HC Deb 07 September 2004 vol 424 cc227-34WH 12.30 pm
Mr. Gerald Howarth (Aldershot) (Con)

I am very grateful for the opportunity to raise a case in my constituency in which I have taken a long-standing interest and which has caused me a fair amount of grief in the last few years.

I say at the outset that I do not believe there to be any sub judice issue at stake in the case, since all the appeal processes have been exhausted and what remains is a question for the Parole Board and related activities. I do not believe either that there is any case of the House trespassing on the courts, whether or not the courts pay attention to the possibility of trespassing on our concerns, but that is a matter for another debate, which I suspect would take even longer than this one.

The background to the case is that on 1 August 1992, my constituent Mark Day, then a 19-year-old of previously good character, was out with a group of friends in Kingston upon Thames. Although he had been drinking, he was not drunk; indeed, later that evening he passed a breathalyser test. After the bars had closed, he and his friends, whom he had known for only a short time—they were not of long standing—joined a queue at a burger bar. There was an altercation between Mark and a Mr. Patrick French, who was goading Mark and remarking on his youthful appearance. Mark punched Mr. French, but as an act of self defence, as he feared that he was going to be hit by Mr. French. It is unclear exactly what happened next, but it appears that others in the group attacked Mr. French, who was tragically killed in the ensuing melée.

Mark has never denied being involved, but has always maintained that his involvement was minimal and almost accidental, and that at the time of the fatal blow he was in a fight with another man, Damien Chapman. On 26 March 1993, Mark and two others were convicted of murder on the basis of common enterprise, although to this day he protests that it was not he who inflicted the fatal blow. Indeed, I am told that his co-accused, Scott Steer, admitted to a prison officer that he was responsible, and the appeal court took the view that the trial jury recognised the strong possibility that it was Steer who inflicted the fatal blow". Mark was sentenced to life imprisonment, with an initial tariff of 12 years, subsequently reduced to 11 years, although his appeal against conviction has been unsuccessful; it was rejected most recently in April last year. Those are the bare facts of the case in which a brawl lasting a few minutes cost the life of one man and deprived three others of their liberty, when they should have been able to enjoy the early years of adulthood.

However, Mark Day's difficulties have been compounded by astonishingly incompetent legal representation, which reflects extremely badly on the profession. On the night of the tragic incident, the duty solicitor who represented Mark was Gerald Bate. He considered that he was not sufficiently experienced to handle a murder case and sold the case to another firm of solicitors on a fee-share and commission basis. However, for the next six months, Bate fronted the case, and Mark's parents had no idea that he was merely a cipher acting as undeclared agent for a firm of solicitors. During the relevant period, the relationship between Bate and the firm. Whitehead Devereux, ended in acrimony. It is argued that Mark's interests were severely damaged during the identification parades and the subsequent magistrates court and committal proceedings when Bate was charged with the responsibility for Mark's case, not because he was the right man for the job but because that was the financial deal between the lawyers.

In addition to that disastrous and unprofessional arrangement, the solicitors failed to instruct a QC in good time, despite the Day family's increasingly desperate pleas. In the end, Mr. Roy Amlot, an eminent Queen's Counsel and later chairman of the Bar, was instructed just four days before the trial began in March 1993, and he had only one conference with Mark. Furthermore, he was called away to another case during the trial, leaving a junior to hold the fort. Unbelievably, Mr. Amlot recommended that Mark should not give evidence in his own defence—we all know what view we take of people who are not prepared to speak up in their own defence.

I am setting all this out for the Minister's benefit, so that he can understand why I have been pressing this case for a number of years. What happened on that August night 12 years ago was a tragedy for Patrick French's family, but it was also, albeit to a much lesser degree, something of a tragedy for the Day family, and Mark's problems have been compounded by the way in which the Home Office has subsequently handled his case.

According to the rules as I understand them, on the basis of a tariff of 11 years, Mark should have been eligible for parole in August last year. Most lifers have to spend time in an open prison before their release, so the normal practice is that the process of case review begins some three to three and a half years before the tariff expiry date. In theory, that review considers only the issue of release, but in reality it concentrates on a possible transfer to an open prison. If the prisoner is successful, he will have his second Parole Board review at his tariff expiry point and, if successful there, will be released at that date.

In Mark's case, that implies a first review in August 2000. However, although reports were prepared, the review simply never took place, as the Home Office has admitted. As a consequence, a move to an open prison did not take place either. Altogether, that was a significant error that could well have cost Mark years of liberty to which he was otherwise entitled.

The first Parole Board hearing did not take place until November 2003, when Mark was still being held at Kingston prison, near Portsmouth. It was arguably more than three years later than it should have been and certainly three months after the tariff expiry date. The board held that Mark's behaviour in prison had generally been "good" and that he had worked hard and well in the gardens in the last 5 years". As an aside, let me say that reference to Mark's use of drugs illustrates how the Prison Service has failed to deal with that issue—here was a young man whose introduction to the world of drugs appears to have come from within a Government-run institution.

The panel was critical of Mark's alleged failure to accept his guilt, suggesting that his preoccupation with his appeal in the early years prevented him from doing offence-related work, but given the background to the case, we must ask which one of us, in similar circumstances, would not have sought to exhaust every possible avenue to secure our freedom from incarceration.

The panel concluded that until Mark had

addressed the issues outstanding the risk remains too great for release. The panel considered that the work remaining to be done could be undertaken in what the panel would hope would be a relatively short time in open conditions". Of course, had the Home Office followed the standard procedure, the release planning process would have begun in 2000–01, but Mark was still in a category B closed prison. Did the Home Office then move to make up for lost time? No. Mr. Simon Alderman, senior executive officer in the relevant department, accepted in principle that Mark should be transferred to open conditions, but such a move would he subject to Mark being reassessed and, if necessary, completing the reasoning and rehabilitation course in closed conditions. However, such a course was no longer available at Kingston prison, because the Home Secretary had scrapped it to save money.

Following the Parole Board review last November, the Home Office agreed to move Mark the following month, but again there was a delay and Mark was not moved to Standford Hill open prison on the Isle of Sheppey until 27 May this year, less than a month before he secured a successful outcome to his application for judicial review.

At last, progress appears to be being made, and I thank the Minister for the part that I believe he has played in securing it. Mark seems to be doing extremely well. He is working outside the prison. He has been on escorted town visits and, recently, on an unescorted visit. He is due to have his first home visit shortly, some four months earlier than originally planned. Most importantly, he has completed the enhanced thinking skills course, the assessment of which is expected soon.

This is all good news at last, but why has it taken endless representations by me, and finally a judicial review, to secure that to which Mark Day is entitled in law? Why was Mark denied his first Parole Board review at the required point? Why did the lifer review and recall section of the Home Office not seek answers from the Kingston prison governor for that failure in the process? Why did the Home Secretary force Mark to seek judicial review knowing that the Home Office had failed to provide for a timely Parole Board review, all of which constituted an additional burden on the taxpayer? Finally, why was Mark's transfer to open prison delayed by six months, despite the recommendation of the Parole Board and Mr. Alderman's acceptance of the need to move him?

The sense of injustice in this case stretches back all the 12 years. Mark got a raw deal from the legal profession at the outset, as I have explained. That injustice has been exacerbated by the fact that Scott Steer, who is generally reckoned to have inflicted the fatal blow, has been at liberty for two years, whereas the young man whose behaviour in prison a Home Office official described in a preliminary review as exemplary, blemished only by a few breaches of discipline early in sentence has been held in custody and remains there today. The Minister tells me that he cannot comment on the Parole Board's handling of another case, and I understand the niceties of that, but the fact remains that Steer and Day were both convicted on the basis of common enterprise; they were both involved and the court appears to have taken the view that, without being specific as to who inflicted the fatal blow, the three—there was a third party—were guilty of bringing about the death of Patrick French. If they were convicted on the basis of common enterprise, why has Steer been at liberty for two years while Day, with his unblemished record and previous lack of any bad behaviour, is still languishing in jail?

Mark comes from a stable home. He had no previous offending history, save for a possible caution. He has remarkably forbearing, loving and patient parents and he has the offer of a job—possibly more than one job— awaiting him on his release. The Day family and I look to the Minister to answer the questions that I have posed but, perhaps more importantly, I also request him to do all in his power to ensure that Mark's preparation for release continues to be expedited in the way that it has been in recent weeks.

Tragically, nothing can bring back Patrick French, but no purpose is served in delaying the rehabilitation into society of a young man who has more than paid the price for his part in that tragedy.

12.43 pm
The Parliamentary Under-Secretary of State for the Home Department (Paul Goggins)

I congratulate the hon. Member for Aldershot (Mr. Howarth) on securing this debate. He began by explaining that he has assiduously followed the case over the years; from the correspondence and parliamentary questions tabled in his name that I have seen, I can confirm that.

I am sure that the hon. Gentleman will understand that I am not able to comment on the competence or otherwise of the lawyers who acted in this case. However, I can agree that when an offence takes place there are a number of victims. Tragically, in this case the victim was killed. The family of that victim will also have been affected. I agree, too, that the families of the offenders are affected. The hon. Gentleman spoke about the impact on one such family, and I am sure that they gain some confidence from the fact that, as their MP, the hon. Gentleman comes to the House and raises these issues on their behalf.

It may help if I set my remarks in the context of how Mr. Day came to be serving a life sentence. I should first underline that my starting point has to be that the convictions in this case are safe. The finding of the court was that in the early hours of 1 August 1992 Mr. French, a young man of only 22, and his friend Mr. Chapman stopped to buy hamburgers at a stall. Without any apparent provocation, they were set upon by Mark Day and his friend Scott Steer, who had both been drinking. Mr. Day and Mr. Steer punched and kicked Mr. French repeatedly, even when he was on the ground, and Mr. Steer kicked him in the head. Mr. French died as a result of the attack, and in March 1993 Mr. Day and Mr. Steer were convicted of murder. They both received a life sentence.

Each life sentence includes a period intended to satisfy the needs of punishment and deterrence. That period is commonly known as the tariff, and it is the minimum term that the lifer must spend in prison. Except in the most exceptional compassionate circumstances, he or she cannot be released before the tariff period is completed. Once a lifer has served the tariff period, however, there is still no automatic expectation that they will be released. The legislation makes it clear that public safety must come first, and lifers may not be released until it is considered safe for them to rejoin the wider community.

These days, as the hon. Gentleman will know, the Home Secretary no longer makes such decisions. Indeed, to ensure objectivity and independence, and to meet the requirements of article 5 of the European convention on human rights, decisions about the release of lifers are now made by the Parole Board. However, it is not entitled to release a lifer unless it is satisfied that confining him or her is no longer necessary for the protection of the public. In that respect, case law in the European Court of Human Rights makes it clear that what must be taken into account is the risk to life and limb posed by the individual lifer. The emphasis on that risk is important because the Parole Board cannot refuse to release a lifer into the community for a trivial reason.

To determine the risk posed by the lifer, the Parole Board will rightly look at several issues, including the progress that he or she has made in addressing the factors judged relevant to his or her risk. Therefore, two co-defendants, who are given life sentences for the same offence on the same day, may quite easily and understandably serve different periods in custody. First, they may receive different tariffs. Secondly, and just as importantly, they may make progress towards rehabilitation at different rates. In the cases of Mr. Day and Mr. Steer, both those factors have come into play and help to explain why Mr. Steer is on licence while Mr. Day is still in custody.

First, after exhausting all the avenues in the tariff-setting process, Mr. Day was given a tariff of 11 years, which expired in August 2003, while Mr. Steer's tariff was 10 years and expired in August 2002. Secondly, the Parole Board decided that Mr. Steer had made sufficient progress in addressing his risk by the expiry of his tariff and that it was no longer necessary to confine him. He was therefore released in October 2002. So the tariff was different, and the Parole Board's risk assessment was that it was safe to release Mr. Steer when his tariff expired.

Mr. Howarth

The Minister may not have this information to hand, but can he say when the Parole Board review process was initiated in respect of Mr. Steer? Was it in the three years before the expiry of the tariff?

Paul Goggins

I am not able to confirm that now, but I will be happy to write to the hon. Gentleman if I am able to disclose that information, although there may be issues of confidentiality.

On 3 November 2003 the Parole Board considered Mr. Day's case. The hon. Gentleman asked why that review was not held sooner. I understand that there are two reasons. There is no disguising the fact that there was an administrative error on the part of the Prison Service, but the situation can also be partly explained by the fact that Mr. Day did not wish to engage in some of the offence-related work or the sentence planning that would be required of him during his prison sentence. He was reluctant to engage in that while his appeal was outstanding. As I am sure the hon. Gentleman appreciates, that work is important in helping to inform the Parole Board on the degree to which the individual has been able to reduce their risk.

In any event, despite what may have appeared to have been a delay, when the review was held and the Parole Board had given the matter careful consideration, it decided that it was not entitled to direct Mr. Day's release, because there was more work to be done to address his particular risk factors. In particular, it concluded that he needed to do more to develop his understanding of those factors that may increase his risk of violence, and that he needed to increase his understanding of the effect of his behaviour on his victim's family. The Parole Board did, however, recommend that he be transferred to open conditions to complete that work.

I should add here, and it is important to convey this point to the hon. Gentleman, that the decision to transfer a life sentence prisoner to open conditions is entirely a matter for the Secretary of State; indeed, that responsibility has been confirmed by the courts. The Secretary of State, and the officials who act for him, accord a great deal of weight to the Parole Board's recommendation for transfer to open conditions, but in the end it is his decision.

In this case, officials in the then lifer unit of the Prison Service, acting on behalf of the Secretary of State, decided that further assessment was needed to determine how best Mr. Day should address the risk factors that had been identified. Bearing that in mind, the finding of the Parole Board's sifting panel, which operates prior to the main oral hearing, was that Mr. Day should carry out more work on his cognitive skills. It was thought probable that he would be suitable for the reasoning and rehabilitation programme, which is a cognitive skills-based course available only in closed conditions. It was determined that he should be assessed for that course, and if found suitable, he should complete it.

Mr. Howarth

The trouble was that in Kingston prison Mr. Day did not have the opportunity of undertaking that course, because it was no longer available. It had been superseded by the enhanced thinking skills course. Surely, given the Parole Board's recommendation that the case be expedited, the imposition of the requirement that he should attend the course was not fair when it was not available in Kingston prison.

Paul Goggins

If the hon. Gentleman will be patient a little longer, I will explain the withdrawal of the reasoning and rehabilitation programme. It is important to emphasise that in the circumstances of the recommendation, it was open to the Secretary of State to reject the Parole Board's recommendation for transfer to open conditions altogether, and to direct that Mr. Day should remain in closed conditions pending the assessment and the completion of any necessary work. Had that course of action been followed, the Parole Board panel that was conducting the review would not then, of course, have had the benefit of seeing how Mr. Day had been able to cope in open conditions. Bearing that in mind, officials acting on behalf of the Secretary of State decided not to reject the recommendation outright, but to await the outcome of the assessment.

If the reasoning and rehabilitation course was needed, Mr. Day would remain in closed conditions until he had completed the work. He would then be transferred to open conditions without the need for a further review. If the course was not needed, he could transfer to open conditions straight away, to work on his offending behaviour needs there. In either event, the plan was to set a date for the next review that would allow Mr. Day plenty of time to complete the work and to be tested in open conditions.

As the hon. Gentleman said, the Prison Service decided to withdraw the reasoning and rehabilitation programme before Mr. Day could be assessed for it. The decision not only related to Mr. Day but was a wider decision relating to the provision of offending behaviour programmes across the Prison Service. As the hon. Gentleman said, those prisoners who would have been required to complete the course were directed instead to the enhanced thinking skills programme, which is also a cognitive skills programme but less intensive. It is proving to be more cost-effective. Since that course was available in open conditions, there was no longer any reason to delay Mr. Day's transfer, and he was transferred to open conditions in May and began the enhanced thinking skills programme in June.

Having made those arrangements, it then fell to the officials acting for the Secretary of State to set a date for Mr. Day's next review. The maximum time between reviews, as set out in statute, is two years. European Court of Human Rights jurisprudence dictates that referral to the Parole Board must be speedy. That means that review periods longer than a year must be demonstrably necessary and proportionate in all the circumstances. In Mr. Day's case, he would first need to complete his offending behaviour programme—the enhanced thinking skills programme. His progress on that course would have to be reviewed, and then it would be necessary to monitor his progress in open conditions to ensure that he was able to apply the lessons from the programme in real-life situations.

A lifer in open conditions is also expected to spend a period on a community placement—for example, in paid work or some volunteering activity—to test their coping skills in the community. The offender is also expected to undertake periods of resettlement leave and to devise, under the supervision of the probation service, a realistic release plan. In Mr. Day's case, it was thought that all those activities would take about 21 months. It was therefore decided to conclude the review of his case in August 2005. Admittedly, the period is towards the limit of what is permitted in statute.

Mr. Day challenged the decision at judicial review. He also challenged the Secretary of State's power to set the review date, arguing that the power was properly one for the Parole Board rather than the Secretary of State. The court found against him on the latter point, stating clearly that the present system was ECHR-compatible provided that the Secretary of State referred cases in a speedy manner. However, the Court did find that such a long period was not necessary in Mr. Day's case and that the next review should conclude more speedily after completion of the enhanced thinking skills programme. Mr. Day's review is now due to conclude in December with a Parole Board panel, which may be an oral hearing if the Parole Board, Mr. Day or the Secretary of State think that an advisable course of action. The hearing will consider the case as soon thereafter as practicable.

However, it is important to emphasise that even at that point the outcome is not automatic one way or the other. The Parole Board may consider that Mr. Day meets the test for release—that is, his detention is no longer necessary for public protection—but, on the other hand, it may determine that the risk has not been sufficiently reduced. If that is the case, Mr. Day will be subject to a further review at whatever interval the Secretary of State deems lawful and reasonable in the interests of public safety.

I hope that the explanation that I have offered the hon. Gentleman is helpful in understanding how Mr. Day's case is being dealt with and that decisions about his release are properly made. Mr. Day has served his tariff period but he will be released only if the Parole Board considers it safe.

Mr. Howarth

Can the Minister say when the Parole Board hearing will take place? He said "as soon thereafter as practicable" after December. Can he give me a date?

Paul Goggins

It is not possible for me to give the date today, but as soon as I am in a position to confirm it, whenever that may be, I will let the hon. Gentleman know. With that response, I conclude my remarks.