Kitto, R (on the application of) v Parole Board & Anor

J U D G M E N T

Wednesday, 12th November 2003

1. MR JUSTICE OWEN: The Claimant seeks permission judicially to review a decision of the Parole Board dated 15th May 2003 and further explained in response to a letter from the Claimant's solicitors in a letter dated 4th August.

2. In adjourning the permission application to an oral hearing Mr Justice Stanley Burnton directed inter alia that the parties may file further evidence before the hearing directed to a number of specific issues. The materiality of the error made by the Board was to the Claimant's offer of a place at Roehampton University, the basis of the Board's concerns as to the Claimant residing with his mother, given the lack of such concerns in the reports before the Board and the absence of express reference to the most recent positive reports. In accordance with the terms of that Order, the Parole Board served a witness statement from Tia Cockrell, the Chairman of the Parole Board that considered the Claimant's case.

3. The background: on 12th March 2001 the Claimant was convicted of an offence of attempted arson at the Woolwich Crown Court. He was then 33 years of age. On 25th May 2001 he was sentenced to five years' imprisonment. He is due for release on 20th April 2004.

4. On 15th May 2003 the Parole Board refused his application for release on licence on 20th June, his parole eligibility date and on 4th August the Board refused to reverse the decision, following written representations from the Claimant's solicitors.

5. The Claimant contends that Parole Board's decision is irrational, unreasonable and contrary to law, being based upon a fundamental misinterpretation of the material before it. I am satisfied that the application gives rise to an arguable case and I therefore proceed to consider the application on its merits, the parties having made their submissions to me on that basis.

6. Before considering the decision under challenge there are a number of general points to be made. First, the Parole Board is under a duty to make an assessment of risk on the basis of all the material before it. That is clear from section 32(2) of the Criminal Justice Act 1991 and from the Home Secretary's Directions to the Parole Board, issued under section 32(6) (issued 1996):

"In deciding whether or not to recommend release on license, the Parole Board shall consider primarily the risk to the public of a further offence being committed at a time when the prisoner would otherwise be in prison and whether any such risk is acceptable. This must be balanced against the benefit, both to the public and the offender, of early release back into the community under a degree of supervision which might help rehabilitation and so lessen the risk of re-offending in the future. The Board shall take into account that safeguarding the public may often outweigh the benefits to the offender of early release."

7. The second general point is that in arriving at its conclusion the Parole Board is plainly entitled to depart from the views of those who have reported to it on the Claimant's progress.

8. Thirdly, the question for the court is whether the Parole Board's conclusion was rational and properly reached, bearing in mind that it is the expert body entrusted with the difficult task of assessing the risk in all the circumstances, and that, as Miss Stern submits, its experience and expertise is at a different level from that of any report writer and, moreover, it has an over-arching perspective. It is in a position to piece together and weigh the information derived from a variety of sources.

9. The fourth and final general consideration is that the decision letter should summarise the considerations that led to the final decision. As Lord Bingham, then Lord Chief Justice, said in R v Parole Board ex p. Owen John Oyston, paragraph 46:

"It is accepted that the court may receive additional material to elaborate and expand the reasons given in a decision letter such as this, but the reasons for caution are obvious. The purpose of the letter, where parole is to be refused, is to explain why the prisoner's application has been unsuccessful, a matter of great moment to him. He wants to know the basis of the adverse decision and should be told it in the decision letter. Such letters are not to be construed in a pedantic and nit-picking spirit, and the court should be careful not to seize on occasional omissions and infelicities in such letters as a ground for granting judicial review. The prisoner is however entitled to an intelligible summary of the Board's reasoning, enough to show him that his application has been fairly considered and explain to him why the decision has gone against him."

10. I turn then to the decision letter. The first two paragraphs under the heading "Reasons" address the Claimant's personal history and his criminal record. It is the third and fourth paragraphs that are central to this application and it is therefore necessary to set them out in full:

"Mr Kitto has attempted to use this period of imprisonment constructively. He has worked hard and has gained educational qualifications. He completed an Enhanced Thinking Skills course. Low post-course ratings indicated that there was much work still to do in the areas of impulse control, anger management and social skills. He joined a therapeutic community at HMP Grendon in October 2001. Mr Kitto has clearly benefited from the therapeutic input. The Panel notes that recently his risk has been reduced to a D category prisoner and there have been no breaches of trust. When first in prison he was easily provoked and extremely aggressive and had several adjudications, including one for assaulting a prison officer. There has been no recent violence and all drug tests have proved negative. However, he still appears to have some problems with authority figures and has been threatening and controlling. Mr Kitto's excessive alcohol use is an outstanding problem and he has made contact with an alcohol counsellor and an alcohol project that can offer support and advice on release.

"Mr Kitto initially plans to live with his mother on release and then attend the university degree course. The probation reports support parole, particularly as the timing would allow him to re-establish himself in the community before going to university. The Board has some concerns about this plan. Firstly, during therapy Mr Kitto has unlocked painful memories of his childhood, therefore returning to live with his mother, who played a key role in his young life, would seem inappropriate at this difficult time. Secondly, Mr Kitto's university place is conditional on forthcoming exam results. Mr Kitto needs to have a contingency plan in place to cope with failure, especially as rejection has been a trigger for offending behaviour in the past. A psychology report highlights the risk of relapse if family support, alcohol counselling and probation contact are not effective. The Board acknowledges that Mr Kitto has made significant progress, particularly at HMP Grendon, but against this must be weighed (a) the seriousness of the index offence with its potential to endanger life, (b) Mr Kitto's record of violent and destructive offending, (c) evidence of continuing inappropriate attitudes and behaviours. After carefully considering these factors, the Board considers that risk remains, particularly a serious risk of harm, therefore parole is refused. Mr Kitto's ability to control his use of alcohol in the community is as yet untested. Therefore an appropriate license condition is imposed."

11. Miss Stern, who appeared for the Respondent, invited me to consider both the letter from which I have just quoted and the further letter of 4th August 2003 as together constituting the decision. I do so, but in fact the letter of 4th August 2003 does not take matters further as it simply asserts that the Board were not satisfied of an acceptable reduction in risk for the reasons given in the decision letter of 15th May.

12. The Claimant's challenge is directed at a number of passages in the decision letter but they can conveniently be addressed under three heads: First, the conclusions as to Mr Kitto's university place; second, the conclusions as to his return to live with his mother prior to going to university; and third, the wider conclusions as to continuing problems.

13. As to the first, it appears in the context of the concerns that the Board had about the plan by which the Claimant would return to live with his mother. Although I have already recited the relevant part of the decision letter in full, it is appropriate to repeat the relevant passage because the phraseology used by the Parole Board is of significance. The relevant parts read:

"Secondly, Mr Kitto's university place is conditional on forthcoming exam results. Mr Kitto needs to have a contingency plan in place to cope with failure, especially as rejection has been a trigger for offending behaviour in the past. A psychology report highlights the risk of relapse if family support, alcohol counselling and probation contact are not effective."

14. The first and critical point to be made is that, as is now acknowledged, the assertion that Mr Kitto's university place is conditional on forthcoming exam results is simply wrong. It is unnecessary for present purposes to explore how and why that error arose, but what it means is that there was no risk of failure in examination. In my judgment there can be no doubt that in the passage that I have just recited the Parole Board was addressing the consequences that might follow a failure in the examinations if family support, alcohol counselling and probation contact were not effective. Thus the passage is founded on the premise that we now know to be false, namely that the university place was conditional on forthcoming exam results. Miss Stern sought to place the passage in a wider context but I am entirely satisfied that the passage was specifically related to the risk of relapse attendant upon failure in the examinations.

15. In that regard, I am satisfied that the decision is flawed. It means that in arriving at its conclusion as to the balance of risk the Parole Board took account of a risk that did not in fact exist. That would be sufficient for the purposes of this application and must, in my judgment, inevitably lead to the decision by the Parole Board being quashed, but I propose to address, rather more shortly, the other matters relied upon by Mr Blake on behalf of the Claimant.

16. The second challenge that he made was as to the first of the concerns that the Board had about the plan:

"Firstly, during therapy Mr Kitto has unlocked painful memories of his childhood, therefore returning to live with his mother, who played a key role in his young life, would seem inappropriate at this difficult time."

17. Interestingly, in the witness statement from Tia Cockrell, she expressed the view that the Panel were surprised that the issue of whether it was appropriate for the claimant to return to live with his mother was not an issue which had been highlighted by any of the report writers. Whilst it is perhaps understandable that she should express surprise that it had not been highlighted, it was not to be inferred that it was not an issue that had been addressed by the report writers. On the contrary, the only inference properly to be drawn from the reports of the report writers was that there were no continuing concerns in that regard. In fact, it was seen by the report writers as being part of the therapeutic process following release. Accordingly, I am not satisfied that there was any proper basis upon which the Parole Board could properly arrive at the conclusion that it was inappropriate for the Claimant to return to his mother at this stage.

18. The third challenge is directed to the Panel's conclusions that, first, the Claimant still appeared to have problems with authority figures and had been "threatening" and "controlling", and secondly, that there was evidence of continuing inappropriate attitudes and behaviours. With regard to this head of challenge, Miss Stern most helpfully took me to a number of passages in the material before the Board. It is not necessary for me to recite them. Suffice it to say that as to this ground I am satisfied that there was material before the Board upon which they could properly arrive at their conclusions. My concern with regard to these findings is whether the manner in which they were expressed reflected the content of the dictum of the Lord Bingham, then Lord Chief Justice, in Oyston, to which I have already referred. After some hesitation, I have come to the conclusion that the conclusions arrived at by the Parole Board in relation to this head were adequately set out in the decision letter, and it follows, although it is academic given my other findings, that this head of challenge fails. I therefore set aside the decision by the Parole Board and direct that the matter should be reconsidered.

19. Mr Blake, is there any other direction?

20. MR BLAKE: My Lord, no. Plainly, as regards the timetable, it would be helpful that your Lordship knows that the reports are fairly up to date. I would have thought that certainly in my experience of these matters six to eight weeks would allow them to have reports and reconsider.

21. MR JUSTICE OWEN: Yes. Plainly, given his release date, it is important that this matter be dealt with with due expedition. The difficulty is that he is in hospital now. That may put a fly in the ointment. In those circumstances I do not think I can sensibly give any direction as to time table, and I suspect that is what Miss Stern would be saying to me if I had given her the opportunity to do so.

22. MR BLAKE: My Lord, my understanding is, so your Lordship understand the nature of the treatment, he has had an operation and is on crutches. He is not in hospital.

23. MR JUSTICE OWEN: So where is he now? Is he back at Grendon?

24. MR BLAKE: So I understand. I imagine he would be in the terms of his detention.

25. MR JUSTICE OWEN: It may be that his inability may help in the process but I am not persuaded that it is either necessary or appropriate to give those directions, but I am sure that the prison authorities will be mindful of the fact that his release date is not that far off and if this is to have any effect at all then the matter should be dealt with quickly.

26. MR BLAKE: I am grateful for that indication from my Lord. The only other matter is that this is legally funded and I would ask for a full assessment.

27. MR JUSTICE OWEN: Yes, you may have it.

28. MR BLAKE: I am most grateful.

29. MISS STERN: My Lord, I do have an application for leave to appeal your Lordship's judgment. Your Lordship has given judgment on three points. My Lord, on the third point upon which the Defendant succeeded, we would say that the decision letter set out that the main thrust of the decision and was the only matter relied upon in the assessment of risk. Therefore your Lordship's judgment does raise difficult questions for the Board in relation to the extent to which any error on any matter in the decision letter, even if it is expressed not to be determinative, could undermine the decision as a whole. For that reason, my Lord, we do ask for leave to appeal because there is an important issue raised by this case.

30. MR JUSTICE OWEN: I am afraid, Miss Stern, you will not have it from me. You can seek it elsewhere because the critical finding is that the decision as to the risk that flowed from the possibility of failure in the examinations blighted the whole assessment and the weighing of the risk in general.

31. MISS STERN: We are obliged to ask your Lordship, and we have done so.

32. MR JUSTICE OWEN: I am most grateful to you both for your assistance, which has been considerable. Thank you.