England and Wales High Court (Administrative Court) Decisions

22. Miss Krause, who appeared on behalf of the applicant, recognised at the outset of her submissions that, in the light of the discovery of the true background to the 1993 offence of indecent exposure, the panel had been bound to conclude that some further work or treatment would be required before the applicant could be considered for release. Also they were bound to recognise that the as yet unexplored sexual element in the applicant's offending behaviour represented an element of risk. However, she submitted, release was not under consideration. The panel's task was to balance the risk factors against the benefits which could be expected to accrue to the applicant if he were allowed to proceed to open conditions. This she submitted, they had not done. They had only considered the risk factors. They regarded those as unacceptable. They made scant reference to the work the applicant had done in addressing his offending behaviour and on his attitudes and personal skills. All the reports recommended a transfer to open conditions. She accepted that most of the reports had been compiled in ignorance of the true background to the 1993 offence and were therefore of limited value. However, she submitted that they were of some value. They had been written by people who had known the applicant over a period of time and who were aware of the work he had done and the progress he had made. She drew attention to the fact that the problems he had experienced while on PRES in 1992/3 had been largely associated with drink. He had worked hard to conquer his addiction to drink. He believed he had done so and it was time for him to be tested in open conditions. None of this was reflected in the panel's reasons. In any event, Mr Matthews, who was very experienced and who was aware of the true background when he reported also recommended transfer.
23. She accepted that the panel was not bound to follow the recommendation in the papers before them, even if it was unanimous. She accepted that it was the duty of the panel to apply their own expertise to the issues before them. However, she submitted that if the panel were to reject the unanimous recommendation found in the reports before them, it was their duty to explain their reasons for doing so in the clearest terms.
24. She submitted that the panel had been influenced by a number of factors on which they had been in error. First, she mentioned the panel's reference to the applicant's alleged violence in attempting to resist arrest in 1993. The papers were not before them; there was no reference to violence on arrest in the dossier and, submitted Miss Krause, the panel should not have taken such unreliable information into account. It is not clear to me where that information had come from. Mr Matthews, who had seen the 1993 statements did not mention it. Second, Miss Krause drew attention to the panel's observation that the applicant had `failed' in open conditions on the earlier occasion. This she submitted was an error on their part. He had failed while on PRES and not while in open conditions. During the time he had spent at Sudbury on Category D open conditions, he had been of good behaviour and had not failed in any sense. The authorities had been aware of his relationship with the woman who subsequently had his child. Even if it could be said that he had concealed the intimate nature of his relationship with her (which was not clear as it was not known exactly when that had begun) his offence was one of breach of trust. There was no suggestion of drunkeness, violence or sexual deviancy. His true failures had occurred while on PRES and had involved drink. He had since done a great deal of work on this problem and the unanimous view was that it was time that his ability to stay off drink should be tested in open conditions. Also he had done work on anger management, relationships and had undertaken a course on `Enhanced Thinking'. He was a model prisoner at Littlehey. He had achieved a great deal academically. It was irrational to refuse to transfer; the evidence all pointed to the opposite conclusion and the proper balancing exercise had not been carried out.
25. Miss Krause submitted further that the reasons were inadequate in that the applicant was unable to understand why he had been refused a transfer. In particular he did not know why the panel had rejected Mr Matthew's recommendation. The passage at the end of the second paragraph was particularly obscure. This related to the association between indecent exposure and the capacity to form relationships. In response to the application, Ms Sally Hubbard, the chairman of the panel had put in a witness statement to fill in some of the background to the panel's decision. Miss Krause submitted that this was no more than an attempt at ex post facto justification. However, it is convenient to mention at this stage that Ms Hubbard explained that the passage at the end of the second paragraph related to published work on the association between indecent exposure and an incapacity to form relationships. Dr Wood the panel's psychiatric member was familiar with this work.
26. Finally Miss Krause submitted that the panel had fettered their own discretion by following the policy of the Prison Service on the recommendation of Dr Mann. Although she accepted that the panel had not simply directed that the applicant must attend a SOTP, they had required him to undertake work on his sexual offending. She submitted that he was in a worse position than if they had directed him to attend an SOTP. They had directed that he must do something but they had not said what he must do and so far as he was aware there was nothing available for him to do. He had been assessed as unsuitable for SOTP which was all that was provided at Littlehey. He had been willing to undertake SOTP if he had been assessed as suitable. Now he was willing to do the rolling programme as Mr Matthews had recommended but he could not do that in a closed prison. The year was passing. Nothing was happening to him and he was in limbo.
27. For the Parole Board, Miss Grey first invited me to note the qualifications and expertise of the members of the panel. That they were very highly qualified was no surprise.
28. Her first substantive submission was that the panel had clearly identified the risk factors present in this case due to the unexplored sexual aspects of the applicant's offending behaviour. She submitted that the balancing exercise had been carried out. There was a reference in the first paragraph to the work carried out since 1993 and the applicant's achievements and ability were acknowledged in the fourth paragraph. It was common ground that there were risk factors present in the case and that some further work was required. Mr Matthews accepted that. The only question was whether the work should be carried out in closed or open conditions. This was a matter for the judgement of the panel and their conclusion could not be impugned.
29. Miss Grey submitted that the panel had not made any factual errors. They were entitled to take information into account about the circumstances of the 1993 arrest even if it were hearsay. They well knew that the `failures' had taken place while the applicant had been on PRES. That they had described them as taking place in `open conditions' was not inaccurate; PRES was part of open conditions. The argument was a semantic one.
30. Miss Grey submitted that it was plain from the decision that the panel had not fettered their discretion by simply following the policy of the Prison Service as enunciated by Dr Mann. They had not directed that the applicant should attend an SOTP which they would have done had they simply followed that policy. Instead they had recommended that the sexual component of the applicant's offending should be investigated and had left the manner in which they should be done to the discretion of the clinicians with responsibility for the applicant's care. In respect of the suggestion that the decision had asked the applicant to do the impossible and had left him in limbo, Miss Grey referred me to Ms Hubbard's statement which explained that the panel did not regard it as appropriate to specify how work was to be done. That was for the clinicians in charge to decide. The panel considered that the precise form of the work required would be determined by the assessment and exploration. They had in mind that group work or one to one sessions might be appropriate but it was not for them to say. They also had in mind that because the applicant had on an earlier occasion demonstrated that his engagement in a course might be conditional upon his recognition that it would be of benefit to him in his aim of securing eventual release, it might be necessary to negotiate with him the form which the work would take.

Decision.
31. 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 24^th 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.

32. I do not accept the submission that the panel fettered their discretion by adopting the Prison Service policy on SOTP. That they did not do so is obvious as they left open the form of investigation and treatment which the applicant was to receive. I have no doubt that they took the Prison Service into account but that would be entirely proper.
33. Nor do I think that the panel fell into factual error when they stated that the applicant had failed previously in open conditions. They must have been aware of when the failures occurred and must have used the expression `open conditions' to cover time spent in a category D prison and time spent on PRES. However, I do think there is some significance in the way they failed to distinguish between the applicant's successful period at Sudbury and his unsuccessful period on PRES in London. I shall return to that issue in due course.

34. I am concerned that the panel appear to have taken into account a description of the applicant's behaviour at the time of his 1993 arrest which was not in the dossier and which the applicant had not been able to comment on. It appears that this information had come from the police report. In a sense, the fact that the applicant did not accept the allegation and is aggrieved that he had not known about it may not amount to much. His case is that he was drunk that night and cannot remember what happened. But having said that, it was in my view unfortunate that the material was not properly introduced, as concern about the applicant's potential for violence did form a significant part of the panel's reasoning. However, in view of the conclusion I have reached on other grounds, I say no more about it.
35. I turn to the question of irrationality. It is accepted that the panel was right to recognise the existence of a risk and the need for further work to be done on the sexual component of the applicant's offending. Evaluation of the risk is entirely a matter for them. But the vital question for them was whether that work should be done in open or closed conditions. The conclusion is that the risk is unacceptable in the light of the applicant's earlier failures in open conditions. `Unacceptable' must mean unacceptable for Category D conditions. The fact that those failures occurred on PRES and the panel was not being asked to transfer him to PRES (or its present day equivalent) is not mentioned. In the early 1990s, the applicant had spent 3 years in Category D before being transferred to PRES. During that time he had been of good behaviour and had not `failed'. His failures occurred in the much freer living conditions of PRES. Principal Officer Rowley had spoken of the need for an extended period in open conditions, so that the applicant could seek to establish a network of external support. It would therefore be expected that a significant period would have to elapse before the applicant were once again living in the hostel conditions in which he had earlier failed. It seems to me that the panel may have fallen into an error when they considered that the earlier failures were directly relevant to the acceptability of the current risk.
36. Finally, did the panel consider the questions they were obliged to consider and undertake the balancing exercise as required by the statutory directions? One cannot tell from the decision whether the panel has considered, as they should under paragraph 3(a) of the directions, whether the lifer has made sufficient progress towards tackling offending behaviour to minimise the risk and gravity of re-offending. The decision contains the most fleeting reference to the work the applicant had done in the last 6 years. This was considerable, particularly in the area of the control of addiction. This work was directly related to the manner in which his earlier failures had occurred. It should have been taken into account.
37. Paragraph 3(b) requires the panel to consider whether the lifer is trustworthy enough not to abscond or to commit further offences. There has never been any suggestion that this man might abscond but the possibility of further offences is highly relevant. As the panel decided the case on the basis of an `unacceptable risk,' they plainly thought there was a risk of further offences. However, there is within the decision no apparent evaluation of the seriousness of that risk, save that it is said to be unacceptable in the light of past experience. The minor nature of his offences while on PRES is not mentioned. If the panel thought that the very process of investigating the sexual component of his 1993 offence would be disturbing and might increase the risk of more serious offences taking place during that time, they could have said so, but did not.
38. I acknowledge of course that it is not incumbent upon the Board to set out its thought processes in detail or to mention every factor they have taken into account. However, in my judgement the balancing exercise they are required to carry out is so fundamental to the decision making process that they should make it plain that this has been done and to state broadly which factors they have taken into account. It does not appear to me that there has been any real attempt to balance risk against benefit. I have said that the assessment of risk is entirely a matter for the panel. But there were at least two benefit factors which should have been taken into account. Principal Officer Rowley had spoken of his concern that further incarceration would reduce the likelihood of successful re-integration into the community. This point encapsulates an important benefit to the applicant. Other reports spoke of the need for the applicant's resolve to stay off alcohol to be tested. That too would be a substantial benefit to the applicant arising from transfer. While in Category D conditions, it will be readily apparent to those supervising him if he still has a drink problem. If he has and further work needs to be done, then the sooner that is found out the better. Neither of these benefits is mentioned in the decision. It seems to me that because the panel has focussed on the risk arising from the uninvestigated sexual component, they have ignored the other aspects of the case and have not brought the benefits into consideration.
39. Finally, there is no explanation as to why the opinion of Mr Matthews is rejected. His explanation of why the new rolling programme would be suitable for this applicant seems to me to be sufficiently compelling to require a reasoned rejection. In the event the only reason given for saying that the risk was unacceptable was on account of the earlier failures. The reasons advanced by Mr Matthews were not addressed.
40. If this application were based only on a challenge of irrationality, I would have great difficulty in reaching a decision. I am concerned that the basis on which the risk was said to be unacceptable was fallacious, in that the past failures during PRES were used to justify a conclusion that the applicant could not at present be transferred to conditions in which he had not previously failed and which are in any event more closely supervised than PRES. But I am not sure that I would quash the decision on that ground. Nor would I hold the reasons to be inadequate. However, I do consider that the decision was unlawful in that it does not appear that there has been any real balancing of risk and benefit. The panel has focussed only on the risk. That being so, I am in no doubt that the decision must be quashed and Board must reconsider the question of the applicant's transfer to open conditions.
Afterword.
41. The manner and timing of the reconsideration of this decision is of course a matter for the Board. However, I wish to add a few words about the handling of this case about which I feel some concern.
42. First, there was what I regard as an unacceptable delay before the most recent review. I have no reason to think that was the responsibility of the Board. Miss Grey took me to correspondence between the Prison Service and the applicant's solicitor which went some way to explaining how that delay had arisen. I feel bound to observe that the applicant's solicitor's hectoring letters were not helpful. But having said that, his request for a further assessment of his client once the 1993 witness statements had been obtained was wholly reasonable. No clear reply was given to that request. When it appeared that the Prison Service would not arrange a further assessment, the decision to instruct Mr Matthews was wholly reasonable. Why it should have taken a whole year to disclose the statements, obtain a report from Mr Matthews and arrange a new hearing date is not clear. Only a small element of that delay appears to be attributable to obtaining the Matthews' report.
43. Second, what is of even greater concern is that although this applicant has been under constant psychological and psychiatric supervision and has been interviewed on many occasions since 1993, it was not until late 1998 that any one thought of checking the applicant's account of that offence. I can understand why the Prison Service regards the circumstances of such an offence as important, but for that reason, should have obtained the information some years ago.
44. Of more immediate concern is that although it is more that 8 months since the panel promulgated their decision and about 10 months since they reached it, there has not yet been any exploration of the sexual element of the applicant's offending. Nor has he received treatment of any kind. It does appear to me that there was some force in his complaint that the decision left him in limbo. Miss Grey has produced a letter from the Prison Service, dated as recently as 24^th October 2000 in which it is said that although such work is yet to begin, some `one-to-one' work will be undertaken before the next Parole Board Review. Why nothing has yet been done is not explained. The effect of my decision is that the applicant is entitled to have his position re-examined forthwith on the basis of the existing material. However, as so much of that material is out of date, it may be that the applicant and his advisers would wish that further reports should be prepared and even that the one-to-one work should be undertaken before the matter comes back before the Board. I hope that discussion of such issues can take place in a less highly charged atmosphere than prevailed in the early part of 1999.

MRS JUSTICE SMITH: For the reasons given in the judgment which I believe counsel has already seen, this application for judicial review is granted and the consideration of the Applicant's position must be remitted for reconsideration by the Board.

MISS KRAUSE: My Lady, I am grateful. Would your Ladyship consider making an order that the Parole Board reconsider the existing reports immediately?

MRS JUSTICE SMITH: I wanted really to hear counsel on that. You will see what I have said about the present situation. The matter was due back really very shortly but I do not know what has been done, if anything, about that. Probably nothing.

MISS KRAUSE: I really wanted to know what the Applicant wanted to happen. It may be that my learned friend has some difficulty because she did not see the judgment before a second ago.

MRS JUSTICE SMITH: I am sorry to hear that.

MISS GREY: My Lady, I think the fault probably lies in my chambers' offices rather than anywhere else. I am sorry that that should have occurred. It is my fault perhaps for not checking the position yesterday but I was tied up. The fact is I do have to apologise also for not faxing through any amendments, or whatever.

MRS JUSTICE SMITH: You did look through it pretty carefully, I think, and you did locate one or two. My clerk is my main proof reader and he found a number of mistakes. I think probably it is mistake free now.

MISS GREY: I am sorry, in any event.

MRS JUSTICE SMITH: Do you want a few minutes?

MISS GREY: I have had an opportunity to skim read the judgment. I am grateful to my learned friend for providing a copy. On the question of updated reports, it is now some considerable period of time after the original decision was made. I would respectfully submit that therefore it is appropriate that there be at least a short period of time for any updated material to be placed before the Board. If your Ladyship is concerned about further delay----

MRS JUSTICE SMITH: I am.

MISS GREY: That is what I anticipated. I would invite you simply to direct that the matter be reconsidered by the Parole Board within a short space of time. I have in mind a period of something in the order of six weeks. That would effectively require the prison service, although there is no necessity for any direction, to ensure that if there was relevant updated material to be brought to the Court's attention those reports had to be prepared forthwith and given to the Applicant in reasonable time.

MRS JUSTICE SMITH: I have in mind a shorter period than six weeks because I really think you ought to have a decision before Christmas.

MISS GREY: All I can say is that there is, I think, a real necessity for updating reports and, if nothing else, to address the matter.

MRS JUSTICE SMITH: For one thing the panel will need to know what has happened in the last year and if nothing why, I would have thought, at the very least.

MISS KRAUSE: My Lady, yes. Obviously the reports upon which the decision was made in the first place were already very old.

MRS JUSTICE SMITH: They were already out of date.

MISS KRAUSE: So it makes very little difference if they are to reconsider their position on the existing reports since we know that nothing else has happened, in any event, since the last decision was made.

MRS JUSTICE SMITH: Miss Krause, if I were to direct that the Board were to reconsider this matter within 28 days it would then be a matter for the prison service as to what appropriate additional material they thought it necessary or appropriate to put before the Board, and you would have the opportunity to do likewise.

MISS KRAUSE: Would your Ladyship direct that the Board reconsiders the matter within 28 days and provides a decision within 28 days because the decision could take months?

MRS JUSTICE SMITH: I am prepared to say: provide a decision within two weeks thereafter, so that he has his decision by Christmas. I do really think it ought to be dealt with this year. Enough time has gone over. Is there any comment on that, Miss Grey?

MISS GREY: No, my Lady.

MRS JUSTICE SMITH: Are you content with that?

MISS GREY: Yes.

MRS JUSTICE SMITH: Very well. The matter is to be reconsidered by the Parole Board within 28 days of today, it being a matter for the prison service and the Applicant as to whether any new material be put before the Board before that time, and the Parole Board to provide their decision within two weeks after the hearing.

MISS KRAUSE: There is the matter of costs. I make an application for the costs and legal aid taxation.

MISS GREY: My Lady, in general terms I would not be able to resist the submission for costs. Could I make this submission? This is a case where, in the event, your Ladyship's decision turned not on a plead of grounds in the 86A but on a case and argument: the balancing exercise in consideration of the directions, which was not raised until the argument before your Ladyship. It is certainly not to be found in the 86A. I can take your Ladyship back to that but I think that was accepted.

MRS JUSTICE SMITH: That is right. You took no objection to it having been raised.

MISS GREY: Clearly not in so far as the decision made to be raised by your Ladyship and I was not in a position to require an adjournment to deal with it. It is nevertheless material on costs, I respectfully submit, because it does mean that the Board was not given an opportunity to consider their decision in the light of the grounds that were eventually successful by your Ladyship. In those circumstances can I ask you to reflect that in the order for costs either by making no order as to costs or perhaps, as might be more broadly acceptable in all the circumstances, by ordering the Respondent to pay half of the Applicant's costs?

MISS KRAUSE: My Lady, clearly it is a discretionary matter and it is in your Ladyship's hands. However the point raised by my learned friend was in fact in my skeleton argument which they got three weeks ago.

MRS JUSTICE SMITH: Did they have it three weeks earlier?

MISS KRAUSE: My Lady, yes, it was out in time.

MRS JUSTICE SMITH: Would you ask your side to check that, Miss Grey, because three weeks would have been a sufficient time to take instructions.

MISS GREY: Yes, my Lady, it was received by us on or about 5th October. It does not, if I might add, alter the fact that until that time the point had not been raised and yes we fought on and we lost. I would still respectfully submit that half would be appropriate.

MRS JUSTICE SMITH: I am going to direct that the Parole Board should pay 75 per cent of the Applicant's costs. I make that deduction because the ground upon which I determined the issue in the end was one which was raised very late in the day, having given little time for the Parole Board to consider their position.

MISS KRAUSE: Would your Ladyship order legal aid taxation?

MRS JUSTICE SMITH: Yes, legal aid taxation.