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The appellant Osborn was convicted in 2006 of putting people in fear of violence by harassment, and possession of an imitation firearm, during an incident when he was said to have brandished the imitation firearm at the home of his estranged wife. FAC |
He received a sentence of six years imprisonment, the custodial element of which expired on 20 February 2009, when he was released on licence. FAC |
He was assessed as presenting a very high risk of harm, and was placed under surveillance from the point of his leaving prison. FAC |
He was recalled to custody the same day, after arriving at the hostel where he was to live 20 minutes after the time when he was required by his licence conditions to be there, having visited an address at a village in Staffordshire en route. FAC |
His licence was revoked the same day. FAC |
He was informed by the Ministry of Justice that he had been recalled to prison because it had been reported by the probation service that he had breached a condition of his licence by failing to confine himself to an address approved by his supervising officer during the hours of a curfew. FAC |
He was informed that his licence had been revoked by the Secretary of State for Justice because in view of the offences for which he was originally sentenced, the risk suggested by his offending history and his behaviour as described in the breach report completed by the probation service, the Home Secretary (sic) was ... |
The appellants case was then listed before the board, which was provided with a request for recall report or recall pack, written with a view to justifying the recall, and a report for review of re-release. FAC |
These documents, prepared by the Ministry of Justice or its agencies, contained accounts of events prior to and after his release by his offender manager, a line manager and a senior manager, all of whom agreed that he could not be safely released. FAC |
In particular, the offender manager raised concerns about the appellants willingness to comply with licence conditions. FAC |
He reported that the appellant had stated to him, before being released, his refusal to comply with the requirements of his licence, initially challenging whether he should be required to reside at approved premises, and also challenging the extent of an exclusion zone. FAC |
The offender manager had also received information that on the day of his release, when reminded that he could not have access to firearms, the appellant had said not for another two hours. FAC |
He was reported to have said that he would be back in prison shortly after he had done what he needed to do. FAC |
It was also reported that shortly before the appellant had left the address which he had visited en route to the hostel he had telephoned the hostel manager to tell her that he would be late, saying falsely that he was on the A38. FAC |
On returning to his car he had removed and rearranged items in the boot. FAC |
This gave rise to concern in view of his comment about access to firearms. FAC |
He was also reported to have told the hostel manager earlier that week that he could not share a room as he had a multi-personality disorder. FAC |
In view of this reported statement, the offender manager considered it crucial that the prisoner should undergo a full psychiatric assessment before being considered for release. FAC |
In a letter dated 6 April 2009, the appellants solicitors made representations to the board in support of his release, attaching a handwritten statement in which the appellant provided a detailed account of the events of the day on which he had been released and recalled to custody. FAC |
He maintained that there had been a delay in his release while the prison waited for the surveillance team to arrive, and that the hostel manager had in consequence agreed to a 30 minute extension of the deadline for his getting there. FAC |
He had arrived at the hostel before that deadline expired. FAC |
He had stopped in the village in order to drop off his sister-in-law, who was one of the passengers in the car in which he had been collected from prison. FAC |
The solicitors accepted that the appellant had expressed initial concerns about the licence conditions, but said that he had now been advised of the proper channels for challenging such conditions and understood that they were binding. FAC |
They stated that he had demonstrated in custody that he could behave well, and that he could be expected to comply with his licence. FAC |
They maintained that any risk could be safely managed within the community, as probation reports indicated. FAC |
His previous offending, before the index offence, had taken place when he was 16 or 17 years of age. FAC |
He was now 37. FAC |
His record within prison had been good: he held trusted employment and was adjudication free. FAC |
His risk level had been altered to very high on the day before his release, by his recently appointed offender manager, without a proper review or assessment, so as to enable the surveillance and emergency recall to be arranged. FAC |
The solicitors also said that the offender managers report had only been received that day, and that they had not been able to obtain the appellant's comments on the allegations made against him. FAC |
They noted that the offender manager had stated that the appellant was devoid of any victim sympathy/awareness, but commented that he had had very little contact with their client. FAC |
They confirmed that the appellant suffered from mental health problems, but said that the probation service was fully aware of them. FAC |
It was understood that the prison service had also been aware of them throughout the appellants incarceration, and that he had remained in contact with the psychiatric nurse at his current prison until being signed off. FAC |
On 22 April 2009 the appellants case was considered by a paper panel comprising an anonymous member of the board, who decided to make no recommendation that he should be released. FAC |
In its written decision, the panel noted the nature of the index offence and the previous record. FAC |
It summarised the offender managers account of the appellants attitude towards the licence conditions and of events on the date of release. FAC |
The removal and rearrangement of items in the car boot were again linked to the alleged comment about access to firearms. FAC |
The panel stated that it had considered representations dated 2 March 2009 submitted by the appellants legal advisers. FAC |
It was noted that those representations provided no explanation for the appellants detour to the village. FAC |
The risk assessments were noted, including the assessment of a lack of victim empathy. FAC |
It was noted that the hostel was unwilling to accommodate the appellant, and that report writers considered that other approved premises were unlikely to offer him accommodation until his motivation to comply improved. FAC |
The panel referred to the appellants apparent unwillingness to comply with the requirements of licence supervision: an important finding based on the account of events provided by the offender manager. FAC |
It was concluded that the assessment of risk was such that it could not be safely managed within the community. FAC |
The panel does not appear to have considered the letter from the appellants solicitors dated 6 April 2009 or the appellants statement, enclosed with that letter. FAC |
The appellant was notified of the decision by a standard form letter from the Ministry of Justice (not the board) dated 24 April 2009. FAC |
The letter informed him that he was entitled to request an oral hearing within 14 days. FAC |
His solicitors did so, by letter dated 28 April 2009. FAC |
In the letter, they pointed out that the appellants statement did not appear to have been taken into account. FAC |
They commented that the panel had relied on information which had not been disclosed to them and which they had not had an opportunity to consider, such as the information about the availability of hostel accommodation. FAC |
They requested directions that specified witnesses and written documentation should be available at the oral hearing. FAC |
The proposed witnesses included the hostel manager, who could confirm the appellants account of the telephone calls and could give evidence about the availability of a hostel place; the prison officer who was the source of the allegations about the appellants statements on the day of his release; the minutes of the bod... |
In a further letter dated 13 May 2009 the solicitors reiterated that the appellant disputed the allegations made against him by the offender manager. FAC |
By a decision dated 5 June 2009 the request for an oral hearing was refused by another anonymous single member panel. RLC |
The decision stated that the panel had seen the oral hearing request from the prisoner/solicitor, together with the paper recall panel decision dated 22.4.09 and the dossier they reviewed. RLC |
The decision then stated that the request for an oral hearing had been refused for the following reasons: Michael Osborn's solicitor's representations dated 27/5/09 and 28/4/09 dispute parts of the behaviour on the day of release which led to recall (eg Mr Osborn's detour) as well as brandishing a firearm in the index ... |
This panel has carefully considered the full dossier and concludes that the disputed facts are not central either to the recall decision or the panel's risk assessment of the panel (sic) on 22/4/09; Mr Osborn's denial of the index offences was known to the panel already. RLC |
So far as appears from the decision, this panel proceeded on the basis of the same material as had been before the earlier panel, with the addition of two subsequent letters from the appellants solicitors. Ratio |
There is no indication that the letter dated 6 April, or the appellants statement, were taken into account. Ratio |
The appellants claim that the time when he was due to arrive at the hostel had been extended does not appear to have been considered. Ratio |
The fact that the appellant disputed many of the allegations made against him, and the potential bearing of that dispute upon the assessment of risk, do not appear to have been taken into account. Ratio |
Langstaff J dismissed the appellants application for judicial review ([2010] EWHC 580 (Admin)). RLC |
The judge considered that the facts in the appellants case were only minimally in contention, that the focus of the letter dated 28 April 2009 had been on matters which were peripheral to the decision made, and that the bulk of the letter indicated a desire to ask questions about matters of fact which were not in dispu... |
On appeal to the Court of Appeal ([2010] EWCA Civ 1409, [2011] UKHRR 35), where the case was considered together with that of the appellant Booth, Carnwath LJ (with whom Sedley and Moses LJJ agreed) accepted that there was some force in the submission that, contrary to the understanding of the judge, there were signifi... |
He considered however that the judge was right to consider that the boards decision on release did not ultimately depend on resolution of these issues (para 47). RLC |
The lack of information about the appellants current mental health status and the recommendation that a full psychiatric assessment should be carried out, combined with the very high risk of harm should he re-offend, provided ample reason for not allowing release (ibid). RLC |
The appellant was eventually allowed an oral hearing in November 2010. FAC |
His application for release was refused. FAC |
The facts John Booth FAC |
The appellant Booth received a discretionary life sentence in 1981 for attempted murder, with a minimum term of six and a half years. FAC |
The conviction concerned the attempted murder by strangulation of an elderly woman in a train compartment. FAC |
He has remained in custody ever since, save for a short period in 1993, when he was released but recalled after three months. FAC |
Psychiatric treatment has continued throughout his sentence. FAC |
Although he has progressed to open conditions on various occasions, he has failed on each occasion in that setting, most recently in 2003. FAC |
In July 2009 the appellants case was referred to the board by the Secretary of State under section 28 of the 1997 Act, to consider whether or not it would be appropriate to direct the appellants release. FAC |
If the board did not consider it appropriate to direct release, it was invited to advise the Secretary of State whether the appellant should be transferred to open conditions. FAC |
If the board made such a recommendation, it was invited to comment on the degree of risk involved. FAC |
It was also invited to advise the Secretary of State on the continuing areas of risk that needed to be addressed. FAC |
The dossier provided to the board included reports from the deputy lifer manager, the appellants offender supervisor, and a psychologist in training. FAC |
The appellant was described in the dossier as a very institutionalised man who, if not encouraged, would be satisfied to remain in custody for the remainder of his life. FAC |
The referral letter, following the standard form, requested the board to give full reasons for its decision or recommendation, but also stated that the board was not being asked to comment on or make any recommendation about any specific treatment needs or offending behaviour work required. FAC |
Notwithstanding that statement, it is apparent from the papers concerning the appellants Booth and Reilly that in practice the board may comment on treatment needs and on the offending behaviour work required. FAC |
It is indeed difficult for it to avoid doing so, if it is to give reasons for its decisions and recommendations which address the matters that it is required by the Secretary of States directions to consider, and if it is to comply with the request for advice about areas of risk that need to be addressed. FAC |
It also appears that such comments may have an impact on the prisoners management in prison and on the courses offered to him, as one would expect. FAC |
The appellant subsequently received from the board a letter in a standard tick-box form, dated 21 October 2009. FAC |
It stated: The Parole Board has decided not to direct your release (or recommend your transfer to open conditions if applicable). FAC |
This is a decision taken on the papers and the full decision is attached. FAC |
The letter continued: You can appeal the decision and ask for a full oral hearing before a panel of the Parole Board if you believe that there are significant and compelling reasons for this. FAC |
You have four weeks (28 days) from the date of this letter to decide if you wish to lodge an appeal. FAC |
This letter mischaracterises the nature of the single member decision, the rights of the prisoner following the making of such a decision, and the function of the board at that stage under rules 11 and 12. FAC |
The implication of the letter is that the board has decided that the prisoner should not be released or recommended for transfer to open conditions, subject to a right of appeal. FAC |
The prisoner is requested by the form either to signify his acceptance of that decision or to put forward reasons why he does not accept it: in other words, his grounds of appeal. FAC |
The reference to compelling reasons implies that there is a significant onus on the prisoner. FAC |
As I have explained, however, the decision made by the single member under rule 11(2)(b) is merely provisional. Ratio |
Where a provisional decision is made, the prisoners entitlement under rule 12(1) is not to appeal against that decision, but to request an oral panel to give consideration to his case with a hearing. Ratio |
The board then has to consider that request. Ratio |
If it grants the request, the matter is then considered by an oral panel de novo, as I have explained. Ratio |
Enclosed with the letter was the decision taken by an anonymous intensive case management (ICM) member. Ratio |
It stated: A single Parole Board member reviewed your case on the papers on the 14th October 2009. Ratio |
The Parole Board is empowered to direct your release if it is satisfied that it is no longer necessary for the protection of the public that you continue to be detained. Ratio |
The member was not so satisfied and does not direct release; nor recommend transfer to open conditions. Ratio |
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