England and Wales High Court (Administrative Court) Decisions

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

		Manchester Civil Justice Centre 1 Bridge Street West Manchester M33FX
		21 January 2012

1. MR JUSTICE SUPPERSTONE: This is an application for judicial review of the defendant's decision dated 28 April 2011 not to recommend the claimant's transfer to open conditions, permission having been granted by HHJ Pelling QC at an oral hearing.
2. On 23 November 2006 the claimant was given a sentence of Imprisonment for Public Protection with a minimum term of 12 months for an offence of wounding with intent. His minimum term expired in 2008. He is now a tariff expired indeterminate sentenced prisoner.
3. In February 2009 the Secretary of State referred the claimant's case to the Parole Board under section 28(6)(a) of the Crime (Sentences) Act 1997 to consider whether or not it would be appropriate to direct his release. The material part of the referral document states, inter alia, as follows:

"3. If the Board does not consider it appropriate to direct release, it is invited to advise the Secretary of State:

i) on the prisoner's continued suitability for open conditions, if relevant;

ii) whether the prisoner, if in closed conditions, should be transferred to open conditions. If the Board makes such a recommendation, it is invited to comment on the degree of risk involved.

iii) on the continuing areas of risk that need to be addressed.

4. The Board is asked to give full reasons - which will be disclosed to the prisoner - for any decision or recommendation it makes."

4. A panel of the Parole Board considered the claimant's case at an oral hearing on 19 April 2011. The claimant's application was for release. The conclusion and decision of the panel, in a decision letter dated 28 April 2008, states as follows:

"You committed a very serious offence which involved planned excessive violence as part of an ongoing disagreement with an individual who you already had a conviction for violence against and have since assaulted whilst in prison. Whilst it is accepted that you were provoked, the Sentencing Judge found that you presented a risk of harm not just to the individual but to members of the public. Your only other conviction is for violence in a similar context of you responding to an individual who had been harassing you. You have made some progress in developing your problem solving skills, for which you should be commended, as you should for your generally good custodial behaviour. The panel noted that you are significantly over tariff. However you are still, five years into your sentence, providing new and important background to the motivations and triggers to your violence which has limited the assessment of your risk factors. This panel concluded that your risk of harm is not limited to the victim of the index offence but goes wider to any individual who harasses you over a sustained period and that you have not yet addressed the central risk factor of your poor emotional management and its impact upon your thinking. It is also concerned about your lack of awareness of your need to change your life to move yourself away from one specific highly risky scenario. Having taken into account the written and oral evidence, the panel considers that your risk of serious harm remains too high and that it is necessary for the protection of the public that you remain confined. It does not direct your release or recommend your transfer to open conditions."

5. The claimant does not challenge the decision to refuse to direct his release. It is clear that that was a decision that the defendant, on the evidence, was fully entitled to make. The challenge by the claimant is to the decision not to recommend his transfer to open conditions. By virtue of section 32(6) of the Act, the Secretary of State is empowered to give the Parole Board directions as to the discharge of their functions. Pursuant to this power, the Secretary of State has issued directions in respect of transfer of life sentence prisoners to open conditions.
6. 6.1. Paragraph 3 of the Introduction to the relevant directions states:

"A move to open conditions shall be based on a balanced assessment of risk and benefits. However, the Parole Board emphasis should be on the risk reduction aspect and, in particular, on the need for the lifer to have made significant progress in changing his/her attitudes and tackling behavioural problems in closed conditions, without which a move to open conditions will not generally be considered."

Paragraph 5 of the Directions states:

"The Parole Board must take the following main factors into account when evaluating the risks of transfer against the benefits:-

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

b) the extent to which the lifer is likely to comply with the conditions of any such form of temporary release;

c) the extent to which the lifer is considered trustworthy enough not to abscond;

d) the extent to which the lifer is likely to derive benefit from being able to address areas of concern and to be tested in a more realistic environment, such as to suggest that a transfer to open conditions is worthwhile at that stage."

7. Mr Sperling, for the claimant, submits, first, that the panel, when declining to recommend the claimant's transfer to open conditions, applied the wrong test. He submits that the panel simply considered risk as though they were deciding upon the claimant's release. The panel should have considered the claimant's suitability for release, and having rejected this, to have gone on separately to consider the claimant's suitability for open conditions. Second, he submits that the panel failed to carry out a balancing exercise when considering whether the claimant was suitable for open conditions. The two grounds of challenge, to a certain extent, overlap.
8. Mr Fullwood, for the defendant, submits that the panel did consider suitability for release, and having rejected this, did go on to consider the claimant's suitability for open conditions. He submits that the panel properly directed itself in relation to the law, and considered all of the relevant information. The assessment conducted by the panel for the purposes of considering the claimant's suitability for open conditions, he submits, discloses no error of law.
9. I shall consider the two principal grounds of challenge in turn. First, the test to be applied. Mr Fullwood points to the opening paragraph of the decision letter under the heading "Introduction" in which it is said:

"Your case was referred to the Parole Board by the Secretary of State to consider whether it was appropriate to direct your release and, failing this, to recommend whether you should be transferred to open conditions and to advise on any continuing areas of risk that need to be addressed."

10. Mr Fullwood argues that this passage supports his submission that the panel had well in mind that it was required to consider suitability for release first, and if release was not appropriate, to consider suitability for open conditions second.
11. However, it is clear that suitability for release and suitability for open conditions require the application of different tests. Mr Sperling submits this is perhaps not surprising when one considers the purpose of open conditions. A lifer would expect to spend time in open conditions before release. The Indeterminate Sentence Manual (PSO 4700), at paragraph 4.8.1 states:

"The intention is that the lifer will undergo final testing in conditions as near as possible to those in the community. He/she will be encouraged to gain work experience in preparation for life in the community."

12. Paragraph 5(c) of the direction for the release and recall of life sentence prisoners states the Parole Board must consider-

"Whether the release of the lifer is consistent with the general requirements and objectives of supervision in the community, namely:

• protecting the public by ensuring their safety would not be placed unacceptably at risk;

• securing the lifer's successful reintegration into the community."

This is essentially what Mr Sperling describes as a "threshold" test. By contrast, the test set out in the directions relating to the transfer of a lifer to open conditions that I have quoted is a "balancing exercise" test.

13. There is detailed reference in the decision to matters relating to the issue of risk. Mr Fullwood invites me to accept that the panel properly considered the issue of risk in relation to both release and transfer to open conditions. However, the different tests for release and transfer to open conditions require a different consideration of risk in the two cases.
14. Mr Fullwood warns me against assuming that the panel applied the wrong test. He reminds me of the passage in the judgment of Smith J (as she then was) in Gordon, where at paragraph 31 she refers to the observation of Turner J in R(Hart) v the Parole Board (CO/4716/1998, unreported), that the Parole Board is "uniquely qualified" to make the decisions it is called upon to make. The panel is a specialist decision making body set up to address specific issues and, as Hale LJ (as she then was) said in R(Oyston) v Parole Board [2000] EWCA Crim 3552 at paragraph 46, decision letters of the Board should not be construed in a pedantic and nit-picking spirit. However, in the present case there is, in my view, no evidence that the panel adopted the balancing exercise test which applies in relation to release to open conditions.
15. Paragraph 5 of the Directions requires the Parole Board to take four main factors into account when evaluating the risks of transfer against the benefits. This the Panel did not do, and thereby erred in law.
16. Turning to Mr Sperling's second ground of challenge, I remind myself that in R(Gordon) v Parole Board, Smith J said at paragraph 38:

"I acknowledge of course that it is not incumbent upon the Board to set out its thought processes in detail or to mention every factor that they have taken into account. However, in my judgment the balancing exercise they are required to carry out is so fundamental to the decision making process that they should make it plain that this has been done and to state broadly which factors they have taken into account. It does not appear to me that there has been any real attempt to balance risk against benefit. I have said that the assessment of risk is entirely a matter for the Panel. But there were at least two benefit factors which should have been taken into account."

17. Mr Fullwood submits that the decision letter satisfies what he describes as direction 3 (in fact, it is paragraph 3 of the Introduction) and direction 5A. He refers to the Panel's concern that the claimant had not sufficiently addressed his anger management and emotional management issues, which he submits evidences the risk that exists from the claimant's behaviour. In support of that submission, Mr Fullwood refers to the decision of R(Austen) v the Parole Board [2011] EWHC 2384 (Admin), where at paragraph 56 HHJ Waxman QC said:

"... it needs to be borne in mind that under the concurrent directions, although a balancing exercise is to be performed, the emphasis is on risk reduction and the need for the lifer to have made significant progress in changing attitudes and tackling behavioural problems in closed conditions in the way described in paragraph 3 of the Directions."

18. However, and this is a matter I will return to when considering Direction 5D, there is no evidence that the panel considered whether the risks that they identified in paragraph 7 of the decision letter could be properly managed in open conditions.
19. Mr Fullwood accepts that the Panel make no reference to the subject matter of Direction 5B, which is concerned with likely compliance with conditions of temporary release. Similarly, Mr Fullwood accepts that there is no evidence that the panel considered direction 5C, which focuses on the risk of absconding. Mr Fullwood submits, however, that I should not assume that the panel were not aware of directions B and C. In support of this submission, he refers to the introduction in the decision letter, which summarises the nature of the application referred to the Parole Board, and he refers to a letter dated 26 May 2011 from the post panel team of the Parole Board Secretariat, which states:

"The Panel were clearly mindful of the terms of the referral provided to us by the Secretary of State and the need to consider the suitability of your client for a move to open conditions."

20. Appreciating the Panel is a specialist panel, nevertheless I am not satisfied that the panel had regard to directions 5B and 5C, which they were required to do. In a submission which Mr Fullwood candidly described as a bit more bold, he submitted that the two matters covered by directions 5B and 5C were not in issue, and therefore it did not make a difference to the decision that there was no express reference to them.
21. 21.1. I reject this submission. The extent to which the lifer is likely to comply with the conditions of temporary release and the extent to which he is considered trustworthy enough not to abscond are two factors that Direction 5 requires the Board to take into account when evaluating risks of transfer against the benefits.
22. Direction 5D is concerned with whether or not the prisoner is likely to be able to derive benefit from being able to address areas of concern, and to be tested in a more realistic environment. Mr Fullwood submits that the Panel satisfied this Direction by considering the benefits of closed conditions. He refers to the passage in paragraph 5 of the decision letter, where it is recorded that "both Ms Clifford and Ms Green considered that the claimant did need work to address his emotional management whilst in closed conditions", and to the passage in paragraph 7 of the decision letter, which reads:

"Ms Green did not recommend your release or your move to open conditions as you have not yet addressed your anger management issues or your emotional management. She is also concerned that you have also recently disclosed a significant problem with alcohol in the past and considers that you may benefit from relapse prevention work. Ms Clifford recommended that you remained in closed conditions."

23. However, having noted the views of Ms Green, the claimant's probation officer outside prison, and Ms Clifford, the claimant's supervisor in the prison, the panel set out its conclusion at the end of paragraph 7 in the following terms:

"The panel considered that your risk management plan would not manage your risks as it places you back in essentially the same setting as you were in when you committed your violent offences, albeit that the relationship with your partner is now over."

24. It is clear from the reference to "the same setting", that the panel is considering the risk that would exist if the claimant were to be released. The decision letter does not indicate what, if any, consideration has been given by the panel to managing the risk that it has identified in open conditions. Nor is there evidence that the panel considered the benefits to the claimant from open conditions, as it was required to do by Direction 5D.
25. Overall, in my judgment, the decision letter does not demonstrate that the Panel carried out the balancing exercise required when considering whether the claimant was suitable for open conditions.
26. For the reasons I have given, this application for judicial review is granted, and the consideration of the claimant's request to be transferred to open conditions is remitted for fresh consideration by the Parole Board.
27. Mr Sperling, that, I think, is sufficient in terms of the order. Is there anything you wish to say about that?
28. MR SPERLING: My Lord, I am afraid there is, the reason being is a matter of practicality and speed. The Parole Board listing process is quite lengthy, quite cumbersome. They generally list cases two to three months in advance and they have a listing exercise which usually concludes around the 10th or 12th of the month. Currently they have concluded the March listings and they are currently listing cases for April. Those listings will be completed between 10 and 15 February. The Parole Board cannot decide themselves to re-list the case. What they have to do is to invite the Secretary of State to refer the matter back to them under section 28. My Lord, I recently had an unhappy experience in the case of (inaudible) agreeing to re-panel the case in which an error had been made. That hearing was in October and the re-hearing is still to be listed. So the earliest that will be listed is in April.
29. MR JUSTICE SUPPERSTONE: So you are asking for expedition, are you? In what terms?
30. MR SPERLING: In this way: the first step is that there must be a very strict indication to the Secretary of State to refer the case back.
31. MR JUSTICE SUPPERSTONE: I was wondering whether that was strictly necessary. I will hear you both on that. If it is strictly necessary, then of course it should be done, but the Secretary of State has referred the matter to the Parole Board. The Parole Board has made a decision. You judicially reviewed that decision. You succeeded on that, therefore the matter goes back to the Parole Board for fresh consideration. I cannot see on that analysis that it is necessary to order the Secretary of State to refer the matter to the Parole Board, but if you tell me there is a technicality that requires it, then obviously I will hear from you. I do not want to make any order that is going to slow up the process or make it not effective.
32. MR SPERLING: My Lord, no. My understanding is that the process is there and the Parole Board will not be (inaudible).
33. MR JUSTICE SUPPERSTONE: Sorry, they will not?
34. MR SPERLING: They will not re-panel the case of their own volition. The only experience I have --
35. MR JUSTICE SUPPERSTONE: But it is an order from the court.
36. MR SPERLING: It may be that with an order of the court to do so, they will simply (inaudible). It will be for them to work out --
37. MR JUSTICE SUPPERSTONE: Yes, I appreciate you being cautious, but one does not want to make an order which will actually prolong things. Mr Fullwood, can you assist on this point?
38. MR FULLWOOD: You will see my instructing solicitor has absented himself, for good reason, I imagine, so I do not have instructions on this point.
39. MR JUSTICE SUPPERSTONE: I just wondered whether, from your experience, you are able to assist. If you are not, do not worry.
40. MR FULLWOOD: The effects of this order that you have made is to place the matter within the remit of the Parole Board. The Secretary of State has already --
41. MR JUSTICE SUPPERSTONE: I am just looking at the claim form. A22 starts at A219, relief that is being sought by the drafter of that form, (b), top of A22, "An order requiring the Parole Board to invite the Secretary of State to refer the matter to them again under section 28 ... for the purpose of providing a fresh hearing". Now, I would not have thought that was necessary, but I am quite content to add an order in those terms if necessary. Does that meet the point, Mr Sperling?
42. MR SPERLING: I guess what we want is the order to be effective. What we would want to avoid is the Parole Board saying, "Well, we simply can't do that".
43. MR JUSTICE SUPPERSTONE: It is fairly long-winded, is it not? I made the order quashing the decision, remitting it to the Parole Board to consider it afresh. If you then have an order requiring the Parole Board to invite the Secretary of State to refer the matter to them again, you are then going through two or three hoops before you actually get to the Parole Board considering the matter. So, if you want me to make that order, if it is necessary, I will make the order.
44. MR SPERLING: My Lord, the compromise position would be for you to make the order that the Parole Board re-hear the case and I will address you in relation to timing in due course.
45. MR JUSTICE SUPPERSTONE: I give you liberty to raise this point, that is the relief sought in paragraph 27(b) of the claim form, if necessary in writing, so that there is not the expense of any further hearing.
46. MR SPERLING: I wonder whether or not the way around it would be that if either party had liberty to apply, then if the Parole Board's view is simply they cannot do this, then the onus would be on them to reply.
47. MR JUSTICE SUPPERSTONE: Certainly, Mr Fullwood, give both parties liberty to apply?
48. MR FULLWOOD: That seems sensible because I think we are not too sure what is going to appear at this stage.
49. MR JUSTICE SUPPERSTONE: I am sure neither party wants to get involved with technicalities unless it is necessary. So I give liberty to apply to both parties for that. So coming back to expedition, are you asking, on the basis of the order that I have made, that there be an order as to expedition? One can write that in: "Consideration of the claimant's request to be transferred to open conditions is remitted for fresh consideration by the Parole Board, such consideration to be given with expedition."
50. MR SPERLING: Yes, my Lord.
51. MR JUSTICE SUPPERSTONE: Are you asking for any specific period of time?
52. MR SPERLING: I think I would, my Lord, simply because expedition and earliest as possible could be --
53. MR JUSTICE SUPPERSTONE: Just remind me, the release date is when, June is it?
54. MR SPERLING: His next hearing is due in July, however whether he gets a hearing on time is perhaps unlikely, so it may be August, September. So the key thing as far as the claimant is concerned is that this hearing has been worth his while pursuing.
55. MR JUSTICE SUPPERSTONE: Most certainly. What period of time are you asking for?
56. MR SPERLING: My Lord, what I would say is this: realistically I think it would be that the case is listed before the beginning of April, and the reason I say that is that that then allows the Parole Board sufficient time to list their cases in the way that they do. It also provides sufficient time for directions to be made, which they will do, for updated reports, and then that period has a chance of being effective.
57. MR JUSTICE SUPPERSTONE: You are asking for the case to be listed by 1 April. Does it follow from that that there will be a hearing by 1 April?
58. MR SPERLING: No, my Lord. I must make that clear. An effective hearing needs to take place.
59. MR JUSTICE SUPPERSTONE: I think what you need is for the case to be heard by 1 April. It is not good having it listed, the hearing, by 1 April. Mr Fullwood, are you able to assist on this matter? Again, I do not want to impose an unrealistic time timescale for the Parole Board. On the other hand, plainly this matter needs to be considered sooner rather than later, otherwise the relief may not be of such assistance to the claimant. One does know, no doubt we all have experience of this, that Mr Sperling has referred to, that there are unfortunately, and there is no criticism of the Parole Board by saying this in general terms, there are fairly substantial delays that we know about.
60. MR FULLWOOD: That is right. Doing the best I can, I do need to point out that I do not want to expose my client to the risk of being in breach of an order, and as you can see from this case itself, there was a need to adjourn for various reasons. So I think I have to invite you to add the words "if at all possible" to the end of any order, because it may well be that although they take all reasonable steps to ensure that it is heard by 1 April, for reasons beyond their control it is not heard. But I think that sends the message nonetheless that it really has to be dealt with by that date, or one could add, "in the absence of very good reason as to why it cannot be" - some caveat of that nature so as not to expose my client to some sort of fundamental order.
61. MR JUSTICE SUPPERSTONE: I follow. Mr Sperling, "without good reason"?
62. MR SPERLING: Yes, my Lord, I am aware of the need to be realistic. If we had an order which says the case must be heard by 1 April and for some reason someone could not turn up and there was good reason --
63. MR JUSTICE SUPPERSTONE: Yes, I will make that order. Case to be heard by 1 April 2012 in the absence of good reason. Content with that?
64. MR SPERLING: I am, my Lord. I think you may have indicated liberty to apply. I am just trying to work out the safest and cheapest way of this coming back to the court if there is an issue about "good reason", because it may well be the Parole Board say we have listed our cases for April --
65. MR JUSTICE SUPPERSTONE: We could have a general liberty to apply to both parties with regard to directions in relation to the remission. Case to be heard by 1 April 2012, in the absence of good reason. Liberty to the parties to apply in relation to the hearing date. I want to keep it narrow in relation to date of the hearing.
66. MR FULLWOOD: Yes, I am content with that.
67. MR JUSTICE SUPPERSTONE: Liberty to both parties to apply in relation to the date of the hearing on 48 hours' notice, and I think we will have it "to apply in writing" in relation to the hearing on 48 hours' notice. There cannot be a need for an oral hearing. If either I or the judge determining the application think there should be an oral hearing, then that can be ordered. It just remains for me to thank you both very much for your helpful submissions -- Oh, costs, yes?
68. MR SPERLING: Thank you, my Lord. My application would be that the defendant pay the claimant's legal costs, to be assessed if not agreed. I think there also needs to be provision for any publicly funded costs to be assessed in accordance with --
69. MR JUSTICE SUPPERSTONE: Are we just talking about legal aid costs, or are we talking about --
70. MR SPERLING: We are.
71. MR FULLWOOD: I think the order being sought is an inter partes order. So the defendant to pay the claimant's costs, to be assessed if not agreed, that is the first order. The exceptional order should be that there be detailed assessment of the claimant's CLS funded costs.
72. MR JUSTICE SUPPERSTONE: That sounds correct. Thank you both very much for your assistance.