Practice and Procedure


PUBLISHED May 8, 2003

The parole board had erred by failing to consider the judgment of the Court of Appeal and the reports of two medical experts when considering the claimant for early release but it had remedied its own defect by a later consideration of the material and it was therefore inappropriate that its decision should be quashed.Application for permission to apply for and, in the event, part application for permission for judicial review of the decisions of the Parole Board ('the Board') on 16 January 2003 and 25 February 2003 to refuse to grant early release on licence to the claimant ('AM'). AM was a farmer living alone who had shot two burglars who had attempted to burgle his farm. One burglar died and the other was injured. AM was convicted of murder and wounding with intent despite his case of self-defence. At the Court of Appeal, the murder conviction was reduced to manslaughter on the grounds of diminished responsibility following consideration of medical reports by two experts. AM was re-sentenced with a release date of 23 July 2003. By virtue of the Criminal Justice Act 1991, AM became eligible for early release on licence after having served half his sentence. By its decision of 16 January 2003 ('the first decision'), the Board refused to release AM on the basis that: (a) he had failed to show any remorse; (b) he had been involved in other incidents involving the inappropriate use of firearms prior to the incident leading to his conviction; (c) the media attention that his case had received tended to support his views that he had done nothing wrong; (d) AM was equivocal about compliance with proposed release conditions; and (e) AM therefore posed a risk of further offending which was not manageable in the community. AM's solicitors then began a series of correspondence with the Board during which they contended that the Board's failure to consider the Court of Appeal's judgment and the expert medical reports that were considered within the judgment ('the material') rendered the first decision unfair. The Board was bound to take into account the nature and circumstances of the offence for which AM had been convicted but had considered the original conviction for murder rather than the later conviction for manslaughter on the grounds of diminished responsibility. By its decision of 25 February 2003 ('the second decision'), and after considering the material, the Board maintained that even if it had considered the material in reaching its first decision, that decision would have been the same. On the present application AM argued that: (i) the failure to consider the material when reaching the first decision was an error of law; (ii) that error was not vitiated by the Board's later consideration of the material because, prior to the second decision being given, only two members of the Board had responded to the question as to whether the material would have made a difference to the first decision. The third member of the Board had only intimated that the material would have made no difference after the decision had been given; (iii) the reality of the reasoning of the Board's decision was that it was based solely on the ground of AM's refusal to show remorse or admit responsibility and sole reliance on such a ground was contrary to authority; (iv) AM was not responsible for the media interest in his case; and (v) the Board had failed to take into account his personal circumstances.HELD: (1) The Board's failure to consider the material in reaching the first decision was an error of law and permission to apply for judicial review would be granted on that ground. The material ought to have been included in the dossier of information to be considered and the Board should have realised that the situation was different to that following AM's original conviction. (2) However, the first decision would not be quashed as the Board had remedied its procedural defect by its later consideration of the material. (3) If that was wrong, the Court would not have made a quashing order in any event. There was nothing in the material that could have made a difference to the conclusion that had been reached. (4) The challenge to the assessment of AM's future risk to the public was unsustainable. Probation officers had provided reports that indicated a high future risk and the court was entitled to rely on those reports. (5) P had been entitled to rely on AM's lack of remorse. The authorities cited concerned cases where those convicted had continued to maintain their innocence whereas AM had always admitted the offence but continued to assert that he had been entitled to do that which the law proscribed. (6) Media interest in AM's case was a risk incurred when AM had taken the law into his own hands. (7) AM's personal circumstances had been properly considered. There had been no visit to his home but that was not necessary as he lived alone and an assessment of his relationship with the local community had been carried out.Judgment accordingly.

[2003] EWHC 1512 (Admin)