Vigrass, R (on the application of) v Parole Board of England and Wales

The claimant, Gareth John Vigrass, is currently serving a life sentence imposed on 6^th September 2002 as a result of his conviction on a charge of wounding with intent. The minimum term was set at four years.

The claimant was released on licence on 9^th March 2016, but on 27^th May 2016 was recalled and his licence revoked, following his arrest for an assault. On 14^th July 2016 the claimant pleaded guilty to an offence of assault by beating.

On 15^th July 2016 the Secretary of State for Justice referred the claimant's case to the Parole Board pursuant to s.32 of the Crime (Sentences) Act 1997:

The Secretary of State's notice of referral stated as follows:

The Parole Board considered the claimant's case at a hearing on 14^th December 2016. The Parole Board's decision is set out in a letter dated 19^th December 2016. The Board decided against release. It addressed that issue in its reasons at paragraph 8 of the decision letter. The claimant does not challenge that decision.

However, the decision letter did not address the matter put to it by paragraph 3 of the Secretary of State for Justice's notice of referral, that is to say whether the claimant was ready to be moved to open prison conditions. The question of transfer to open conditions is referred to at paragraph 1.2 of the decision letter as a matter which the Parole Board had been asked to address, but that issue is not otherwise referred to in the decision letter.

The claimant's claim in these proceedings is that the Parole Board was wrong not to address whether or not he should be transferred to open conditions. The claimant seeks a quashing order directed to the decision of 19^th December 2016.

The Parole Board filed an acknowledgment of service, but only to the effect that in this case, as in all others in which a decision of it is challenged, the Parole Board adopts a "neutral position". This apart, the Acknowledgment of Service did no more than note that the claim form had been issued on 20^th June 2016, outside the required three month period for commencement of proceedings for judicial review.

The question of whether the claimant's challenge had been commenced in time and if not, whether it should nevertheless be permitted to proceed was addressed by John Cavanagh QC, Deputy High Court Judge, when he considered the application for permission to apply for judicial review on the papers in an order dated 2^nd October 2017. He granted permission to apply for judicial review. He also extended time for commencement of the claim, taking into account the merits of the claim and also the matters referred to by the claimant's solicitor, Mr Martin Bridger, in the witness statement served with the claim form.

In the proceedings before me today, the claimant is represented by Mr Jude Bunting of counsel. The Parole Board is not represented and as foreshadowed in the Acknowledgment of Service, has not put in any document or evidence or submission in defence of the claim.

That being so, the position in terms of my decision on liability is straightforward. Whether or not the claimant was ready to be transferred to open conditions is a matter that the Secretary of State for Justice referred to the Parole Board. The Parole Board realised that issue was within the scope of the referral, but, I suspect through oversight, did not address that issue in the course of its decision letter. That being so, the Parole Board fell into error by failing to comply with the Secretary of State for Justice's request for an opinion on whether the claimant was ready to move to open conditions.

In his skeleton argument for this hearing, Mr Bunting very fairly seeks to address arguments that might be put against him, most obviously an argument to the effect that given the reasons stated by the Parole Board in the course of reaching their conclusion refusing to recommend the claimant's release on licence, the same reasons would also compel the conclusion that the claimant was not suitable for transfer to open conditions.

Mr Bunting says in his skeleton argument, and I agree, that any such argument would be a non sequitur. That must be right. Whether or not the claimant is suitable for transfer to open conditions should be addressed in terms by the Parole Board, which is after all the expert body, rather than by this court by some process of inference.

For these reasons, this application for judicial review must succeed.

I now turn to the question of relief. As I said, in the claim form the claimant sought an order quashing the Parole Board's decision of 19^th December 2016. I consider that a quashing order would be inappropriate so far as the Parole Board in the decision letter addresses and reaches a conclusion on whether or not the claimant should be released on licence (which was one part of the matters referred to it by the Secretary of State for Justice). There is no challenge to that decision. Therefore, there is no reason to quash it.

The better course of action in this case, which in the course of submissions today Mr Bunting accepted, is to make a mandatory order directed to the Parole Board requiring it to produce a further decision letter addressing the point set out at paragraph 3 of the Secretary of State for Justice's referral letter, namely:

For the avoidance of doubt, I leave it to the Parole Board to determine what procedure should be adopted for the purpose of complying with the mandatory order, and in particular whether further representations should be sought from the claimant and if so, whether those representations should be sought from him in writing or in the course of a further hearing.