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 WC2A 2LL
		10th October 2007

1. MR JUSTICE JACKSON: This judgment is in seven parts, namely: Part 1, introduction; Part 2, the facts; Part 3, the present proceedings; Part 4, the law; Part 5, the first ground of challenge -- procedural unfairness; Part 6, the second ground of challenge -- irrationality; Part 7, conclusion.

PART 1: INTRODUCTION

2. This is a claim by a prisoner serving a life sentence for judicial review of a decision taken by the Secretary of State not to transfer the prisoner to open conditions. A crucial feature of this case which should be mentioned at the outset is that the Secretary of State's decision was contrary to a recommendation made by the Parole Board.
3. In this judgment, I shall refer to a prisoner serving a life sentence as a "life prisoner". I shall refer to the Crime (Sentences) Act 1997 as "the 1997 Act". I shall refer to the Criminal Justice Act 2003 as "the 2003 Act".
4. Two abbreviations are regularly used in the prison service and should be noted. "ETS" stands for "Enhanced Thinking Skills". "CALM" stands for "Controlling Anger and Learning to Manage it". Both ETS and CALM are courses made available to prisoners with a history of violence.
5. After these introductory remarks it is now time to turn to the facts.

PART 2: THE FACTS

6. On 30th January 1985 the claimant murdered his co-habitee, Ms Robinson, by throwing her off a sixth floor balcony. He then went down to find her body and pierced both eyes with a pair of scissors. On 14th November 1985 the claimant was convicted of murder and sentenced to life imprisonment. His tariff was fixed at 12 years.
7. Whilst in prison, the claimant married. He planned to settle down with his wife, Mrs Elaine Banfield after release. On 22nd August 2003 the claimant was released from prison on licence. He went to live with his wife, Mrs Elaine Banfield. On 16th August 2004 the claimant was recalled to prison following allegations of violence against his wife. Mrs Banfield subsequently retracted those allegations and the claimant was acquitted at his trial in respect of those matters.
8. In or about April 2005 the claimant was released from prison on licence for a second time. On 16th December 2005 the Secretary of State revoked the claimant's licence for a second time. The reasons given by the Secretary of State for that revocation were as follows:

"• Failure to pay rent at the hostel resulting in your becoming homeless or at risk of homelessness.

• A positive test for cocaine and heroin.

• Anger you are alleged to have displayed towards your wife on about 25th November 2005."

A further factor was that the claimant was becoming evasive in relation to supervision.

9. Following the claimant's recall to prison, the Secretary of State referred the case to the Parole Board pursuant to section 32(4)(b) of the 1997 Act. A Panel of the Parole Board convened on 30th March 2006 to consider the case. The panel heard oral evidence from Ms Sydow, the claimant's supervising Probation Officer, from the claimant and from his wife. The Panel also considered the dossier of written evidence.
10. By the time of this hearing before the Parole Board the claimant had undertaken an ETS course and the claimant was participating in a CALM course. The Parole Board considered all the evidence before it, although unfortunately this did not include the report prepared following the claimant's completion of the ETS report. The Parole Board issued its decision in writing on 5th April 2006. The Board's conclusions were set out as follows in paragraphs 21 and 22:

"21. On the evidence as it now stands, the Panel regarded it as very probable that, were you to be released before further offending behaviour work is carried out, within a comparatively short time you would be in a position similar to that which existed in November and December 2005. Accordingly, it concluded that there would, upon your release, exist a substantial and unacceptable risk of serious violent offending against your wife.

22. In the Panel's opinion, before this conclusion could be displaced there is need for a sufficiently favourable assessment by a forensic psychologist, and a sufficiently favourable report of your performance on the ETS programme. The Panel considered carefully whether this evidence could more speedily and fairly be obtained by an adjournment of the hearing, or by a decision not to recommend your release. The Panel concluded that it would be unfair to you now to make a decision not to recommend release. Accordingly the Board has decided that the hearing should be adjourned. It directs that there be provided by the Home Secretary on or before 1st August 2006 (1) an assessment by a forensic psychologist, and (2) a report of your performance on the ETS programme which you recently completed."

11. The adjourned hearing before the Parole Board was fixed for 1st September 2006. The documents requested by the Parole Board were obtained. In preparation for the hearing a detailed report was prepared by Ms Claire Smith, the prison psychologist, dated 20th July 2006. A further written report was compared by Ms Sydow dated 25th August 2006. On 30th August 2006 the Secretary of State submitted his written submissions to the Board. This was a document entitled "Secretary of State's view". In those submissions, the Secretary of State argued that the claimant should not be released. The last part of the Secretary of State's written submissions to the Parole Board read as follows:

"The Secretary of State further notes the psychologist's report, which raises a number of concerns about Mr Banfield's lack of insight into his Index Offence, or those in relation to this recall and his future risk management. Given the recommendation within that report, and the fact that the Secretary of State will not be represented, I would invite the Panel to consider the option of open conditions at the hearing, if they are so minded. However, this should not be read as the Secretary of State would accept such a recommendation if made.

The Secretary of State is not satisfied that Mr Banfield has shown a consistent pattern of successful supervision on life licence, neither is he satisfied that Mr Banfield will comply with any future release plan, given the background to this recall. The Secretary of State is also not satisfied that Mr Banfield represents an acceptable risk for release on life licence, and considers that further work needs to be undertaken on cognitive skills, drugs abuse and anger management in order to ensure that the issues raised by this recall are addressed before re-release on life licence.

The Secretary of State is satisfied that Mr Banfield represents a risk to life and limb, which is above minimal, satisfying the test for continued detention.

The Secretary of State therefore recommends that recall be confirmed to allow this work to be undertaken."

12. The Panel of the Parole Board duly reconvened on 1st September 2006. The Secretary of State was not represented on that occasion, although his written submissions were before the Panel. The Panel received further reports and written evidence, as listed in paragraph 2 of its written decision. The Panel heard oral evidence from Ms Smith, Mr Leckie (a Probation Officer covering for Ms Sydow) and the claimant.
13. The Parole Board issued its written decision on 7th September 2006. That decision contains a helpful summary of the evidence received. The Parole Board's principal conclusions were set out in paragraphs 8 and 9 which read as follows:

"8. It was submitted on your behalf at the adjourned hearing that, properly applying the statutory test, you are entitled to be released. The Panel's analysis was different. There is clear evidence that, in circumstances of stress or breakdown, you present a potential risk to any woman with whom you are in a relationship. The question for the Board is therefore whether that risk can be properly and safely managed in the community. This can be achieved only if you are entirely open and realistic in your dealings with your supervising Probation Officer. At present, based on all the evidence presented to the Panel, the Board has insufficient confidence that you are able to achieve this. Accordingly, it finds that you currently present more than a minimal risk of serious physical harm to Elaine Banfield, or to any other woman with whom you might enter into a relationship. In those circumstances, it is unable to direct your release.

9. That leaves the question of open conditions. The Panel accepts your good faith, and your own honest belief in your ability to comply with licence conditions. It further accepts that, to the extent that others disagree with you, you are prepared to work on this. Your commitment to achieving the necessary degree of frankness with those supervising you could be subjected to realistic testing only if you were in open conditions. In the Panel's opinion, such a period of testing would not present any risk to Elaine Banfield or any other woman which was more than minimal. Accordingly, the Board recommends your transfer to open conditions."

14. The recommendation made by the Parole Board concerning transfer to open conditions was not binding upon the Secretary of State, although it was clearly a factor which the Secretary of State was required to take into account. The Secretary of State duly considered the matter and reached his decision on 5th February 2007. By a decision letter of that date, the Secretary of State informed the claimant that he would not be transferred to open conditions. Instead, the case would be referred back to the Parole Board for further consideration at a provisional hearing in January 2008.
15. I shall now read out the reasons given by the Secretary of State for his decision. For ease of reference I shall add numbers to each paragraph of the Secretary of State's reasons, even though in the original document they are not so numbered:

"1. The Secretary of State has carefully considered the recommendation of the Parole Board Panel made on 1st September 2006 that you should be transferred to open conditions. In considering your case, the Secretary of State had regard to all the material before the Panel, including details of your index offence, your progress in prison and on licence, and the current progress reports.

2. The Secretary of State will generally transfer a life sentence prisoner to open conditions when it is considered that the benefits in doing so outweigh the risks. In balancing the benefits against the risks, a key criterion to be considered is whether the prisoner has made sufficient progress during sentence in addressing and reducing risk to a level consistent with protecting the public from harm. The Secretary of State has applied the above balancing exercise and is not persuaded that it is appropriate for you to transfer to open conditions at this stage. His reasons for doing so are set out below.

3. The Secretary of State is concerned to note that you have failed in open conditions several times and that your life licence has now been revoked twice.

4. In October 1995 you were given a warning for breaching licence conditions after returning to the prison smelling of alcohol. In 1996 you were returned to closed conditions after being discovered having an inappropriate relationship with a woman at your college and visiting her home in breach of licence conditions. You also admitted frequenting pubs and drinking alcohol which raises concerns about breaches of trust.

5. In February 1999 you were again transferred to open conditions but were returned to closed conditions in September 1999 after suspicion you were involved in the supply of drugs.

6. In February 2001 you were transferred to open conditions for the third time. Numerous concerns arose on that occasion in open conditions, including being given a warning after accepting a lift from a former prisoner in breach of licence conditions. You failed to tell staff about accepting this lift and the fact that whilst a passenger in this car that you were stopped by the police. It is also noted that you lost your job after going missing for two hours and being adjudicated upon for possession of unauthorised items. In August 2002 you had a positive mandatory drug test for heroin and were removed from open conditions.

7. In February 2003 you were returned to open conditions and subsequently released on life licence in August 2003. In August 2004 you were recalled to prison after being arrested for actual bodily harm. Your wife alleged that during the course of an argument you hit her, grabbed her by the throat, threw her into a bathtub, and threatened her with a piece of wood, mentioning she would end up like the victim of the index offence.

8. You were released on life licence again in April 2005. However in December 2005 your life licence was revoked because of concerns raised about your debts for hostel rent, borrowing from residents, asking for a loan from the hostel and a positive drugs test. You had been served with an eviction notice by the hostel and, if evicted, would be homeless in breach of condition 4 of your life licence. You were also alleged to have been angry towards your wife after she indicated she was withdrawing her support for you. Probation considered there to be a risk of a further serious attack on Mrs Banfield and that this was exacerbated by the fact you were using drugs.

9. The Secretary of State considers that the parallels between your index offence and the circumstances leading to both of your recent recalls to prison (in 2004 and 2005) must be weighed against the focus on resettlement which would result if you were moved to open conditions at this stage. In particular, there are clear parallels between your index offence and the allegations relating to your recall in 2004 for example, violence towards a female partner, failure to manage your anger, and threatening her with a weapon that was a household implement.

10. In relation to your second recall in 2005, there were concerns about a return to a chaotic lifestyle (eg, erratic employment then unemployment, falling into debt) which was a risk factor identified for your index offence. Probation indicated you were becoming evasive in supervision and you had a positive drug test for cocaine and cannabis. You also appeared very dependent on your wife at that time, and it is noted that you were dependent on the victim of the index offence.

11. The Secretary of State is aware that your wife withdrew her allegations against you in relation to both recalls and that you were found not guilty of assault occasioning actual bodily harm in relation to the first recall incident. However, the fact that you were not convicted of the offence does not prevent the Secretary of State or the Parole Board from taking the allegations into account when considering all the circumstances in order to assess the level of risk you pose to the public. As noted by the Probation Service, a not guilty verdict does not automatically mean you pose a lower risk.

12. It is clear from your inability to avoid replicating both the circumstances and behaviour associated with your violence in 1984 that you have not developed a clear understanding of your index offence and hence associated risk factors. The Secretary of State is concerned that no full functional analysis of your relationship with Ms Robinson and your violent behaviour leading up to her murder has been carried out during your sentence, particularly given your action in piercing her eyes after death.

13. The Secretary of State notes that there are appears to have been little challenging of your account of the index offence such that it has come to be taken as fact that there was an argument prior to the murder. This in turn has been taken as evidence for the presence of 'poor emotional management' as a relevant risk factor in your case. Though the Secretary of State does not rule this out as irrelevant and takes into account the qualified progress alluded to in the prison psychologist's report, the Secretary of State is unconvinced that there are not other risk factors that may be more central to your offending and that require further work, eg, violent fantasy which could likely be linked to the conscious decision to mutilate Ms Robinson's face post-mortem.

14. The Secretary of State has carefully considered the psychological assessment report submitted by the independent psychologist. However, he has some concerns about the way in which the risk assessment instruments have been reported. For example, it is unclear as to how the HCR-20 and PCL-R results have been arrived at by the reporting of them. The Secretary of State would normally expect to see something of a rationale in assessing individual items and a focus on advising on risk management through the reporting on potential early warning signs for elevated risk. It is hard to place much weight on the independent psychologist's HCR-20 assessment when only a score has been given. A bald score is perhaps more defensible with the PCL-R score although it is difficult to understand from his reporting how individual items might link to risk in any general sense.

15. The independent psychologist concluded that the index offence was primarily driven by your sense of rejection and need for 'retaliation' in the face of possible rejection/criticism by your then partner. His view is that your outstanding core risk factors are manageable in the community through the provision of structure and further work with psychologists. However the Secretary of State does not share that view given the risk of serious harm in this case and is supported in this by the Parole Board Panel who agreed that you presented more than a minimal risk of serious physical harm to your wife or to any other woman with whom you might enter into a relationship.

16. The prison psychologist gives a more detailed HCR-20 assessment. Her description of you indicates that she has several concerns about the degree of insight you have into your past offending and current/recent problems. She also raises concerns about risk management (under the sections Plans and their Feasibility, Personal Support and Handling of Pressure). Essentially, she appears to be of the view that your insight into your areas of concern is low and your skills available to deal with their management are inadequate.

17. The prison psychologist also reports attempts by you to dominate the interview with her particularly when there were topics you did not want to discuss such as the index offence and the circumstances surrounding your recall to prison. She also noted your inconsistent and contradictory account of events. She also noted your impression management, eg, your failure to disclose to certain interviewers that you had stabbed your victim in the eye. The prison psychologist was also concerned about the fact you did not recognise or anticipate any problems with employment/finances upon your return to the community. It is noted that the prison psychologist supported a move to open conditions but her concerns about your lack of ability to identify potential risk factors is of some concern and this indicates more work on core risk factors is required.

18. Your External Probation Officer in her report at p165 of the Parole Dossier also raised concerns about you being easily influenced by your peer group, something which was a problem in custody. For example, at p19 of the Parole Dossier it is noted that peer pressure led to you breaching your licence conditions when you joined fellow college students for lunchtime drinks. Your External Probation Officer also felt that you appear to have unrealistic expectations of yourself and others and have difficulties acknowledging any problems.

19. The Secretary of State notes that since your second recall to custody you have undertaken some accredited work, eg, the Enhanced Thinking Skills course and the Controlling Anger and Learning to Manage it course. However, it must be noted that prior thinking skills work has had little impact on you. A copy of the report on the CALM course was not considered by the Parole Board so it is hard to see how if at all they have evaluated whether this course has had any impact on risk.

20. There are indications in the Parole Dossier that you have displayed rude and abusive behaviour towards staff at Pentonville and were given a written warning in August 2006. The Panel placed little weight on this concluding that you had not been charged with any offence against prison discipline and that your sense of frustration at delay in completion of the hearing before the Panel and your disappointment at Ms Smith's report together offer sufficient explanation for this recent uncharacteristic conduct. However, the Secretary of State does not share this analysis and considers that the Parole Board have failed to consider whether your failure to follow prison rules has any relation, for example, to the anger you displayed towards your wife in the community (ie, the behaviour may not be uncharacteristic at all).

21. The Secretary of State has concluded that you should remain in closed conditions and undertake work with an experienced Charted Forensic Psychologist or experienced forensic practitioner (eg Probation Officer) such that the circumstances of your index offence can be better understood through a full functional analysis (of your relationships and index offence). This should include a focus on the driving force behind your post-mortem mutilation of the victim's body such that the question of whether there was, for example, any specific violent fantasy can be fully addressed. In this way, a thorough review of the risk factors associated with further offending can be undertaken such that any further treatment needs and risk management support can be identified. Without this work, the Secretary of State cannot be satisfied that the Parole Board was correct to assess the risk of serious harm as confined to those with which you are involved in intimate relationships.

22. The Parole Board concluded that your risk was manageable in open conditions where you could work to achieve frankness with those providing support and further assessment. The Secretary of State however considers that such frankness needs to be achieved before agreement to open conditions is given in order to be confident that this is a course of action appropriate to the risks posed by you.

23. For the above reasons, the Secretary of State is not satisfied that you currently present an acceptable risk for transfer to open conditions. He has decided that you should remain in closed conditions where you will be given the opportunity to undertake further work on assessing your risk and addressing any outstanding treatment needs.

24. The next review of your case will conclude in January 2008 to allow for further assessment to take place. This takes into account that fact that a full functional analysis will take some time across a number of sessions with an experienced forensic practitioner and may well indicate further treatment needs and to allow time for transfer from a local prison to one that would have the necessary facilities to produce a thorough assessment if this is required. Clearly if you are assessed as suitable for further work you may wish to consider deferring your next review in order to undertake this work."

16. The claimant was aggrieved by the Secretary of State's refusal to transfer him to open conditions. Furthermore, he contended that the Secretary of State had reached his decision in an unfair manner. Accordingly, the claimant commenced the present proceedings.

PART 3: THE PRESENT PROCEEDINGS

17. By a claim form issued on 12th April 2007 the claimant applied for judicial review of the decision of the Secretary of State taken on 5th February 2007 to the effect that the claimant should not be moved to open conditions. The claimant sought a quashing order and a mandatory order requiring the Secretary of State to reconsider the matter. The claimant advanced his claim on the following two grounds: (1) there was a lack of procedural fairness in reaching the decision dated 5th February 2007; (2) that decision was irrational.
18. The claimant's application for permission was dealt with on paper. The claimant obtained permission to proceed with his claim by order dated 13th July 2007. The matter was listed for hearing on the afternoon of Monday 8th October 2007. Argument was completed on the Monday afternoon. Unfortunately, owing to pressure of other cases in this list there has been no opportunity to give judgment until today, Wednesday 10th October.
19. Before I address the claimant's two grounds of claim, I must first review the law.

PART 4: THE LAW

20. Section 47 of the Prison Act 1952 empowers the Secretary of State to make rules for the management of prisons and for the classification and treatment of prisoners. Rule 7(1) of the Prison Rules 1999 provides:

"Prisoners shall be classified, in accordance with any directions of the Secretary of State, having regard to their age, temperament and record and with a view to maintaining good order and facilitating training and, in the case of convicted prisoners, of furthering the purposes of their training and treatment as provided by Rule 1 of these Rules."

PSO 900 provides for the categorisation and recategorisation of prisoners. It is for the Secretary of State to make decisions on the categorisation and recategorisation of prisoners.

21. Let me now turn to the position of life prisoners who have been released on licence. Under section 32(1) of the 1997 Act, the Secretary of State may revoke that licence and recall the prisoner to prison if the Parole Board has so recommended. Section 32(2) provides that where the matter is urgent, the Secretary of State may revoke the licence and recall the prisoner to prison without a recommendation by the Parole Board if that is expedient in the public interest. In the latter situation, the Secretary of State must refer the case to the Parole Board. It is then for the Parole Board to decide whether the life prisoner should be released on licence. If the Parole Board direct such release, the Secretary of State must give effect to that direction: see section 32(5) of the 1997 Act.
22. As previously mentioned, it is the function of the Secretary of State, not the Parole Board, to decide upon the categorisation of prisoners. Nevertheless, the Secretary of State may seek the advice of the Parole Board. Section 239(2) of the 2003 Act provides:

"It is the duty of the Board to advise the Secretary of State with respect to any matter referred to it by him which is to do with the early release or recall of prisoners."

Any advice which the Parole Board gives pursuant to section 239(2) of the 2003 Act shall be recorded in writing, together with the Parole Board's reasons: see Rule 20 of the Parole Board Rules 2004. The Secretary of State may refer to the Parole Board the question whether a life prisoner should be transferred to open conditions. Directions which have been given to the Parole Board under section 32(6) of the Criminal Justice Act 1991 set out the matters which the Parole Board should consider in relation to this question. The advice which the Parole Board gives on this matter is not binding upon the Secretary of State, but it is obviously an important factor in his decision.

23. The courts have considered on a number of occasions in recent years how the Secretary of State should set about making a decision upon which he has received advice from the Parole Board. In R v Secretary of State for the Home Department ex parte Bushell, 14th December 1994, the Divisional Court noted that the Discretionary Life Panel of the Parole Board comprised members of great experience. Accordingly, the recommendation of that Panel had to be "a factor of the greatest importance" in the Secretary of State's decision. Jowitt J cited that passage and relied upon it in R v Secretary of State for the Home Department ex parte Blackstock, Crown Office List, 3rd November 1999.
24. In R v Secretary of State for the Home Department ex parte Draper, Crown Office List, 27th January 2000, Sullivan J reviewed the authorities in this field and set out the principles at which he had arrived at paragraphs 23 to 30. The first principle was that it was for the Secretary of State to choose the procedure which he adopted in reaching a decision. The court would only intervene if it was demonstrated that the procedure was actually unfair. The court was the ultimate arbiter of what fairness required. At paragraph 45 Sullivan J said this:

"Does fairness require that the prisoner should be told of the reasons and the gist of the Secretary of State's preliminary response at that stage? I accept that there may be circumstances in which fairness may well require that the prisoner should be given some indication of the matters which are troubling the Secretary of State, where fresh material has emerged that was not before the Board; where it appears to the Secretary of State that the Board has either failed to have regard to a particular matter which the Secretary of State considers important or has itself raised some new point on which the prisoner has not had the opportunity to make representations."

Sullivan J went on to hold that a "minded to refuse letter" was not required in the circumstances of that case.

25. Some nine months later in R (Burgess) v Secretary of State for the Home Department (3rd November 2000), the Divisional Court approved the reasoning of Sullivan J in Draper and adopted a similar approach. The Divisional Court held that in the circumstances of that case, and despite the absence of a "minded to refuse letter", the Secretary of State's decision (contrary to the Parole Board's advice) not to move the applicant to open conditions was a lawful decision.
26. The next case in the series which counsel have cited concerns the release of prisoners serving determinate sentences on parole. This is the decision of the House of Lords in R (Clift) v Secretary of State for the Home Department [2006] UKHL 54; [2007] 1 AC 484. At paragraph 33, Lord Bingham made this observation:

"But by 2002 . . . it had by then come to be recognised that assessment of the risk presented by any individual prisoner, in the application of publicly promulgated criteria, was a task with no political content and one to which the Secretary of State could not (and did not claim to) bring any superior expertise."

27. The most recent case which has been drawn to my attention is the decision of Irwin J in R (Hill) v Secretary of State for the Home Department [2007] EWHC 2164 Admin In that case Irwin J helpfully summarised the present position at paragraph 21 as follows:

"Firstly, the Secretary of State has an obligation to seek directions from the Parole Board as to the question of release of the lifer; secondly, the Secretary of State has no obligation to seek advice on the questions of transfer or classification, but, the Secretary of State always does seek such advice when the question of release is before the Board; next, for practical purposes a spell in open prison is a prerequisite for release and will be so for this claimant; next, on the face of the legislation and regulations as I have outlined them, the Parole Board gives advice and Parliament has reserved to the Secretary of State a discretion to receive that advice, consider it and follow it or otherwise."

Irwin J then went on to review the statistics and he noted that the Secretary of State appeared now to be adopting a questioning approach in that he was more often rejecting the Parole Board's advice.

28. Irwin J's summary of the statistics is interesting by way of background and I bear it in mind as such. Nevertheless, in any given case what the court has to do is to determine whether the Secretary of State's decision was lawful. In relation to that question, I derive five principles from the authorities:

(1) The decision of the Secretary of State is not lawful if he fails to take into account the recommendation of the Parole Board and the fact that the Parole Board has particular expertise in assessing the risk posed by individual prisoners. Nevertheless, it is a matter for the Secretary of State what weight he assigns to those factors in any given case.

(2) The decision of the Secretary of State is not lawful if it was reached by an unfair procedure. It is for the court to determine in any given case whether the procedure was unfair.

(3) If the Secretary of State places reliance upon significant material that was not before the Parole Board, then fairness may require that the prisoner be given an opportunity to comment upon it.

(4) The mere fact that the Secretary of State takes a different view from the Parole Board of material that was before the Parole Board is not normally a matter which merits a reference back to the prisoner for his further comments.

(5) Even if the procedure adopted by the Secretary of State is fair, if his final decision is irrational it may still be quashed on traditional Wednesbury grounds.

29. I should add that paragraph 33 of Lord Bingham's speech in Clift, although highly relevant to the question of release, is not directly in point for present purposes. The categorisation of prisoners (unlike their release on licence or parole) remains a matter for the Secretary of State's decision. In reaching his decisions on categorisation the Secretary of State has the benefit of the expertise of his department, in addition to the benefit of any advice given by the Parole Board.
30. After this review I must now turn to the grounds of challenge in the present case.

PART 5: THE FIRST GROUND OF CHALLENGE -- PROCEDURAL FAIRNESS

31. Mr Peter Weatherby, who appears for the claimant, points out that transfer to open conditions is one stage along the route to release on licence. A delay in transfer to open conditions will, in practice, delay the prisoner's eventual release. Mr Weatherby also points out that the Parole Board's recommendation of a transfer to open conditions was made after two hearings at which oral evidence had been given and at which the Secretary of State had not been represented. Furthermore, that recommendation was in accordance with the opinion expressed on page 9 of the report by Claire Smith, the prison psychologist. Whilst it is open to the Secretary of State to reach a decision which is contrary to the recommendation, he can only do so after following a fair procedure.
32. I agree with all of those submissions of Mr Weatherby. In the circumstances of this case it is necessary to scrutinise with care whether a fair procedure was followed.
33. The next stage of Mr Weatherby's argument involves a scrutiny of the reasons given by the Secretary of State for his decision dated 5th February 2007. Mr Weatherby submits that there are six passages in those reasons which raise new matters. Those new matters do not arise from the evidence or submissions before the Parole Board and they were not put to the claimant. The six passages relied upon by Mr Weatherby are the following: (1) paragraph 12 of the reasons; (2) the final sentence of paragraph 13 of the reasons; (3) paragraphs 14 and 15 of the reasons; (4) the last sentence of paragraph 17 of the reasons; (5) the last two sentences of paragraph 19 of the reasons; (6) paragraph 21 of the reasons.
34. For convenience, I shall refer to these parts of the reasons as passage 1, passage 2 and so forth. Let me start with passage 1. The observation that the claimant had not developed a clear understanding of the index offence and associated risk factors is supported by paragraphs 2.1 and 3.24 to 3.27 of Ms Smith's report. The Secretary of State's conclusion from those facts was that further functional analysis was required. Admittedly, this conclusion differed from the views of the Parole Board, but it was based upon the same material. Although the Secretary of State was not present at the two oral hearings, he had the benefit of a clear summary of the evidence given. He had the benefit of the Parole Board's conclusions and the reasons for those conclusions.
35. In my view, the Secretary of State was fully entitled to arrive at the conclusion expressed in passage 1. It needs to be remembered that on two occasions the claimant had been released on licence, only to be recalled because he was not yet ready for life in the community. For my part I am not at all surprised at the conclusion which the Secretary of State reached in passage 1. I do not regard it as necessary that the entirety of the Secretary of State's final decision should feature in the submissions which he makes to the Parole Board in advance of the hearing which takes place. It seems to me that after the Secretary of State has obtained the Parole Board's recommendations and reasons, he is entitled to look at the matter as a whole.
36. I come now to passage 2. This passage flows from paragraphs 2.2 to 2.4 of Ms Smith's report. The Secretary of State was entitled to conclude that there may be other risk factors which required further work.
37. Passage 3 is a discussion of a report prepared by Brian McKenzie, a psychologist, in 2002. The complaint which Mr Weatherby makes about passage 3 is that the Secretary of State's comments about the McKenzie report do not coincide with the comments which Ms Smith makes about that report. For the purposes of this issue it is necessary to compare passage 3 with paragraph 3.15 of Ms Smith's report. It seems to me that neither the Secretary of State nor Ms Smith derived a great deal of assistance from the McKenzie report. That report was four years out of date and much had happened during those four years. Ms Smith points out that she did not administer the personality assessment tests and she only makes brief reference to Mr McKenzie's conclusions. The Secretary of State, on the other hand, examines the report in greater detail before coming to the conclusion that it does not assist. In my view this is not a proper ground for challenging the Secretary of State's decision. The McKenzie report was part of the dossier available to the Parole Board, the claimant and the Secretary of State. All parties could make their own assessment of its significance.
38. Turning to passage 4, Mr Weatherby conceded in argument that this was not really new material and he was right to make this concession. It seems to me that this passage was derived from Ms Smith's report.
39. I come next to passage 5. Mr Weatherby submits that passage 5 is incorrect. Although a written report on the claimant's participation in the anger management course was not available, the Parole Board heard evidence about this and the Secretary of State could read the Parole Board's summary of that oral evidence. There are two reasons why I am not impressed by this point on behalf of the claimant. First, what the Secretary of State said in his reasons is correct. There was no written report on the anger management course before the Parole Board. Secondly, the oral evidence about the claimant's performance on that course was ambivalent. In particular, that evidence showed the claimant to be a person who had difficulty in identifying his emotions. The claimant was able to create a good impression but the difficulty was "getting underneath".
40. Passage 6 is a repetition of the conclusion set out in passage 1. I have already dealt with that matter.
41. Let me now draw the threads together. It can be seen from the above analysis that the Secretary of State's comments in the six passages were all based upon the material which was before the Parole Board and available to the claimant. The Secretary of State was not relying upon any new material. The fact that the Secretary of State in some respects differed from the Parole Board in the conclusions which he drew from that material does not make the procedure unfair. There was no obligation upon the Secretary of State to set out his conclusions in draft and then invite the claimant's comments on that draft. The Secretary of State gave careful consideration to the views of the Parole Board and clearly took into account the expertise of that body. Nevertheless, decisions on categorisation are for the Secretary of State. The Secretary of State is not bound by the Parole Board's recommendations in this regard. I am unable to detect any procedural unfairness in the process by which the Secretary of State arrived at his decision.

PART 6: THE SECOND GROUND OF CHALLENGE -- IRRATIONALITY

42. I can deal with this ground more shortly. Mr Weatherby urges upon me many of the points mentioned in Part 5 of the judgment. He submits that having regard to the recommendations of Ms Smith, Ms Sydow and the Parole Board, in all the circumstances of this case it was irrational not to move the claimant to open conditions.
43. So far as Ms Sydow is concerned, her views appear to have shifted during the period between the first and second hearings. In her report for the second hearing, Ms Sydow refers to the claimant's bad behaviour in prison. She also refers to his general unwillingness to cooperate with staff. Ms Sydow describes the claimant as immature. She notes many similarities between the index offence and the claimant's behaviour at the present time. In his reply, Mr Weatherby very fairly acknowledged that he may have overstated the assistance which he could derive from Ms Sydow's evidence.
44. In my view, it cannot possibly be said that the Secretary of State's decision was irrational. The case was a difficult one and two views were possible as to whether the time had arrived to transfer the claimant to open conditions. The Parole Board took one view, the Secretary of State took a different view. In my judgment, it cannot be said that the Secretary of State's decision was irrational.

PART 7: CONCLUSION

45. For the reasons set out in Parts 5 and 6 above, the claimant fails on each of his grounds of challenge to the Secretary of State's decision dated 5th February 2007. I am grateful to both counsel for their helpful skeleton arguments and oral submissions. In the result, this claim is dismissed.
46. MR PATEL: My Lord, could I provide some assistance for the transcript. In relation to the House of Lords decision of Clift, that actually concerned the release of determinate sentence prisoners rather than life sentence prisoners.
47. MR JUSTICE JACKSON: You are quite right. Thank you very much. So far as Clift is concerned, the point which I made about Clift remains valid, although I need to correct the aspect of release that was under consideration.
48. MR ARNOTT: My Lord, the claimant is publicly funded. I would ask for detailed assessment of his publicly funded costs.
49. MR JUSTICE JACKSON: Yes, certainly.
50. MR ARNOTT: I would also ask for permission to appeal. I would only make the submission that there is a point of general public importance about the procedure that the Secretary of State should adopt when referring questions of this kind to the Board, and it does affect a large number of life sentence prisoners. That is the only submission.
51. MR JUSTICE JACKSON: This is an application for permission to appeal. The application is put on the ground that the point is of importance and it affects a number of life sentence prisoners. Whilst I agree that this particular point does affect a number of life sentence prisoners, this is an aspect of the law which has been considered on a number of occasions, including by the Divisional Court including various Lord Justices of appeal. It does not seem to me that my decision is out of line with those earlier and more authoritative decisions. Obviously, any first instance judge, myself included, will fall into error from time to time but, as I see this case, the prospects of success are not such that permission to appeal is warranted. Furthermore, I bear in mind that in three months' time it is likely that there will be a further hearing of the claimant's case before the Parole Board and in those circumstances it seems to me that an appeal in this particular case would involve an unnecessary expenditure of costs and resources. It seems to me improbable that the Court of Appeal would consider this matter before the next consideration by the Parole Board.
52. Nevertheless, an application for permission to appeal has been made. The fact that such an application has been made triggers the obligation of this court under paragraph 4.3A of the practice direction supplementing Part 52 of the Civil Procedure Rules. That paragraph requires the judge dealing with an application for permission to appeal to state in open court four matters: (a) whether or not the judgment or order is final; (b) whether an appeal lies from the judgment or order, and if so to which appeal court; (c) whether the court gives permission to appeal; and (d) if not, the appropriate appeal court to which any further application for permission may be made.
53. The answers to those four questions are self-evident to the experienced lawyers in court, but I am required by the practice direction to state the answers and I shall do so. The answer to question (a) is that the judgment which I have given is final. The answer to question (b) is that appeal lies from the judgment to the Court of Appeal. The answer to question (c) is that this court does not give permission to appeal, and the answer to question (d) is that the appropriate appeal court to which any further application for permission may be made is the Court of Appeal.