England and Wales High Court (Administrative Court) Decisions

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

		Manchester Civil Justice Centre 1 Bridge Street West, Manchester, M60 9DJ
		31/10/2014

Mr Justice Stewart:

Introduction

1. By a claim form filed on 19 June 2014, the Claimant seeks Judicial Review of the Defendant's decision dated 21 March 2014. In that decision the Secretary of State did not accept the recommendation of the Parole Board that the Claimant was suitable to be transferred to an open prison.
2. Judge Russell QC granted permission to bring Judicial Review and ordered an expedited hearing. His observations were:

"Given that the decision of the Parole Board was made following an oral hearing at which the evidence of the experts was tested and the Applicant gave evidence, the Claimant's claim that the Defendant's decision to reject the Parole Board's recommendation for transfer was irrational is arguable."

Background

3. The Claimant was sentenced on 28 July 2006 to life imprisonment in respect of 35 counts of sexual offences against children. The Claimant had been a vicar, though the sentencing judge accepted that none of the offences was made using his capacity as a vicar noting however, "the same good social skills which made you a successful priest were used…to groom these young boys and breach their trust." The offences took place over a period of four years when the Claimant was aged between 40 and 44. The life sentence tariff was set at 8 years and the tariff expiry date was 14 February 2014.
4. The Claimant completed various programmes, was enhanced under the Incentives and Earned Privileges Scheme and had not received any negative behaviour warnings or adjudications.
5. In May 2013 the Defendant referred the Claimant's case to the Parole Board for consideration of whether or not it would be appropriate to direct his release. He also asked for advice as to whether the Claimant was suitable for open conditions, the Claimant being in custody in HMP Wakefield.
6. Reports available to the Parole Board were:

1. The pre and post sentence reports

2. A report dated 22 May 2013 from the Claimant's then Offender Supervisor, Ms Crisp.

3. A report dated 9 August 2013 from the Claimant's Offender Manager, Mr Pennell.

4. An OASys dated 9 August 2013 completed by Mr Pennell.

5. A report dated 14 May 2013 from the Claimant's key worker, Prison Officer Bourke.

6. A psychology report dated 01 June 2013 from Tina Mistry, Forensic Psychologist.

7. Psychiatry and security reports.

8. A psychology report prepared on the instructions of the Claimant's Solicitors by Rhys Matthews, a Forensic Psychologist and dated 15 September 2013.

There were also written representations filed on behalf of the Claimant.

7. An oral hearing took place on 10 January 2014 in front of a panel which included a psychologist. Tina Mistry, Mr Pennell, Mr Matthews and Ellen Foote (Offender Supervisor) gave evidence at the oral hearing, Mr Pennell's evidence being given by telephone. The Claimant also gave evidence.
8. The decision of the Parole Board was given on the 15 January 2014.

The Legal Framework

9. It is normal for the Secretary of State to request advice from the Parole Board as to whether a transfer of a prisoner to open conditions would be appropriate. Under section 239(2) of the Criminal Justice Act 2003 it is the duty of the Board to advise the Secretary of State in respect of any matter referred to it by him which is to do with the early release or recall of prisoners.^[1]
10. It is common ground that the Defendant has a discretion to reject the Parole Board's recommendation of transfer to open conditions. Section 12 of the Prison Act 1952 provides that a prisoner may be lawfully confined in any prison and that prisoners shall be committed to such prisons as the Secretary of State from time to time directs.
11. In R (Banfield) v Secretary of State for Justice^[2] five principles were identified in determining whether the Secretary of State's decision was lawful. The Claimant in the present case relies upon the following:

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

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

The Secretary of State's Decision

12. The covering letter from Mr Kevin Breame dated 21 March 2014 stated:

"The Secretary of State has now considered the Parole Board recommendation but is not prepared to agree to your transfer to open conditions at this time. The Secretary of State is of the view that the Parole Board's panel failed to give sufficient weight to the concerns of the report writers about your risk of re-offending. Full reasons for this decision are attached at Annex A."

I have set out the most material sections of Annex A in Appendix A to this judgment.

The Parole Board Decision Letter

13. The most material sections of this letter, dated 10 January 2014, are set out in Appendix B to this judgment.

Evidence Re Extended SOTP (E-SOTP)

14. The recommendation that the Claimant complete an E-SOTP was a central theme in the Secretary of State's reasoning. A substantial element of the Claimant's challenge focuses on this.
15. The Claimant's analysis of the position may be summarised in this way:

(1) Stephen Pennell had been the Claimant's Offender Manager since 06 June 2013. He had read the relevant papers and spoken to the Claimant via the telephone for 30 minutes on 08 August 2013. His addendum report stated:

"My risk assessment and proposed future work required by Mr Thomas is based upon the reports submitted by the psychological department at HMP Wakefield."

In oral evidence he accepted that he has simply adopted the recommendations of the psychology department. He said he did not know a lot about E-SOTP.

(2) Ellen Foote, the new Offender Supervisor, had not had any direct contact with the Claimant. In oral evidence she accepted she was following the recommendation of the psychology department and that the assessment in her report that the Claimant posed a medium risk of harm to children whilst in custody was nonsensical.

(3) Tina Mistry is a Chartered Forensic Psychologist with 6 years experience in the prison service. It was she who completed the Structured Assessment of Risk and Need (SARN) dated June 2012 and a Sentence Planning and Review Report dated 14 June 2013, after two interviews lasting between 2 and 2½ hours. In the SARN she recommended completion of the E-SOTP and in the report she recommended (8.3):

"I still believe that Mr Thomas would benefit from completing the Extended SOTP, though I do not think it would be of detriment if Mr Thomas completed the Healthy Sex Programme (HSP) before completing the Extended SOTP."

In the SARN the Claimant was assessed as having a high level of dynamic risk and strongly characteristic risk factors in three of the four domains: sexual interests, offence supportive attitude, self management. Ms Mistry identified a sexual interest in children and not having emotionally intimate relationships with adults as areas requiring treatment.

(4) (a) As regards sexual pre-occupation, assessed as an essential treatment need, it was stated that the Claimant had associated with a more vulnerable younger prisoner on the wing. Ms Mistry saw this as offence paralleling behaviour. The complainants in the trial were aged between 11 and 15. Ms Mistry said that the Claimant did have a sexual interest in children but not a specific preference for children.

In her oral evidence she accepted that the Claimant's sexual pre-occupation at the time of his offending was likely to be a coping mechanism.

Sexual pre-occupation is not explored in E-SOTP.

Mr Matthews^[3] said there was no reporting of a sexual pre-occupation. The Claimant's described sexual attraction to males aged 15 – 25 had diminished. HSF/HSP was not therefore warranted.

(b) Ms Mistry, in her report, had identified the Claimant's belief of a right to sex as an essential treatment need. It was identified that he had made progress on child abuse supported beliefs but the report said "His sexual interest in adolescent boys is current and would benefit from further work."

The target group of young and vulnerable is not explored on the E-SOTP nor is sexual interest in children.

Beliefs supportive of child abuse are covered on the E-SOTP but there is no evidence that the Claimant has beliefs that are supportive of child abuse.

The Claimant's association with a younger vulnerable prisoner is an example where a boundary was not crossed. The Claimant helped the vulnerable prisoner but did not go further. This is not looked at in E-SOTP.

The Claimant accepts that entitlement played a part in his offending and he would benefit from further practice of his management strategies.

(c) Ms Mistry's report identified that not knowing how to solve life's problems was an essential treatment need. She said that the Claimant has "an avoidant approach to dealing with his problems…although pre-course psychometrics did not indicate a treatment need in this area." The Claimant's case before the Parole Board was that not knowing how to solve life's problems would be addressed on E-SOTP, but there was no evidence he required this.

(5) Mr Matthews' conclusion was:

"The following risk factors applied to Mr Thomas but progress has been made such that no further work is necessary; sexual pre occupation, offence supportive attitude, lack of emotionally intimate relationships with adults, poor problem solving…there is nothing reported in Mr Thomas's general prison behaviour to suggest that he is unsuitable for open conditions or release."

16. The Parole Board Decision Letter^[4] summarises in paragraph 2 the evidence considered by the panel. As to Ms Mistry's analysis of the risk factors these were:

Sexual pre-occupation: not presently a risk factor. Not a risk specifically targeted by E-SOTP

Other offence related sexual interest: concern expressed. No suggestion that sexual boundaries crossed. Not a risk addressed by E-SOTP

Sexual interest in children: present but not in the form of a preference. Not a risk area addressed by E-SOTP

Sexual entitlement: not a risk factor. Area of risk that would be addressed by E-SOTP

Child abuse supportive beliefs: not presently considered to be a risk factor; though an area of risk looked at in E-SOTP, would not be the focus of treatment

Problem solving: risk identified in that in the past the Claimant used sexual pre-occupation as a means of solving life's problems. Current risk factor. Would be addressed in E-SOTP

Not having the skills to maintain an emotionally intimate relationship: offending area of risk and treatment need that would be addressed in E-SOTP.

17. From the above the panel concluded^[5] that the only outstanding risks identified by Ms Mistry as capable of being addressed by E-SOTP are problem solving and maintaining an emotionally intimate personal relationship. She accepted that the Claimant had made significant progress in reducing that risk. The panel considered the psychologists' evidence and the Claimant's evidence. Finally, for the reasons given later in paragraph 6:

"The areas of risk identified by Ms Mistry as outstanding and capable of being addressed by E-SOTP do not fall into the category of risk areas of paramount concern and nor was the Panel convinced that they are in fact current risk factors. The evidence cited the support problem solving as a risk factor is contradictory and inconsistent. You are criticised for being both over-assertive and under-assertive…"

18. Based on the above the Claimant submits that there was a full and detailed exploration by the Parole Board of the contradictory evidence. The Parole Board had the benefit of hearing the live evidence and there was no basis for the Secretary of State not to follow their recommendation.

Secretary of State's Approach

19. There is a statement by Mr Kevin Breame of the Public Protection Casework Section within the Offender Management and Public Protection Group of the National Offender Management Service. His statement is dated 31 July 2014. That statement sets out the process of consideration of the Parole Board recommendation. He refers to chapter 6 of PSI 36/2012 which concerns transfer to open conditions following a Parole Board recommendation. Paragraph 6.5 is the guidance on rejecting a recommendation to transfer a prisoner to open conditions. It says:

"If the Team Manager is considering rejecting a recommendation to transfer a prisoner to open conditions, the case should be discussed with the Head/Deputy Head of Casework immediately and advice sought from legal advisors. A case can only be rejected with the approval of the Head of OMPPG. The parameters for rejecting a Parole Board recommendation for transfer to open conditions are very limited. The criteria for rejection are:

The panel's recommendation is based on inaccurate information

The panel's recommendation is against the recommendation of most of the report writers, especially if the Offender Manager's report and Psychologist's report favour retention in closed conditions."

The second criterion was amended in June 2013^[6] to read:

"The panel's recommendation failed properly to address properly the risk factors identified in the main reports and any conflicts in the evidence."

20. Mr Breame considered the Parole Board's recommendation and produced a report on 12 February 2014. He considered the same dossier of papers that had been before the panel and said that he took account of the fact that the panel had heard live oral evidence, which he had not. He concluded that the recommendation should not been followed having regard to the guidance. His statement says:

"In their report the OMOS and prison psychologists were of the view that Mr Thomas should complete core risk reduction work in the form of Extended Sexual Offender Treatment Programme and for the Healthy Sexual Function Programme before transferring to open conditions. Only Rhys Matthews, the psychologist instructed by Mr Thomas' legal representatives, took a contrary view. The panel accepted that there were outstanding risk factors, but were not convinced that they were in fact current. Against this background, I am not satisfied that they had fully taken account of the concerns raised by the OMOS and I did not consider that they had addressed them in their written reasons."

21. Mr Breame submitted a case to his Head/Deputy Head of Casework. The head of Casework requested a seconded probation officer with experience of running sex offender treatment programmes to look at the case. A number of points are made in two emails dated 19 February 2014 and 24 February 2014, namely:

(i) It was concerning that the Claimant was forming unhelpful relationships two youthful looking prisoners who were in the confines of extracted environment. While E-SOTP may not target this directly it will still address the risk factor by supporting him to be more aware of how to form healthier and more helpful relationships with those who are not rendered vulnerable in relation to him because of their age, and less life and sexual experience.

(ii) Sexual entitlement: E-SOTP advisable to help the Claimant acquire the skills and knowledge to build healthy relationships that are based on an equal footing.

(iii) Problem solving: the outstanding treatment needs would be best addressed within the context of his sexual offending. The E-SOTP would also identify and address the link between these and other risk factors. Tackling this risk factor out of context would be less helpful in terms of risk reduction.

(iv) Additional detailed concerns were set out in the email of 24 February 2014.

22. Thereafter, the Head of Casework submitted the case to the Head of the PPCS on 5 March with the recommendation to reject transfer to open conditions, on the grounds that the panel's recommendation failed properly to address the risk factors identified in the main reports and any conflicts in the evidence. The Head of the PPCS agreed with the recommendation and submitted the case to the Head of OMPPG for consideration. The Head of OMPPG agreed with the proposal and confirmed this on 06 March.

The Relevant Case Law

23. In R (Wilmot) v Secretary of State for Justice^[7] King J considered the status of any Parole Board recommendation at paragraphs 43 – 48 and the alleged policy/practice of the Secretary of State at paragraphs 49 – 54.
24. At paragraph 47 King J re-affirmed that it is not for the court to assess the reasonableness of the Parole Board's decision to determine whether that can be characterised as irrational in the Wednesbury sense. The court must direct its attention to the rationality of the Secretary of State's decision, and will not interfere with that decision unless it is Wednesbury irrational or reached by an unfair process.
25. In paragraph 53 King J set out some Internal Guidance as follows:

"Revised process for considering Open Recommendations

1. Initial consideration of all Parole Board open recommendations should follow the new open pro-forma. Start with reading the Parole Board recommendation and then just the conclusions and the risk reduction sections of the main report writers as identified on the pro forma. To help you consider whether a decision has factual inaccuracies or is inconsistent with the evidence, you should use the following criteria as an initial guide

Inconsistency with the evidence

2. Where most (e.g. 2 out of 3 reports or 3 out of 5 reports) of the available evidence contained in the key reports points towards open conditions then the case should be accepted.

3. Where most of the available evidence contained in the reports points towards closed conditions then these cases will require further scrutiny using the existing open recommendation pro-forma as it is likely that the case should be rejected.

4. Where there is a conflict between report writers with some recommending closed and some open, provided these conflicts have been addressed by the Parole Board then the case should be accepted. Account should be taken of any oral evidence that addresses the conflicts. Where the conflicting views have not been addressed then the case will require further scrutiny as it is likely that the case should be rejected."

26. King J pointed out^[8] that the court must be slow to find that the Secretary of State had bound himself always to follow the recommendation of the Parole Board on an open transfer, unless it could be said that the decision of the Parole Board was irrational in the Wednesbury sense. He also said^[9] that no amendment to PSO Directions had been made and no statement could be extracted from the Internal Guidance to caseworkers to the effect that the Secretary of State will not refuse to follow a recommendation which he believes to be clearly wrong, even though the Parole Board decision might not fall to be characterised as irrational.
27. As to the advantage of the Parole Board hearing the oral evidence, the court has to take into account the Divisional Court's decision in R (Hindawi) v Secretary of State for Justice.^[10] In paragraph 61 the court said:

"In a case where there had been an oral hearing, very good reason was needed to depart from the findings of fact made by the panel that has seen the witnesses, particularly the claimant. The oral hearing had been ordered…because issues could not be resolved by a review of the papers."

28. Thereafter, the court in Hindawi set out numerous authorities dealing with appeals from decisions from trial courts which make clear findings of fact or findings on credibility and saying that they should not be overturned without good reasons. In paragraph 63 the court said that although the Secretary of State was the primary decision maker "it is difficult to see why such principles are not applicable to circumstances such as this case where the Secretary of State has not seen the witnesses. In my view therefore good reasons were necessary for him to reach a different decision on credibility."
29. Finally, it is worth noting that in Hindawi^[11] the court said that the Secretary of State was entitled to come to his own conclusions on the assessment of risk, provided he did so by a process which was fair and the decision was rational. The Secretary of State "had some expertise, though not superior expertise."
30. It is common ground that the fact that the Parole Board heard live evidence from the Claimant cannot be determinative. I agree with the Claimant, however, that it is a factor of substantial weight, though perhaps most particularly in relation to findings of fact.

Discussion

31. Against that backdrop I now deal with the specific criticisms made of the Defendant's decision.
32. The Claimant says that paragraph 8 of Appendix A appears to misrepresent the decision concerning whether the E-SOTP was necessary in that it says "the establishment have confirmed that Extended-SOTP is still considered a necessary treatment option for you." The Claimant says that is inconsistent with the evidence of Mr Matthews, whose evidence the panel accepted. However, properly read paragraph 8 is referring to the evidence from those witnesses other than the Independent Psychologist, Mr Matthews. It is clear from reading the remaining paragraphs that they were well aware that Mr Matthews did not consider an E-SOTP necessary and that the panel accepted that evidence.
33. The Claimant further says that no account is taken of the fact that the panel saw the witnesses in person and so were far better placed to judge and the risk and evaluate the evidence. Mr Breame in paragraph 9 of his witness statement specifically says "I took account of the fact that the panel had heard live evidence from the witnesses, which I had not." In any event, it is also clear from the remainder of the Secretary of State's reasoning that he was concerned that the approach of the panel was flawed in certain respects. This is relevant to their assessment and weighing of the evidence.
34. In paragraph 9 of the Secretary of State's decision it is noted that two of the risk factors connected to sexual offending had been described as current or outstanding, and that treatment for them would be addressed in E-SOTP.^[12] It is also noted that the panel did not consider that these were areas of paramount importance but acknowledged there were outstanding risk areas that would be addressed by the identified Offending Behaviour Programme. The panel were not convinced on the evidence that they were in fact current risk factors, pointing out that in their opinion the evidence cited to support problem solving as a risk factor was contradictory and inconsistent. Nevertheless, counsel for the Claimant properly accepted that the Panel did accept outstanding risk areas.
35. The primary facts as to these risk areas were therefore not in issue. What followed, albeit taking full account of the Panel's decision and their assessment of the psychologists' and other evidence, was essentially a matter of judgment for the Secretary of State.
36. A factor in the Secretary of State's concern with the panel recommendation and opinion is the fact^[13] that the Secretary of State considered it unreasonable that the concerns and recommendations of the Offender Manager and Offender Supervisor were dismissed on the basis of limited contact, yet the evidence of the Independent Psychologist who had had limited contact was accepted. It is important to note the following:

(i) Ms Crisp, the Offender Supervisor, interviewed the Claimant in May 2013. Ms Foote had taken over by the time of the hearing. However the panel gave no weight to the fact that Ms Crisp's view was that there should be E-SOTP. She had had a detailed interview with Mr Thomas prior to the report. She was an experienced probation officer. The fact that she was not present at the oral hearing does not necessarily mean that her opinion should be given no weight, particularly as it had been adopted by Mr Pennell and Ms Foote.

(ii) Ms Mistry had had more contact than anybody with the Claimant.

(iii) Mr Pennell had interviewed the Claimant for 30 minutes by telephone.

(iv) Ms Foote and Mr Pennell, having considered the dossier, agreed with Ms Mistry and Ms Crisp.

(v) Therefore, although the Parole Board heard oral evidence, in my judgment the Secretary of State had good reason to question and not to accept the extent to which they found Mr Matthews' evidence to be persuasive. This is particularly so in areas where, irrespective of the benefit to the Claimant of an E-SOTP, the Secretary of State had to identify the risk of the Claimant being in open conditions. The risk of the Claimant being in open conditions is primarily an assessment to be made by probation officers, even if they defer more to psychologists in relation to the benefit to an individual of the E-SOTP. In this regard the Panel had confirmed that it agreed with the most recent OASys which (amongst other things) assessed the Claimant as being at high risk of serious to children in the community.^[14]

37. I remind myself of the principles in Hindawi. Further, the Secretary of State, whilst giving full weight to the important recommendation of the Parole Board, was entitled to depart from it. The Secretary of State gave reasons for taking a different view from the Board of the preference of Mr Matthews' evidence as to the lack of need for E-SOTP, and of the risk of the Claimant would pose if transferred to open conditions. Those reasons are not, in my judgment unreasonable or irrational.
38. The process which the Secretary of State went through was a very careful one, as can be seen from Mr Breame's evidence. He acted in accordance with paragraph 6.5 of PSI 36/2012, whether one considers the amended or un-amended version.^[15] Further, paragraph 12 of the Secretary of State's Decision Letter considered the association with the two younger vulnerable prisoners. The Secretary of State believed the risk may have been underestimated by the panel. The Secretary of State had taken further expert advice and in the email of 19 February 2014 there was material to support the Secretary of State's concerns.^[16] As regards the Internal Guidance:^[17]

(a) It must be remembered that it is only internal guidance and the Defendant retains a discretion not to follow it so long as he acts within the principles set out above in the cases of Banfield, Wilmot and Hindawi.

(b) Albeit that paragraph 4 of the Internal Guidance refers to the fact that if there is a conflict between report writers which has been addressed by the Parole Board then the case should be accepted, account being taken of any oral evidence that addresses the conflict – this is subject to two independent matters (i) most of the available evidence pointed towards closed conditions^[18] (ii) for the reasons the Secretary of State gave, he considered that the Parole Board's addressing of the conflict was flawed.

Summary

39. Ultimately, the Secretary of State's task is to assess the risk in circumstances where there cannot be certainty and where the professional opinions were conflicting. Given the view of the professionals working at the prison was that it was not safe to transfer the Claimant to an open prison, and given the concerns properly expressed by the Secretary of State as to the Parole Board's decision making, it was open to the Defendant, after following the proper and careful process, to reject the Parole Board's recommendation.
40. Looking at the principles in Banfield relied upon by the Claimant:^[19]

(i) The Secretary of State did take into account the recommendation of the Parole Board and its expertise and gave weight to that.

(ii) There is no irrationality in the Secretary of State's decision in this case.

APPENDIX A

"Statement of Reasons for Rejecting a Parole Board Recommendation

…..

2. The Secretary of State is required to balance the risks in transferring an indeterminate sentenced prisoner to open conditions against the benefits. In weighing up those factors, he must also be satisfied that the main criteria governing such a transfer have been met, namely that the indeterminate sentenced prisoner has made sufficient progress in addressing and reducing his risk to a level consistent with protecting the public from harm, that he will derive benefit from testing in open conditions and comply with conditions of temporary release and that he is trustworthy not to abscond.

3. Having considered your case, the Secretary of State has exceptionally declined to accept the Parole Board's advice for the reasons set out below:

…..

6. The panel identified the following as your risk factors

• Sexual interest in children

• Child abusive supportive beliefs

• Sexual pre-occupation and entitlement

• Thinking and behaviour

7. The panel also confirmed that it agreed with the most recent OASys, which assessed you as being at low risk of re-conviction (all categories) but high risk of serious harm to children in the community and medium risk of serious harm to children in custody but low in all other respects.

8. During your sentence, to address your risk you have completed the Core Sex Offender Treatment Programme (SOTP) and the Thinking Skills Programme. Following completion of these it was recommended that you complete the Extended SOTP. The establishment have confirmed that Extended-SOTP is still considered a necessary treatment option for you and there is a programmed currently due to start at HMP Wakefield in August 2014.

9. In considering your case the panel reviewed the evidence of the prison psychologist, Ms Mistry but were critical of some of her conclusions. Seven areas of risk connected to sexual offending were discussed, four of which would be addressed in the Extended SOTP and two of which the panel described as "current" or "outstanding" and one of which was described as an "area of risk". The panel did not consider that these risk areas were of paramount importance but they acknowledged that there are outstanding risk areas that would be addressed by the identified offending behaviour programme. They give no explanation of how they expect this to be achieved in open conditions. The Extended SOTP programme is only available in closed conditions.

10. The panel favoured the evidence of the independent psychologist, Mr Matthews, who supported your transfer to open conditions. He believed that you are motivated and able to manage your sexual attraction to young males and there was no evidence of offence paralleling behaviour in custody. The panel described you as an impressive witness and thought that you showed insight into your offending.

11. In their recommendation, the panel dismissed the evidence of your Offender Manager and Offender Supervisor on the basis that they were both new to your case and had little or no contact with you, yet did not explain why Mr Matthews, who they found persuasive, had a deeper level of knowledge and ongoing involvement so as to make his views more credible. The Secretary of State considers it unreasonable that the concerns and recommendations of the professionally trained prison and probation staff were dismissed on the basis of limited contact yet the evidence of the independent psychologist was accepted. Of all the witnesses Ms Mistry had had the most contact with you having completed the SARN report in 2012 and the SPR-E report in 2013. As noted in the Parole Board's recommendation letter you have the capacity to successfully deceive people over a lengthy period of time. The Secretary of State is therefore concerned that a recommendation for open conditions was made against the majority of the report writers and where further core risk-related offending behaviour programmes are outstanding.

12. The Secretary of State also notes with concern that you have been warned about associating with two younger vulnerable prisoners who were said to appear younger that their actual ages. This caused concern because your preferred age group is said to be males aged 15 years and over and your offence involved grooming behaviour. The panel have accepted the independent psychologists' opinion that this is not evidence of offence paralleling behaviour. They described the attempt to link it to the index offence as "unwarranted and unnecessarily cynical" and that it represented as extension of the caring role he played in the community. The Secretary of State acknowledges that you accepted and understood the warnings and broken off the contact, but in view of the risk assessments and recommendations of professionals the Secretary of State does not agree and believes the risk may have been underestimated by the panel."

APPENDIX B

"Discretionary Lifer Panel, Parole Board Hearing, 10 January, 2014,

Decision Letter

……..

2. Evidence considered by the panel

……..

The prison professional consensus is that you need to complete Extended-SOTP before making progress towards release. However, neither your Offender Supervisor nor your Offender Manager have enjoyed any significant contact with you having both been recently appointed to their position. Your Offender Supervisor had not in fact met you prior to the hearing. The Panel discerned that they had simply adopted the view of Prison Psychology. Thus the Panel's assessment of your risk is heavily dependent on its view of the evidence of the psychologists in the context, of course, of its judgment of the evidence given by you. The evidence of the two psychologists was concerned principally with an examination of your risk factors, the extent to which there is evidence that those risk factors are still present and their susceptibility to treatment via E-STOP (a programme not available in open conditions)….As to your various risk factors Ms Mistry made comment as follows:

Sexual pre-occupation: Nothing to suggest that it is presently a risk factor. In any event, this is not a risk that is specifically targeted by E-STOP.

Other offence related sexual interest: Concern was expressed that you have in the recent past associated on the wing with 2 vulnerable prisoners in their twenties, although with an appearance of somewhat younger than their chronological age. No suggestion is made that any sexual boundaries have been crossed. Not a risk that would be addressed by E-STOP.

Sexual interest in children: Present but not in the form of a preference. The concern here is that you have been inconsistent in your account to professionals as to the age range of males in whom you might be sexually interested. In one account the age 15 featured albeit at the lowest end of an age range which you identified. Not an area of risk that would be addressed by E-SOTP.

Sexual entitlement: This is an area of risk that would be addressed by E-SOTP. Ms Mistry eventually told the Panel, after what appeared to be a largely irrelevant commentary on your sense of entitlement to such treatment as may enable you to make progress towards eventual release, that it is not a risk factor. The Panel found it concerning that any significance at all should have been attached to you pursuing, through lawful and proper channels, your right to progress towards release and this concern was necessarily one factor influencing its overall assessment of the cogency of Ms Mistry's recommendation.

Child abuse supportive beliefs: It is considered that you have made progress in addressing this area of risk and it is not presently considered to be a risk factor. Although this area of risk would be looked at in E-SOTP it would not be the focus of treatment.

Problem solving: The risk identified under this head is that in the past you used sexual pre-occupation as a means of solving life's problems. Ms Mistry described you as insufficiently assertive in solving the problems of life. It is a current risk factor and it would be addressed in E-SOTP.

Not having the skills to maintain an emotionally intimate relationship: Ms Mistry identifies a need for more openness and honesty in intimate relationships. This is an area of outstanding risk and treatment need that would be addressed in E-SOTP.

Mr Rhys Matthews considers that the work you have already completed in closed conditions has sufficiently addressed your risk. You are well-motivated to succeed in open conditions. His recommendation is that you progress to open conditions where you will have the opportunity to demonstrate that you are able to practice those skills which you have learned in the course of risk reduction work.

……..

4. Risk Factors

………

The Panel considered that your risk of serious harm should be assessed on the basis of the following risk factors: sexual interest in children; child abuse supportive beliefs; sexual pre-occupation and entitlement; thinking and behaviour.

……..

Panel's assessment of current risk of re-offending and serious harm

The most recent OASys, completed on the 9 August, 2013, assesses you as being at low risk of re-conviction (all categories) but high risk of serious harm to children in the community and medium risk of serious harm to children in custody but low in all other respects. Apart from obvious questions relating to the assessment of risk to children in custody, the Panel saw no particular reason to disagree with this assessment. An RM2000 (a static risk tool) completed in 2009 assesses a medium risk of sexual re-conviction. Following your completion of Core SOTP a SARN concluded that you would benefit from completion of Extended SOTP and assessment for HSF.

In summary, the only outstanding risk factors identified by Ms Mistry as capable of being addressed by E-SOTP are problem solving and maintaining an emotionally intimate personal relationship. On any view of Ms Mistry's analysis of your risk you have made significant progress in reducing that risk. In assessing your current level of risk the Panel considered not only the evidence of the psychologists but also your evidence…..

In any consideration of a range of risk factors there are more concerning than others. Child abuse supportive beliefs, for example, if present would inevitably lead to a conclusion that you should remain in the closed estate. The areas of risk identified by Ms Mistry as outstanding and capable of being addressed by E-SOTP do not fall into the category of risk areas of paramount concern and nor was the Panel convinced that they are in fact current risk factors. The evidence cited to support problem solving as a risk factor is contradictory and inconsistent. You are criticised for being both over-assertive and under-assertive. The Panel considers that the one area of your life where you failed under this head and which led to you offending has been sufficiently addressed through TSP. So far as maintaining an emotionally intimate personal relationship is concerned your relationship is with your wife was problematic only in the area of sexuality. Otherwise you demonstrated the skills necessary to nullify this as a significant risk factor.

The Panel is mindful that Ms Mistry also identified sexual interest in children and other offence related sexual interest as risk factors albeit not ones capable of being addressed through E-SOTP. Merely because a risk factor is not capable of being addressed via the only programme currently on offer does not render it any the less a risk factor. However, the Panel was not convinced that the evidence supported these items as current risk factors. You have a thoughtful appreciation of your risk to young boys. The Panel accepted the evidence of Mr Rhys Matthews that you are able and motivated to manage your sexual interest in younger males and that your different accounts of the ages of males in whom you might be sexually interested was rather more an indication of the processes of change within this area rather than anything more sinister. …….

The Panel concluded that you have through the work you have completed demonstrated sufficient evidence of reduction in risk to justify progressive move….

8. Conclusion and Decision of the Panel

The Panel concluded that you are not yet ready for release but having balanced your interest in sentence progression against the interests of public protection, the Panel considered that sufficient evidence exists that your risk of sexual offending has been reduced to a level such that a recommendation to the Secretary of State for a transfer to open conditions may safely be made. Your risk of serious harm is now significantly lowered and your residual risk of relapse can safely be monitored in open conditions. Any remaining risk to the public is greatly offset by the advantages to you of being able to develop appropriate release plans and to be tested in conditions of lowered security. You are not an abscond risk. Accordingly the Panel does not direct your release but does recommend to the Secretary of State that you be transferred to a Category D establishment.

……….

Note 1   There is no obligation on the Secretary of State to refer the question of transfer of a prisoner to open conditions. The Secretary of State is statutorily obliged, however to refer life sentence prisoners to the Parole Board and if the Board directs their release the Secretary of State must follow that direction: section 28 Crime (Sentences) Act 1997.     [Back]

Note 2   [2007] EWHC 2605 (Admin) at paragraph 28     [Back]

Note 3   A Chartered Forensic Psychologist who had been employed for many years by the Prison Psychological Service    [Back]

Note 4   Appendix B    [Back]

Note 5   Paragraph 6    [Back]

Note 6   The updated PSI has yet to be published    [Back]

Note 7   [2012] EWHC 3139 (Admin)    [Back]

Note 8   Paragraph 56    [Back]

Note 9   Paragraph 57    [Back]

Note 10   [2011] EWHC 830 (QB)    [Back]

Note 11   Paragraph 51    [Back]

Note 12   These were problem solving and not having the skills to maintain an emotionally intimate relationship    [Back]

Note 13   Decision Letter paragraph 11    [Back]

Note 14   Appendix A paragraph 7; Appendix B paragraph 6. The Panel did say “apart from obvious questions relating to the assessment of risk to children in custody, the Panel saw no reason to disagree with this (i.e. the OASys) assessment.” This qualification which did not appear in the Secretary of State’s reasons does not detract from the risk of serious harm to children in the community.    [Back]

Note 15   See paragraph 18 above of this judgment    [Back]

Note 16   “…it is concerning that Mr Thomas is forming these unhelpful relationships within the confines of a structured environment. While E-SOTP may not target this directly, it will still address this risk factor by supporting him to be more aware of how to form helpful and more healthier relationships with those who are not rendered vulnerable, in relation to him, because of their age, and less life and social experience.”    [Back]

Note 17   See paragraph 24 above    [Back]

Note 18   Paragraph 3 of the Internal Guidance    [Back]

Note 19   See paragraph 7 above    [Back]