QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT SITTING AT LEEDS
1 Oxford Row
Leeds, West Yorkshire, LS1 3BG
B e f o r e :
|THE QUEEN ON THE APPLICATION OF ROWE||Claimant|
|PAROLE BOARD FOR ENGLAND AND WALES||Defendant|
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Mr Manknell (instructed by Treasury Solicitor) appeared on behalf of the Defendant
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"Alternatively the Panel has been asked to advise the Secretary of State as to your suitability for transfer to open conditions. In this context the Panel must be satisfied that your level of risk is compatible with safe management in open conditions when not only will you be subject to a minimal security regime, you are likely also to be released on temporary licence. In assessing your risk to the public and your suitably for a move to a category D establishment the Panel will have regard to the Directions of the Secretary of State to the Parole Board relating to the transfer to open conditions of life sentence prisoners."
Those Directions were made by the Secretary of State pursuant to his power under subsection (6) of section 32 of the Criminal Justice Act 1991. The Directions initially issued in 2004 were updated for present purposes to those issued in March 2011.
"(i) A period in open conditions is essential for most life sentence prisoners (lifers). It allows the testing of areas of concern that more closely resemble those that the prisoner will encounter in the community, often having spent many years in closed prisons. Lifers have the opportunity to take resettlement leave from open prisoners and more generally open conditions require them to take more responsibility for their actions.
(ii) The main facilities interventions and resources for addressing and reducing core risk factors exist principally in the closed lifer estate. In this context the focus in open conditions is to test the efficacy of such core risk reduction work and to address where possible any residual aspects of risk.
(iii) A move to open conditions should be based on a balanced assessment of risk and benefits. However, the Parole Board's emphasis should be on the risk reduction aspect and in particular on the need for lifer to have made significant progress in changing his or her attitudes and tackling behaviour problems in closed conditions, without which a move to open conditions will not generally be considered."
The directions under paragraph 4 are that before recommending the transfer of the lifer to open conditions the Parole Board must consider (a) all information before it, including any written or oral evidence obtained by the Board and (b) each case on its individual merits without discrimination on any grounds.
"... the following main factors into account when valuing the risk of transfer against the benefits (a) the extent to which the lifer has made sufficient progress during sentence in addressing and reducing risk to a level consistent with protecting the public from harm, in circumstances where the lifer in open conditions would be in the community unsupervised under a licensed temporary release.
(b) the extent to which the lifer is likely to comply with conditions of any such form of temporary release.
(c) the extent to which the lifer is considered to trustworthy enough not abscond.
(d) the extent to which the lifer is likely to derive benefit from being able to address areas of concern and to be tested in a more realistic environment, such as to suggest that a transfer in open conditions is worthwhile at that stage."
There are further directions given in paragraph 6 as to information to be taken into account when assessing the risk in such matters.
"I remind myself that I must not in any way interfere with the discretion or judgement of the Parole Board, who, as Turner J. observed in ex parte Hart (unreported 24th May 2000) are 'uniquely qualified' to make the decisions it is called upon to make. I must ask myself whether they have carried out their task in accordance with the law, as set out in the statutory directions. I must consider whether the decision falls within the range of decisions which a reasonable panel might make. I must ask whether the reasons for the decision are proper, sufficient and intelligible."
"... Of course, it is open to any panel to disagree with all of the expert evidence which is placed before them. Any properly constituted tribunal could do that, particularly one containing a reservoir of expertise and knowledge such as the Parole Board."
"But they simply failed to explain in this decision any full or appropriate reasons why transfer to open conditions should not take place."
"The Panel must give reasons for its decision, but it is not required to address every matter which it considers provided it is clear that it addressed the substance of the issues required to be addressed in a particular case, and that its reasons demonstrate why early release has not been ordered, and are sufficient to demonstrate the lawfulness of the decision."
I am mindful that that case was concerned with a determinate sentence and the applicable principles were not the same as in the present case. However, this statement of principle as to to giving of reasons can be applied mutatis mutandis to the Parole Board in the present type of case in my judgment.
"It seems to me generally desirable that the Board should identify in broad terms the matters judged by the Board as pointing towards and against a continuing risk of offending and the Board's reasons for striking the balance that it does. Needless to say the letter should summarise the considerations which have in fact led to the final decision. It would be wrong to prescribe any standard form of Decision Letter and it would be wrong to require elaborate or impeccable standards of draftsmanship."
"Attitudes supportive of sexiest roles and/or the abuse of women, sexual jealousy, lack of assertiveness and poor communications skills, high levels of anger, high levels of depression, personality characteristics (minimisation/victim incidents) and substance abuse."
That quotation comes from paragraph 3.2 of Miss Fleming's report but is reflected in the Board decision where at paragraph 4 it says:
"The Panel has identified your primary risk factors as poor emotional management impulsivity, poor thinking skills and assertiveness coping in a relationship, use of violence in relationship, sexual jealousy and your attitudes including a victim stance and hostile attribution."
"I do not feel that Mr Rowe is ready for open conditions at this time. While he has made some progress there remain treatment need areas that are unaddressed and current manifestations of treatment need in areas in which he's made some progress. Further insight is required before further consolidation can be considered."
"That Mr Rowe was unable to give a fully active account of the index offence, continuing to minimise his conduct and providing full details only of his victim's behaviour on the day."
"Overall Mr Rowe made some very significant progress in developing an activity account of this offence."
She refers to "excellent progress".
"In my opinion Mr Rowe is hyper vigilant against being victimised and consequently becomes extremely emotionally aroused and defensive when he is challenged or criticised. This creates a barrier to treatment because he doesn't recognise his victim's stance and is therefore unable to challenge it."
In her summary at paragraph 7.1, Miss Fleming, having regard to the extensive access to treatment by the claimant, gives opinion that:
"It is concerning that at the beginning of his one-to-one work he could not discuss his offence in detail. Whilst he has made significant progress in this respect, he continues to censor his account and distort it in his favour. The DAR/NA report thoroughly documents the report writer's concerns regarding victim stance and hostile attribution which is consistent with Mr Rowe's reluctance and inability to take full responsibility for his intimate partner violence. I have significant concerns regarding his long term response to treatment and I am of the opinion that his personality profile may be a barrier treatment."
There is then a section in her report headed "Recommendations Regarding Further Work." She said the "following recommendations for future risk management should be considered": (i) an Assessment of Personality which would help establish which features of the claimant's personality were presenting barriers to risk management and engagement in therapy. The second was scheme therapy, focussing on identifying and understanding core beliefs. The third was individual work with a Psychologist focussing on personality and victim stance and the final one was Referral to a Therapeutic Community. (I should say in parenthesis that the referral to a therapeutic community was rejected by the Parole Board as being wholly disproportionate and I understand this could only be carried in a category B establishment).
Mr Rowe's risk of violence is likely to be manageable in open conditions given that his risk is limited to relationship and open conditions would typically not provide significant opportunity to engage in a relationship (though there would be some). However there is less if any access to the assessments and further work outlined above which in my opinion are unnecessary for effective risk management."
"That he remained of the view subject only to information from Miss Fleming that, his risk of further violence can be judged as minimal and that his risk can therefore be judged as manageable in Approved Premises with all the restrictions and monitoring that will then apply."
He alone of those who gave evidence to the Parole Board was of the view that it would be appropriate to release the claimant.
"Based on the progress made, the work to be completed, and the fact that it is anticipated that some of the work will be self directed, I would recommend unless there is some significant concern from the work completed with Psychology, Mr Rowe be released into open conditions. I feel this period would significantly enhance his risk management by planning resettlement and ensuring he uses the skills learnt from the programmes and ensure Psychology to ensure his risk is reduced for release. Should he be directed for release then I feel the risk management plan is in place."
As I have indicated the addendum of Miss Griffiths is not available.
"Positive regime adherence doesn't automatically equal a reduction in risk. There clearly are areas that still have to be addressed on a one-to-one basis and the work evaluated and assessed as to its impact or not on Mr Rowe's risk to life and limb. Until that work had has been completed I'm finding it very difficult to make a professional assessment as to whether he has reached a stage where move to open conditions or release is realistic. Mr Rowe is working towards a point where move forward would be viable. However, and to date all the assessments and because one-to-one work have not been carried out or a robust risk management plan formulated by the Offender Management I'm not prepared to make a recommendation at this stage. Once these are available I will update this report and provide a firm recommendation."
He having received Miss Fleming's End of Contact report of the August 2012, Mr Evans in September 2012 then made a recommendation in these terms:
"4. Miss Fleming outlines the case for closed open and release conditions in her report. I would concur with her observations. It would be my assessment that Mr Rowe is slowly gaining insight into his offending. However, he needs to be open and trusting of those who are seeking to support him and help him through the prison process. I believe he's now reached a stage where his risk to life and limb can be managed in open conditions and any further identified work undertaken either in Open Conditions or into Community.
In Open Conditions Mr Rowe's attitude and motivation to work within the establishment's regime will be tested as will be his ability to build up trusting relations with his Offender Manager and Prison Staff. Mr Rowe is aware of the pressures he will face in Open Conditions and the consequences of any breach of trust."
I should add that in her report at paragraph 8.2 Miss Fleming said this:
"In my opinion chief among the above recommendations is an assessment of Mr Rowe's personality as this will clarify what course of action is appropriate. All of the above recommendations are dependent on Mr Rowe's motivation to engage... There is a question over whether Mr Rowe would be motivated to engage in the above recommendations not because he doesn't want to engage so he can progress but because he feels he has engaged fully and is frustrated by his lack of advancement through the prison system."
I refer to that passage because it is relied upon by Miss Krause as an example of a benefit to the claimant which would be derived from a transfer to open conditions, given that he would in those circumstances be more likely to be willing to engage in his work and would not suffer the frustration there identified.
"Dr Pratt records that you do not dispute the finding of the trial judge that you effectively attempted to strangle your ex-partner and that you may have continued had you not been pulled away by a member of the public. You tell the Panel that you left Nadia because you were not coping well with the demands of living with her teenage children. You said that you formed another relationship but continued to see Nadia from time to time despite your bail condition precluding contact.
You attributed your violence to feelings of anger, frustration and humiliation, especially after learning that she had entered into a relationship with another man, the brother of one of your friends. You felt Nadia had been lying to you. You asserted you had not wished to hurt merely to get her to listen to you. You also claimed you had put hands round Nadia's throat in order to control the situation ... You accepted in your evidence to the Panel that your relationship with Nadia had contained elements of domestic abuse in including violence ..."
The Panel then refer to the claimant having only one previous conviction for common assault which had been in 1990. However, that had been against a then ex-partner. Evidently he had grabbed her in the street, according to him, after she complained about something missing from her handbag. He was fined.
"It is clear from your history that your risk factors are specially active in the context of a relationship. Any risk reduction will therefore flow particularly from your ability to cope with the vicissitudes and tensions of a relationship."
There is then an important section 5 headed "Evidence of change during sentence". It concludes:
"On this analysis the Panel drew the conclusion that you've not achieved as must change as would enable it safely and properly to contemplate a progressive move in your sentence."
This section shows that the Panel were concentrating, in my judgment in this section, on direction 5a of the Secretary of State's directions, namely that they take into account, amongst other matters, when valuing the risks of transfer against the benefit, (a) the extent to which the lifer has made sufficient progress during sentence in addressing and reducing risk to a level consistent with protecting the public from harm, in circumstances where the lifer, in open conditions would be in the community unsupervised under licensed temporary release.
"The Panel accepted you had begun to make meaningful progress in readdressing your risk factors and reducing your level of risk. It was not so much exercised about your ability to provide an active account of your offences as the degree to which you have taken responsibility for them, your insight into your build up to the offences, and what still appeared to the Panel to be a residual victim stance."
It is quite clear to me that it is that conclusion, that the the claimant had made insufficient progress as regards insight, that informed the Panel's conclusion which is the key to its Decision that the claimant had not achieved as much change as would enable it the Panel safely and properly to contemplate a progressive move in sentence.
"The Panel accepts the view that your risk of harm to the public is contextual in that it has manifested itself in the course of a relationship. You told the Panel that up until the index offences you had had four relationship with women including Nadia. In two of them there had been instances of verbal and/or physical abuse of your partner. The Panel was advised you pose a low risk of reoffending and it had no reason to dissent from that. On the other hand, if you were to re-offend, your risk of causing serious harm to a known adult ie Nadia or another partner is rated as high. The Panel endorses this view. Dr Pratt remained of the view that your risk of further violence is minimal. The Panel disagrees. Even before the index offences there was evidence of your using violence towards not only Nadia but also previous partner or ex-partner. From 2000 there was evidence of your volatility such that your partner referred for assessment by Mental Health Services. Subsequently there were episodes leading to other interventions. The Panel noted the circumstances of the index offences themselves which involved repeated and sustained violence, which could have had very serious consequences avoided only by intervention by a member of the public. The Panel has not been able to discount the possibility that you still harbour the wish to contact Nadia. You know where she lives. Understandably you wish to have contact with your daughter who lives with Nadia. This raises the risk of you finding it irresistible to visit and having contact with Nadia despite your assurance that your relationship has ended and you will go through the official channels to gain access to your daughter.
Moreover Dr Pratt in his later report made a point of saying that one cannot exclude the possibility of Nadia contacting you. The Panel has borne in mind that you ignored a bail condition not to contact her and the contact you and Nadia had during this sentence up until 2009.
For all those reasons the Panel has concluded that your level of risk remains potentially significant."
Then follows section 8 headed: "Conclusion and decision of the Panel" There is first the explanation of finding of the Panel that it was still necessary for the protection of the public that the claimant remain confined and hence there would be no direction in release. It is explained that the Panel had determined that the claimant posed a high risk of serious harm to a known adult, and although his risk of reoffending could be seen as low generally and was contextual "in your particular context it is unpredictable and essentially untested". There is no challenge to this conclusion of the Board declining to direct release.
"The Panel has given very careful consideration to your suitability for transfer to open conditions. Mindful of the fact that this course had the support of your offender supervisor, your offender manager and Dr Pratt. Miss Fleming was equivocal on the point. The Panel has paid close attention to the directions of the Secretary of State. It is satisfied there is no evidence that you pose an unacceptable risk of absconding from open conditions. It has however had to consider whether you have made the degree of progress required in relation to changing your attitudes and tackling your behavioural problems. The Panel must place emphasise on the risk of reduction aspect of your case. As indicated in section 5 of this letter, the Panel has accepted that you had made some progress, not least in being able to provide an active account of your offending. You have completed some substantive interventions during this sentence. It has given credit for a positive presentation at your oral hearing. It has to weigh your risk assessment in the balance and to set Dr Pratt's more favourable views against those more cautious of Miss Fleming. The Panel has not been persuaded that your risk is more manageable in open conditions because it is contextual. In your case your risk is capable of reviving or increasing in open conditions if you contact your ex-partner or she contacts you. The Panel preferred the views of Miss Fleming and the reservation she expressed. It has concerns that your past volatility is not extinct and to make your risk reduction more secure, the issues identified by Miss Fleming in her end of contact report should be worked on. It considers this work shall be completed before a progressive move. It is not for the Panel to endorse any of the courses of action Miss Fleming proposes except to comment that to refer you to a therapeutic community could be seen as disproportionate. The Panel also had a concern that a personality assessment has not been undertaken and issues relating to your mental health are unresolved."
"The extent to which the lifer is likely to derive benefit from being able to address areas of concern and to be tested in a more realistic environment, such as to suggest that a transfer to open conditions is worthwhile at that stage."
There is no express reference to that balancing exercise in the decision. It is true that the Board refers to the need to have regard to the directions of the Secretary of State in the opening introduction of their decision. It is true that the Board refer to the support the claimant had for transfer from the offender's supervisor, the offender manager and Dr Pratt, which if analysed contains references to the benefits which could be directly derived from transfer. It is true that there is a reference to weighing the risk assessment in the balance and to setting Dr Pratt's more favourable views against those more cautious of Miss Fleming. However, nowhere do I find any passage not merely making plain that they have carried out what I have described as the fundamental balancing exercise, fundamental to the decision-making process, but in which they expressly state which factors which go towards benefit have been taken into account. I would adopt the words of Smith J in paragraph 38 of Gordon applicable to this decision:
"It does not appear to me that there has been real attempt to balance risk against benefit."
The offender manager for example expressly in the report we do have of March 2012, set out clear benefits to which transfer to open conditions would give rise. I have already set them out. I do not know what was said in the addendum but it must be reasonable to assume that her position had not changed. As I have also indicated, the offender supervisor in the recommendation in the addendum report of September 2012, expressly sets out the benefits to be gained in open conditions. The failure to balance those benefits against the Board's assessment of the extent to which the claimant had made sufficient progress during sentence in addressing and reducing risk to a level consistent with protecting the public from harm is, in my judgment, fatal to the legitimacy of this decision.