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England and Wales High Court (Administrative Court) Decisions |
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You are here: BAILII >> Databases >> England and Wales High Court (Administrative Court) Decisions >> Delaney, R (On the Application Of) v Parole Board of England And Wales [2019] EWHC 779 (Admin) (18 March 2019) URL: http://www.bailii.org/ew/cases/EWHC/Admin/2019/779.html Cite as: [2019] EWHC 779 (Admin) |
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QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Sitting at Bristol
2 Redcliffe Street Bristol BS1 6GR |
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B e f o r e :
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R (ex parte GARY DELANEY) | Claimant | |
and | ||
THE PAROLE BOARD OF ENGLAND AND WALES | Defendant | |
and | ||
THE SECRETARY OF STATE FOR JUSTICE | Interested Party |
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291-299 Borough High Street, London SE1 1JG
Tel: 020 7269 0370
[email protected]
The Defendant and the Interested Party did not appear and were not represented at the hearing
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Crown Copyright ©
Mr Justice Andrew Baker:
a. Firstly, and principally, the Parole Board has adopted a 'Wednesbury unreasonable' conclusion as to the risks Mr Delaney poses if re-released. That conclusion, Mr Gardener submits, and I agree, fundamentally infects the entirety of the decision letter, if it was a flawed conclusion. That is because, in substance, the sole effective basis of the conclusion that Mr Delaney should not be re-released is that the risks the panel concluded that he would present if re-released were unacceptably high. In addition, the overwhelming factor in the balance when considering whether to recommend transfer to open conditions was, in the view of the panel, those same risks, which the panel concluded were such as could not at present be safely managed under open conditions.
b. Secondly, the decision letter betrays an unlawfully inadequate set of reasons for the conclusion as to risks reached. In reality, as it seems to me, there is nothing in this second ground if the first ground is not made out. The valid challenge to this decision letter as regards the assessment of risks, if there be a valid basis for challenge, is that the reasons for the conclusion as to risk given by the panel do not lawfully justify the conclusion reached, rather than that one cannot discern sufficiently from the decision letter what those reasons were in the first place.
c. Thirdly, as a separate and independent ground of challenge to the decision not to recommend a transfer to open conditions, the Parole Board panel has in that regard, in effect, leapt from its conclusion as to risks, which Mr Gardener rightly accepts is one factor to which the panel must have regard, to the conclusion that a transfer to open conditions cannot be recommended. That conclusion, it is said, was reached without pausing between the two to consider other factors that the Parole Board, under the applicable Standing Directions, was obliged to consider. The submission as a result is that in substance the panel has not conducted a balancing exercise at all, that being the type of exercise required in respect of a consideration whether to recommend transfer to open conditions. It has, so it is said, wrongly adopted an approach that the threshold assessment of risk, even if it is not itself a flawed assessment, is sufficient without more to preclude any recommendation for open conditions.
"14) Although the initial complaints had been recorded through the body worn video system when police originally attended the house on 29 September, as Mr Fuller put it, through no lack of trying, the police were unable to obtain any evidence which could be satisfactorily used in court, and as a result the decision not to proceed had to be taken. He told the panel that there were reasonable grounds for believing that you had been guilty of violent offending; having heard his evidence and seen the documents the panel has little doubt that that was correct. Mr Fuller told the panel that in the police view, there was truth in the allegations made against you, but the police have been unable to prove them. He also said that in his view, if in the community, you would pose a serious risk of violence to [the complainant], if there was any resumption of your relationship with her and give rise to high risk. The panel was impressed by Mr Fuller's careful and measured evidence and accepts it. It is clear that the concession as to the reasonableness of the recall was sensible and, it could be said, inevitable.
15) You denied use of any violence. You said that you could only remember the events of the night when the police were called, 29 October. You accepted that there had been much drinking and told the panel that [the complainant] would get boisterous and erratic after drinking. You agreed that you had heated arguments with her but said that you had never "lifted a finger to her". Your denial was unconvincing; the panel does not seek to make a finding of fact as to what happened between you and her; but it is clear that the original complaints to the police may well have been true and that you pose a real risk of violence in an intimate relationship."
"20) Ms Berry assesses your risks of serious harm in the community as high to the public and to known adults. She said, and the panel agrees, that the allegations which lead to your recall had increased your risks. The most prominent problem appears to be your lack of emotional regulation and anger management; your reported conduct towards [the complainant] is, in that sense, offence paralleling, and needs to be addressed on a one to one basis, which in her view, could be undertaken on release to approved premises which she recommends. However, she accepts that there are real prospects that if released, you and Joanne would get together quickly, and that would create imminent risk." (my emphasis)
"a) the extent to which the lifer has made sufficient progress during sentence in addressing and reducing risk to a level consistent with protecting the public from harm, in circumstances where the lifer in open conditions would be in the community, unsupervised, under licensed temporary release;
b) the extent to which the lifer is likely to comply with the conditions of any such form of temporary release;
c) the extent to which the lifer is considered trustworthy enough not to abscond;
d) the extent to which the lifer is likely to derive benefit from being able to address areas of concern and to be tested in a more realistic environment, such as to suggest that a transfer to open conditions is worthwhile at that stage."
"4) … the panel is empowered to direct your release if the evidence demonstrates that your risks have reduced to the point at which it is no longer necessary for the protection of the public that you should continue to be detained in prison. If that point is not reached then the panel may recommend your transfer to open prison if, after carrying out a balanced consideration of your risks to the public and the benefits of progressing your rehabilitation into the community, and of any risks that you might abscond, the panel concludes that your risks can safely be managed in open conditions."
"Those risks could not at present be safely managed in open conditions. In such conditions it is highly likely that you would, again, be in contact with [the complainant], would seek to see her during leave and would thus create the same risks as on release. There is a further risk to members of your family with whom you are deeply angry, accordingly for the reasons set out above, the panel has concluded that it should not direct your release and should not recommend to the Secretary of State that you be transferred to open prison."