England and Wales High Court (Administrative Court) Decisions

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

		Royal Courts of Justice Strand, London, WC2A 2LL
		7 April 2009

MR JUSTICE SILBER:

I Introduction

1. The claimant "M" pleaded guilty in 1973 to three charges of murder. He was sentenced to life imprisonment with a tariff of 20 years, which expired in 1993 but he remains imprisoned in closed conditions.
2. The issue raised on this application is whether the Secretary of State for Justice ("the Secretary of State") has acted in a Wednesbury unreasonable manner by failing to transfer the claimant to open conditions. Mr David Elvin QC, sitting as a Deputy High Court Judge, granted permission for the claimant to pursue this claim.

II Chronology

3. Although the claimant's behaviour in custody has been exemplary, he has experienced many difficulties while serving his life sentence. The nature of the offences committed by him has meant that he has been subjected to threats and violence from other prisoners during his time while serving the tariff period of 20 years. This occurred on a number of occasions and in consequence the claimant has moved prisons or been put in isolation very frequently. In January 1994, the Parole Board recommended that the claimant should be transferred to open conditions with a further review to take place two years later. The initial transfer of the claimant to HMP Leyhill made pursuant to that recommendation in 1994 broke down when other inmates learnt of the offences committed by the claimant.
4. The claimant was then transferred to HMP Usk before being transferred to open conditions at HMP North Sea Camp but problems arose as inmates wearing balaclavas attempted to gain access to his cubicle and he requested a move. He was then transferred to the category D section of HMP Lindholme but the Secretary of State's predecessor decided that the claimant was required to undertake further work to assess if there was a sexual element to his offences. He was then transferred with his agreement to the closed section at HMP Lindholme. In February 1997, a panel of the Parole Board recommended that the claimant should remain in closed conditions with a further review two years thereafter.
5. Following a case conference and with the agreement of the claimant's solicitors, it was decided that the claimant should remain in HMP Lincoln to carry out further behaviour work. In June 2000, the Parole Board recommended that the claimant should remain in closed conditions with a further review two years thereafter and it was concerned that little work had been done to explore the deviant sexual undertones of the claimant's behaviour.
6. In June 2004, the Parole Board recommended that the claimant be transferred to open conditions. This recommendation was accepted by the Secretary of State's predecessor and the claimant was duly transferred to open conditions.
7. While in open conditions however, the claimant was subject to extensive hostile media coverage. The claimant was then moved to a category C prison for his own safety. The claimant's parole hearing was due to take place on 20 June 2006 but it was adjourned at the request of the Parole Board.
8. A parole hearing eventually took place between the 20 and 22 March 2007. It made a number of recommendations about the further work which was required to be done in relation to the claimant and to which I will refer in paragraphs 40 to 44 below including that the claimant should have a PPG assessment. It is significant that it concluded that:-

"70. The Parole Board can only direct a prisoner's release if it is satisfied that it is no longer necessary for the protection of the public that he or she be detained. The Panel, having considered the claimant's case, was not so satisfied and therefore does not direct his release".

9. On 25 April 2007, the claimant was informed by the National Offender Management Service ("NOMS") that he would remain in closed conditions "until such a time that the Prison Service has arranged your transfer to open conditions as you have retained you category D status". It appears to have been assumed that the claimant would eventually return to open conditions but Mrs Susan Gambling, who is Head of Casework in the Public Protection Casework Section of the NOMS within the Ministry of Justice, has explained in a witness statement that the claimant's case was "a complex case which has to be managed to take account of many different concerns". I do not find this comment to be surprising in any respect as not only were there concerns about the effect of the hostile interest by the press and on occasions other prisoners on the claimant but also because of the sadistic nature of his offence and his subsequent treatment of their bodies.
10. The claimant was informed that his next parole review was provisionally fixed for March 2009 to enable him to undergo a PPG tests and for "the results of this to be assessed, and further work to be carried out as deemed necessary following the outcome of the PPG assessment. For you to be transferred to open conditions establishment in order for you to develop and test a robust release plan incorporating a contingency release plan". At the hearing of the present application on 25 February 2009, counsel for the Secretary of State told the court and the claimant's advisors for the first time that the hearing fixed for March 2009 had been delayed to June 2009. This was a regrettable and unexplained delay.
11. In about July 2007, the claimant was transferred to a different category C prison to undergo PPG assessment following the Parole Board's assessment. The PPG assessment was completed by 5 September 2007 and no phallometric change above the threshold on any aggregated sexual category was identified and in those circumstances, no recommendation was made. I understand that during the test, the claimant was shown a series of photographs of deviant sexual behaviour and the assessment of the claimant's reaction to these photographs was based on the extent to which he was aroused by them. In her witness statement Mrs Gambling describes the result of the PPG as "inconclusive". This description is based on the report by the psychologist who completed the PPG test. The claimant then asked to be transferred back to open conditions and the Offender Manager sought advice from the Secretary of State.
12. In October 2007, Mrs Gambling sent the claimant's solicitors a copy of the PPG assessment and she then explained that consideration was being given to the next step in the light of "the complexities [of the claimant's case] and the high level of media exposure".
13. On 22 November 2007, Mrs Gambling on behalf of the Secretary of State informed the claimant's solicitor by letter that they "will now pursue his potential suitability to return to category D establishments", which meant open prison conditions.
14. It was then decided by Mrs Gambling and her colleagues to seek further advice from the Parole Board because of the concerns about returning the claimant to open conditions and also because the Parole Board had not considered this important issue at the 2007 review to which I referred in paragraph 8 above.
15. Subsequently, the Secretary of State informed the claimant that the Parole Board would consider the issue of whether he should return to open conditions following his referral to them. In the light of a letter from the claimant's solicitors of 22 January 2008, the referral was withdrawn because the Board's further input was considered to be unnecessary at that stage. Arrangements then had still to be made for the ongoing psychological work, which had previously been recommended by the Parole Board and to which I will refer in greater detail in paragraph 45 below. The claimant duly retained his category D status but, as Mrs Gambling explained in her witness statement, he "remained in closed conditions for his own safety because it was very likely that he would again be 'outed' by the media".
16. On 1 April 2008, the claimant's solicitors expressed concern that the claimant had remained in a category B prison conditions whereas he should have been in a category D prison while focusing on his release plan. They informed the Secretary of State that if they did not receive a satisfactory response, they would seek to challenge the failure to transfer him in High Court proceedings. Mrs Gambling spoke to the claimant's solicitors on 4 April 2008 and she explained that following advice from Ministers and an informal internal meeting, a strategy meeting would take place after which the claimant's solicitors would have a meeting with Secretary of State's representatives to discuss the case and how it could be best progressed. Mrs Gambling had explained that the Secretary of State had decided that the claimant should retain his category D classification but remained in closed conditions "for his own safety because it was very likely that he would again be 'outed' by the media". In addition, Mrs Gambling pointed out that arrangements had at that time yet to be made for the ongoing psychological work recommended by the Parole Board and that it was decided that it would be helpful to meet the claimant' solicitors so as to exchange views on the claimant's case.
17. On 30 May 2008, a meeting took place between the claimant's solicitors and representatives of the Secretary of State which according to the claimant's lawyers was for the purpose of determining the appropriate way in which the claimant's progression back to open conditions could occur. Mrs Gambling explained that this was not the purpose of the meeting, which was to inform the claimant's solicitors of the Secretary of State's views on the case, involve them in the process and also to discuss any matters which the claimant's solicitors wished to raise.
18. According to the claimant's solicitors, the representatives of the Secretary of State informed the claimant's solicitor that the claimant's case was a high profile case and that he had previously been subjected to political pressure by Ministers regarding transfer back to category D conditions. Mrs Gambling gave a different account as she does not recall reference being made by the Secretary of State's representative to the fact that he had been subjected to political pressure by Ministers. She said that the claimant's solicitors were told that the reasons for keeping the claimant in closed conditions "related to the work which we had to do in custody with the need to avoid media exposure". It was the view of Mrs Gambling's manager that in her words "in open conditions a media 'outing' would be almost inevitable in view of earlier exposure". There was disagreement about the psychological work, which the claimant was expected to undertake with the Secretary of State wanting further work to be done to obtain a fuller explanation of the claimant's offences as this was necessary to assess the risk of releasing him. The Secretary of State considered that as the "exploration of the motivation for offending can be destabilising, this type of work is better done in closed conditions".
19. There was according to Mrs Gambling a discussion about the area to which the claimant might be released.
20. Mrs Gambling has explained in her witness statement that the risk of media coverage was greater if the claimant was kept in open conditions because "the greater prevalence of mobile phones in the open estate means the opportunities to photograph [the claimant] and to pass the material on to the media are much greater". The view of the Secretary of State was that without a further explanation of the claimant's offences, the claimant's "core risks" could not be said to have been addressed. The claimant's solicitors considered that there was no further work required to be done with the claimant but there was agreement that a relationship with a psychotherapist needed to be established.
21. On 24 June 2008, a case meeting concerning the claimant took place at the prison where he was located in which it was recorded that since the PPG had been undertaken in September 2007, "no further offending work has been identified as outstanding". An action plan for the claimant was agreed which would include further psychological assessments and interventions as well as psychotherapy interventions.
22. In response to a request from the claimant's solicitors, Mrs Gambling wrote to them on 3 June 2008 explaining that the reason why the claimant was being held in closed conditions was because "of the nature of the core offending behaviour that needs to be completed" and that there had been no media interest in the claimant since his arrival at his current location. Mrs Gambling agreed that a change of name would assist prior to a transfer to open conditions and she agreed to ensure that all files and records were changed to reflect the new name. She explained that "arrangements are now being put in place to arrange regular psychotherapeutic interventions".
23. On 15 July 2008, an OASys Two risk assessment of the claimant concluded that he had a low risk of reconviction. The sentence plan review report for the claimant prepared in June 2008 explained that the Secretary of State had concluded first that "there had been no satisfactory explanation" for the events leading to the murders by the claimant for which he was still being detained; second that "possible sexual motivation remains a real, but inadequately explored, formula for the offences" and third that "the inconsistency in some of [the claimant's] disclosures to professionals casts doubts on the veracity of his reporting". There was then reference to the short term objectives of the next few months and the long-term objective that "the relationship with a psychotherapist is included in his release plan", which is what the Parole Board recommended as I will explain.
24. On 26 September 2008 the claimant's Offender Supervisor Report for the Parole Board hearing, which was produced by the claimant's Offender Manager, stated that he had considered it:-

"to be vital that a plausible formulation for the offences is further explored with [the claimant] but I do not believe that this alone should preclude him from returning to open conditions. Certainly if sexual motivation is established at any stage it will have huge implications and will inevitably see [the claimant] returned to closed conditions for a lengthy period".

His recommendation was that:-

"on balance I believe [the claimant] should be given the opportunity to return to open conditions. I am of the opinion that the intervention work identified can be undertaken in an open prison".

25. On 29 September 2008, the Key Worker/Personnel Officer's report, relating to the claimant for the parole hearing recommended that he should be placed in an open prison although he did explain "that there are some complexities to his case that are far above my jurisdiction". He added that:-

"I believe it is also vital that as soon as possible, the one to one support with the Psychotherapist is set up for the purpose of him being monitored, in an appropriate way in the continuation of risk reduction, and also for the purpose of support within the community, should and when he be considered for release".

There was also a recommendation that serious consideration should be given to a change of identity for the claimant.

26. On 23 October 2008, a Chartered Psychologist at the prison where the claimant is located had noted that from 2005 onwards, those who had written reports on the claimant were "virtually unanimous that [he] should move to open conditions… nothing had come to light at [his current location] that gives rise to concern or would indicate that there should be a reversal of this position". The psychologist's view was that further interventions were unlikely to find a motive for the offence as about two to three hundred hours had then been spent by "professionals" with the claimant and that "very little" had been discovered. His recommendation was that careful, continuous and multi-sourced monitoring of the claimant should take place and in addition that any supervising officer should also be closely supervised and supported.
27. According to a witness statement from Mr Rikki Garg who is a Prison Law Consultant with the claimant's solicitors, he had on 30 January 2009 discussed the claimants' case with the Lifer Manager who confirmed first that they had not been able to access any of the treatments as recommended by the Ministry of Justice, second that the claimant "has effectively been treading water" and third that the claimant will not be able to progress until "he moves on".

III The Issues

28. The case for the claimant is that, as is explained in the Prison Service Order 0900 ("PSO"), "every prisoner must be placed in the lowest security category consistent with the needs of security and control". Thus it is said by Miss Quincy Whitaker counsel for the claimant that it is incumbent on the Secretary of State to show why it is necessary for the claimant to remain in closed conditions. It is stressed that the claimant remains categorised in category D which is defined in PSO 1.1.1 as being for "prisoners who can be reasonably trusted in open conditions".
29. Miss Whitaker contends that the fact that the claimant is being held in closed conditions would have the effect of delaying or preventing his release. She points out that Lord Woolf CJ in the case of R (Hirst) v Secretary of State [2001] EWCA Civ 378 has explained in a judgment (with which May and Dyson LJJ agreed) that:-

"18.. the re-categorisation of a prisoner.. significantly affects the prospects of his being released on licence. The reason is obvious. It is of the greatest importance that the Parole Board, in assessing the risk that a prisoner poses to the public, to have information as to how the prisoner has performed under the less confined circumstances of an open prison. Without the help of seeing how the prisoner reacts to an open prison, it is difficult for the Parole Board accurately to assess the degree of risk".

30. Miss Whitaker contends that by being held in a closed prison the claimant is being denied the opportunities to demonstrate trust and to obtain assistance in resettlement. It is also said by her first that the threat of media interest is not a legitimate reason for continuing to prevent the claimant's progress and second that after the parole review in March 2007, it was understood that the defendant would ensure that the Prison Service would arrange the claimant's transfer to open conditions and that he would remain in closed conditions for a short period while the necessary arrangements were being made. She also submits that there was to be a delay while the PPG test took place but that showed that the claimant did not respond to any aggregated sexual category.
31. Criticism is made by Miss Whitaker of the delay on the part of the Secretary of State and of the change of heart. I agree with Miss Whitaker that his officials appear to have taken the view incorrectly that the correct interpretation of the Parole Board's decision in March 2007 was that further offence-related work should be completed in closed conditions. I interject to say the Secretary of State now correctly in my opinion accepts that the Parole Board in fact did not express this view and indeed it made no recommendation. It is regrettable that this serious error was made.
32. The case for the defendant as explained by Miss Marina Wheeler, counsel for the defendant, is that there are two reasons for the claimant remaining in closed conditions which are first that he is less likely to face media exposure in closed conditions and second that psychological work proposed for him is more appropriately undertaken in closed conditions.

IV Two Preliminary Points

33. Before dealing with the evidence and seeing how the Secretary of State seeks to justify the position, it is appropriate now to deal with two issues which have been raised. First, it has been said on behalf of the claimant that he cannot be released directly from closed prisons. The case for the Secretary of State is that this is not correct as some prisoners are released from closed conditions. This point was considered by Irwin J in The Queen (on the application of Hill) v Secretary of State [2007] EWHC 2164 (Admin) in which he analysed the circumstances in which prisoners had been released from closed conditions before concluding that "it seems clear that release from closed conditions with no period in open prison is very rare" [7]. This conclusion has not been challenged and indeed in her witness statement, Mrs Gambling states in the light of the fact that the claimant "has already spent a period of time in open conditions, the Secretary of State would probably expect a further limited time in open conditions prior to release".
34. The second matter is the suggestion made by Miss Whitaker that as the claimant is placed in category D, this automatically means that he should be transferred to open conditions. It is correct because, as I have explained, that category D is for "prisoners who can be reasonably trusted in open conditions" (PSO paragraph 1.1.1). So the categorisation deals with the likelihood of the prisoner's escape rather than where the prisoner should be and could be treated.
35. The Secretary of State gave Directions to the Parole Board under Section 32(6) of the Criminal Justice Act 1991 in August 2004 in which it was pointed out that:-

"2 The main facilities, interventions and resources, for addressing and reducing core risk factors exists principally in the closed lifer estate. In this context, the focus in open conditions is to test the efficacy of such core risk reduction work and to address, where possible, any residual aspects of risk".

36. Before recommending the transfer of a lifer to open conditions, the Parole Board was obliged to consider all information relating to the prisoner concerned (paragraph 4) and the Parole Board must take in to account a number of "main factors" including:-

(a) "the extent to which the lifer has made sufficient progress during sentence in addressing and reducing risk to a level consistent with protecting the public from harm, in circumstances where the lifer in open conditions would be in the community, unsupervised, under licence temporary release" (paragraph 5(a)); and

(b) That the Parole Board was also obliged in assessing the risk to consider "whether the lifer has made positive and successful efforts to address the attitudes and behavioural problems which led to the commission of the index offence" (paragraph 6 (d)).

V The Conclusions of the Parole Board at the March 2007 Hearing

37. An important starting point for the purpose of understanding why the claimant has not been released is the decision of the Parole Board that followed an oral hearing, which took place on 20, 21 and 22 March 2007 and which was presided over by Mr Justice Pitchers. The Panel described the claimant's case as "inherently difficult". As it was the first panel to hear the issues extensively canvassed in oral evidence, it made a number of findings in the hope that they might provide "a useful base-line for any future consideration of the case".
38. The Parole Board described the index offences, and it is unnecessary to repeat the details of the sadistic and unprovoked murder of three vulnerable victims.
39. The Panel noted that throughout his sentence the claimant had behaved well and that it heard evidence from nine witnesses including the claimant.
40. The Panel then proceeded to consider if a full explanation of the claimant's offending had been obtained. They pointed out "the importance of this question was that unless those dealing with [the claimant] and indeed the Board, have a clear understanding of why he offended in the appalling way which he did, it was difficult to conclude that the risk that he presents has been fully identified and hence fully addressed". The conclusion of the Panel was that:-

"39 We do not believe that it will ever be possible to say that we are confident that a complete explanation has been obtained to explain all of [the claimant's] conduct on that night in 1973. The question will always be whether the explanation that we have is sufficient to allow the risk to be identified and managed in a way that adequately protects the public".

41. The Parole Board concluded that although there were personality traits revealed that should affect any risk assessment and monitoring regime for the claimant, it was not then possible to make a diagnosis that the claimant is psychopathic (paragraph 43). The Panel also concluded that the claimant should undergo a PPG before release which is what has taken place and which was inconclusive as I have explained.
42. The Parole Board then considered the release plan which was at that time that the claimant should live at a Hostel and be supervised by a specified officer. The Parole Board considered that:-

(a) bearing in mind the press interest and its ability to obtain information about the claimant would mean he would need continuity of supervision of the claimant in a known environment and by staff who know him. This is central to any acceptable release plan but the proposed release plan contained no details of a reserve probation area, hostel or officers. In consequence the panel did not consider that the release plan adequately addressed the risks presented.

(b) it was likely that the claimant would at some stage have to leave [the hostel] and the panel would need to be satisfied that the area, hostel and supervising staff to which he was moving was suitable and additionally those monitoring him would have to be alert not simply to plain breaches of his condition but also to early warning signs of any problems. This required hostel and supervisory staff to be thoroughly familiar not only with his case but with him.

(c) There was an absence of an ongoing professional relationship which the panel considered "imperative" that the claimant should have after release. It thought that it was "imperative" for the claimant to have after release an ongoing professional relationship with a strong professional in addition to his supervising probation officer and that additional person should ideally be a forensic psychotherapist. The panel did not believe from the evidence that input from the forensic psychology service would be adequate.

43. So far as any future application for release was concerned, the Panel's conclusion was that:-

"69. In our judgment, the risk that [the claimant] presents cannot be said to have been adequately addressed to allow his release on licence unless, in addition to addressing more general concerns:

(i) [The claimant] has undergone a PPG and its results have been assessed;

(ii) The release plan includes the following:

(a) Sufficient information not only about the first choice of probation area, hostel and staff but also similar information about the alternative should [the claimant] have to leave the first area;

(b) There are in place arrangements for an on-going relationship with a strong professional ideally a forensic psychotherapist.

(iii) A condition is inserted in his licence which is sufficiently robust to allow recall for breach if a professional with knowledge of [the claimant] is concerned about warning signs."

44. As I have explained at the PPG testing, his responses were described in this way:-

"[The claimant] has not provided interpretable data. He has not responded above the minimum threshold of 3mm circumference change from base line on any aggregated category".

VI Discussion

45. The basis of the case for the claimant is that in practice a pre-condition for his release is that he spends some time in open conditions and that is not seriously in issue as I have explained in paragraph 33 above. Miss Whitaker contends that the defendant has acted in a Wednesbury unreasonable manner by failing to transfer the claimant to open conditions. There is evidence to support the contention that he could be placed in open conditions, bearing in mind that the PSO provides that "every prisoner must be placed in the lowest security category consistent with the needs of security and control" (paragraph 1.2.3). I agree with Miss Whitaker that if the defendant cannot show that it is necessary for the claimant to remain in closed conditions, then the inevitable inference must be that the decision to retain him in closed conditions was taken for improper reasons.
46. Miss Whitaker contends that the claimant should be returned to open conditions and she relies on the report of the claimant's Offender Manager to which I referred in paragraph 24 above and who believes that the intervention work necessary "can be undertaken in an open prison". She also relies (as I have explained in paragraph 27 above) on a witness statement from Mr Rikki Garg, who is a prison law consultant with the claimant's solicitors, which states that he had been told by the Lifer Manager at the prison where the claimant is currently located that the claimant would not be able to progress unless he moves on. This according to Miss Whitaker undermines the suggestion that the stability of his current location was considered beneficial to the claimant. Indeed she says that the suggestion that had been made by the Secretary of State in his grounds that moving the claimant would cause disruption to the therapeutic work is now unsupportable because there is nothing to disrupt.
47. On the issue of deference, the claimant contends that there is no requirement in public law that the Secretary of State should be accorded deference in the evaluation of decisions relating to the allocation of a prisoner to a particular prison although it is accepted that allocation is a matter of the Secretary of State's discretion.
48. Miss Whitaker says that the discretion must be exercised in accordance with the principles of consistency and a presumption that the Secretary of State through his own officials will follow the appropriate policy (see R (Lowe) v Governor of HMP Liverpool [2008] EWHC 2167 (Admin) [33] quoting Sedley J in R v Secretary of State for the Home Department ex parte Urmaza (10 July 1996)). It is also said that a high degree of procedural fairness is required in making security categorisations concerning post-tariff life sentence prisoners (see R (Hirst) v Secretary of State [2001] EWCA Civ 378). I agree that I must and indeed that I will apply these principles.
49. It is perhaps appropriate at this stage to explain the principles which govern the allocation of prisoners which are set out in PSO. I have already explained that paragraph 1.2.3 states that "every prisoner must be placed in the lowest security category consistent with the needs of security and control".
50. It is also significant that the PSO also states that:-

"1.6.4 While the main factor to be considered in determining a prisoner's allocation must always be his security category, and a prisoner who has been assigned to a particular security category should initially be considered for allocation to a prison designed for that category, account must also be taken of:

-his suitability for particular types of accommodation (factors such as vulnerability, age, etc.);

-his medical and/or psychiatric needs that may require a particular type of level or care;

-need for identified offence related behavioural programmes to confront assessed risk;

-his home area, or that of his likely visitors;

-his educational or training needs or potential;

the published allocation criteria for individual establishments resettlement needs.

Para 1.6.5: The allocation of a prisoner must be decided carefully, bearing in mind the considerations above. The decision reached must be justifiable and must be recorded, along with the reasons for it.

Para 1.6.6. Any allocation to a prison of a higher security category than that of the prisoner himself must be referred to an officer of Senior Officer rank or above for confirmation. The reasons for such a recommended allocation must be recorded…."

51. I bear in mind the importance of the claimant being placed in open conditions as soon as appropriate but there are in my view a number of factors which show that Secretary of State has been entitled and remains as the present time entitled to retain the claimant in closed conditions, notwithstanding his excellent behaviour while he has been in detention and that he has been the subject of much investigation. I also bear in mind the delay on the part of the Secretary of State's staff in implementing the recommendations of the Parole Board in particular in ensuring an ongoing professional relationship with psychotherapist which, I will explain in paragraph 58 "has proven to be a difficult task".
52. First, by any standards the claimant committed a horrific and unexplained collection of offences because not merely did he carry out the sadistic and unprovoked and viscous murders but in addition he then inflicted further injuries on the three vulnerable victims after he had killed them. In my experience of trying murders and dealing with appeals in murder cases, the sadistic nature of the claimant's attacks puts these murders in by far the most serious and sadistic category of murder cases which I have tried or read of. The way in which the claimant then dealt with the bodies of the victims before falling asleep also makes his case especially disturbing. The Parole Board and the defendant correctly and not surprisingly attached and continue to attach great significance to the exceptionally sadistic and unprovoked nature of these three murders and the subsequent treatment of the bodies. As has been said, the Secretary of State has been anxious to ascertain the motive for the murders committed by the claimant especially to ascertain if there was as sexual motive. There are obvious reasons why this exercise is vital bearing in mind the Secretary of State's duty to protect the public.
53. This view has been expressed by Mrs Gambling who considers that that this is best done in closed conditions as the exercise of obtaining details of the motivation can be "destabilising" as I explained in paragraph 18 above. In addition, the sentence plan review report for the claimant prepared in June 2008 concluded first that there had been no satisfactory explanation for the circumstances leading to the murder by the claimant of the three young children, second that a "possible sexual motivation remains a real, but inadequately explored explanation for the offences" and third that "the inconsistency in some of [the claimant's] disclosure to professionals casts doubts on the veracity of his reporting".
54. I appreciate that there are some who believe that there is no advantage in continuing to keep the claimant in closed conditions. My task is not to see if the contrary view is correct but whether it is Wednesbury unreasonable. I cannot conclude that this is so in the light of the evidence of Mrs Gambling who has explained first why seeking to obtain the claimant's motive for these murders is best done in closed conditions and second the importance of obtaining such explanations is shown by the evidence on the need to ascertain the motive for the killings and especially to ascertain if there was a sexual motive. It must not be forgotten when considering this application that the Secretary of State has substantial duties to ensure the safety of the public.
55. A second important factor is that the media coverage and interest in the claimant is very substantial as was shown by what happened when he was in open conditions and which I have described in paragraph 7 above. Thus, it is easy to understand why Mrs Gambling has explained that the risk of media coverage is greater if the claimant is kept in open conditions because of the general prevalence of mobile phones in the open estate which means the opportunity to photograph the claimant and to pass this material onto the media are much greater. Furthermore as I explained in paragraph 18 above, the Secretary of State has concluded that the "explanation of the motivation for offending can be destablising, this type of work is better done in closed conditions". This is an important consideration in the task of preparing the claimant for release as, paradoxical though it might first appear, the claimant might increase his chance of release by spending more time in closed conditions.
56. Third, although the claimant has been subject to much investigative work I can understand why in the Parole Assessment Report Offender Manager's recent report of February 2009, it was said:-

"There also remains doubt among these professionals involved as to whether there is a sexual element to these offences and therefore this needs to be resolved. If a sexual element were to be proven, it would have a significant effect upon risk assessment/management and suitability for release. [The claimant] stated categorically during my interview with him in December 2008 that no such motive for these offences existed".

57. That seems a credible view even though the Parole Board did not believe it was possible to conclude "we are confident that a complete explanation has been obtained to explain all of the claimant's conduct on that night in 1973". Nevertheless, further enquiries to obtain some further explanation are obviously relevant to the risk which the claimant poses on release and they should be carried out. There can be no criticism for carrying them out further even though to date they have not produced any results. The safety of the public on the claimant's release is a critically important consideration.
58. That suggestion has been taken onboard belatedly. In the February 2009 report referred to in paragraph 58 above, it is explained that:-

"Emphasis was placed by the Parole Board, upon [the claimant] having an ongoing professional relationship after release with a strong professional in addition to his Probation Officer, ideally a forensic psychotherapist. Facilitating this has proven to be a difficult task. However, discussions are taking place to provide an initial assessment with [the claimant] by Dr Alex Hossack … Should the initial assessment establish that ongoing contact is possible then a further series of assessments will be undertaken. The results of which I understand will form part of a Management Plan and a Therapeutic Plan. Should these assessments indicate that [the claimant] could be managed safely in the community, tools will therefore be made available for his management in which ever area he is released to".

59. All these factors whether considered individually or cumulatively show that the decision to retain the claimant in closed conditions cannot be regarded as Wednesbury unreasonable. I was concerned about the delay in progressing the recommendation of the Parole Board but I appreciate the difficulties as stated in the February 2009 report in finding a suitable professional to assist as unlike in the treatment of say physical injuries, there has to be compatibility between on the one hand the professional person and on the other hand the person being treated or counselled.
60. If I had any doubt about my conclusion that the decision to retain the claimant in closed conditions was not Wednesbury unreasonable I would have accorded some deference to the Secretary of State even though this was a case calling for intense scrutiny. The reason for that was explained by Lord Bingham of Cornhill when considering a hospital policy which provided for less frequent medical reviews for long-term secluded patients than was recommended in the applicable statutory Code of Practice. He said that even though intense scrutiny was called for in that case:-

"24…it is not for the court to resolve debatable issues of professional practice, but the rule on issues of law. If a practice is supported by cogent reasoned justification, the court is not entitled to condemn it as unlawful." (R (on the application of Munjaz) v Ashworth Health Authority [2006] 2 AC148).

61. Similar reasoning applies in the present case as I explained in paragraph 18 above to fortify my conclusion that the decision of the Secretary of State not to place the claimant in open conditions cannot be impugned. The case for the Secretary of State is that the necessary work for the claimant, which would involve seeking an "explanation of the motivation for offending, can be destabilising". The Secretary of State believes this type of work is better done in closed conditions and that this should be carried out "with the need to avoid media exposure". It was the view of Mrs Gambling's manager that in her words "in open conditions a media 'outing' would be almost inevitable in view of earlier exposure". I could not in the circumstances of this case in the words of Lord Bingham "condemn…as unlawful" this reasoning.
62. It has not in the circumstances become necessary to consider if there would be any point in making the order sought by the claimant because it is unlikely that the Secretary of State would have had an opportunity to reconsider his matter before the delayed hearing before the Parole Board.
63. I cannot finish this judgment without expressing my hope that steps are taken speedily to ensure that all the measures required by the Parole Board as pre-conditions for the claimant's release are completed speedily. I very much hope that the Parole Board considers this case in June 2009 as it is very unfortunate that circumstances, which have not been explained to me, precluded it from doing so in March 2009. Indeed if the Secretary of State does not act with expedition, he might have difficulties in resisting a further application by the claimant for relief. I very much hope and expect that the Parole Board (or in default the Secretary of State) set as soon as possible a realistic timetable for the further work which requires to be done before a decision can be made as to when the claimant can moved to open conditions.

VII Conclusion

64. For the reasons which I have sought to explain, this application must be refused but expedition on the part of the Secretary of State and the Parole Board is now required.
ORDER TAKE NOTICE THAT IF YOU NEGLECT TO OBEY THIS ORDER YOU MAY BE HELD IN CONTEMPT OF COURT AND LIABLE TO IMPRISONMENT OR SEQUESTRATION OF YOUR ASSETS

Before the Honourable Mr Justice Silber

It is ordered that:

(1) The application be dismissed with no order as to costs

(2) No details of this claimant's identity or the details of his offences, (save as referred to in this judgment), or his current location be published in any form in respect of any reference to any part of this judgment without further order.

(3) Liberty to any party to apply to discharge or to vary paragraph 2 of this order after having given prior written notice to the solicitors for the claimant and for the defendant.