England and Wales High Court (Administrative Court) Decisions

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

		Sitting at: Manchester Civil Justice Centre 1 Bridge Street West Manchester M60 9DJ
		23rd January 2013

HIS HONOUR JUDGE WOOD QC:

Introduction

1. The Claimant seeks to challenge by way of judicial review the decision of the Parole Board dated 15^th May 2012 refusing his transfer to an open prison. He was granted permission in these proceedings following an oral hearing by Stadlen J on 24^th October last year. The Parole Board also refused the Claimant his release on licence, but that aspect of their decision is not challenged.
2. The case was fully argued before this court on 23^rd January and I reserved my judgment to enable a more detailed consideration of the several apparently conflicting decisions which have emanated from this court on a similar issue within recent years.
3. The issue, which is described as a "crisp" point by Mr Field who appears on behalf the Claimant, concerns the application of the mandatory directions which must be applied to every Parole Board decision of this nature, and in particular the balance which must be performed between risk and benefit when arriving at a conclusion on whether to transfer a prisoner to open conditions. Significant reliance has been placed by counsel on the decision of this court by His Honour Judge Davis in the case of Regina (on the application of Ian D'Cunha) v The Parole Board [2011] EWHC 128 (Admin).
4. Since that case was decided there have been two other decisions, namely Austin and Leach which have sought to distinguish D'Cunha and limiting it to its own peculiar facts. Mr Karim, who appears on behalf of the Defendant, has been counsel in all three cases.

The legal background

5. The Parole Board is entrusted with the responsibility of advising the Secretary of State on matters which are referred to it concerning the early release or recall of prisoners under section 239 (2) of the Criminal Justice Act 2003. Referrals are made to the Parole Board under section 28 of the Crime (Sentences) Act 1997 and subsection (6) provides as follows:

(a) The Parole Board shall not give a direction under subsection 4 above unless…The Secretary of State has referred the prisoner's case to the board; and

(b) The board is satisfied that it is no longer necessary for the protection of the public that the prisoner should be confined.

6. Thus there is a statutory test which proscribes, in terms of release, the requirement for the assessment of risk. This is in fact the only consideration required, albeit one which is extensive and which requires considerable analysis when there is an application for release.
7. Any referral which is made under section 28 will require the Parole Board to consider, in the event that release is not directed, whether there should be a recommendation for the transfer from closed to open prison conditions. That is what happened in the present case, as is clear from the referral notice.
8. It is not a requirement derived from statute, but from a policy of the Secretary of State. To enable the implementation of the policy and in compliance with section 32 (6) of the Criminal Justice Act 1991, the Secretary of State has given the Parole Board directions on how its functions should be discharged, inter alia, in respect of the transfer of life prisoners to open conditions. Although reference is made to life prisoners, which I shall use as shorthand, it is accepted that the same directions apply to prisoners on indeterminate sentences (IPP prisoners). Those directions assume significant importance in the context of this case and therefore I set out the relevant parts of the appropriate directions which were issued in 2004:

Transfer of life sentence prisoners to open conditions

Introduction

1 A period in open conditions is essential for most life sentence prisoners. It allows the testing of areas of concern in conditions that more closely resemble those the prisoner will encounter in the community, often having spent many years in closed prisons. Lifers have the opportunity to take resettlement leave from open prisons and, more generally, open conditions require them to take more responsibility for their actions.

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

3 A move to open conditions should be based on a balanced assessment of risk and benefit. However, the Parole Board's 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 attitude in tackling behavioural problems in closed conditions, without which the move to open conditions will not generally be considered.

Directions

4 Before recommending the transfer of a lifer to open conditions, the Parole Board must consider: ….all information before it including any written or oral evidence obtained by the board; each case on its individual merits without discrimination on any grounds.

5 The Parole Board must take (emphasis added) the following main factors into account when evaluating the risk of transfer against the benefits.

(a) The extent to which the life that 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, and unlicensed 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 the transfer to open conditions is worthwhile at that stage.

6 In assessing risk in such matters, the Parole Board shall consider the following information, where relevant and where available, before recommending the lifer's transfer to open conditions, recognising that the weight and relevance attached to particular information may vary according to the circumstances of each case……

9. Here the directions set out 11 separate factors which the Parole Board is required to take into consideration which for present purposes I need not repeat.
10. Thus the directions which inform the Parole Board on how to address the question of transfer to open conditions require a more extensive approach than risk assessment, that is the need to ensure public protection, which is the only requirement when dealing with the issue of release. Benefit to a prisoner, which is qualified in direction 5, is put into the balance, although pre-eminence or emphasis is still on the risk reduction aspect and the need to ensure significant progress in closed conditions.
11. For the purposes of this case, it is accepted that these are mandatory directions.

The factual background

12. In February 2006, when he was 40 years of age, the Claimant was convicted of three offences of violence committed the previous year against two victims. The earlier offence in March 2005 involved striking the female victim with a glass tumbler in a fit of rage. She had been an associate who had known the Claimant for many years. At the time she was a drinking friend, together with the male victim. It would appear that the Claimant was then homeless and would often stay over at friends' houses, abusing drugs and alcohol. As a result of the first attack, the female victim sustained a laceration which required hospital treatment after attendance by paramedics.
13. In May 2005 in more serious incident occurred involving premeditated violence, when the Claimant armed himself with a knife which he used to cause serious lacerating injuries to the upper arm and face of his male victim in an unprovoked attack after he had been drinking excessively and in the perception that some wrong had been done to him by this man. He also punched his victim to the ground, before attending at the house of the female victim whom he kicked and punched about the head and body.
14. After a trial he was convicted of three offences, section 20 wounding in relation to the March incident, and section 18 (male victim) and section 47(female victim) in relation to the May incident. After a pre-sentence report was obtained, where the issue of the risk of harm to the public from the Claimant's behaviour was assessed for the purpose of the dangerousness provisions under the Criminal Justice Act 2003, the Claimant was sentenced to an indeterminate sentence of imprisonment for public protection with the minimum tariff set at three years and three months with allowance made for time spent in custody.
15. The Claimant had a very significant criminal record extending back to his juvenile years involving numerous offences of violence, and the trial judge, as is plain from his sentencing remarks, had little difficulty concluding that the Claimant constituted a significant risk to members of the public from the commission of further specified offences. Even at the time of his sentence, and indeed for a period subsequently, he refused to accept any responsibility for his actions and accused his victims of telling lies.
16. The Claimant's minimum term (tariff) expired on 11^th April 2009. Thus from this date he became eligible for release on referral, with the recommendation of the Parole Board. As an IPP prisoner he came before the Parole Board in September 2010. Whilst the board was required by the referral to consider whether he should be released (the statutory requirement) the only application made by the Claimant at that time was for a transfer to open conditions (in other words, where the policy directions would apply). His transfer was refused. In the decision letter dated 20^th September 2010 at paragraph 8 (conclusion and decision) the board stated as follows:

The panel of the board that considered your case on 15^th September 2010 was concerned by the delays that have prevented your effective progress, but is encouraged by your statement that you are willing to do any work recommended for you. There are evident strains between you and your offender manager, which you appeared to blame on Miss Foster, yet you have proved to be closed to her advice and only this year you terminated an interview with her. Having balanced the benefits to you in being transferred to open conditions against the risks you pose to the public, the panel concluded that your risks are as yet unmanageable in open conditions and no such recommendation has been made to the secretary of state.

17. This decision I will contrast in due course with the relevant decision of May 2012.
18. Over the course of his sentence, both before and after the previous parole hearing, the Claimant availed himself of those courses which were open to him at HMP Durham and subsequently at HMP Acklington. He had previously completed the P-ASRO program in relation to substance misuse as well as Anger Management and Enhanced Thinking Skills programmes. (EST) He also completed an alcohol awareness course and engaged with CARATS. Some courses which might have been appropriate to risk reduction, such as CALM, the Healthy Relationship Programme (HRP) and the Community Domestic Violence Program (CDVP) were considered to be unsuitable for him.
19. His behaviour in prison had been somewhat erratic with three proven adjudications, but in the period leading up to the relevant Parole Board hearing a significant improvement in behaviour had been noted. This improvement had led to him becoming an enhanced prisoner with incentives and earned privileges and his acknowledgement that substance and alcohol misuse had been problems for him was considered to be a positive factor.
20. A report was submitted for consideration by the Parole Board from his offender supervisor, Darren Sharples, in October 2011, and which was contained in the dossier of documentation which went before the panel. The recommendation of Mr Sharples requires a little scrutiny and the relevant parts are set out as follows:

12.1 It is difficult currently to put a recommendation forward for Mr Smith. His custody behaviour has vastly improved and it appears that his motivation to complete interventions led to his substance/alcohol misuse has also increased. His acknowledgement of past drug misuse is an important milestone for Mr Smith and provisions are now in place to manage these present and future risks associated to drugs.

12.2 However there remains a significant degree of minimisation regarding his pattern of violence and aggressive behaviour with intimate relationships that has so far restricted him getting on any specific programs in this area. If this continues it is my concern that he will never be a suitable candidate for the programme either in custody or in the community.

12.3 As such I am struggling to support a progressive move solely on the minimisation of this pattern of violence. However I accept Mr Smith is post-tariff and has been a significant improvement in his custody behaviour.

12.4 It is anticipated that on reflection, the level of his motivation he has demonstrated to address to his drug misuse will reflect in his attitude towards his violent offending at the time, particularly with some motivational work and therefore CDVP maybe an option following his release. I therefore believe Mr Smith should be allowed to progress to an open establishment that has the facility to allow him to complete the TSP the course as well as being tested in a less secure environment. This open establishment must have the facility to accommodate Mr Smith's ongoing methadone prescription.

12.5 The category D establishment will allow Mr Smith the opportunity to be released into the community on ROTL where he can be tested against his outstand (sic) risk factors i.e. alcohol and drug misuse. His custodial behaviour can also be managed during this period. Were Mr Smith to remain closed conditions and assessed as suitable for HRP, he would require a transfer to another establishment, given HMP Acklington does not currently run this program.

21. Mr Field relies upon some aspects of this recommendation to support his contention that evidence of benefit was before the Parole Board in May 2012. I have underlined the sections upon which he relies. I shall return to this aspect later.
22. Also providing a report for the dossier of papers, was the Claimant's offender manager, Susan Foster. The relevant parts of her recommendation are as follows:

The issue of release needs to be addressed and what remains clear is that this is not a straightforward matter. Consideration needs to be given as to whether the outstanding risks can be managed within the community because I remain pessimistic that Mr Smith's stance in relation to the risks is likely to change. I suppose my view is that if Mr Smith does not relapse to alcohol misuse, the risks are probably manageable. Should he begin to use alcohol, the risks will inevitably become unmanageable. This may be overly simplistic but the pattern of alcohol-related offending, including very serious violence, is entrenched and long-standing whilst Mr Smith is stating his intention to remain alcohol free upon release, the reality is that there are going to be many temptations placed in his way and alcohol consumption has been an ingrained part of his lifestyle. It would seem that the only way this could be assessed would be for Mr Smith to transfer to open conditions where he could undertake the thinking skills programme and be tested out at a more meaningful level, to see if he can maintain commitment to abstaining from drug and alcohol use. A further matter of importance is that Mr Smith should be completely open and honest about disclosing new relationships with females.…

I note the comments of Mr Smith's offender supervisor whose view is that Mr Smith's custodial behaviour has improved and perhaps it is an opportune time to build upon Mr Smith's currently improved motivation. I appreciate that this recommendation may be considered to be rather ambitious given the outstanding restrictions. Any success hinges upon Mr Smith's ability to comply with the risk management plan and permanently refrained from drinking alcohol.

23. Again Mr Field relies upon certain aspects of this recommendation as supporting benefit and I have highlighted them.
24. Also contained within the dossier was the full OASYS risk assessment and a report from a psychologist. When his case came to hearing before the panel all this documentation was considered, and in addition to the oral evidence of Darren Sharples and Susan Foster, the Parole Board panel heard evidence from Hayley Smith, the integrated drug treatment centre key worker, and the Claimant himself.
25. The panel met on 2^nd May 2012, when the Claimant was represented by his solicitor. The decision was promulgated on 15^th May 2012 and it seems to me that there are three relevant sections at paragraph 6 and following.

6. Panels assessment of current risk of re-offending and serious harm

Your Offender Manager and your Offender Supervisor concluded that your current risk assessments meant that you pose a high risk of serious harm to the public and non-adults and a medium risk of harm to children. There was nothing the panel heard in evidence and there was certainly nothing you said that persuaded the panel that the assessments as set out were anything other than correct. Accordingly the panel agrees with those assessments. Until you address the risk factors that have been described nothing is likely to change.

26. Thus under this section the panel is addressing its statutory responsibility under section 28(6)(b) to consider the protection of the public in the face of an application for release. The panel goes on to deal with risk management.

7. Plans to manage risk

The plans to manage risk that have been set out cannot really bear any fruit until you are more open and honest when being assessed for your suitability for the HRP, see CDVP or any other similar programs. Relapse prevention programs and another TTS program have also been referred to but all require your genuine commitment to them. None of these programmes will be of much use if you do no more than pay lip-service. Your offender supervisor recommended, somewhat reluctantly, the panel felt, a move to open conditions. Mr Sharples was anxious to ensure that you did not give up, as he said in evidence. He hoped that what progress you have shown so far could be carried over to the areas where there had not been any significant improvement up to now. But he was very clear that you have first to be tested in open conditions. Miss Foster, your offender manager took a similar view whilst acknowledging in evidence that her recommendation for a move to open conditions was "rather ambitious". Neither could recommend an immediate release.

27. The panel then provided its decision.

8. Conclusion and decision of the panel

The panel agreed with both report writers and with what they say in evidence. The panel is satisfied that at present you pose such a high level of risk to life and limb that it cannot direct your release. It remains necessary for the protection of the public that you should continue to be confined. Neither can the panel recommend that you be transferred to open conditions. The continuing areas of risk still need to be addressed are your alcohol and substance abuse, your anger, your impulsivity, your violence including domestic violence and your minimisation of your own behaviour in any violent confrontation.

28. On 4^th July 2012 the Claimant's solicitors wrote a pre-action letter to the Parole Board, contending, inter-alia, but the panel had not given any consideration to the benefits of the Claimant being transferred to open conditions, contrary to the directions, and that the decision was therefore unlawful. The urgent re-panelling of the Parole Board was sought for a reconsideration of the Claimant's case.

Issues

29. Although the relief claimed by the Claimant in his judicial review claim form is a declaration that the Defendant's refusal to transfer the Claimant to open conditions is unlawful, and a direction for reconsideration and the grant of such a transfer, as the argument has developed his counsel has not sought to contend that a refusal would have been outside the range of reasonable options for the panel on the basis of the available evidence, and thus that the decision was per se Wednesbury irrational. His argument has been confined to the process by which the panel arrived at its decision.
30. If the mandatory directions which apply to the consideration of transfer to open conditions require a balancing exercise to be undertaken between continuing risk and prisoner benefit from transfer, it is necessary to discern such a balance in the detailed decision letter. However, he submits, it is conspicuously absent. The panel has merged consideration of release and transfer to open conditions in the context of risk assessment, without performing a stepped process. Mr Field submits that this court should ask itself the question whether any reasonable person reading the letter of decision could glean an understanding of the mandatory direction requirement for the balancing exercise and its application. In other words did the panel adequately comply with the mandatory direction? If it did not, the decision was unlawful.
31. The benefits of transfer have been identified in the evidence before the Panel, he submits, (as indicated by the underlining above) but there was not a single reference to such benefits in the decision. He says that this case is indistinguishable from the authority of D'Cunha and the decision of His Honour Judge Davies.
32. Finally, to succeed in his challenge, Mr Field submits that this court does not have to be satisfied that an identification of the correct test (the balancing exercise) would have led to a different conclusion, but only that a different conclusion was possible.
33. Mr Karim, who appears on behalf of the Defendant, does not disagree with the questions identified by the Claimant which this court must address, essentially to determine whether the panel has applied the correct test in arriving at its conclusion. However, he submits that applying judicial review principles which will include a significant degree of circumspection and reluctance to interfere with an experienced and competent professional body exercising a broad discretion under a statutory duty and mandatory directions, it is not possible to say that the decision was flawed.
34. He submits that it was plain from the letter that a careful and considered approach was taken, and the board dealt with the full extent of the written and oral evidence approaching separately the questions of release and transfer to open conditions. It was unnecessary to set out each and every consideration, as long as the process was complied with. Further, not only should this case be distinguished from D'Cunha, where the judge there made it plain that the panel had not given separate consideration to open conditions transfer, but also emphasised that the current directions, unlike those which applied in some of the earlier decided cases at higher level, gave pre-eminence to continuing risk above all other factors, even though a balance between risk and benefit still had to be undertaken. He pointed out that at no stage had the Claimant through counsel sought to take issue with the evaluation of the risk which he posed.

Discussion

35. The appropriate starting point for my assessment of these respective arguments is derived from the decision of Burnton J (as he then was) in the case of R (on the application of Scott Alvey) v the Parole Board [2008] EWHC 311 (Admin) when dealing with a judicial challenge to a release refusal by the Parole Board. He said:

1.26….it is not for this court to substitute its own decision, however strong its view, for that of the Parole Board. It is for the Parole Board, not for the court, to weigh the various considerations it must take into account in deciding whether or not early release is appropriate. The weight it gives to relevant considerations is a matter for the board, as is, in particular, its assessment of risk, that is to say the risk of re-offending and the risk of harm to the public if an offender is released early, and the extent to which risk outweighs benefits which otherwise may result from early release, such as a long period of support in the community, and in some cases damage and pressures caused by a custodial environment.

1.27 The panel must give reasons for its decision, but it is not required to address every matter which it considers, provided it is clear that it addressed the substance of the issues required to be addressed in a particular case, and that its reasons demonstrate why early release has not been ordered, and are sufficient to demonstrate the lawfulness of the decision.

…I remind myself that I must not in any way interfere with the discretion or judgement of the Parole Board who… are uniquely qualified to make the decisions it is called upon to make. I must ask myself whether they have carried out their task in accordance with the law, as set out in the statutory directions. I must consider whether the decision falls within the range of decisions which a reasonable panel might make. I must ask myself whether the reasons for the decision are proper, sufficient and intelligible.

36. Again the court was addressing not only issues of alleged reasonableness in conclusion, but also the lawfulness of the process by which the decision was arrived at.
37. The House of Lords has also emphasised in two recent cases concerned with the application of article 5 of ECHR to continuing detention or licence revocation that the reviewing court must step back from interfering, save in exceptional or obvious circumstances, with the exercise of a discretion by the Parole Board in the discharge of its duty. In James [2009] UKHL 22 Lord Judge observed:

….although possessed of an ultimate supervisory jurisdiction to ensure that the Parole Board complies with its duties, the administrative court cannot be invited to second-guess the decision of the Parole Board in the way it chooses to exercise its responsibilities.

38. In Smith and West v Parole Board [2005] UKHL 1 Lord Bingham put it this way:

26. Lastly it is plain from the statutory provisions already quoted that the resolution of questions of the type indicated is entrusted, and entrusted solely to the Parole Board. In exercising this very important function is recognised to be an independent and impartial tribunal for the purposes of article 61 of the European convention. It is the primary decision maker not entitled to defer to the opinion Secretary of State or a probation officer.

39. Because this challenge is confined to the mandatory directions issued under section 32 in relation to the discharge of the Parole Board's functions in respect of the transfer to open prison conditions, and no longer concerned with the question of release which is specifically defined in the statutory duty under section 28, it is helpful to consider the way in which courts have approached challenges to open prison transfer refusal on the authorities specifically referred to by counsel in this case.
40. In Gordon (above) Smith J was concerned with a challenge by a prisoner whose tariff on a life sentence for murder had expired, who had been released subsequently but recalled to closed conditions, and who was seeking a transfer to an open prison which was refused. After reviewing the evidence and rejecting several grounds for challenge, including irrationality and the adequacy of reasons, she dealt with the lawfulness of the decision-making process on the application of the mandatory directions in these terms:

38. I acknowledge of course that is not incumbent upon the board to set out its thought processes in detail or to mention every fact they have taken into account. However in my judgement the balancing exercise they are required to carry out is so fundamental to the decision-making process that they should make it plain that this has been done and to state broadly which factors they have taken into account. It does not appear to me that there has been any real attempt to balance risk against benefit. I have said that the assessment of risk is entirely a matter for the panel. But there are at least two benefit factors which should have been taken into account. (His supervising officer) has spoken of his concern that further incarceration would reduce the likelihood of successful reintegration into the community. This point encapsulates an important benefit to the applicant. Other reports spoke of the need for the applicants resolve to stay of alcohol to be tested. That too would be a substantial benefit to the applicant arising from transfer. Neither of these benefits is mentioned in the decision it seems to me that because the panel has focused on the risk arising from the uninvestigated sexual component, they have ignored the other aspects of the case and had not brought the benefits into consideration.

41. It is important to point out, as Mr Karim has done, that this case was decided when earlier directions were in force. There is a small but significant difference. Under the earlier directions, paragraphs 2 and 3 read as follows:

2. In considering whether a lifer should be transferred to open conditions, the Parole Board should balance the risks against the benefits to be gained from such a move. Such consideration is thus somewhat different from the judgement to be made when deciding if the lifer should be released. In those cases the Parole Board is only asked to consider the risk.

3. The principal factors which the Parole Board should take into account when evaluating the risk of transfer against the benefits are:

(a)whether the lifer that has made sufficient progress towards tackling offending behaviour to minimise the risk of gravity of reoffending and whether the benefits suggest that a transfer to open conditions is worthwhile at that stage…….

42. I have set out in the text of the current directions at paragraph 8 above. Whilst paragraph 3 of the directions still retains a balanced assessment of risk against benefits, there is now (unlike the earlier directions) pre-eminence given to 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". Mr Karim submits that this provides a wholly different approach, with risk weighing very heavily in the balance, and for this reason the decision of Smith J should be viewed cautiously.
43. The fact remains, however, that the Parole Board is still required to make a balanced assessment of risk and benefits and it seems to me that whilst decided under differently worded directions, the case of Gordon is still contextually relevant.
44. In another case, Hart v the Parole Board [2000] (unreported) also decided under the earlier directions, and where the prisoner's continuing denial of guilt was a significant factor, Turner J felt that the panel had paid only lip-service to the directions on the balancing test which had to be carried out.
45. It is axiomatic that every case must depend upon its own facts, but from these cases it is plain that the Administrative Court will be prepared to interfere with a decision which has not been arrived at through normal process, i.e. following the application of a test set out in mandatory directions.
46. More recently in R (O'Sullivan) v Parole Board [2009] EWHC 2370 (Admin) Irwin J dealt with a challenge to a refusal to transfer to open conditions a prisoner who had previously been convicted of murder as a juvenile and whose fixed tariff had expired. This was not a case in which the argument was based upon the failure to apply the balance of risk and benefit, but where it was contended that the decision was irrational, ignoring key aspects of the evidence. The judge was prepared to interfere because of the failure of the panel, as he put it, to provide a good reason in the decision "as to why the necessary work could not be done and should not be done in open conditions" to address risk reduction which included the demonstration of stability and the ability to manage stress and emotion.
47. Within the past three years three separate cases have emanated from Manchester in the Administrative Court ("the Manchester cases") which deal with this very question of the risk to benefit test but specifically under the directions which are now in force, including the case of D'Cunha, on which Mr Field places specific reliance. Mr Karim has appeared on behalf of the Parole Board in all three of these cases.
48. In view of the fact that it was the first in sequence, it is helpful to consider the brief facts, and the relevant observations of His Honour Judge Davies in that case. The prisoner had been involved in criminality not dissimilar to the present Claimant. His index offence had been wounding with intent and the IPP set a minimum of 2 ½ years. There had been a referral to the Parole Board to consider the direction of release or alternatively a transfer to open conditions on the expiry of the fixed term. There were numerous challenges raised by the Claimant to the decision of the panel in February 2010, including the failure to give reasons, particularly where expert evidence had been dealt with before the panel, and Wednesbury irrationality. Unlike the present case, the Claimant through his counsel challenged the decision to refuse a release as well as transfer to open conditions. However he also contended, as does Mr Smith in this case, that the panel failed to carry out any balancing exercise between risk and benefit in accordance with the directions.
49. In his ruling, after rejecting the principal grounds for challenge, the learned judge determined that the directions issued in 2004 applied not only to lifers but also to IPP prisoners, in response to a submission made by Mr Karim for the Parole Board (and one which is no longer pursued in this case). Specifically, having also determined that they were mandatory directions and not simply for guidance, he went on to say at paragraph 61:

It is quite apparent in my judgment, on a reading of the decision letter that the panel did not apparently consider the question of transfer to open conditions separate from the question of release, applying a balanced assessment and having particular regard to the factors which apply specifically to open conditions, particularly those identified above. In my judgment it was obliged to do so.

50. In this court, the words of His Honour Judge Davis have been picked over, and in particular whether the comma inserted after the word release qualified the way in which he dealt with the question considered by the panel. Unfortunately the text of the decision letter in D'Cunha has not been quoted elsewhere within the judgment. However, I do not think it is necessary to indulge in that kind of forensic analysis of the sentence because this was only a general observation. There is a clearer explanation of his conclusion in paragraph 64 subparagraph 2.

There is no basis for believing that it did conduct a balanced assessment taking into account all relevant factors. The tenor of the decision letter is that the panel, having considered that the level of risk was such that it could not direct release, simply applied the same consideration to the question of transfer to open conditions and regarded it as conclusive against the applicant.

51. It seems to me that regardless of whether or not the decision in D'Cunha should bind this court, or at the very least provide persuasive authority, there is merit in the submission of Mr Field for the Claimant that the present decision letter undertakes precisely the same approach.
52. The question of whether or not an authority of equivalent jurisdiction is decisive on this issue comes into focus when consideration is given to the other two Manchester cases decided after D'Cunha in which contrary conclusions were arrived at. However neither judge sought to suggest that His Honour Judge Davis had been incorrect in his approach. In R (on the application of Leach) v the Parole Board [2011] EWHC 2470 (Admin) His Honour Judge Raynor QC sitting as a judge of the High Court dealt with the refusal to recommend the transfer of a prisoner from closed to open conditions which was challenged, amongst other grounds, on the basis that the panel had applied the wrong test, using that applicable to risk assessment alone, rather than "the balanced assessment of risk and benefits" in accordance with the directions.
53. The Claimant in that case had been convicted of murder of his girlfriend over 20 years earlier, at which time he had been 20 years of age. There had been a sexual element to the offence, and on the expiry of his minimum term there had been numerous transfers between open and closed conditions including some time spent in the community. The learned judge considered the directions, including the change to those which had applied at the time of Gordon and Hart. However he rejected the criticism of any failure to consider benefit, because there was a specific reference in the panel decision to the evidence of a psychologist, Dr Huff, and his opinion that the Claimant needed some real life experience which could only be achieved in open conditions. Thus the judge was able to identify within the decision letter a specific reference to benefit. One of the criticisms levelled against the Defendant in this case by Mr Field is that the term "benefit" does not appear on a single occasion in the relevant decision letter.
54. The final Manchester case is R (on the application of Austin) v the Parole Board [2011] EWHC 2384 (Admin). It was decided in the same month as Leach by His Honour Judge Wacksman QC, sitting as a judge of the High Court. The Claimant in that case, who had been convicted of murdering his wife in November 1997, and who had always maintained his innocence, was challenging the refusal to recommend a transfer to open conditions only, and no question of release arose. This is particularly significant, because there was no need for the panel to apply separate consideration, and it would follow that reference to risk was in the context of the balancing exercise which the panel was required to undertake. Accordingly the court would have no concern that there had been any merging of release and transfer recommendation considerations. A further significant factor was that the offender manager expressed the view that there was no benefit to the applicant in a transfer to open prison conditions except possibly for employment.
55. The learned judge set out in his judgment a large part of the decision letter. The criticism which the court was required to address was that the panel had not stated or applied the correct legal test. He rejected the criticism, noting in particular that its substance referred to an alleged failure on the part of the panel to properly weigh the risks on transfer to open conditions, and that little evidence of benefit had been alluded to. In distinguishing D'Cunha, at paragraph 65, His Honour Judge Wacksman noted:

(D'Cunha) did not really deal with that question separately from the prior question of release on parole. So there was no real engagement with the later question at all… That cannot be said here, however, where the only question to be considered was a transfer to open conditions.

Conclusions

56. It seems to me that the Manchester cases are practical examples of the application of the general principle that a reviewing court will only interfere in the decision of the Parole Board, where it is being asked to recommend a transfer to open conditions, in very limited circumstances where there is a real possibility that the panel has not been engaged in applying the proper legal test which involves a balancing exercise, albeit one where risk is pre-eminent. There is no need to identify a statement that such a balance is being performed as long as it is evident from the reasoning of the panel.
57. With that in mind I turn to consider the relevant section of the decision letter of this panel in May 2012. What is immediately striking in my judgment is that when an earlier panel dealt with the question of risk to the public, where the Claimant was not then asking for release, in the conclusion and decision there is specific reference to the balancing exercise that had to be performed between the benefits to the prisoner in a transfer to open prison against the risks posed to the public. (See paragraph 16 above). This was in the context of evidence before the panel which was not supportive of the transfer, and where significant risks from non-participation in certain courses were still identified.
58. The absence of any reference to the balancing exercise in the current decision letter is not in itself fatal to the lawfulness of the decision, because on the basis of the authorities mentioned, it is immaterial that a panel has not stated the test, as long as it is plain that it has been applied. The difficulty, however, is that the more evidence there is before a panel of positive benefit, the greater the necessity for the benefit to be addressed as weighing less than the prevailing risks which still remained.
59. Further, it seems to me that where a panel is giving separate consideration to two applications before it, (a) release and (b) transfer to open conditions, and those two applications involve a different legal test in the sense that benefit is immaterial to the issue of release, it is incumbent upon a panel to make it plain that the different approach has been understood and appropriate principles applied.
60. I have been concerned in this case to note that unlike some of the other cases referred to, both the offender supervisor and the offender manager (although the latter somewhat optimistically) was supporting a transfer to open conditions. There will be many instances where a panel is faced with such a situation, and a rejection of such support is entirely acceptable, as the assessment of risk is exclusively a matter for the panel. However, for a prisoner who has made a two-pronged application, so to speak, perhaps for tactical reasons, it will be particularly important to understand how and why the panel believes that any identified benefits are outweighed by the risks which he still poses.
61. Here, Mr Sharples identified two potential benefits, the first being an opportunity to complete the TSP course and to be tested in a less secure environment, and the second to enable his release on leave where he could be tested in the community against his outstanding risk factors. Miss Foster believed that the only way that his ingrained lifestyle of alcohol consumption could be adequately assessed would be for a transfer to open conditions where he could be undertaking programmes and tested at a meaningful level.
62. It would have been open to the panel to identify these benefits specifically. Mr Karim submits that from paragraph 7 of the decision letter it is plain that the panel must have had them in mind even though they are not stated. However, I am unconvinced that a reference to a move to open conditions to ensure that the Claimant "did not give up" provides a sufficient demonstration that they have dealt with that part of the evidence. Further, there is an element of contradiction in defining the offender supervisor's recommendation as "somewhat reluctant" and yet stating that he "was very clear that you have to be tested first in open conditions".
63. It is the final paragraph of the decision letter which causes me the most concern, and which undermines any confidence which this court may have that the panel had applied the correct test. Whilst Mr Karim is quite right that they seem to have split the two decisions by going on to direct a refusal to recommend a transfer to open conditions in the penultimate sentence of the final paragraph, it seems to me that this is an insufficient way in which to address the application of a second test, and a balancing exercise to the question of open condition transfer. Not only does the word benefit appear nowhere within the decision letter, but also there is no reference to the application of a balancing exercise.
64. In my judgment it is self-evident from the approach which the panel has taken to what was undoubtedly a real concern which they had in respect of Mr Smith's failure to deal with certain areas of his rehabilitation by undertaking appropriate courses, and the risk which he still posed to the public as a consequence, that their primary focus had been upon their statutory responsibility to safeguard the public, and that they have failed to give any significant regard to the separate analysis of a transfer to open conditions. In other words, the panel fell into exactly the same trap as the panel in the case of D'Cunha dealt with by His Honour Judge Davies.
65. Furthermore, the balancing exercise is not one on which the directions provide no guidance. Paragraph 5 of the direction contains matters which the Panel must take into account and paragraph 6 has a list of matters for discretionary consideration (11 in all).
66. This court is required to take a step back and ask itself the question whether the panel has understood and applied the correct legal test, involving a balancing exercise albeit one which gives pre-eminence to risk, to the alternative application made by the Claimant. In all the circumstances, I cannot determine from the reasoning of the panel that there has been any consideration of this test.
67. I do not accept the submission that because risk requires such a significant emphasis, there is no requirement for the panel to state specifically, in the context of this case, that it had "trumped" benefit so to speak, from any transfer to open conditions. The Claimant was entitled to know on what basis the evidence of benefit was being rejected, even if the simple answer had been that the continuing areas of risk could not be adequately addressed in open conditions with the provision of a brief reason why. This decision, in my judgment, does not demonstrate an appropriate analysis, and whilst a reconvened panel may well come to the same conclusion, it remains possible that they may not. In the circumstances, this decision is flawed and should be quashed.
68. The relief sought requires a direction that "the Defendant reconsiders its decision on grants the Claimant transfer to open conditions". As indicated in the course of argument, it is the reconvening of the panel with a consideration of the balancing test under the mandatory direction rather than a grant of the transfer which is now sought, and that is the order which I am prepared to make, subject to any further submissions which may be received.
69. I am grateful to counsel for the helpful submissions and the succinct way in which this case has been presented and defended. I invite the parties to agree any typographical corrections to this judgment in draft form and to submit suggestions for a final form of order. I am prepared to receive any further oral submissions, including costs submissions, in the absence of agreement, when this judgment is formally handed down at an agreed date.

HH Judge Graham Wood QC

Judgment handed down 22.3.2013