England and Wales High Court (Administrative Court) Decisions

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

		Royal Courts of Justice Strand London WC2A 2LL
		17 December 2014

1. MR JUSTICE HOLROYDE: This is an application by the claimant, Mr Adam Haddock, for judicial review of decisions made by the Parole Board and by the Secretary of State for Justice. For convenience I shall refer to the first defendant as the Board. I shall refer to the second defendant as the Secretary of State. The relevant acts and communications are those of the Public Protection Casework Section acting on behalf of the Secretary of State. I shall for convenience use the abbreviation PPCS to refer to that Section.
2. The claimant was born on 26 October 1987 and so is now 27 years old. He is presently serving a sentence of imprisonment for public protection imposed on 23 November 2007, when he was aged 20, for offences of robbery and assault occasioning actual bodily harm. His tariff period of three years, less the days he had spent remanded in custody, expired on 8 December 2009.
3. Permission to make this application was granted by McGowan J on 17 October 2014. The application is for judicial review of the Board's decision on 3 June 2014 whereby the Board refused to direct the release of the claimant, and in the alternative for judicial review of the decision dated 25 July 2014 whereby the Secretary of State refused to reduce the claimant's review period from 12 months to 8 months.
4. I shall begin by summarising relevant events as briefly as is appropriate. I do so in chronological order.
5. The claimant had the misfortune of an unhappy and unsettled home background. In adolescence he dropped out of school and left home. From his teens he was using controlled drugs. By the time he received his present sentence the claimant had been convicted of 25 earlier offences, the first of those convictions being recorded when he was 15 years old. Those previous convictions were for offences including offences of dishonesty but also for offences of criminal damage, breaches of the Public Order Act, assaulting a police officer and an offence of assault occasioning actual bodily harm for which he was sentenced to 120 days' custody in August 2006.
6. It is necessary to go into a little more detail about the offences for which he was sentenced on 23 November 2007. I do so substantially by reference to the account which the claimant himself gave when speaking to a probation officer who prepared a pre-sentence report about him.
7. First, on 13 December 2005, aged 18, the claimant committed an offence of robbery. He committed it together with two others. It was a robbery at knife point of a drug dealer from whom the claimant had previously bought cannabis. The victim was tricked into attending what he thought was a meeting to arrange the supply of cannabis. It was in fact a meeting arranged by the offenders in order to rob their victim. The claimant denied that he had played a leading role in the crime, notwithstanding evidence from the victim to the effect that he had. The claimant did, however, admit that he had planned how and where to commit the crime and he admitted that in the course of it he had produced a knife in order to ensure that the victim complied with his wishes. In describing this offence to the probation officer the claimant showed no remorse and no victim empathy, apparently taking the view that drug dealers must expect to be robbed.
8. Secondly, and whilst on bail for that first offence, the claimant committed offences of robbery and assault occasioning actual bodily harm on 24 August 2006. He and others had befriended a man who would ask the claimant to obtain cannabis for him. They used this man's flat as a place at which to meet their friends, take drugs and drink. The claimant admitted that on these visits to the flat he would often take money from the victim for the purchase of drugs which in truth he had no intention of supplying to the victim. It may be noted that the victim suffered from Asperger's Syndrome.
9. One night the claimant and his companions took over the victim's flat. They invited others to come. They drank heavily and they stripped the flat of everything of value. The claimant later admitted that the victim had been too frightened to stop them and had been made to feel a prisoner in his own home. In the early hours of the following morning demands for money were made of the victim. He was hung partially out of the window and threatened with a knife and a cigarette lighter, the knife blade being heated before being brought close to him. Again contrary to other evidence, the claimant denied that he had played an active part in the physical assault on the victim but he accepted that he had held a lighter in front of the victim's eyes. It was a sinister feature of these offences that whilst those violent and terrifying attempts were being made to extort money from the victim, the claimant knew that there was no money to steal because he had already stolen it. However, he did nothing to inform others of that fact.
10. In describing that offence to the probation officer, the claimant did indicate that he felt he owed the victim an apology. The probation officer noted this was the only expression of resource during their interview.
11. Thirdly, on 10 September 2006 and by necessary inference also whilst on bail for the first offence, the claimant committed two offences of assault occasioning actual bodily harm. He had an argument with a group of men. He was punched by one of them. He was outnumbered and so left the scene. He then recruited companions, one of whom was a man called Hodgson, and returned with a view to attacking the group. He and one of his companions were armed with kitchen knives, another man was armed with iron bars. They did not find the group for whom they were looking but remained loitering in the area. The claimant saw a woman whom he knew and shouted abuse at her. The man who was with her remonstrated with the claimant. In response one of the claimant's companions threatened the man with a knife and the claimant headbutted him. The man thus attacked called a friend for assistance. When the friend arrived he too was assaulted. The claimant struck him with an iron bar, fracturing a bone in his hand. Another man came to assist. The victims ran away. As they did so, the claimant hit one of them on the back and arm with the iron bar. Again, the claimant showed no remorse when describing this offence to the probation officer.
12. The final offence was committed in March of 2007, whilst the claimant was awaiting trial for the offences just summarised. He tried to get a friend to put pressure on the victim of the August 2006 robbery not to give evidence about it.
13. Thus the claimant had committed a number of offences which involved a worrying level of deliberate, planned violence and a callous indifference to others in the pursuit of material gain or of satisfaction of his own feelings that he had been wrongly treated. That context is in my judgment relevant to the decision which the Parole Board had to make. The crimes for which the claimant was sentenced were serious crimes and it would be serious if such behaviour were to be repeated.
14. The claimant ultimately pleaded guilty to those offences. The pre-sentence report included the familiar assessment of factors contributing to offending in the form of an OASys Chart. That showed that all of the factors recorded were above the threshold level for concern, most of them very substantially in excess of that threshold. It is noticeable that the factors of thinking and behaviour and attitudes were in each case assessed as a 100 per cent level of concern.
15. The body of the pre-sentence report assessed the threat of further violent offending as very high. The author of the report described the risk of harm in the following terms:

"4.5. While alcohol is clearly a major feature in Mr Haddock's offending and especially with regard to violent offending, alcohol is not always a prerequisite to that offending. Mr Haddock has given other accounts pertaining to his violent actions that have taken place without the consumption of alcohol and that have been premeditated and involved the use of weapons. His views appear to demonstrate his expectations that violence is the norm, both for resolving disagreements and for his personal financial gain. His lifestyle, attitude and behaviour are compounded by his chronic substance misuse, making him a volatile young man. It is Mr Haddock's lack of empathy, choice and use of weapons, lack of consequential thinking and risk taking behaviour, that is the most concerning and lead me to believe that at the time of arrest he did present as a significant risk of serious harm to others.

4.6. In my opinion Mr Haddock certainly has the capability to re-offend and with the risk of causing significant harm. While Mr Haddock assures me of his intentions not to repeat his offending behaviour, the fact remains that he needs to address a number of complex and interlinked criminogenic needs, not only pertaining to his offending but also the lifestyle he had been leading for the past four years, and until such time as he does so his risk will remain unchanged.

5.1. Mr Haddock presents with paradoxes in his thinking. On the one hand he acknowledges his behaviour is wrong but appears unable to translate this knowledge into acceptable behaviour when in the community. Mr Haddock expressed no victim empathy throughout the interview with the exception of one comment, and has shown no insight into any contributing factors associated with his offending."

16. The learned sentencing judge found that the claimant was a dangerous offender, as that term is defined for the purposes of the Criminal Justice Act 2003. Thus the judge found that there was a significant risk of serious harm being occasioned to members of the public by the commission by the claimant of further specified offences. He imposed a sentence of imprisonment for public protection for the specified offences of robbery and assault occasioning actual bodily harm. The judge assessed the total notional determinate sentence as one of 6 years. He therefore specified a minimum term to be served of 3 years, less the days spent on remand in custody. The judge imposed a concurrent determinate sentence for the offence of doing acts tending and intended to pervert the course of public justice. As far as I am aware, there was no appeal against that sentence.
17. The first hearing before the Board was on 2 November 2012. At that time the appellant was serving his sentence at Her Majesty's Prison Swaleside. He was then assessed as presenting a medium risk of harm to the public.
18. By letter dated 16 November 2012 the claimant was notified of the outcome of that hearing. It was that the Board recommended his transfer to open conditions but not his release from custody. The letter summarised the offences which had resulted in the imposition of the indeterminate sentence. The Board said this at page 37:

"What emerges from your offending history is the rapid escalation in the seriousness of your offending from the end of 2005 and into 2006. In the space of ten months there were four separate occasions on which you were violent. The second index offence in August 2006 was particularly cruel and the third index offence in September 2006 was pre planned, protracted and, it seems, unprovoked."

19. The Board noted a report from the claimant's then offender manager, Miss Flay. It summarised her report as being to the effect that the claimant had initially made a terrible start in custody but that his behaviour and attitude had thereafter improved notably. The Board also noted that the claimant had recently shown himself capable of addressing some difficult situations without resorting to violence. Miss Flay was of the opinion that the level of risk was sufficiently reduced for the claimant to move to open conditions. The Board accepted that there had been a significant reduction in risk during the sentence and that a move to open conditions could now be made.
20. The Board's conclusions were expressed at paragraph 8 of the decision letter in the following terms:

"At the time of sentencing the judge and the author of the pre-sentence report spoke in bleak terms about the risk you presented to the public. Your static risk was very high. You did not make good use of your first few months in custody. But latterly, and particularly since your move to HMP Swaleside in 2009, you have made better progress, albeit hesitant at times. There have been question marks about the work you have done on your drug problem but overall report writers consider that there is no further work for you to do in closed conditions. You have been well behaved in the last two years and report writers remark on the change in you. Taking all of the evidence into account the panel is clear that you are now ready to move to open conditions. The panel is equally clear that you are not yet ready for release. Your abstinence from drug and alcohol needs to be tested in a less restrictive environment. To use Miss Flay's phrase, you need to go to open conditions as a "bridge" into the community. You have no experience of employment, no vocational skills, and little in the way of ordinary life stills. You need to rebuild your relationship with your mother and other members of your family in a controlled manner. The panel recommends to the Secretary of State that you should transfer to open conditions."

21. On the same date, 16 November 2012, the PPCS on behalf of the Secretary of State wrote to the claimant indicating that the Secretary of State had agreed to the claimant's transfer to open conditions. The letter went on to say that the claimant's case would next be referred to the Board for a review to commence in August 2013, which was expected to conclude by April 2014. The letter indicated that the review would allow the claimant to be tested on all areas of risk; to consolidate and continue to put into practice the skills and strategies learned from the offending behaviour work completed to date; to undertake any relapse prevention work deemed necessary in respect of drugs/alcohol; to be closely monitored regarding his ability to remain abstinent from drugs/alcohol; to be closely monitored in respect of his thinking skills and use of aggression; to be closely monitored in respect of any association with negative peers; to maintain a good working relationship with his offender manager; to demonstrate his ability to comply with ROTL conditions; to be closely monitored in respect of his family relationships; to develop and test a robust release plan; and to undertake any necessary further work in prison.
22. Within a short time, on 27 December 2012, the claimant was transferred to her Majesty's Prison Ford, where he remains. He has received only one adverse Governor's adjudication, that being in January 2013 for not attending work. That adjudication did not result in the claimant losing the enhanced status which he continues to enjoy on the Incentives and Earned Privileges Scheme. He has committed no criminal offence. By the time of the most recent hearing before the Board the claimant had successfully completed five overnight home leaves and 32 town visits. I am told, and accept, that in the period since the hearing before the Board there have been a further five or six successful overnight home leaves.
23. On 12 July 2013 the claimant's case was referred to the Board to consider whether it would be appropriate to direct his release. There was an oral hearing on 16 May 2014. Solicitors acting on the claimant's behalf made submissions seeking a direction that he be released on licence.
24. The Board had the assistance of an assessment report prepared by the claimant's current offender manager, Mr Ben Mayhew. Mr Mayhew observed that the claimant had benefited from the various courses which he had completed in prison. Mr Mayhew summarised events since the claimant's move to open conditions. I quote what was said at paragraph 9 of Mr Mayhew's report:

"In his first few months here Mr Haddock attracted negative entries and adjudication and was sacked from his job on the gardens. Asked to explain his behaviour on arriving at Ford, Mr Haddock told me he was disappointed to be placed working outside during the winter. He described feeling he was being punished rather than rewarded after improving his behaviour sufficiently to be granted a move to open conditions. From the prison notes it also appears that Mr Haddock was experiencing personal difficulties at the time but was reluctant to discuss these with staff. It should be noted that Mr Haddock did not revert to the violent, destructive behaviour that characterised his early time in prison. Also, since this time he has been building up a good working relationship with his offender supervisor. When I interviewed Mr Haddock he was working in the kitchens at HMP Ford and had been for a number of months. However, he rang me on 16 September 2013 and advised he had been sacked from that position for stealing a meal. He explained he often finds the amount of food given out insufficient and that previous requests for an extra meal had been granted. He admitted that on this occasion he had not asked and just helped himself. To Mr Haddock's credit he has apparently accepted the sacking without protest and he told me he has instead enrolled on carpentry courses. Whilst this indicates greater maturity, there remains evidence of poor decision making on Mr Haddock's part. Although this recent incident might be considered trivial, should Mr Haddock repeat such behaviour on release and make choices that jeopardise his employment and/or accommodation, then there is a danger that plans for resettlement could quickly collapse."

25. In a subsequent addendum report Mr Mayhew referred to an event in September 2013, shortly after the claimant had been sacked from his job in the prison kitchen, when he was on day release and was spoken to by the police whilst in the company of Mr Hodgson, his former co-accused. This episode has been the subject of submissions to the court this morning by both counsel. The position is not entirely clear, but it appears to me that it can fairly be summarised in this way. Initially it had been a condition that if released on temporary licence the claimant should not associate with his former co-accused, including Mr Hodgson. The claimant was unhappy about that restriction, saying that Mr Hodgson had turned over a new leaf, had put crime behind him and would now be a good influence on the claimant. The claimant sought removal of the condition. His former offender manager, Miss Flay, made inquiries of the police and spoke to Mr Hodgson, whose attitude impressed her. She permitted the claimant to meet Mr Hodgson.
26. It subsequently emerged that Miss Flay may have been unaware of, or misunderstood, information that the police suspected Mr Hodgson of involvement in crime in 2011. It does not appear that Mr Hodgson has been convicted of any offence in that regard, but if Miss Flay had been aware of the allegation it seems unlikely that she would have supported a meeting between the two men and it could fairly be expected that she would at the very least have qualified or limited her permission of contact between the two men. That said, there is no evidence as to what if anything the claimant knew about the comparatively recent police suspicion of Mr Hodgson.
27. On the relevant day in September 2013, the police officers stopped and spoke to the two men, apparently because an officer recognised at least one of them. There was, however, no arrest and the police officers did not exercise their power of stop and search. I accept that for the purposes of this hearing it must therefore be inferred that the behaviour of the two men did not provide any grounds for suspecting them of them being engaged in any criminal activity.
28. Following this event, the condition prohibiting association with Mr Hodgson during any temporary release on licence was reimposed.
29. As to the assessment of risk, Mr Mayhew's report to the Board was in these terms at paragraph 10:

"Given the progress Mr Haddock has made he is now considered as posing a medium risk of serious harm to the public on release from prison. There are clear indicators from his past behaviour that Mr Haddock has the capacity to cause serious harm but he is unlikely to do so unless there are significant changes in his attitude towards offending, he starts drinking alcohol to excess, and/or he returns to associating with others who condone criminal behaviour and the use of violence. I would have concerns that should Mr Haddock struggle to find satisfactory employment on release he may drift back into his previous lifestyle with the potential for him to revert to drug dealing and other forms of criminal activity for money and social status. Returning to such a lifestyle would make the use of violence to settle any disputes and/or bully others for financial gain highly likely. This will have to be carefully monitored when he is released."

30. In a subsequent addendum report prepared shortly before the hearing before the Board, Mr Mayhew repeated the assessment that there was a medium risk of serious harm to the public. Mr Mayhew noted that the claimant had made progress during the course of his sentence, appeared to have benefited from work around instrumental violence and was developing an alternative repertoire of skills with which to relate to others and achieve what he wants. Mr Mayhew continued:

"I would however question how much he has really internalised what he has learned and worry he still has an unrealistic and immature attitude towards employment and finances. This may be a reflection of the length of time he has spent in custody and Mr Haddock has indicated a willingness to work with others to successfully return to the community, although there seems a superficiality to this. It is encouraging he has used his time on temporary licence to develop closer relationships with family members and consider options for the future. If the panel are satisfied that Mr Haddock has sufficient motivation to sustain and build upon the positive changes he has made and is ready to be a responsible member of the community, I would recommend release to an approved premise in the first instance."

31. The claimant's offender supervisor, Miss Leslie Sanders, supported the use of the home of the claimant's aunt as an appropriate place of accommodation in the event of release. She did not think it appropriate to release the claimant to approved premises, in particular because the suggested address would necessitate taking the claimant away from the support network in his home area. She noted that such negative entries as there had recently been in his prison record were not serious and that the claimant had maintained his enhanced status and had remained abstinent of drugs and alcohol misuse. She noted that the most recent OASys assessment still indicated a medium risk of harm to the public but added:

"Mr Haddock has completed ETS and victim awareness courses and these have given him an insight into his offending behaviour and the effects it has on the victims and hopefully this will further reduce his risk."

32. In her addendum report she spoke of the inquiries that the claimant had made with a view to volunteering to work for the National Trust. She did not make any positive recommendation in her report as to whether or not he should be released.
33. A release plan was proposed for consideration by the Board. It included a number of conditions. As helpfully summarised by counsel, the conditions included residence at approved premises with attendant curfew and drug and alcohol testing; daily contact at the approved premises as part of the enhanced regime; requirements to address alcohol problems; management through MAPPA level one; licence conditions of non-contact with two former co-defendants; weekly contact with the claimant's offender manager; weekly meetings with a key worker and appointments with other agencies as arranged. The plan also made contingency arrangements, which included the following observation:

"Excessive alcohol use, aggressive conduct, frequenting antisocial peers and a breakdown of relationship with staff will indicate that Mr Haddock is in a period of acute risk and is engaging in behaviours which have directly led to misbehaving in the past. Recall action is appropriate in this instance."

34. By their letter dated 16 May 2014 the Board declined to direct the release of the claimant. The Board noted that there had been problems with the claimant's behaviour since his arrival at HMP Ford. The entries in his prison record included eight which were in positive terms but 24 which were negative. The negative entries showed:

"Unwillingness to comply with rules and a poor work record."

35. In paragraph 5 of their letter the Board referred to the episode when the claimant met Mr Hodgson and said:

"You seem unable to understand the concern of professionals as to how meeting some of your old associates is linked to the risk of re-offending and the risk of serious harm that you pose. On 4 October 2013 all your leave was cancelled, partly due to the reports of this incident and partly due to reports of poor behaviour. There were signs of improvement when you attended a carpentry course and you were employed in the laundry. But there followed further warnings about timekeeping, poor work ethic and attitudes to staff. Miss Sanders had spoken to you about your conduct on 15 April 2014 but you had then received another warning on 29 April."

36. As to the risk of the claimant causing serious harm if he were to be released, the Board in paragraph 6 of its letter said this:

"The Board accepted at your last review that you have been able to demonstrate a reduction in risk as a result of your behaviour in closed conditions and work you have done on offending behaviour. However, the process of testing in open conditions has been disappointing when compared with the objectives set out by the panel at the last review. Your recent conduct in prison, so close to a parole hearing, suggests serious flaws in your consequential thinking skills. The panel identified a continued lack of insight in realising the risk there is in pursuing relationships with former associates with whom you have engaged in criminal activity, however much you may feel that they are now a good influence on you. The panel concluded that your risk of serious harm to the public is correctly addressed as significant."

37. The Board's conclusion was that the claimant was correctly located in open conditions, and that he had made progress in addressing and reducing risk to a level consistent with protecting the public from harm in circumstances where in open conditions the claimant would be unsupervised in the community. The Board did not however recommend release, saying in paragraph 8:

"Despite being in open conditions for about 18 months you have failed to meet important objectives that were set for you at the end of the last review. The panel decided that it remains essential for you to tackle these in order to demonstrate that you have a solid platform in the community for resettlement and management of your risk, so that you are unlikely to slip back into your previous lifestyle. Until this has occurred the panel, whilst unable to come to the conclusion that the risk you presented to life and limb is no more than minimal, felt it was not therefore appropriate to direct your release."

38. The claimant's solicitors sent their letter before claim on 31 May 2014. The Parole Board considered the matters raised in that letter but did not accept that its decision was Wednesbury-unreasonable as had been alleged and declined to change it. That decision, communicated on 3 June 2014, is the first of the two decisions challenged by this application for judicial review.
39. On 20 June 2014 the PPCS on behalf of the Secretary of State wrote indicating that the Secretary of State agreed with the Board's view that release on licence would not be directed. In this letter a review period of 12 months from the date of the last review was set "to complete intervention work for consolidation and post programme reports to be ready."
40. The letter went on to explain that the parole review process would be undertaken in accordance with a new centrally monitored process:

"Your review process is expected to take 26 weeks to complete as it involves the preparation of reports and coordination of various parties, including the PPCS, the Prison Service and the Parole Board. Your parole review will commence in November 2014 and will aim to be concluded by July 2015."

41. There was a reference in that letter to the claimant being in closed conditions. That was an obvious error because the claimant had already been at an open prison for some 18 months. It is accepted today on the claimant's behalf that that was no more than a simple error and it is not relied upon as establishing any significant point in the claimant's favour.
42. The claimant's solicitors invited the PPCS to reduce the review period to one of 8 months, suggesting that this would be sufficient for the claimant to show that he could avoid negative entries. The letter noted that there was no offending behaviour work which the claimant was still to complete and that he was due to start some community work.In a response dated 25 July 2014 the PPCS declined to reduce the review period. That is the second decision challenged.
43. Evidence as to the decision of the PPCS is contained in a statement by Kerry Adams, the Deputy Head of Casework. Her role involves the taking of decisions of this nature under powers delegated by the Secretary of State. She has to have regard, amongst other things, to the protection of the public, to the aim of rehabilitating offenders into the community and to the risks presented. It was she who considered the request for a reduction of the review period in the claimant's case. She explained her reasons for concluding that that request must be declined. She referred to the various entries on the claimant's prison record, noting the various problems which he had encountered and said that she considered that there was a need for him to demonstrate a prolonged period of improved behaviour. She did not think 8 months would be sufficient for that to happen because it would mean that the next parole review process would have to start within a very short period of time.
44. Having thus summarised the facts at some length, I turn to consider the law. This is not controversial as between the parties. A prisoner serving a sentence of imprisonment for public protection is included within the definition of a life prisoner for the purposes of the Crime (Sentences) Act 1997. Section 28 of that Act says this:

"5. As soon as (a) a life prisoner to whom this section applies has served the relevant part of his sentence (b) the Parole Board has directed his release under this section, it shall be the duty of the Secretary of State to release him on licence.

6. The Parole Board shall not give a direction under sub-section 5 above with respect to a life prisoner to whom this section applies unless (a) 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."

45. Thus, parliament has entrusted to the Board the making of a decision which is a pre-condition to the Secretary of State coming under a duty to release.
46. Against that statutory background it is common ground between the parties that the Board was required to consider whether it was satisfied that it was no longer necessary for the protection of the public that the claimant should be kept in custody. In applying that test, the Board had to ask itself whether there is a more than minimal risk that the claimant, if released, would pose a threat to life or limb: see R v the Parole Board ex parte Bradley [1991] 1 WLR 134 especially at page 146 C to F. That well established test has recently been affirmed by the Supreme Court in R (Sturnham) v the Parole Board No. 2 [2013] UKSC 47.
47. It is also common ground that the claimant in seeking to show irrationality in either of these decisions has to surmount a high hurdle. With specific reference to the Board, it is convenient to refer to the recent decision of King J in R (Rowe) v the Parole Board for England and Wales [2013] EWHC 3838 (Admin). In the course of his judgment, King J reviewed the authorities on this point and summarised their effect in the following terms:

"16. It is well recognised in the authorities that the Parole Board is a reservoir of expertise and knowledge and it is not for this court simply to substitute its own decision, however strong may be this court's view, for that of the Parole Board.

17. It is common ground that it is for the Parole Board and not for this court to weigh the various considerations which it must take into account. It is common ground that the weight to be given to relevant considerations is a matter for the Parole Board and certainly for example the decision on the balancing exercise is one for the Board and not for the court to carry out."

48. I turn to the submissions which have been made to the court. I have been much assisted by the helpful written and oral submissions of Miss Rebecca Martin on behalf of the claimant and Mr Vikram Sachdeva on behalf of the PPCS. The Board has not been represented. It has filed an acknowledgement of service resisting the claim but makes no representations to the court.
49. On behalf of the claimant Miss Martin submits that the objectives set by the Board in November 2012 were not specifically identified by the Board in its decision under challenge. She submits, however, by reference to a passage which I have already quoted from the 2012 letter of decision that the objectives were to complete testing in relation to drugs and alcohol, to gain employment and other life skills and to rebuild the claimant's relationship with his family. Miss Martin submits that the claimant has in truth achieved those objectives and that the Parole Board was wrong to conclude that he had not. She contends that their decision not to direct release was for that reason so unreasonable that it should not be allowed to stand. She contends that the Board gave undue and disproportionate weight to the various negative entries in the prison record, which she submits related mainly to the claimant's unsatisfactory work ethic and did not provide any or any significant ground for fearing that he would present a risk to life and limb if released.
50. As to the meeting with Mr Hodgson, to which she suggests the Board attached disproportionate and quite unfair weight, Miss Martin stresses that the claimant had the permission of his then offender manager for such a meeting. She argues vigorously that it was therefore wholly unjust to hold it against the claimant that he had done so. In any event, she submits, the meeting with Mr Hodgson did not result in any arrest or even in a search by the police, and accordingly it too should be regarded as having no or no significant impact on the assessment of risk to life and limb. She submits that the Board has simply failed to give sufficient, if indeed any, weight to the considerable progress which the claimant has made, to his substantial rebuilding of his family relationships, to his sensible efforts not only to find part time work but also to consider how he would be able to afford accommodation in a location close to that work, and to the general progress which he has made during his sentence. She attaches considerable weight to the successful completion of many home releases and town visits; to the absence of any suggestion of further involvement in crime; to the absence of any violent episode; and to the claimant's continued abstinence from drugs and alcohol. She summarises those points by saying that the claimant on any fair view has not slipped back into his previous ways. She also submits that the Board should have given much greater weight to the carefully planned terms of the release plan, to the close monitoring which it would involve and to the powerful conditions relating to monitoring and recall if necessary.
51. Miss Martin had made a further written submission to the effect that the Board had gone beyond the existing assessment of a medium risk of serious harm. But it appears upon analysis that the submission was based upon a misreading of one passage in the Board's letter and sensibly that point is no longer pursued.
52. In the alternative, Miss Martin submits that even if the Board's decision can stand, the decision of the PPCS was wholly unreasonable and should be quashed. She points out that the two most recent negative entries in the prison record relate to events which occurred in June 2014 and which closely followed upon the claimant's learning that he was not to be released. Given his otherwise good behaviour, she submits that those reactions should not have been held against him. She underlines the absence of any subsequent adverse entries in the record, which constitutes a clean record over about six months. Pausing there, I should say that I have been shown in the course of today's hearing a document relating to more recent entries. I decline to take that into account against the claimant, coming as it does after the Board's decision and at a very late stage of these proceedings.
53. Miss Martin argues that when proper and fair regard is had to the time which the claimant has already spent in open conditions, to his many successful home leaves and town visits and to the important fact that he has at no point lost his enhanced status as a prisoner, a review period of eight months would have been perfectly reasonable. In the course of argument she refined her submission to put it in this way: that the PPCS acted unreasonably when it refused to accede to a perfectly reasonable request by the claimant to shorten the review period.
54. On behalf of the second defendant, the PPCS, the submissions necessarily begin by reference to the issues relating to the first defendant, the Parole Board, though of course Mr Sachdeva emphasises that he does not appear for the first defendant. He submits that when Mr Mayhew's report is properly read, it is clear that Mr Mayhew was expressing considerable reservations about release and his recommendation of a release plan was only included to cater for the position if the Board decided that it would release. Mr Sachdeva argues that Miss Sanders' opinion seems to have varied; it rather appears that she was supportive of release in her communications with the claimant's solicitor but not in her evidence to the Board. Overall, contends Mr Sachdeva, there was no evidence before the Board which positively supported release. The release plan was only put forward as an indication of measures which should be taken if the Board took its own decision to release.
55. As to the various criticisms which the claimant makes of the Board's balancing of competing considerations, Mr Sachdeva submits that that is in reality no more than a challenge to the merits of a decision which was lawfully taken by the proper application of the correct test. He contends that it is artificial for the claimant to isolate a handful of objectives set by the 2012 decision whilst ignoring the wider issues which are clearly apparent from a reading of the 2012 decision letter.
56. As to the challenge to the decision of the PPCS, Mr Sachdeva submits that the claimant's argument really amounts to no more than an assertion that a period of eight months would have been reasonable. He submits, bluntly, that that is not a reason for finding that a decision to set a review period of twelve months was unreasonable or unlawful.
57. I turn finally to my conclusions. The Parole Board is entrusted with making decisions which affect the safety of the public. I accept that the evidence shows that the claimant, whilst serving his sentence, has made commendable progress in a number of respects. I accept that with the one exception of the contentious association with Mr Hodgson, the claimant has successfully completed a good many home visits and town visits. I can well understand his disappointment at the decision of the board. However, the Board is not concerned solely to consider whether a prisoner has made good progress, as this claimant clearly has. It is concerned with whether there remains a more than minimal risk to life and limb if the prisoner is released. I recognise that it may well be very difficult for a serving prisoner who feels that he has earned his release on licence, but who then receives a disappointing decision from the Board, to avoid allowing his frustration to get the better of him and behaving in a way which then results in an adverse view again being taken at a later stage.
58. As far as the decision not to recommend the release of the claimant is concerned, it is not contended that the Board applied the wrong test or took a wholly incorrect approach. The claimant's contention is that the decision of the Board was so unreasonable that it should not stand. Miss Martin acknowledges that the argument faces the difficulty that this court cannot simply substitute its own view of the merits. In seeking to overcome that difficulty, she submits that in all of the circumstances the only decision which was reasonably open to the Board was to direct release.
59. I am unable to agree with that submission. I accept that the claimant has not committed any further criminal offence, that he has abstained for a long period from alcohol and drug misuse and that he has done well in a number of important respects. I cannot, however, accept the submission that the Board has given manifestly disproportionate weight to the various criticisms made of the claimant and/or has given manifestly insufficient weight to the positive points which can be made in the claimant's favour. Nor can I accept that the Board has made a decision which was not legitimately open to it and which it could not reasonably make.
60. In my judgment the Board was entitled to take a negative view of the meeting with Mr Hodgson. I accept for present purposes that the claimant had the permission of his then offender manager for that meeting but it was he who had been keen to renew his acquaintance with Mr Hodgson. Whatever Miss Flay's knowledge of relevant factors and reasons for her grant of permission, the Board was entitled to reach its own conclusions and to be concerned by the apparent inability of the claimant to understand why others would think it most unwise for him to associate with his former co-accused. I do not accept that the Board in this regard acted with gross unfairness.
61. It cannot be overlooked that the claimant is still assessed in the manner set out in the report as posing a medium risk of serious harm to the public if released. Miss Martin submits that that type of assessment is made on the basis of various factors which cannot realistically alter until a prisoner has been released and has had an opportunity to demonstrate that he can avoid violent crime when at liberty. She submits that as a matter of principle such an assessment should therefore count for little, if anything, in a decision by the Parole Board as to whether release would carry with it a more than minimal risk to life and limb. I am far from sure that that is a correct statement of principle. However, I have not heard any submissions on this point from the Parole Board and it would be inappropriate for me to make any broad statement of principle in such circumstances. For the purposes of this hearing, however, I do conclude that the Parole Board was entitled to take into account the risk assessment which has now stood since 2012 and which itself represents a reduction in risk from its level at the time of sentence.
62. I accept that in a number of respects the claimant can fairly be regarded as having in recent months shown significant development of his life skills and I accept that he has taken steps towards a better relationship with his family. Those were significant points in his favour, but there is nothing in the papers before me which gives any reason to doubt that the Board treated them as such and took them into account.
63. I cannot, however, accept the submission that the many instances of misconduct in prison were matters that predominantly related to a poor work ethic and therefore have no significant bearing on the risk to life and limb. I do not accept the argument that these various episodes of misconduct are so minor that they cannot have any impact on the risk to the public. The Board in my judgment was entitled to conclude that these various episodes, taken collectively, showed that it is still the case that the claimant lacks sufficient insight into his behaviour and into the risks of lapsing into old ways and renewing acquaintances with former co-accused. Having been taken by counsel through the various relevant entries in the record, all of which were before the Board for its consideration, it seems to me that they can fairly be regarded as showing repeated refusals by the claimant to abide by the rules imposed upon him, coupled with an argumentative response when crossed or challenged and a failure to appreciate why his behaviour gave rise to concern.
64. In my view the Board were entitled to regard it as particularly significant that the prison record shows that considerable efforts have been made to accommodate the claimant with a number of changes of employment but that some of the recorded lapses in his behaviour occurred shortly after quite explicit warnings that he had had in effect his last chance. Moreover, the Board was entitled to take into account that the more recent episodes of misconduct came at a time when the claimant clearly understood that it was in his interests to avoid any behaviour which might jeopardise his application to the Board.
65. Making as I hope I do every allowance for the difficulty of the applicant reintegrating in to the community after a troubled adolescence and after imprisonment since young adulthood, I do not accept that it was either unreasonable or unfair for the Board to conclude that his performance since the 2012 decision had been disappointing. True it is, as Miss Martin submits, that the individual episodes of misconduct have been comparatively minor in themselves. It must however be remembered that the claimant had every possible reason to be on his best behaviour, and these continuing lapses gave rise to legitimate concerns which the Board was entitled to reflect in its decision.
66. Moreover, I accept the submission of Mr Sachdeva that from an early stage of the claimant's sentence a lack of consequential thinking has been identified as a problem which he faces. I accept the submission that for a man with such a problem, who has in the past resorted to very serious violence when treated in a way which he found insulting or humiliating, a repeated failure to abide by the rules can properly be regarded by the Board as a significant feature. That is because it can legitimately raise doubts as to whether the claimant, if released, would be able to avoid challenging situations in which there would be a risk of a return to the aggressive and violent responses he has shown in the past.
67. The Board was in my judgment entitled to take that history of repeated episodes of misconduct into account in considering whether there was a more than minimal risk to life and limb if circumstances arose in which the claimant's former aggression and violence might resurface. The Board was bound to consider not only what would happen if the claimant were released into the community and all ran smoothly, but also to consider the risks if he were to be released into the community and then encountered a set back or opposition.
68. Notwithstanding the progress which the claimant has undoubtedly made, the Board was in my judgment entitled to find that concerns remained and entitled to conclude that there was a continuing risk to life and limb which was more than minimal. The Board has to make a decision which balances the interests of the prisoner and of society. It must of course take into account all relevant considerations, including the fact that the prisoner is being detained after the expiration of the period which was identified as necessary for the just punishment of his crimes. The Board must make a subjective judgment as to whether there is a more than minimal risk to life and limb if the prisoner is released. No doubt in some cases that decision may be finely balanced and in the present case there was much to be said on the claimant's behalf. But all of that was before the Board and as I have said, there is no reason to doubt that they took it all into account in his favour. The final decision is entrusted to their expertise and in my judgment it is not possible to say that the Board reached a decision which was either irrational or wholly unreasonable.
69. In short, I am not persuaded that the Board's decision was unlawful. It was in my judgment a decision to which the Board was entitled to come.
70. As to the challenge to the decision of the PPCS, I am afraid I am bound to say that the argument on the claimant's behalf, however attractively put by Miss Martin, is extremely weak. Review might have been set at a shorter period but I am wholly unpersuaded that it was unreasonable for the Board to set a period of 12 months and to refuse to shorten that period. No doubt the period of eight months seems entirely reasonable from the claimant's point of view. But as is no doubt apparent from what I have said in this judgment, the period of review has to allow not only a sufficient period of time for a period of observation and assessment, but also for the completion and disclosure of the necessary reports and the necessary preparation for the hearing.
71. Moreover, it cannot in my judgment be said that the decision of the Board showed that the claimant was very close to release and that therefore only a short further period of review was necessary. The PPCS with its experience and expertise in this field concluded that in all of the circumstances, including a consideration of the procedural steps which needed to be taken, a period of 12 months was needed. I am quite unable to say that that was an unreasonable decision, let alone one which was so far wrong that it was irrational and therefore unlawful. Nothing in the evidence and argument which I have heard persuades me that this court should substitute a somewhat shorter period for that which the PPCS believed was necessary for a proper review to be completed.
72. For those reasons, having heard and considered all of the submissions, I conclude that neither of the challenged decisions was irrational or unlawful. The application for judicial review accordingly fails and is refused.
73. MR SACHDEVA: My Lord, I have no applications.
74. MR JUSTICE HOLROYDE: Thank you.
75. MISS MARTIN: My Lord, I of course have an application for a detailed assessment of the claimant's costs.
76. MR JUSTICE HOLROYDE: Yes.
77. MISS MARTIN: I am grateful.
78. MR JUSTICE HOLROYDE: It would be of great assistance to the court if one of you would be kind enough to draw up an appropriate order. Miss Martin, although you are the losing party, it is probably appropriate since there is more than one defendant, only one of whom is represented, if you do that.
79. MISS MARTIN: My Lord, yes.
80. MR JUSTICE HOLROYDE: But you may include in it the usual provision for the detailed assessment of the costs on your side.
81. MISS MARTIN: I am grateful, my Lord.