England and Wales High Court (Administrative Court) Decisions

IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT

		Royal Courts of Justice Strand London WC2
		7th July 2005

1. MR JUSTICE SULLIVAN: This is an application for judicial review of a decision by the defendant, contained in a decision letter dated 9th August 2004, not to accept a recommendation by the Parole Board, contained in the decision letter dated 10th May 2004 (the letter is erroneously dated 10th April), that the claimant should be transferred to open conditions. The Parole Board's recommendation followed a hearing on 28th April 2004.
2. The claimant was sentenced to life imprisonment for murder on 8th July 1981. He had strangled a 20 year old female hitchhiker. The claimant alleges that he strangled his victim after she had taunted him about his sexual performance. The claimant's tariff of 15 years expired in February 1996. In January 1994 he had been transferred to open conditions, but later that year he was transferred back into closed conditions. He is currently held in a category C prison.
3. This is the second occasion on which the defendant has rejected a Parole Board recommendation that the claimant should be returned to open conditions. In a letter dated 16th January 2003 the defendant explained why he was not prepared to accept the earlier Parole Board recommendation. That letter said in part:

"For all of the above reasons, the Secretary of State is not persuaded that transfer to open conditions is a safe option and therefore favours a more cautious approach. The Secretary of State accordingly recommends that you are transferred to a suitable category C prison that runs the E/S0TP where a Structured Assessment of Risk and Need (SARN) is undertaken with HCR20 assessment in order to better identify risk factors relevant to future sexual or violent reoffending. In the light of the above, the process leading to the next Parole Board review will commence on 1st January 2004."

4. A substantial dossier was before the Parole Board at its meeting on 28th April 2004. The views expressed by the report writers were mixed. The claimant's personal officer supported his release. The wing manager and the chaplain, and, by inference, the instructor officer, supported the claimant's transfer to open conditions. The seconded and home probation officers, the prison psychologist and the lifer manager did not support the claimant's transfer to open conditions. It is unnecessary to rehearse the detail in the reports, although for the purposes of this application it is necessary to note that the prison psychologist was concerned that the claimant had refused to co-operate with two assessments, the HCR20 assessment and the SARN.
5. In a memorandum dated 16th April 2004, setting out his view for the assistance of the Board, the defendant said in part:

"The Secretary of State further notes that the report writers have recommended that Mr Bealey re-engage in offending behaviour work via such work as a Structured Assessment Risk and Needs (SARN), HCR-20, Controlling Anger and Learning to Manage it (CALM) and 1-1 work focusing on psychosexual functioning. This is still outstanding work that Mr Bealey ought to undertake. It was disappointing that Mr Bealey refused to undertake the HCR-20 when offered by the psychologists at Dartmoor."

6. That memorandum must almost have crossed in the post with a report prepared by an independent psychologist, Mr Forde, on behalf of the claimant. He had carried out, without the claimant being aware of it, an HCR20 assessment which showed a very low risk of violent reoffending. In the light of his examination of the claimant, Mr Forde's conclusions included the following:

"Many of the alleged risk factors raised as concerns in the reports of prison psychologists are not actually risk factors at all.

Judged by both psychometric testing, and reports of behaviour in prison, Mr Bealey has no problems of impulse control.

Reports of his behaviour suggest a strong work ethic and a responsible and trustworthy character who can handle setbacks without resorting to difficult or violent behaviour.

Judged on the basis of objective factors, shown by research to be related to the risk of violent reoffending, Mr Bealey's risk is very low.

Such risk as he might otherwise have posed has been further reduced by age; research also shows that the risk of violent offending in his age group is negligible.

There is no objective reason why Mr Bealey should not proceed to open conditions without delay."

Mr Forde gave evidence at the hearing before the Board on 28th April.

7. So far as relevant, the Board, having noted that the claimant's behaviour in custody was regarded as impeccable and that he had obtained vocational qualifications, said this:

"Unfortunately, however, an impasse in your progress has developed. You had sexual relations with your victim immediately prior to binding and killing her. You deny a sexual element to the murder, the Secretary of State clearly believes there was such an element but whichever is correct you are unable properly to explain why taunting that you say occurred led you to kill.

The panel have to make a judgment of risk of further serious offending in the light of all the evidence, oral and written. The panel noted the work done, a complete lack of adjudications and a 30 year relationship with Ms G Buckland who attended your hearing. You have undertaken work since you were last in open conditions, have successfully completed three town visits and the panel do not think that further work on sexual offending, particularly in the light of your personal history and age, would be of assistance. The panel accepted the evidence of Mr Robert Forde that not only will the truth of the circumstances surrounding the index offence now never fully be known, but at this passage of time will not be a helpful prediction of future risk. The panel noted and accepted his evidence of psychometric testing. The panel found that the evidence of risk and of further serious offending is now sufficiently low to permit transfer to open conditions and so recommend. Any further work that may be considered necessary can be undertaken in open conditions.

The decision not to release you is binding on the Secretary of State, although it is a matter for him to decide whether to accept the recommendation that you transfer to open conditions."

8. Having said that he had considered the Board's recommendations and the contents of the dossier, the defendant set out in the decision letter dated 9th August 2004 the reasons why he was not prepared to agree to the claimant's transfer to open conditions. Those reasons were as follows:

"The Secretary of State has noted the recommendation of the Parole Board arising from your hearing on 28th April 2004. He has also carefully considered the views of report writers, who provided reports for the panel. He notes that the report writers are somewhat equivocal in their views, however the key report writers have expressed the view that your failure to engage with prison service psychologist, makes your assessment of risk difficult to determine, and may indeed prevent you from understanding those areas of your lifestyle and background to the index offence that present risk, thereby preventing you from being alert to those risks.

The Secretary of State has noted the independent psychologist's report completed by Mr Robert Forde, but does not subscribe to his view in this case. Mr Forde has concluded that, even if you had committed the rape on the victim, it would have no bearing on risk. The Secretary of State does not accept this conclusion, given that establishing the risk factors surrounding your offence is paramount in your case. Also, Mr Forde's report does not consider your risk of future sexual offending, and neither does it provide any formulation as to what your motivation for committing the offence was. The Secretary of State considers this vital in your case, given that report writers have regularly described your account of the offence as vague and difficult to accept. Therefore, the Secretary of State does not place as much weight on Mr Forde's report as have the Parole Board.

The Secretary of State further notes that, although you have completed the SOTP, your account of the offence contained discrepancies; you showed limited victim empathy or coping strategies, and were not consider to have completed the course satisfactorily. The Secretary of State remains concerned that you have continued to refuse to engage with those professionals who could assist in helping you to understand and manage your risk, despite the reasons for rejecting the previous Parole Board recommendation for open conditions being provided to you. Essentially, you have failed to take account of the Secretary of State's view in your case, and have continued to maintain your stance of non-cooperation. This is the more difficult to understand given that the Structured and Assessment of Risk and Needs (SARN) does not require you to alter your stance regarding the motivation for the offence, but it will allow for your treatment needs to be considered in the light of that stance. Although it has been suggested that you may be willing to undergo the SARN assessment.

The Secretary of State considers that a move to open conditions should take place for testing of the skills learnt in open conditions and that such a move should take place all after treatment needs have been carefully considered, and that suitable relapse prevention strategies are in place. Your current refusal to undertake the SARN, or to engage with prison service psychologists give rise to concern that neither you, nor the Secretary of State, can be confident that you are alert to your areas of risk, or have the necessary relapse prevention strategies in place.

For all of the above reasons, the Secretary of State is not satisfied that you have reduced your risk sufficiently to enable a transfer to open conditions, without you engaging fully with prison service psychologists and undertaking the SARN to establish levels of risk and treatment needs in your case.

Given the nature of the work outstanding, your next Parole Board review will be in June 2005."

9. That review has been deferred at the claimant's request pending determination of this application for judicial review.
10. The amended grounds of challenge to the decision letter, dated 9th August 2004, are discursive in the extreme. It is important to bear in mind that this is a challenge by way of judicial review in which it is necessary to identify errors of law, broadly defined so as to include, for example, failure to take account of material considerations, the giving of inadequate reasons, irrationality, et cetera, not an appeal on the merits.
11. As I understand the claimant's amended case, it is contended that the defendant made the following errors of law in the decision letter dated 9th August 2004. First, it is submitted that the defendant failed to take into consideration Mr Forde's conclusions in respect of the HCR20 assessment. Having asked for an HCR20 assessment, and one having been provided by Mr Forde, the defendant had not then referred to that assessment in the decision letter. I have already referred to the timing of the defendant's memorandum to the Board explaining his concern that at the date of the memorandum the claimant had not co-operated with prison psychologists in undertaking an HCR20 assessment and Mr Forde's report in which he set out the results of the assessment that he had been able to carry out.
12. It is clear from the Parole Board's decision letter that the Board were persuaded by that evidence:

"The panel noted and accepted his [Mr Forde's] evidence of psychometric testing."

I have read the relevant passages in the decision letter dated 9th August 2004. It is plain that the defendant considered the Board's recommendation. That included the Board's conclusion that it should accept Mr Forde's evidence of psychometric testing. The defendant's decision letter then goes on to explain in some detail why the defendant concluded that he should place less weight on Mr Forde's report.

13. While I accept that the defendant does not specifically refer to the HCR20 assessment that Mr Forde had been able to carry out, I do not consider that it is a reasonable inference, reading the letter as a whole, that the defendant simply ignored the fact that the Board had thought it right to accept that evidence. The letter goes out of its way to explain why the defendant took a different view of Mr Forde's evidence and why the defendant did not subscribe to Mr Forde's view in a number of respects. Clearly the defendant recognised that the HCR20 assessment had been carried out, since, by contrast with the memorandum dated 16th April 2004, the decision letter dated 9th August 2004 confined the defendant's concerns to the claimant's continuing failure to undertake the SARN.
14. Second, it was submitted that the failure to refer to the HCR20 assessment carried out by Mr Forde was in some way evidence of "bad faith" on the part of the defendant. Bad faith is a serious allegation. It is important that such allegations are not bandied about unless there is cogent material to support them. Failure to take something into account, the giving of inadequate reasons, or reaching an irrational decision, are not to be equated with taking a decision in bad faith. Ms Krause, on behalf of the claimant, explained that the allegation was really one of improper purpose. That is to say, that the defendant was seeking to punish the claimant in some way for failing to follow the defendant's earlier recommendation that the claimant should undertake the SARN. It was submitted that the defendant was not entitled to punish the defendant in that way.
15. I do not accept the submission that the relevant passage in the decision letter dated 9th August 2004 is an instance of the defendant seeking to punish the claimant for failing to adopt the defendant's view. In the letter dated 16th January 2003 the defendant had made it clear that he took the view that there was a need for, amongst other things, the claimant to undertake the SARN:

"... in order to better identify risk factors relevant to future sexual ... reoffending."

16. In the memorandum to the Board dated 16th April 2004 the defendant reiterated that view. Having done so, it is readily understandable that the defendant should have said in his decision letter that he remained:

"... concerned that you have continued to refuse to engage with those professionals who could assist you to helping you to understand and manage your risk despite the reasons for rejecting the previous Parole Board recommendations for open conditions being provided to you."

17. There was no challenge to the earlier rejection of the previous Parole Board's recommendation. It follows that it was a perfectly lawful decision. That being the case, the defendant was entitled to remain concerned that his recommendation had not been followed. It is plain that the recommendation was made, at least in the defendant's view, not so as to punish the defendant, but so as to better identify risk factors. Subject to the claimant's irrationality challenge, to which I will turn in a moment, if the defendant was entitled to reject the previous Parole Board recommendation for the reasons given in 2003, he was perfectly entitled to continue to be concerned in 2004 that nothing had been done by the claimant to address those concerns.
18. Thirdly, it is submitted that the defendant failed to have regard to a variety of factors which pointed towards the claimant being transferred to open conditions. It is said in the amended grounds that:

"The Secretary of State's decision is limited to his narrow view of the claimant's putative risk and fails to look at other risk reducing factors which have now been identified and unquestionably established through psychometric testing and daily contact with the claimant over lengthy periods (years) as well as clinical judgments being made by professionals over a number of years. The Secretary of State fails to take into account the fact, for example, that the claimant spent a year or thereabouts in the community without any reported problems, that he has had three escorted town visits in the 12 months preceding his oral hearing, that he has no previous convictions, that there is no evidence of criminogenic factors in his prison behaviour (or prior to him committing the index offence) over a period of 23 years or thereabouts, that he is in a stable relationship, that he has completed a number of offending behaviour programmes over a number of years, that the prison officers who know him best think that he is either suitable for transfer to open conditions or release; that he has no personality disorder or psychopathic elements to his personality, that psychometric testing predicts that his risk of reoffending in a violent or sexual manner is very low (it could not be lower) and that he is some eight years over tariff with little justification for it (since he did not fail in open conditions and was preparing for release when he was suddenly returned to closed conditions through no fault of his own and has remained there for ten years now)."

19. One could be forgiven for thinking that this application was being, in effect, treated as an appeal on the merits. Certainly all of those features in the claimant's favour were to be found in the dossier. But just as the Parole Board was not obliged to rehearse each and every point in favour of or against release in its decision letter, so the Secretary of State was not obliged, in order to give adequate reasons, to rehearse each and every detail in the dossier. The decision letter makes it plain that the defendant did consider the dossier and there is no reason to believe that he did not. It is important to remember that the purpose of the letter of 9th August 2004 is not to rehearse the entire case for and against transfer to open conditions, it is to explain why the defendant is not prepared to agree with the Parole Board's recommendation. That is why the letter correctly focuses on the area of disagreement with the Parole Board. It is entirely unnecessary, and would unduly lengthen decision letters of this kind, for the defendant to be obliged to rehearse each and every detail in the dossier which was not, in truth, in contention between himself and the Board.
20. It is perfectly true that there were a number -- Ms Krause would doubtless say a very large number -- of favourable indications in the dossier, but this was not a case where all of the information was pointing one way, and where, if there was no word of explanation, it would be difficult to understand why the apparently overwhelming amount of favourable information had not prevailed upon the defendant. As I have indicated, this was a case where there were disagreements between the report writers, as was noted by the defendant in the decision letter. The short answer to this submission is that the defendant was entitled to prefer the views of those who felt that it was not appropriate to transfer the claimant to open conditions.
21. Next it was submitted that the defendant's insistence that the claimant undertake the SARN was irrational. Ms Krause explained that this complaint was really at the core of the claimant's case. I have read the relevant passages in the decision letter. It is plain that the defendant attached very significant weight to the fact that the claimant had not undertaken the SARN and was of the view that undertaking the SARN to establish levels of risk and treatment needs was a necessary step to enable a transfer to open conditions. Ms Krause realistically acknowledged that unless she could persuade the Court that this view of the defendant was irrational, then the challenge to the decision letter was bound to fail because, whatever other complaint might be made about the decision letter, if the defendant could rationally conclude that it was necessary for the defendant to undertake the SARN before he could be satisfied that the risk had been reduced sufficiently to enable the transfer to open conditions, that would be an answer to the challenge.
22. Following the filing and service of the defendant's detailed grounds, Mr Forde produced a report dated 13th April 2005. In that report he made it clear that in his view SARN was an unreliable tool generally and was not helpful in the particular case of the claimant. It is clear that there is a division of professional view as to whether or not SARN is or is not an useful tool in general terms, and, secondly, as to whether there is any justification in requiring this particular offender to undertake it. It is not enough for the claimant to establish that on one particular view insistence on the SARN is unnecessary. The claimant in order to surmount the irrationality threshold would have to be able to demonstrate that there was simply no professional support for the defendant's view that SARN in general terms is useful and that, specifically in relation to the claimant, it would be of advantage in terms of risk assessment if he was to undertake it.
23. The claimant is unable to surmount that hurdle in the face of the following, amongst other, evidence, the report of the prison psychologist, which made it perfectly clear in her view carrying out the SARN was appropriate, and the view of Ms Mann in a witness statement exhibited in support of the defendant's grounds. Ms Mann is a chartered forensic psychologist who is responsible for the Sex Offender Treatment Programme delivered within the prison service. Her witness statement explains the nature of the Structure of Assessment of Risk and Needs and, among other things, explains that it does not require the prisoner to accept that he has committed a sexual offence, although, if the offender does not admit a sexual aspect to his offending, the conclusions of the SARN may be limited by certain areas that he is not prepared to discuss and assessments will have to be based entirely on what is suggested by the forensic evidence of the offending behaviour. I will return to that in a moment when dealing with the final complaint advanced on behalf of the claimant. In addition, there is the report of Professor Grubin, professor of forensic psychiatry, filed on behalf of the defendant.
24. It is unnecessary to rehearse the details because this is not a challenge on the merits to the validity, or otherwise, of SARN. The Court is simply concerned with the question, whether, in August 2004, it was irrational for the defendant to say that the claimant should undertake the SARN. It is plain from Professor Grubin's report that he at least does not share Mr Forde's reservations about the utility of SARN generally and is clearly of the view that it would be appropriate to require the claimant to undergo the SARN. It is perfectly true, as Ms Krause points out, that Professor Grubin agrees with Mr Forde as to the extent of risk likely to be posed by the claimant, but that does not mean that he rejects the proposition that the claimant undergoing the SARN would be an useful exercise. As he says in his report:

"If I, and Mr Forde, are right about Mr Bealey's risk, then his rehabilitation can continue without the need for further sex offender treatment. However, this can be concluded only tentatively prior to the relevant assessment being completed.

In my opinion, there is much to be gained by a proper consideration of the risk factors reviewed in SARN, particularly in relation to the 'sexual interests' domain."

25. Ms Krause pointed to a letter dated 1st June 2004 written in respect of another prisoner by the principal psychologist in the defendant's lifer review and recall section. In that letter Mr Carter responds to a report made by a Dr Pratt and says this:

"Having considered these observations, I am writing to inform you that it is correct that the Structured Risk Assessment and Risk Matrix 2000 is not standardised on life sentence prisoners. Therefore, any numerical prediction of future sexual offending made using the Risk Matrix 2000 would rightly need to be treated with caution when applying it in cases such as yours."

26. It is one thing to urge caution in the application of an assessment, it is quite another to say baldly that it is an unreliable tool that should not be applied to a particular offender.
27. The position may be summarised in this way. There clearly is a body of professional opinion that has grave reservations about the utility of SARN. On the other hand, there is another body of professional opinion which does not share those reservations, an which considers it to be an useful tool, not of course the be all and end all, but an useful exercise. There is also a respectable body of professional opinion, with which the defendant was entitled to agree, that it would be of advantage for the claimant to undertake the SARN. Against this background, the claimant's challenge comes nowhere near surmounting the irrationality threshold.
28. It is also right to note in this context that this is not a case where the Parole Board has expressed any explicit view about the desirability or otherwise of requiring the claimant to undertake the SARN. By inference the Board accepted Mr Forde's view, but there is no discussion of the usefulness, or otherwise, of the claimant undertaking the SARN. Now that this has been flagged up in these proceedings as a major issue, it may well be at the next deferred Parole Board hearing the Board will be able to focus upon this issue and give the defendant the benefit of its view as to whether or not it is necessary for the claimant to undertake the SARN. But absent any clear view to the contrary by the Parole Board and in the light of the professional opinion available to him, it cannot possibly be said that the defendant's view, as expressed in the letter of 9th August 2004, was irrational.
29. Lastly, it is submitted that the decision is irrational because there is a presupposition that the claimant is a sexual offender; that is the basis on which he is required to undertake the SARN. It is submitted that that is an irrational approach, and that it is wholly speculative to say that there was any sexual motive in the index offence. However, as the letter points out, SARN does not require the claimant to alter his stance regarding his motivation for the offence. Ms Mann's witness statement, as I have mentioned, confirms this and makes it clear that, if an offender is unwilling to alter his or her stance regarding the motivation for the index offence, that will reduce the utility of the SARN, but, nevertheless, it can address other areas.
30. There is this further consideration. As the Parole Board recognised, the defendant clearly believes that there was a sexual element to the index offence. The Board noted the difference between the claimant's denial of any sexual element to the murder and the defendant's belief that there was such an element. It is fair to say that that uncertainty has been reflected in a number of the reports that are contained in the dossier. On any basis, and even upon the claimant's own account of the index offence, there were strong sexual overtones. While I accept Ms Krause's submission, that a distinction can be drawn between a sexually motivated offence and a violent offence which occurs after consensual sexual relations, one is simply not in a position to know into which of those two categories the index offence fell. The defendant is concerned with risk. Putting it at the very lowest, there must be a distinct possibility that this offence fell into the former rather than the latter category. At least it cannot be said that the defendant's view that there was a sexual element to this offence is irrational.
31. For these reasons, this application for judicial review must be dismissed. I merely express regret that it has led to a deferment of the Parole Board's review that would otherwise have taken place last month.