. He is a Category B prisoner at HMP Full Sutton. His eligibility date for parole was 2 July 2008. It was in those circumstances that the Parole Board reviewed his case. The Decision Although the grounds of this application only relate to two relatively short matters in the Parole Board's decision, it is necessary to refer to all the relevant paragraphs of the decision letter to get a complete picture of what was involved. The last paragraph of the first page of the decision letter stated that risk factors were identified as peer influence, alcohol and attitudes to women and sex. It stated: "Actuarial risk assessments concur in a view that the risk of reconviction is low-medium although OASys provides evidence of a high risk of harm to the public, women in particular. The Risk Matrix 2000, referred to in the psychology report, indicates a medium risk of reconviction and states that in long term follow up, 13% of men who fall into this category will go on to sexually re-offend within 5 years of release." In the first paragraph over the page, the decision letter stated: "It is of concern that Mr Morton has undertaken limited work to address his offending behaviour and the risk factors which have been identified. He did complete ETS in February 2006 with good reports although the psychological report prepared in March 2008 noted that he had not completed the learning objectives set for him after the post-course review. Mr Morton also completed a short alcohol awareness course but has not made contact with CARATs despite identifying alcohol as a risk factor himself. Crucially Mr Morton has not done the SOTP due to his denial of his offending." The next paragraph continued: "The seconded Probation Officer does not support his application for parole due to her concerns about the lack of relevant offending behaviour work and the fact that in her view there is no evidence to suggest that his risk of harm to women has been reduced. The psychologist does not support parole either based on concerns about lack of work on identified risk factors. She also however draws attention to his lack of insight into his risky sexual behaviour and preferences, and his lack of remorse and poor victim empathy. Similarly, the Home Probation Officer does not support parole, expressing similar views and adding concerns about the level of support for his denial of his offending offered by his partner." The final paragraph of the decision letter stated as follows: "The panel has carefully weighed the evidence in this case. It has taken account of Mr Morton's satisfactory custodial conduct and he is given credit for the courses and work he has undertaken to date. Against this however, it remains very concerned about the most serious nature of the index offence and the calculated way in which it was said to have been carried out. Mr Morton remains assessed as a high risk of harm to the public, women in particular. The panel is aware of Mr Morton's denial of the index offence. Whilst denial in itself does not preclude parole, it has effectively barred Mr Morton from participation in the programmes which could have directly addressed the risk factors associated with his offending. The Parole Board must therefore look for evidence elsewhere that risk has been reduced and it is not satisfied that there is sufficient evidence of such a reduction. Concerns expressed by report writers in relation to victim empathy, his attitude to women and sex, and his apparent lack of motivation to address his use of alcohol or to complete the good work he began on ETS do not suggest that risk has been reduced. The panel is also concerned about Mr Morton's reluctance to discuss his offending and his ambivalent attitude towards being placed in approved premises. Support from his partner in this respect is not seen as particularly helpful and may not bode well in terms of compliance with licence conditions. The panel concluded that at this time, risk remains too high to be managed in the community and parole is therefore refused." Psychologist's report Much of the material referred to in the decision letter was derived from the psychologist's report, including the two matters to which the grounds of this claim relate. Paragraph 4.2 of the psychologist's report referred to the OASys assessment that the risk to the public was high. It stated that further assessment relating to accommodation, lifestyle and associates and attitudes was required in order to ascertain specific areas of risk. Paragraph 4.3 referred to the Risk Matrix 2000, which assessed the claimant as medium risk of offending. In paragraph 5.1, the psychologist highlighted the current key risk factors as attitudes towards women, lack of victim empathy, failure to take responsibility and the use of alcohol. Paragraphs 5.11 and 5.12 of the report stated: "5.11. It is encouraging that Mr Morton has completed the Alcohol Awareness programme whilst in custody. He has also been assessed and SMITH BERNAL WORDWAVE found not suitable for the FOCUS programme. 5.12. To date Mr Morton has not made contact with the CARATs service. As he has identified alcohol as one of his risk factors (see paragraph 4.5) I would encourage Mr Morton to engage with ... this service in order to further his insight into the function that alcohol has played in his life and his offending." The reference in paragraph 5.12 to the claimant not having made contact with the CARATs service, which found its way into the Parole Board's decision letter, is the subject matter of the second ground of this claim. Paragraph 6.1 of the report stated that the claimant had completed the Enhanced Thinking Skills (ETS) programme in February 2006. That paragraph ended with this sentence: "Mr Morton has not completed his set objectives set after the ETS case review." That sentence found its way into the Parole Board's decision letter and it is the subject matter of the first ground of the claim. There was an addendum to the report which, amongst other things, gave further information about that aspect. The addendum relates to some matters raised by the claimant after the psychologist's report had been disclosed to him. In relation to paragraph 6.1 of that report, the addendum stated: "Mr Morton reports that he did complete the set objectives after his ETS case review, however states (sic) that the report went missing from the wing office and was never received by the ETS team. I cannot confirm this." Returning to the main report, the psychologist's summary and conclusions were as follows: "8.1. Mr Morton has been convicted of a serious sexual offence which he continues to deny responsibility for. He has demonstrated limited insight into his past behaviour and the choices that he has made in relation to his offending. Mr Morton has continually failed to take responsibility for his index offence. He appears to demonstrate a lack of remorse and poor victim empathy. 8.2 Mr Morton has yet to participate with any offending behaviour programmes due to his innocent stance. As and when this stance changes he would benefit from engaging in SOTP work. This will offer him the opportunity to explore attitudes, cognitive distortions and beliefs which underpin his sexual offending. An increased awareness and recognition of his risk factors will help Mr Morton to effectively develop management strategies to protect against future offending." SMITH BERNAL WORDWAVE Grounds of claim I now come to the two grounds of this claim which, for shorthand, I will refer to as the ETS ground and the CARATs ground. (a) The ETS ground The ETS ground relates to two sentences in the Parole Board's decision letter and to the psychologist's addendum. The first sentence is in the first paragraph on the second page of the letter, which states: "He did complete ETS in February 2006 with good reports although the psychological report prepared in March 2008 noted that he had not completed the learning objectives set for him after the post-course review." The second sentence is the reference in the last paragraph of the report to his apparent lack of motivation to complete the good work he began on ETS. The only other document relevant to this ground of the claim is an entry in the OASys review plan, which formed part of the dossier before the Parole Board, dealing with current objectives in which there is an entry relating to ETS which states that the course was completed in 2006, and it then states: "Target is to practise skills and to keep a diary", with a timescale given of one year. The parties were unclear whether that was a reference to the objectives set after the ETS case review referred to in the Parole Board's decision letter. Since the Board's decision, it has been discovered that there is a post-ETS programme report which does not make any recommendations to participate in any further cognitive skills programmes. The ground of the claim relating to ETS is put in two linked ways. Firstly, it is said that the Parole Board erred in reaching a finding of fact that was not justified by the evidence; and secondly, it is said that the Board failed to explain why it rejected the claimant's account contained in the psychologist's addendum report. It was submitted that there was no evidence to justify a finding that the claimant had not completed the objectives after the ETS case review, and that it was clear from the addendum report that there was a dispute which needed to be resolved, but it was not. The defendant's case on this aspect is that the Parole Board was entitled to make the decision that it did on the information before it, and that it did so by a lawful assessment. It had to make a global assessment without the need for detailed analysis of discrepancies. It was accepted that it might have been desirable to refer to the addendum report, but it was submitted that there was no obligation to do so. The Board was entitled to rely on the psychologist's report, and it was implicit that the Board had accepted what the psychologist had said. In my view, it would have been better if the Parole Board had referred to the claimant's account as contained in the addendum report, but it was one of a large number of matters that the Parole Board had to consider, and it is clear that the Board placed considerable reliance on the psychologist's report, as it was entitled to do. It had, on the SMITH BERNAL WORDWAVE one hand, the psychologist's statement that the claimant had not completed the objectives set after the ETS review, and, on the other hand, the claimant's statement that he had completed the objectives, but that they had gone missing from the wing office and had never been received by the ETS team. The Board also were informed by the psychologist that she could not confirm the claimant's account. In those circumstances, I cannot see how the Parole Board could have concluded that the claimant's account was correct. It is, in my judgment, tolerably clear, consistently with the reliance placed by the Board on the psychologist's report as a whole, that the Board implicitly accepted what was said in the psychologist's report about this aspect of the matter. The Board was entitled to take that view, and although, as I said, it would have been better if it had dealt with the addendum, I am not persuaded that the failure to do so amounted to an error of law in either of the ways suggested on behalf of the claimant. (b) CARATs ground The second ground of the claim relates to CARATs, who provide a service which deals with substance abuse. This ground relates to two sentences in the Parole Board's decision letter. The first sentence is in the first paragraph on the second page of the decision letter, which states: "Mr Morton has also completed a short alcohol awareness course but has not made contact with CARATs despite identifying alcohol as a risk factor himself." The second sentence is the reference in the last paragraph of the decision letter to the apparent lack of motivation to address his use of alcohol. The only other document relevant to this ground is an OASys document, which was in the dossier before the Parole Board, dealing with alcohol misuse and which stated: "Completed Alcohol Education and reportedly gained a good insight into the effects of alcohol consumption. His self-reported usage of alcohol to the Drugs Team in 2005 determined that he did not require assessment for the FOCUS programme." It was suggested by the claimant that there was a conflict between that reference to the Drugs Team in 2005 and the statement in the Parole Board's decision letter that the claimant had not made contact with CARATs, but it was not submitted that it constituted an error by the Parole Board because it was accepted that it may not be possible to resolve the conflict. I am, in fact, far from convinced that the reference to the Drugs Team is a reference to CARATs but, as it is not suggested that the Parole Board was in error on that account, it is not necessary to deal with it any further. The CARATs ground of this claim relates to information subsequently obtained by the claimant which was not before the Parole Board, namely information obtained from the Prison Service that he had been assessed by CARATs and that no further substance-related intervention was required. SMITH BERNAL WORDWAVE The claimant's case is that the Parole Board therefore made an error of fact, namely that the claimant had not made contact with CARATs, and that the error of fact amounted to an error of law applying the principles derived from the Court of Appeal's judgment in E v Secretary of State for the Home Department [2004] QB 1044. Although I was referred in particular to paragraph 63 of that judgment, it seems to me that paragraph 66 contains the ratio for the court's decision, albeit that it is derived from the House of Lords decision in R v Criminal Injuries Compensation Board ex parte A [1999] 2 AC 330, which itself is referred to in paragraph 63 of the Court of Appeal's judgment. Paragraph 66 of the judgment states: "In our view, the time has now come to accept that a mistake of fact giving rise to unfairness is a separate head of challenge in an appeal on a point of law, at least in those statutory contexts where the parties share an interest in co-operating to achieve the correct result. Asylum law is undoubtedly such an area. Without seeking to lay down a precise code, the ordinary requirements for a finding of unfairness are apparent from the above analysis of the Criminal Injuries Compensation Board case. First, there must have been a mistake as to an existing fact, including a mistake as to the availability of evidence on a particular matter. Secondly, the fact or evidence must have been 'established', in the sense that it was uncontentious and objectively verifiable. Thirdly, the appellant (or his advisers) must not been have been responsible for the mistake. Fourthly, the mistake must have played a material (not necessarily decisive) part in the tribunal's reasoning." It was submitted on behalf of the claimant that the Secretary of State and a prisoner have an interest in co-operating to achieve the correct result in proceedings before the Parole Board. It was said that the claimant was not to blame for the error because it was reasonable for him to conclude, having regard to the other documents before the Board, that no weight would be placed on the suggested failure to contact CARATs. It was submitted that the mistake was material because it was said by the Board to demonstrate a lack of motivation which was relied on as evidence that risk had not been reduced. Finally, it was contended that the documentary evidence from which the latest information had been derived existed at the time of the Board's decision, but was not put before the Board in much the same way as the doctor's report in the Criminal Injuries Compensation Board case. It was said that the primary responsibility for producing the evidence lay with the Prison Service which holds the records. The defendant's case was that the Parole Board was entitled to take the psychologist's statement - that the claimant had not made contact with CARATs - at face value because there was no unequivocal evidence to the contrary. So far as the case of E is concerned, it was submitted that the mistake must relate to evidence that existed at the time rather than evidence brought up afterwards, and in this case the new evidence post-dated the decision. It was the claimant's responsibility to draw attention to the error and he failed to do so at the time. SMITH BERNAL WORDWAVE It seems to me that the criteria mentioned in paragraph 66 of the Court of Appeal's judgment in the case of E are intended to constitute the requirements for a finding of unfairness arising from a mistake of fact which could give rise to an error of law. It is the concept of unfairness that lies at the root of it. The first requirement is that there must be a mistake as to an existing fact, including a mistake as to the availability of evidence on a particular matter. There was in this case no mistake as to the availability of evidence relating to whether the claimant had contacted CARATs. When the claimant took action to rectify the matter, he obtained the necessary evidence with help from the Prison Service. What stands out in this case is that the claimant was provided with a copy of the psychologist's report which contained the mistake of fact, and although he took that opportunity to comment on some matters contained in the report, including the ETS point, he did not suggest that there was any error in what was said about CARATs. If he had done then what he did subsequently, namely point out the mistake and/or obtain the necessary evidence from the Prison Service, the error would have been known at the time of the Parole Board's decision. He must therefore bear responsibility for failing to rectify the error before the Parole Board made its decision. In those circumstances, it is difficult to conclude that there was such unfairness as to amount to an error of law. But even if it can be said that there was such unfairness as to amount to an error of law, I am in no doubt that it was not of such materiality as to have affected the decision in this case. I was referred by the claimant to a dictum of Henry LJ in Kalra v the Secretary of State for the Environment and Waltham Forest London Borough Council [1967] 72 P&CR 423, a planning case, when he stated: "It cannot, in my judgment, be safely said that the Inspector would inevitably have reached the same conclusion if she had correctly directed herself in law." It was submitted that it could not be said that the Parole Board would inevitably have reached the same conclusion if the CARATs error had not been made. It was pointed out that there were a number of positive factors referred to in the decision letter, and that the Board was only concerned with the risk of a further offence during the time when the claimant would otherwise have been in prison, the claimant's non-parole release date being in November 2009. Whilst I accept that the Parole Board's finding that the claimant had not contacted CARATs led to the reference in the last paragraph of the decision letter to an apparent lack of motivation to address his use of alcohol, which was relevant to the issue of risk, it is necessary to bear in mind that there were a whole raft of matters relevant to risk which concerned the Parole Board. I have already quoted all the relevant parts of the decision letter earlier in this judgment and I do not repeat them. The application for parole was not supported by the seconded probation officer, the psychologist or the home probation officer for reasons set out in the decision letter, all of which were important reasons. The evidence before the Parole Board was that the claimant was a SMITH BERNAL WORDWAVE high risk to the public, women in particular. Using the words of the Parole Board, "crucially" the claimant had not done the Sex Offender Treatment programme (SOTP) due to his denial of the offence. As the Board commented, that meant that he had not participated in programmes that could have directly addressed the risk factors associated with his offending. A reasonable person reading the Parole Board's decision letter would have concluded that the application for early release was bound to fail. It is inconceivable, in my view, that the Parole Board would have agreed to early release, and that is so whether or not the claimant had made contact with CARATs. In my judgment, even if the error relating to CARATs had amounted to an error of law, the Parole Board would inevitably have reached the same conclusion even if it had known that the claimant had contacted CARATs. This is not a case where, in any event, the relief claimed by the claimant should be granted. Delay The only other issue raised in this case is the issue of delay, the claim having been made nine days beyond the three-month period. In view of the conclusions I have reached, the issue of delay becomes academic. It would only be relevant if I was otherwise minded to allow the claim. I do not therefore summarise the submissions that were made on that aspect; suffice it to say that I would have been reluctant to have dismissed the claim on the ground of delay if I had thought it otherwise had the merit to succeed. However, the claim does not have the merit to succeed, and it is for that reason that I have concluded that the claim must be dismissed. MISS BUSCH: Thank you very much, my Lord. I would ask you please to make an order for the Secretary of State's costs, to be assessed if not agreed. The claimant is legally aided so that will have to be subject to the further order not to be enforced without leave of the court. SIR MICHAEL HARRISON: Yes. Can you resist that? MR BUNTING: My Lord, I am instructed to resist that in any event. SIR MICHAEL HARRISON: To resist the claim for costs? MR BUNTING: Of course. But if your Lordship is minded to make this order, I would ask that it is made subject to section 11 of the Access to Justice Act. SIR MICHAEL HARRISON: Is that the equivalent of not to be enforced without the court's leave? What is section 11? MR BUNTING: I believe it is, my Lord. SIR MICHAEL HARRISON: It is? You do not even know what it is although you have asked me to make the order subject to it. MR BUNTING: My Lord, it is not as clear-cut as that. I understand that section 11 -- SIR MICHAEL HARRISON: We are agreed it is section 11 you are referring to, is it? SMITH BERNAL WORDWAVE MISS BUSCH: Yes, my Lord. SIR MICHAEL HARRISON: You have not produced an argument why the claimant should not pay the defendant's costs, and I cannot see any reason why they should not, so I will make an order that the claimant pays the defendants costs, subject to section 11 of the Access to Justice Act. MR BUNTING: My Lord, I am also instructed, to protect my client's position, to ask for permission to appeal. SIR MICHAEL HARRISON: Why do you say that should be granted? MR BUNTING: At this stage, your Lordship, I am not sure I can assist you any further. I am simply instructed, to protect my client's position, to ask for leave to appeal. SIR MICHAEL HARRISON: I am afraid I do not think that is a good enough reason. I am not prepared to grant permission. MR BUNTING: I am grateful. SMITH BERNAL WORDWAVE