Martin, R (on the application of) v Parole Board

A Parole Board must obtain and consider material plainly relevant to the nature and circumstances of the offence, particularly where an appellate court has substituted a conviction and sentence based on psychiatric evidence. Failure to do so is a legal error. The error may nevertheless be cured by a conscientious later consideration of the material, or relief may be refused where the court is satisfied that it could not have affected the assessment of future risk. In assessing parole risk, the Board may attach substantial weight to a prisoner’s continuing belief that he was entitled to commit the conduct constituting the offence, together with refusal to undertake offence-focused work. The Board is not required to treat personal circumstances as determinative merely because they are not expressly mentioned in its reasons.

The claimant had originally been convicted of murder and wounding with intent. The Court of Appeal substituted manslaughter on the ground of diminished responsibility and reduced the sentence. When considering parole, the Parole Board had before it material from the original proceedings but not the Court of Appeal’s judgment or the psychiatric and psychological reports supporting the substituted conviction.

The claimant challenged the Board’s refusal of parole and its refusal to reconsider. The principal issue was whether the Board had acted unlawfully by proceeding without the appellate material, and whether that error required the decision to be quashed. Further challenges concerned risk assessment, reliance on lack of remorse, media interest, and personal circumstances.

1. Ground 1. The Parole Board erred in law by failing to obtain and consider the Court of Appeal’s judgment and the reports of Dr Joseph and Ms Craissati. Those documents were plainly relevant because the claimant was serving a sentence for manslaughter by reason of diminished responsibility, rather than the offence and sentence imposed at trial. The Board had an independent duty to consider whether further information was required, as recognised in R v Parole Board, ex parte Gerald Oldfield Davies [1996] EWHC Admin 279.
2. The error did not justify a quashing order. After the decision, the panel members conscientiously considered the missing reports and unanimously concluded that they would not have affected the assessment of future risk. That later consideration was not procedurally perfect, but it was not unfair and remedied the initial error.
3. Even if the error had not been remedied, relief would have been refused in the court’s discretion. The appellate judgment and psychiatric reports did not contain material capable of producing a different conclusion on future risk. The sentencing remarks did not express a favourable view about early parole.
4. Risk and remorse. The Board was entitled to rely on the probation officers’ assessments. The claimant’s continuing acceptance that he had shot the intruders, coupled with his belief that he was entitled to act as he did, was materially different from a prisoner who denied committing the offence. The principles in Zulfikar and Oyston did not prevent the Board from attaching substantial weight to that attitude, particularly alongside previous firearm incidents and refusal to undertake offence-focused work.
5. The remaining grounds were unarguable. The Board was entitled to take account of the possibility that media attention reinforced the claimant’s views, and the absence of express reference to age, health, family and community ties did not establish that those matters had been ignored.
6. Permission was granted on ground 1 and the issue was determined substantively, but the claim was dismissed. There was no order as to costs. Permission to appeal was refused.

• Court of Appeal (Criminal Division): The murder conviction was quashed, manslaughter substituted on the ground of diminished responsibility, and the sentences were reduced. The judgment is cited as [2001] EWCA Crim 2245.
• High Court (Administrative Court): Permission was granted on one judicial-review ground, but the claim was dismissed and permission to appeal was refused.