Henry v Parole Board

This is a challenge, by way of judicial review, to the refusal of the defendant parole board to transfer the claimant, Mr Henry, a life prisoner, to open conditions. The refusal was made in a decision letter dated 7 October 2010 following an oral hearing.

The principal ground of claim is that the parole board proceeded, or may have proceeded, in ignorance of established facts concerning the matters surrounding Mr Henry's offending which led to his being given his life sentence.

In October 2004 Mr Henry stood trial for three counts of rape against his ex-partner in her premises which were all said to have occurred on 5 June 2004 while their five-year-old daughter was present in the house. That she was present in the house was not in dispute. I can take the key elements of the prosecution case from the summary given by the Court of Appeal when addressing Mr Henry's appeal against sentence. In paragraph 1 of the judgment of the court, Scott Baker LJ referred to the fact that Mr Henry was convicted on 22 October by a majority of ten to two on two counts of rape. The jury was unable to agree on a third count which remained on the file. I pause to say that third count (Count 1) was never taken any further. The life sentence had a minimum term of three years and 225 days.

Paragraph 3 of the judgment of Scott Baker LJ states as follows:

Pausing there, a fair reading of that summary would certainly put what I would describe as the alleged violent precursor events as intertwined with Count 1, on which the jury could not agree. Paragraph 4 of the judgment states as follows:

Paragraph 12 of the judgment recites what the trial judge had said in his summing-up. He had told the jury to look separately at each matter and said there that a lot of the evidence and background covered all three counts while all the first incident, the activities downstairs before anyone either went upstairs to the bedroom, covered all three counts. Then paragraph 14 says this:

At paragraph 28 Scott Baker LJ concluded that although the sentence given by the judge was at the very top end of the bracket for the two offences it was not manifestly excessive. He said that:

It follows from all of this that there was no decision as to the Count 1 offence, and of course a critical part of that offence was the allegation that the daughter actually witnessed its commission. This was not the case for the second and third counts on which Mr Henry was convicted.

I now turn briefly to the trial judge's sentencing remarks. At page 28 of the hearing bundle, just after paragraph C, he said:

At page 29, paragraph D, he then said:

On that basis it is really impossible to conclude that the judge sentenced specifically on the basis that there was violence used towards the victim or, for example, that there were threats with a knife, which had formed part of the precursor events alleged by the prosecution. If the judge was satisfied that there had been such violence and threats, or forcing the woman upstairs with the child in her arms, it is inconceivable that that he would not have mentioned it.

By 2010 Mr Henry had been in prison for some six years and was by then a Category C prisoner. The relevant reports did not recommend release on parole at that stage, but Mr Henry's offender manager, Ms Conte, recommended a move to open conditions in a report produced on 27 November 2009. A report prepared by his probation officer, Ms Christine Andrew, dated 17 November 2009, also recommended a move to open conditions but not release on parole at that stage.

Without at this stage going into detail, these papers showed that in general terms Mr Henry had moved from a position of denying the rapes altogether - he had previously alleged consensual sexual intercourse - to accepting, on Counts 2 and 3, that it was not consensual; however, further work was necessary to address the index offences in detail.

Mr Henry also gave an account of the offences at the oral hearing in front of the parole board prior to the making of its decision.

I now turn directly to what the parole board said in its decision letter of 7 October 2010. At page 192 of the bundle, under section 3, headed "Analysis of Offending" they describe the victim and then Mr Henry going to her home in the early hours of the morning with the intention of visiting their daughter. While he was there he raped her on two occasions against her will. The daughter was present at the time these offences were committed. When passing sentence the judge said he had rarely seen anyone so clearly traumatised as the victim was when interviewed on the first video interview. He stated that he bore in mind the assessment of Mr Henry's risk and that these offences had been committed so soon after his release on licence (which had occurred in March 2004).

In section 4 of the letter the parole board deal with factors increasing or decreasing the risk of re-offending. Halfway through they say:

I interpose to say that it is common ground this last statement is erroneous to the extent that it says that there was a breach of a specific condition not to approach his ex-partner. That condition had itself already been lifted, in order that he could see his daughter.

Under section 5 "Evidence of change during sentence", the letter says:

It seems to me that on a fair reading, the statement "in front of your daughter" must suggest that the index offences were witnessed by the daughter, ie in her view. Of course, that was not the position in relation to Counts 2 and 3. She was asleep in relation to Count 2 and elsewhere in the house on Count 3.

The reason why the parole board may have expressed it in that way may be found if one looks at the underlying OASys report itself dated 17 November 2009 In the risk assessment at page 128 there is a reference to violent threats, punching the victim's arm, pushing her upstairs while she was holding her five-year-old daughter, who was by this time screaming; then it says that once in the bedroom he forced her to lie on the bed and then "raped her "in full view of their child" and then raping her again later before leaving the house. The report then notes that Mr Henry disputed that version, saying he was charged with three counts of rape and only convicted of two, and that the above events occurred on "the rape offence he was not charged with" but left to lie on file (ie Count 1) It goes on to say that "None of information available at present states which rape charge goes with which details so it is difficult to assess what is right and which is wrong. Mr Henry was not convicted of Count 1 and because of this the judge in his remarks stated Mr Henry was not there on the night to rape but overbore her will."

In fact, and it is not in dispute, the actual position is clear. The alleged details concerning the witnessing by the child do relate to Count 1 and they do not relate to Counts 2 and 3.

At page 130, the report says that his daughter was present at the time of the offences "and it appears that she witnessed the proceedings". On the question of legal contact the writer continued:

At page 133, under "Who Is At Risk", the report says "His ex-partner and any future close contacts he may develop. His child in view of the fact that index offences occurred in front of her".

So that is the background to the statement made at page 193 by the parole board.

Certainly it is right to say that the prosecution papers allege that the child saw what was going on and that the victim said not to do it in front of her, and those prosecution papers are set out in the defendant manager's report at pages 94 and 95, but there is no finding by a jury to that effect.

One then returns to the decision letter. Section 6 is the panel's assessment of the current risk of re-offending. It refers first to the Domestic Assault Risk/Need Assessment ("DARNA") report which had been prepared Ms Louise Dybell, a forensic psychologist in January 2009). She did not give evidence before the parole board. However, Ms Claire Browne, a trainee forensic psychologist, did. She had written an addendum to the DARAN report, dated 13 October 2009. She said in evidence that she still did not consider that Mr Henry had given a full account of events surrounding index offences and that this the lack of a full account was ongoing. The parole board go on to say this:

Ms Brown's addendum report (at pages 80 to 81) dealt with factual concerns highlighted by Mr Henry over the contents of the DARNA report. He took issue with paragraph 1.4 thereof. This was in much the same terms as that later appearing in the OASys report (see paragraph 20 above), referring to him orally and vaginally raping the victim in view of their daughter. He said that he had not been found guilty of "this alleged offence" which was Count 1. While this was recorded by Ms Browne it is not clear to what extent to which she accepted that explanation.

A further concern expressed in the parole board's letter was that the author of the DARNA report had noted that it was felt that Mr Henry had used aspects of the course to further justify his behaviour and it was said that Mr Henry did not disagree with that view. Ms Browne, the psychologist, in her evidence said there was not enough information to be clear whether the risk had been reduced or not. The panel went on to say that:

In the next paragraph the panel stated that they felt, as stated above, that they were not satisfied on Mr Henry's own evidence that he had yet been completely open with the, professionals so they could gauge whether further therapeutic work was required. It may not be entirely his fault; it would depend on how deeply questioned he had been in the past.

Finally, under section 7:

There is a problem with the reasoning in the decision letter in my judgment. First of all, at the top of page 195 there is a reference as to what happened downstairs, said to be before any of the offences. But at least in the details that I have referred to, ie using force against the victim, threat with a knife, taking her upstairs and things of that kind, there is simply no clear evidence of proof about that. It does not appear that the trial judge proceeded on that basis. His approach rather looks as if they were taken into account simply as part of the Count 1 matter, as the Court of Appeal appears to have seen them. But it is not clear at all whether the parole board were looking at it in that way - or whether they thought that all of the precursor events and detail had been established and the concern was now that he had not come clean about the addressing them, or had been vague in his own account. Then, and much more importantly, one comes to the second allegation of Mr Henry's vagueness – namely as to whether the daughter was awake and witnessed the rapes or one of them or whether she was asleep throughout the offences. But the fact is that it was accepted that she was asleep although present in relation to Count 2 and somewhere else in the house in relation to Count 3.

The reference in the decision letter to witnessing the rapes (or one of them) could only be directed to the proven rapes, the subject-matter of Counts 2 and 3. The clear impression is that the parole board thought that there was still somehow a live issue on Counts 2 and 3 as to whether the child witnessed them. Or perhaps they even thought that somehow the prosecution had actually established that matter. There is some support for that interpretation given the statement they made at the top of page 193 in summary of the OASys report. Against the background of either proof, or at least a real live issue as to whether the child witnessed them or not, is the serious concern expressed that he had not properly addressed that question.

The decision letter also makes a reference to inconsistencies. It is not actually clear what the inconsistencies are, because the only detail referred to appears in the context of the vagueness allegation. It is said on behalf of the parole board that it was aware that Mr Henry only committed two offences. That is obviously right, as one can see from the reference to the two occasions at page 192. It is also said, simply by analysis of this letter and prior documents that it must follow that they were aware that Count 1 was not proved and that the child witness element referred only to Count 1. I simply cannot be sure about that, first because it certainly does not emerge from the letter and second because there was no evidence adduced before me from the parole board itself as to what they thought or were aware of.

That there should be confusion about this situation is not altogether implausible given that, for example, in an earlier report (and I refer here to one dated 25 September 2008 - see page 45 of the bundle) it is said that two offences of rape were committed in the victim's home and were witnessed by Mr Henry's five-year-old daughter. The offences were accompanied by threats and use of force. That is not the case. I have already explained also that it is not clear from Ms Browne's report (page 81, paragraph 1.4) whether she actually accepted the account given by Mr Henry in relation to Count 1 and those matters.

It seems to me on a fair reading of the decision letter that the apparent lack of engagement on the part of Mr Henry, first as to precursor events but more significantly in relation to the question of the witnessing by the child, were regarded by the parole board a serious matter. I have already recited other parts of the decision, including a concern about the required openness in relation to the index offences and the need for a full and clear account of what took place and the concluding remarks in section 7.

The decision letter was challenged in a letter of claim from his solicitors which is at page 201, dated 15 December 2010. That does not appear to have received an answer, but there was a further letter from Mr Henry himself dated 7 January 2011. On 11 January 2011, the parole board responded. Their letter is of some interest because at page 204 they go back to referring to their comments about inconsistency and vagueness and after the words "inconsistent and vague" what they say is "you could not clearly state whether your daughter had witnessed the rapes or not". That seems to be the core element of the inconsistency and vagueness allegations. Then, at the bottom of the page, they answered submissions that the panel had "given undue weight to count 1 of the offences". As Mr Thyne for the parole board realistically accepted, this only could only be a reference to a charge made by Mr Henry that it had given undue weight to the circumstances said to have formed the basis of Count 1. The parole board denied that charge, but in so denying, did not elucidate what it understood the position to be about the Count 1 matters. Rather it said that it had considered, as against that, all sorts of other matters including improvements of behaviour etc. That does not lead to any great confidence that the parole board really understood the point that was being made at that stage. Certainly this response gives no clear detail as to exactly what it understood the position to have been, at least not in any helpful way.

Before going into any further detail I remind myself of the relevant legal principles. Of course I accept the general proposition enunciated by a number of cases that this court should not lightly interfere with a judgment made by the parole board on the question of risk. They are in a far better position to undertake that exercise than this court, and where on the face of it the decision appears to be rational then the court should not interfere. But that, however, does not deal with the particular matter alleged here, which is that the parole board has proceeded, or at least may have proceeded, on the basis of a mistake of fact which itself was material. That is the context for the claim here. In that regard I refer to the case of E v SSHD [2004] EWCA Civ 49 and paragraph 66 of the judgment of the Court of Appeal given here on behalf the court by Carnwath LJ. At paragraph 66 he says this:

What is said on behalf of Mr Henry here is, first of all, there was a dispute as existing fact. The principal mistake was that Mr Henry was not proved to have committed the act of rape which was actually witnessed by a child or, to put it in a different way, the mistake that there was a live or a real issue as to whether a child witnessed either of the offences of rape of which he was convicted on Count 2. Secondly, less importantly but still of some significance, there was a mistake as to whether it was in fact proved that all the elements of the violent precursor to the rapes had been proved.

The next requirement is that the underlying fact or evidence must be established. As to this, it is clear that Mr Henry was not convicted of Count 1 which was the only count alleging witnessing by the child, and there was no live issue of witnessing in relation to Counts 2 and 3. Secondly, the detailed allegations in relation to the precursor events were not proved against him.

It must then be shown that Mr Henry should not himself be responsible for the mistake. That is not suggested here.

Finally, the mistake must have played a material though not necessarily decisive part in the tribunal's reasoning. I will come back to that below.

What is said here by Mr Jagadesham is that the parole board can question a prisoner in the position of Mr Henry on relevant events, although, as is accepted by the parole board, that that would not go so far as to questioning him about an actual rape where there was no conviction at all. The parole board could look at earlier events, for example to try and understand what he claimed the reasoning behind the rapes were, which is obviously an important matter. That could include looking at precursor events, but then it would be of particular importance to understand the correct starting point, and if they were to view the precursor events as being proved in some way then that would be an incorrect starting point. On any view, there would have been incorrect starting point by assuming that the question of witnessing by the child was a live issue. In this regard it is important in my judgment to recite what the parole board themselves have accepted in their own summary grounds of defence. At page 213, what is said is this:

That leaves no doubt as to the parole board position in relation to this litigation, that the precursor events were part and parcel of Count 1. Reliance has been placed on cases like Alvey v Parole Board EWCA 311, 7 February 2008, where it is said that it did not always have to be shown by reference to something explicit in the decision letter that the parole board had taken a feature into account - because it may be very apparent from the preceding papers. That is what happened in that case where the nub of the matter was uncontroversially stated in the papers. There was no argument about it and the parole board could be assumed to have taken the point on board, even though it did not expressly say so.

The position here is very different because of the confusion in relation to the precursor matters and the question of witnessing and the suggestion, for example in the OASys report, that it was shown that the child had witnessed it. So the decision in Alvey cannot assist here in terms of what the parole board really understood to be the case.

Dealing with the matters that were raised specifically by Mr Thyne in his very helpful submissions, he referred me to the sentencing remarks of the judge. I have already set them out. It is right that the trial judge, for example, referred to the degree of trauma which he had rarely seen before on the part of the victim and there was a reference to threats, but none of that shows that he accepted the entire precursor events, and certainly none of his remarks show that he accepted in any shape or form that the child witnessed one or more rapes. Mr Thyne then said that the Court of Appeal and trial judge clearly took the view that these were serious offences anyway. That is obviously right, but fails to deal with the more difficult questions of precursor violence and incidents and the question of witnessing, which cannot be ignored and indeed are very specific aggravating factors. References to witnessing or that kind of violence is simply not in the sentencing remarks. It cannot be said that those are not important differences. Indeed as Mr Thyne is bound to accept, whether the child was awake and witnessed the rape or was asleep could make "a huge difference", to use his words. As I have already indicated, the Court of Appeal took the view that the sentence would have been greater had Count 1 been proved and there would have been no question of the life sentence not being appropriate. It would have been inevitable, in their view. Although the offences of which Mr Henry were committed were undoubtedly very serious, one cannot ignore the importance that appears to have been placed by the parole board on his vagueness in relation to what appear to be the Count 1 matters.

Mr Thyne then said that the reference by the parole board to vagueness about what happened downstairs is innocuous because that simply deals with precursor matters, but as I have already indicated, it is not quite that simple because of the way in which those appear to have been intertwined with the Count 1 allegations which were not proved. I have already given the references from the trial judge and the Court of Appeal about all of that.

Mr Thyne also points to the fact that the parole board heard from Mr Henry, as indeed they did, but that does not help on what their true understanding of the Count 1 position was. If they had made a mistake about those matters, then they may be bound to take the view that any vagueness on his part is that much more serious.

Mr Thyne also said that the parole board were entitled to explore background matters, and as I have said, to some extent obviously they are, but again that does not assist when there appears to have been this mistaken backdrop. If the parole board thought, or may have thought, that the witnessing Counts 2 and 3 was either proved or a live issue that was an important backdrop. It could make a difference.

For all of those reasons therefore, in my judgment the first, second and third limbs of the mistake test set out in paragraph 66 of the case of E are made out here. I do not have to be satisfied that the parole board definitely did make a mistake. It would be sufficient if there was a real possibility that they did. In my judgment the decision letter certainly indicates a real possibility and I would have thought a probability.

I then have to deal with whether the mistake was itself material. Mr Thyne here says first that in any event Mr Henry had given his own account and certainly this was referred to in Ms Browne's report, page 80-81. No doubt he gave his own account at the tribunal as well, but again, how that account was to be dealt with depends on the backdrop and the mistake. So the fact that he gave his own account cannot in my view make the mistake immaterial. Mr Thyne then says there are other elements of risk which the parole board were perfectly entitled to consider. He refers to a number of them, namely the fact that the offence was committed against the partner so soon after he had been released on licence for offences, again in relation to the partner; the judge's sentencing remarks that he did make; the other elements of the risk assessment; the fact that Mr Henry tried to justify his behaviour in the past, and the undoubted presence in the house of a child.

I see all of that, but I am unable to accept because of those factors the mistake here was rendered immaterial, and that is plain from the emphasis which the parole board placed on the lack of the required openness on the part of Mr Henry and the context in which they found (top of page 194) that such openness had not been displayed but instead there had been vagueness.

For all those reasons, therefore, I am quite satisfied that the mistake which may have been made was material and that is sufficient for me to conclude that this decision is correctly challenged and should be quashed. It follows, obviously, that the parole board will have to reconsider the matter, no doubt with a fresh oral hearing. Having done that it may reach the same conclusion, but I cannot be so sure that it inevitably will that I should exercise my discretion not to quash this decision. Therefore is the conclusion which I reach.

As far as the second ground is concerned, I adverted to this briefly earlier on. This was that the licence condition that he should not contact his former partner was no longer in force at the date of the offences. That is accepted fact. It is an error on the part of the parole board, but I would accept the contention of Mr Thyne that if one was only dealing with that ground it would not be sufficient to persuade a court that it was material so that it should quash the decision. This is because there remained the fact of the breach of the licence and the fact that the prior offences were committed against this very victim in any event. So there was an error, but it does not affect the position. Of course, in relation to any reconsideration, the parole board will now have to proceed on the basis of the true facts in relation to the licence condition and deliberate accordingly.

I thank counsel very much for their helpful oral and written submissions and perhaps they can address me on any post-judgment matters.