England and Wales High Court (Administrative Court) Decisions

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

		Royal Courts of Justice Strand, London, WC2A 2LL
		12 January 2016

Mr Lavender QC :

1. On 24 November 2006 His Honour Judge Moss QC sentenced the Claimant for an offence of possessing a firearm with intent to endanger life. The Judge imposed a sentence of imprisonment for public protection, with a minimum sentence of 4 years.
2. The Claimant was still in prison on 28 May 2014, when a Parole Board panel conducted a hearing, following a referral by the Secretary of State dated 19 March 2013, pursuant to section 28 of the Crime (Sentences) Act 1997. The result of that hearing is set out in a letter dated 16 June 2014 ("the Decision Letter"). The Claimant did not argue for, and the panel did not make, a direction for the Claimant's release, pursuant to section 28(5)(b) of the Crime (Sentences) Act 1997. The panel decided not to recommend that the Claimant be moved to an open prison. It is that decision which is challenged on this application for judicial review.
3. The Claim Form was not issued until 22 January 2015. This was because of delays in obtaining legal aid. On 27 March 2015 Simon Bryan QC extended the time for filing the Claim Form and granted permission to apply for judicial review. In its acknowledgment of service, the Parole Board stated that it did not intend to make submissions. The Ministry of Justice was named as an interested party, but took no part in the proceedings and was not represented at the hearing on 6 October 2015.

The Secretary of State's Directions

4. In discharging its functions, the Parole Board is required to take into account directions given by the Secretary of State pursuant to section 32(6) of the Criminal Justice Act 1991.
5. Those directions state as follows:

"Transfer of life sentence prisoners to open conditions

Introduction

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

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

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

Directions

4. Before recommending the transfer of a lifer to open conditions, the Parole Board must consider:—

• all information before it, including any written or oral evidence obtained by the Board;

• each case on its individual merits without discrimination on any grounds.

5. The Parole Board must take the following main factors into account when evaluating the risks of transfer against the benefits:—

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

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

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

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

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

a. The lifer's background, including the nature, circumstances and pattern of any previous offending;

b. the nature and circumstances of the index offence and the reasons for it, including any information provided in relation to its impact on the victim or victim's family;

c. the trial judges sentencing comments or report to the Secretary of State, and any probation, medical, or other relevant reports or material prepared for the court;

d. whether the lifer has made positive and successful efforts to address the attitudes and behavioural problems which led to the commission of the index offence;

e. the nature of any offences against prison discipline committed by the lifer;

f. the lifer's attitude and behaviour to other prisoners and staff;

g. the category of security in which the lifer is held and any reasons or reports provided by the Prison Service for such categorisation, particularly in relation to those lifers held in Category A conditions of security;

h. the lifers awareness of the impact of the index offence, particularly in relation to the victim or victim's family, and the extent of any demonstrable insight into his/her attitudes and behavioural problems and whether he/she has taken steps to reduce risk through the achievement of life sentence plan targets;

i. any medical, psychiatric or psychological considerations (particularly if there is a history of mental instability);

j. the lifer's response when placed in positions of trust, including any outside activities and any escorted absences from closed prisons;

k. any indication of predicted risk as determined by a validated actuarial risk predictor model or any other structured assessment of the lifer's risk and treatment needs.

7. Before recommending transfer to open conditions, the Parole Board shall also consider the lifers relationship with the Probation Service (in particular the supervising probation officer), and other outside support such as family and friends."

The Hearing

6. Originally fixed for 30 May 2013, the hearing was twice adjourned, once to allow the Claimant to complete a RESOLVE course and once as a result of the late disclosure of documents, namely:

(1) the report of Louise Carter, a trainee forensic psychologist; and

(2) records maintained at HMP Lowdham Grange of reports to the effect that the Claimant was part of a gang of Muslim prisoners who were bullying, assaulting and trying to convert other prisoners ("the Security Reports").

7. At the hearing, the panel heard from the Claimant, considered over 300 pages of written evidence and heard from 5 other witnesses:

(1) Jackie Littler, a security guard at HMP Lowdham Grange;

(2) Kath Doward, a prison offender supervisor;

(3) Kathy Nicholls, the Claimant's probation offender manager;

(4) Ms. Carter; and

(5) Dr Alison Conning, a psychologist instructed on behalf of the Claimant, who had also prepared a written report.

8. The Claimant was represented by Jane Finnis, of his solicitors, Hartnells. Ms Finnis made a witness statement which gave further details as to what happened at the hearing.
9. In relation to the Security Reports, Ms. Finnis stated as follows:

"12) Evidence was first heard from the security officer, Ms Littler. In the updated security report submitted on the day, the allegations which had been set out in the previous security report, of Muslim extremism, of bullying and of being part of a gang, were repeated. It appeared the "report" was simply a transcription of notes made in the Claimant's security file. None of the allegations had been further investigated.

13) Unfortunately, Ms Littler had not written the report. She had no further information about the entries recorded and she had no personal information about them. She had not prepared for the hearing by first speaking to the security governor. She was therefore unable to answer any question about the entries."

10. The panel said as follows in the Decision Letter about Ms. Littler's evidence in relation to the Security Reports:

"Ms. Littler told the panel that the prison has a number of intelligence concerns about you. They amount to joining together with others to bully prisoners, including in converting to Islam. She explained that the intelligence had been used primarily to disperse those who were suspected of being involved, including you, to different wings, rather than to gather evidence for adjudication. It was her view that you were involved, but said she was unable to assess whether your involvement was central or peripheral.

She noted that you had not come to notice since you and others thought to be involved were transferred to different wings. The panel noted that some caution was needed in reviewing the intelligence as it was not clear about the extent to which some staff who had recorded concerns may be able to distinguish religious observance from extremist activity. The concern linked to your risk of violence was the risk that you might still sometimes choose to associate with anti-social influences and to take less than full responsibility for your behaviour as a member of a group. Ms. Littler did not suggest that the intelligence concerns amounted to evidence that should be given a particular weight by the panel."

11. Another issue which was addressed at the hearing was the practicality of the proposals made by Ms Carter in her report. As to this, Ms. Finnis states as follows:

"16) The trainee psychologist, Ms. Carter, alone gave evidence in support of her original recommendation – that is, that the Claimant was not ready for a progressive move. She confirmed her belief that his risk was still too high; he had further offending behaviour work to do. He had risk factors that needed addressing which could only be done in closed conditions.

17) In particular Ms Carter said further work needed doing on the Claimant's choice of associates. She told the panel that he needed to be tested in C category conditions before he could progress to D category; at that time the Claimant was a C category prisoner, who was still being held in a B category prison. However, she could not, when questioned, identify what work could be done and who could do it if the Claimant was to be transferred to a C cat prison. She admitted that there were no accredited courses that could cover the work she believed was necessary.

18) The Offender Manager, Ms Nicholls, confirmed what she had said in her updated report. She also recommended a progressive move; she recommended that the Claimant be transferred to open conditions. She disagreed with Miss Carter's conclusion on the basis that it was not possible to identify what work could be done and by whom. She said that clearly it could not be done by Ms Carter if the Claimant was subsequently transferred to a C category prison as recommended and, that Ms Carter could not ensure that any such work would be able to be done in the next prison."

12. The panel said as follows in the Decision Letter about Ms Nicholls' evidence at the hearing:

"Ms Nicholls told the panel that she had read Ms Carter's report and agreed that you would benefit from further work in the areas she highlighted. However, she said that should not be a barrier to a progressive move to open prison. She was concerned that the work Ms Carter said was needed around choice of associates was not clearly defined at present and could not be addressed through an accredited programme available within the prison system. Ms. Nicholls' view was that Resolve was the last major piece of your work required before your progression to open prison and was much more relevant to your earlier risk of instrumental violence than the CALM programme which you undertook earlier in your sentence."

The Panel's Reasons

13. The Decision Letter is 6 pages long and shows that the panel had considered a wide range of relevant considerations, including the Claimant's history of offending, the risk factors in his case and the panel's assessment of current risk.
14. Section 8 of the Decision Letter, headed "Conclusion and decision of panel", stated as follows (with the addition of paragraph numbers for ease of reference):

"(1) The panel agreed with representations from Ms. Finnis on your behalf that little weight could be given to the security concerns. The intelligence was doubtless important to the management of a safe prison, but was not of evidential quality.

(2) The panel also agreed with her representations that there is no evidence of extremist activity by you. The fact that you are a Muslim is not in dispute and is not known to be a risk factor for your offending. You are of course entitled to exercise your religious freedom in prison.

(3) The panel took no account in its decision of the extent to which you are "over tariff". Ms Finnis put this forward as an argument for your progression. However, you are serving an indeterminate prison sentence and must be detained for so long as is required to protect the public. The "tariff" simply determines your first eligibility to appear before the Parole Board. It is of course very important that the Parole Board, as a court, reviews your detention carefully once you are post tariff to establish whether or not you need to remain in prison.

(4) The panel also gave you credit for your progress in addressing aspects of your offending behaviour and for maintaining your enhanced status since your progression to the Category B estate from maximum security.

(5) Having heard and read all of the evidence, the panel found you somewhat guarded in giving your evidence about your offending history and your past involvement in crime. The panel had some concerns that you need to reach a better understanding about aspects of your personality that may be relevant to your risk management. For example it was not clear whether you would be able to be fulfilled by normal employment rather than a more exciting or high profile activity, whether that was illegal activity such as gun crime or legitimate work such as work with the film industry.

(6) The panel agreed with Ms Carter that, although you have made progress in addressing your risks, you need to undertake further work on

• the role of your choice of associates in your behaviour and offending

• your insight into the long term consequences of your offending on your victims

• the development of a relationship with professionals in the criminal justice system and especially with your offender manager

• understanding aspects of your personality that may impact on your offending and have relevance to future risk management.

(7) As noted above, the panel agreed with you and with all witnesses that you are not ready to be released and therefore made no direction for your release. You need to stay in prison to protect the public.

(8) The panel did not agree with Ms Nicholls that further work can be carried out in open prison. The panel found that you do not meet the criteria for open prison set out in the Secretary of State's directions. In terms of risk and risk management, the panel agreed with Ms Carter that you need to progress further through the closed estate to see whether you are able to manage your risk. You left the maximum security estate relatively recently and the panel heard that you are now able to progress to a Category C prison.

(9) In addition, the remaining work is on risk issues that are central to your offending. That does mean the work ought to be carried out in closed conditions."

15. It is also relevant to note Section 9 of the Decision Letter, which stated as follows (again with the addition of paragraph numbers for ease of reference):

"(1) Should you move to a different prison, the panel agreed with Ms Nicholls that it is essential that Ms. Carter is involved in setting out the offending-behaviour work that is required of you, as that is unlikely to be delivered through accredited programmes.

(2) A future panel of the Parole Board will need to see both that specification and a suitable risk assessment for future violence carried out after completion of that work."

Subsequent Events

16. As proposed in paragraph 9(1) of the Decision Letter, Ms Carter set out the additional offending-behaviour work which was required of Mr. Stubbs ("the Additional Work"). She did this in a letter of 22 July 2014, which read as follows:

"Thank you for your application, as we discussed previously there are a couple of options available for you that can assist you in addressing the recommendations for the parole board.

The recommendations as outlined within the SPRE (29^th November 2013) were:

• To develop your insight into the influence of your peer associations upon your decision making and subsequent behaviour. This may be completed through an individual intervention building upon the progress you made on the RESOLVE programme.

• To develop his (sic) empathy for others, particularly your victims. It is recommended that you undertake an individual intervention to explore the impact of his (sic) offending behaviour upon your victims.

• For you to develop detailed, structured plans for your future both in open conditions and upon release. You are encouraged to utilise the opportunities available within custody to increase his (sic) educational and vocational training in order to aid your employment opportunities and resettlement plans.

• To develop your insight into developing appropriate intimate partner relationships. This may be achieved through monitoring and supervision with his (sic) Probation Officer, potentially involving an individual intervention focused upon this area.

There are several options for achieving these recommendations, I have outlined these below for you to consider and discuss with those managing your case.

• A structured individual intervention which could be undertaken with any of the following:

? A Psychologist

? Your Offender Manager

? A RESOLVE facilitator

• Attendance at a Therapeutic community

I am aware that your offender supervisor is currently gaining information about suitable category C establishments and I would advise that you discuss any transfer plans with her."

17. Thus, in order for the Claimant to carry out the Additional Work required of him, the prison service had to provide a "structured individual intervention" or equivalent.
18. I was told at the hearing of this application that it had not proved possible for the Claimant to undertake any of the Additional Work specified in Ms. Carter's letter. I gave the Claimant the opportunity to lodge evidence to this effect after the hearing. The Claimant lodged a statement from his solicitor, Chloe Hartnell. She said that the Claimant had been held in a series of prisons since June 2014 (HMP Lowdham Grange, HMP Onley and HMP Lincoln) and that in each prison he had spoken to his offender manager and expressed his willingness to carry out the Additional Work, but had been told that there were no facilities for carrying out the Additional Work. Indeed, his current offender manager has told him that she has contacted many other prisons but has not found one where he could carry out the Additional Work.
19. Meanwhile, on 8 September 2015 a panel of the the Parole Board reviewed the Claimant's case without a hearing. The panel decided not to recommend that the Claimant be moved to an open prison, stating, inter alia, as follows:

"Following the last review, further work was recommended to address areas of risk in connection with your understanding of the influence of your peers on your behaviour, your empathy for other people, your plans for the future and your insight into building appropriate partner relationships. It was acknowledged that no specific group work programme could address these areas of risk and further one to one interventions were planned; these were to be delivered by your offender manager. Updated reports present a mixed picture of your progress since last year. Whilst you are reported to have tried to work on your future plans and relationships by actively developing release plans, you have not been given any formal opportunities to engage with work on other areas of risk and so they remain outstanding."

"Following a full oral hearing, the previous panel concluded that further work on key areas of risk remained outstanding and this work has not yet been completed. This may not be entirely your fault; the panel was well aware that resources in the prison service are stretched and that individually tailored interventions, as required in your case, are always harder to obtain."

20. I gave the Parole Board and the Ministry of Justice the opportunity to make submissions in relation to this evidence. At the Ministry's request, I extended the time for doing so. They did not avail themselves of that opportunity within the time allowed, i.e. by 11 December 2015. (There was an issue as to whether the Ministry had been properly served with the Claim Form before the hearing, but they certainly had it by 27 October 2015.)

The Grounds of the Application for Judicial Review

21. The Claimant contends that the panel's decision was irrational. The approach to be taken by the Court in such a case was summarised by Smith J in paragraph 31 of her judgment in R v The Parole Board ex parte Gordon , as follows:

"I remind myself that I must not in any way interfere with the discretion or judgement of the Parole Board, who, as Turner J. observed in ex parte Hart (unreported 24th May 2000) are "uniquely qualified" to make the decisions it is called upon to make. I must ask myself whether they have carried out their task in accordance with the law, as set out in the statutory Directions. I must consider whether the decision falls within the range of decisions which a reasonable Panel might make. I must ask whether the reasons for the decision are proper, sufficient and intelligible."

22. As originally formulated, the Claimant's Grounds set out 4 respects in which it was alleged that the panel's decision was irrational. These were as follows:

"(i) It placed improper reliance on the conclusions of Louise Carter, despite rejecting the evidential basis of those conclusions;

(ii) Reliance on the conclusions of Louise Carter was contrary to the conclusions of several other witnesses, including Dr. Conning, but no reasons were given as to why her evidence was preferred;

(iii) Reaching a positive conclusion that the Claimant's remaining work on risk issues must be carried out in closed conditions, when this was contradicted by the evidence before them; and

(iv) As a result of the reasons set out above, it failed to properly apply the Secretary of State's Directions to the Parole Board on open conditions."

23. As to these grounds:

(1) Ground (iv) was not a separate ground.

(2) Grounds (i) and (ii) did not disclose any irrationality, for reasons which I will explain briefly.

(3) It emerged that ground (iii) did not accurately express the Claimant's real complaint, as expressed at the hearing, which was that the panel had, in effect, refused to recommend a move to an open prison because the Claimant had not carried out in a closed prison work which he was in fact unable to carry out in a closed prison.

24. I gave permission for the Claimant to file draft amended grounds, which he did on 12 October 2015. In those grounds he contended that the panel's decision was irrational because it required the Claimant to carry out work which was not properly identified and was unworkable in practice.
25. I gave the Parole Board and the Ministry of Justice the opportunity to make submissions in relation to these draft amended grounds. They did not avail themselves of that opportunity. I grant permission for the Claimant to rely on these Amended Grounds.

The Panel's Assessment of the Evidence as to the Claimant's Progress

26. In essence, grounds (i) and (ii) concerned the Panel's assessment of the evidence which related to the issue raised by paragraph 3 of the Directions. That paragraph refers to:

"the need for the lifer to have made significant progress in changing his/her attitudes and tackling behavioural problems in closed conditions, without which a move to open conditions will not generally be considered."

27. Paragraph 5(a) of the Directions is also relevant in this regard, since it identifies as a factor to be taken into account by the Parole Board:

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

28. The Claimant had taken a number of courses in prison and it was common ground at the hearing that he had made "some progress in changing his/her attitudes and tackling behavioural problems in closed conditions". The panel acknowledged this in paragraph 8(4) of the Decision Letter.
29. An important question for the panel to consider was whether that progress was sufficiently "significant" to meet the need identified in paragraph 3 of the Directions.
30. Ms. Carter and Dr. Conning reached different conclusions on this issue, for the reasons set out at length in their reports. The reasons given by Ms. Carter included, but were by no means limited to, the matters referred to in the Security Records. Both Ms. Carter and Dr Conning relied on their own interviews of the Claimant:

(1) Ms Carter had interviewed him for a total of about 6 hours on four occasions in October and November 2013.

(2) Dr Conning had interviewed him for about 2 hours on one occasion in May 2014. She relied heavily on this interview when giving her reasons for believing that the Claimant was ready to progress to open conditions: see paragraphs 8.18 to 8.21, 10.02 and 10.07 of her report.

31. It seems clear to me from the Decision Letter that the principal matter relied on by the panel in deciding this issue was their own assessment of the Claimant. Thus, looking at section 8 of the Decision Letter:

(1) The panel began by dismissing the Security Reports as irrelevant: see paragraphs 8(1) and (2).

(2) The panel also dismissed another irrelevant consideration, i.e. the fact that the Claimant was "over tariff": see paragraph 8(3).

(3) The panel acknowledged the progress which the Claimant had made: see paragraph 8(4).

(4) The panel then set out their findings as to the manner in which the Claimant gave evidence and their concerns as to his need to reach a better understanding about aspects of his personality which might be relevant to risk management: see paragraph 8(5). This is precisely the sort of assessment which the panel are "uniquely qualified" to carry out.

(5) It seems to me that that is why, as set out in the second sentence of paragraph 8(8), "The panel found that you do not meet the criteria for open prison set out in the Secretary of State's directions." The criteria referred to appears to be that set out in paragraph 3 of the Directions.

(6) The panel then agreed with Ms Carter that further work was required: see paragraph 8(6). Paragraphs 8(8) and (9) concerned the issue as to where the Additional Work could be done. I will return to this issue.

32. It follows that I do not accept the premise underlying grounds (i) and (ii), which is that the panel simply relied on Ms Carter's conclusions (and did so without either (a) giving adequate reasons for doing so; or (b) making appropriate allowance for the fact that Ms. Carter had relied in part on the Security Reports). The reality is that the panel reached their own assessment in the light of all of the evidence, including in particular their own assessment of the Claimant.

The Additional Work

33. It was not suggested to me that it was irrational for the panel to form the view that the Claimant needed to carry out some additional work before he was released. This is not surprising, especially in the light of Ms Nicholls' evidence at the hearing, to which I have referred.
34. Rather, the Claimant's argument at the hearing, as I understood it, was that it was irrational for the panel to conclude that the Additional Work had to be carried out in a closed prison when:

(1) it could be carried out in an open prison; and/or

(2) either:

(a) it could not be carried out in a closed prison; or

(b) at least, there was insufficient evidence available to the panel that it could be carried out in a closed prison.

35. By the Amended Grounds, the Claimant alleges that it was irrational to require the Claimant to carry out work which was not properly identified and was unworkable in practice. In support of this ground, Mr. Dyke referred to DPP v Haw [2008] 1 WLR 379 at [42] and R. (on the application of Equality and Human Rights Commission) v. Prime Minister [2012] 1 WLR 1389 at [93] as examples of cases in which conditions or guidance which were unworkable were held on that account to be irrational and unlawful.
36. There is certainly something very unsatisfactory about the situation which the Claimant now finds himself in. On the one hand, the Claimant has been told (by paragraph 9(2) of the Decision Letter) that he cannot move to an open prison until he has completed the Additional Work. On the other hand, he has been told that he cannot complete the Additional Work in any closed prison. Were that situation to continue, he would never be able to move to an open prison and consequently he would never be released from prison, despite his own willingness to undertake the Additional Work. That cannot be right.
37. The panel recognised in paragraph 9(1) of the Decision Letter that the Additional Work was unlikely to be delivered through accredited programmes. It follows that the Additional Work would require some form of tailored programme of support for the Claimant. The panel acknowledged this in paragraph 9(1) of the Decision Letter when they said that it was essential that Ms. Carter was involved in setting out the Additional Work. But the panel clearly assumed that the necessary support would be provided.
38. As appears from paras. 16-18 of Ms. Finnis's witness statement, there was some debate before the panel as to whether the Claimant would in practice be able to carry out the Additional Work. However, an important part of the background to the panel's decision was that the Secretary of State for Justice has a duty to make reasonable provision to enable prisoners serving sentences of imprisonment for public protection to demonstrate to the Parole Board their safety for release: see R. (Walker) v. Justice Secretary [2010] 1 AC 553.
39. The Claimant may have a claim that the Secretary of State has failed to comply with that duty in his case, as has happened in many other such cases. But the Parole Board's duty in cases such as the present, having regard in particular to paragraphs 3 and 5(a) of the Directions, is to assess whether it is appropriate for the prisoner to be transferred to open conditions and, if not, to specify what further progress it considers that the prisoner needs to make. As to that:

(1) I have already considered the panel's assessment that the Claimant was not ready to be transferred to open conditions.

(2) The panel clearly considered that it was inappropriate for the Claimant to be transferred to open conditions before he had addressed the matters which were to be the subject of the Additional Work. This appears from paragraphs 8(8) and (9) of the Decision Letter. This again is the sort of assessment which the panel are "uniquely qualified" to carry out.

40. I am not persuaded that the requirement for the Additional Work was inadequately specified or inherently unworkable. The problem appears to be simply that the facilities necessary for enabling the Claimant to carry out the Additional Work have not been provided. The responsibility for providing those facilities falls on the Secretary of State, and not on the Parole Board.

Conclusion

41. It follows that I am not persuaded that there was any irrationality or other error of law in the panel's decision of 16 June 2014. Accordingly, I decline to grant judicial review of that decision.
42. I make it clear, however, that I say nothing in this judgment about how the Parole Board should approach any future consideration of the Claimant's case if the facilities necessary to enable the Claimant to carry out the Additional Work continue to be unavailable. It will be a matter for consideration on that occasion whether in those circumstances the Parole Board could properly require completion of the Additional Work as the only means of demonstrating fitness to progress to open conditions.