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
		24/02/2017

Mr. Justice Lavender:

(1) Introduction

1. The Claimant applies for judicial review of the Secretary of State's decision of 5 November 2015 not to transfer the Claimant to an open prison, despite the Parole Board's recommendation to the contrary in its report of 21 September 2015. On 1 July 2016 Dingemans J. gave the Claimant permission to bring this application.

(2) Background

2. The Claimant was born on 24 May 1947. His history of offending (and alleged offending) between 1966 and 1986 was summarised as follows by the Parole Board in its Decision Letter:

"At the age of 19 you were sentenced to Borstal Training for offences of receiving. Thereafter you were convicted of theft, handling, importation of a firearm and fraudulent evasion of VAT, offences which were dealt with by suspended sentences of imprisonment. In your twenties you began to develop business interests including property development and trading in diamonds and gold. You were successful and earned a lot of money, not all of it through legitimate means though you were not convicted of any offence. Your business activities and the people with whom you dealt introduced you to at least the fringes of serious organised crime.

In November 1983 robbers broken into the Brinks-MAT warehouse at Heathrow Airport and stole gold, diamonds and cash worth about £26,000,000. It is said that you were recruited to dispose of the gold, that you melted it down and recast it for sale. In 1986 you were prosecuted for conspiracy to handle the stolen gold and on conviction sentenced to 14 years imprisonment. It was the prosecution case that you were a principal organiser in disposing of the stolen gold bullion. You deny this, maintaining that your role had been only to give the criminals the names of those who might be able to assist them. You were twice refused parole during your sentence and released in 1994.

In the course of the investigations into your possible involvement in the Brinks-MAT robbery you were placed under surveillance. In 1985 you came upon DC Fordham, who was conducting surveillance in the grounds of your home, and stabbed him 10 times, inflicting fatal injuries. You maintain that you heard your dogs barking and went outside to investigate, taking with you a knife. You say you were hit on the head with a weapon and then in panic and fear you used the knife because you thought your own life was in danger. You were charged with murder but in 1986 acquitted on the grounds of self-defence. "

3. After being released from prison in 1994, the Claimant killed Stephen Cameron in May 1996. The Claimant was convicted of murder by a jury in April 2000 and sentenced to life imprisonment. His minimum term was subsequently set at 16 years (less the time which he spent in custody on remand): see Simon J's judgment at [2010] EWHC 1468 (QB). That minimum term expired on 21 April 2015.
4. The Parole Board said as follows in its Decision Letter about the murder of Mr. Cameron:

"The index offence of murder was committed in the course of a road rage incident in May 1996. You were driving your Land Rover Discovery off the M25 onto a roundabout at a junction and in doing so cut up a van driven by the girl-friend of Mr Cameron. You pulled across the path of the van and stopped. You got out of the Land Rover; Mr Cameron got out of the van. You were armed with a lock knife which you carried, so you say, to use to defend yourself against attack because of your presumed access to the Brinks-MAT gold. There was a violent fist fight between you and Mr Cameron. You were getting the worst of it. You retreated to the passenger side of your vehicle, took out the knife, opened it and went back towards the victim. You grappled with him, and then stabbed him twice in the body, causing fatal wounds from which he died almost immediately. You left the scene, arranged for the Land Rover to be disposed of, and fled to France by helicopter and thence to Spain by private jet. You maintain that you intended to return to England within two weeks, but in fact you assumed a false identity in Spain and lived there until your arrest in the Summer of 1998. Even then you contested extradition proceedings and denied you had anything to do with the death of the victim. At trial however, you suggested that you had acted in self-defence.

You do not accept the prosecution case and maintain that you should have been tried for manslaughter. There is clear evidence of minimisation both in respect of the Brinks-MAT offences and the murder. A recent Victim Personal Statement describes the continuing distress experienced by the family of the victim."

5. The Claimant twice appealed against his conviction. Those appeals were dismissed on 10 October 2001 ([2001] EWCA Crim 2229) and 22 March 2011 ([2011] EWCA Crim 650). The Claimant also appealed against the minimum term set by Simon J. That appeal was dismissed on 12 March 2013 ([2013] EWCA Crim 510).

(3) The Parole Board's Consideration of the Case

6. On 2 July 2014 the Secretary of State referred the Claimant's case to the Parole Board: (a) to decide whether the Claimant should be released from prison on licence; and (b) to advise the Secretary of State whether the Claimant should be transferred to an open prison. The Claimant's case was considered by a Panel consisting of two members of the Parole Board, namely a High Court judge and an independent member.
7. The Parole Board considered a dossier of 255 pages, which included reports from: the Claimant's Offender Supervisor, a probation officer; the Claimant's Offender Manager, another probation officer; and a prison psychologist. The authors of these reports were unanimous in recommending that the Claimant should not be released from prison on licence, but that he should be transferred to an open prison. The dossier also included written submissions made on behalf of the Secretary of State.
8. The Panel held a hearing at HMP Wayland on 8 September 2015 at which they heard evidence from the Claimant, his Offender Supervisor, his Offender Manager and the prison psychologist.

(4) The Parole Board's Decision Letter

9. The Panel prepared a 7-page Decision Letter dated 21 September 2015. This set out, and gave reasons for:

(1) the Panel's decision that the Claimant should not be released from prison on licence; and

(2) the Panel's recommendation that the Claimant be transferred to open conditions.

10. In addition to the analysis of the Claimant's offending, which I have already quoted, the Decision Letter contained sections which addressed: risk factors; progress in custody; the Panel's assessment of current risk; and plans to manage risk. In particular, under the heading "risk factors", the Panel said as follows:

"A recent PCL-R [Psychopathy Checklist - Revised] concluded that your main characteristic trait was criminal versatility and that superficial charm, grandiose sense of self, lack of remorse, manipulative behaviour, failure to accept responsibility and poor behaviour controls were partially present. The Panel concluded that the traits identified in the PCL-R were clearly evidenced in your behaviour and presentation. Your personality style and emotional management pose the greatest risks at present, especially your need to be in control."

11. Against that background, the Panel stated the reasons for its recommendation as follows:

"There is, however, unanimous support from all report writers that you should progress to open conditions so as to have the opportunity to test your skills, strategies and attitudes in open conditions where you will receive significant levels of support and monitoring. You are not enthusiastic about such a progression. You question the benefits and express concern that other prisoners might sell stories about you or use your name to blame you falsely for discipline breaches such as smuggling in contraband to the prison. The Panel understand your reservations. However, if you do meet those sorts of problems in open conditions it will actually test your abilities to cope with setbacks on release.

Your Offender Supervisor considers that you have made considerable progress during your sentence and concludes that your risks have reduced sufficiently to be managed in the open estate. The prison psychologist, describing her view as an "on balance" decision, concluded that you do now have the capacity to progress to open conditions. She sees lots of benefits in a move to open, including enhanced monitoring and a very gradual integration into the community. Your Offender Manager agrees.

The Panel tested these views carefully and thoroughly in the course of the hearing and ultimately agreed with them. The Panel found that the benefits of a move to open conditions outweighed the risks of such a move. They concluded that your risks had significantly reduced since the commission of the index offence and that you have made significant progress in changing your attitudes and tackling your behaviour problems.

The Panel took into consideration the very serious nature of the index offence, your criminal history and the suspicion of your close links to the world of serious organised crime. They also had very much in mind the risk of your absconding: you have done so before and with considerable success and clearly you have the means and ability to do so again should you decide to do so. However, you have now served the punitive part of your sentence and you are approaching 70 years of age. The Panel concluded that it is inherently unlikely that you would throw away the opportunity for release on licence in the foreseeable future in return for a life on the run in a foreign land. They found that the risk of your absconding, whilst it cannot be excluded, was inherently unlikely in the present circumstances."

(5) The Secretary of State's Decision

12. Section 12(1) of the Prison Act 1952 provides that prisoners shall be committed to such prisons as the Secretary of State may direct. Accordingly, it was for the (then) Secretary of State to decide whether or not to accept the Parole Board's recommendation that the Claimant be transferred to open conditions.
13. The Secretary of State was entitled to the benefit of the advice of his officials. As to that, the Deputy Director of the National Offender Management Service prepared a submission dated 14 October 2015 addressed to the Secretary of State. In paragraph 8, he stated as follows:

"In the case of Mr Noye, officials can find no grounds, either within agreed policy or on any other reasonable and defensible basis, to reject the Parole Board's recommendation. Indeed, all the main report writers supported transfer to open conditions. Therefore, we are proposing to write to Mr Noye to advise him that the Parole Board's recommendation has been accepted and that his next parole review will be in March 2017."

14. In paragraph 10, he stated as follows:

"Concerns have been raised by law enforcement agencies about Mr Noye's ability to continue what may be criminal activity from inside the prison system and even to abscond, but neither the Police nor the National Crime Agency have been able to provide active and current information to substantiate this position. It is possible that some elements of the Police will seek to criticise what is in law a decision by the Secretary of State for Justice, but, as you will appreciate, in this case, as in any other, officials seek to operate fairly the policy agreed with Ministers."

15. Nevertheless, the Secretary of State decided not to accept the Parole Board's recommendation. His decision was set out in a letter dated 5 November 2015 and the enclosed Statement of Reasons.
16. I was shown certain email correspondence between various civil servants in the period from 14 October to 5 November 2015. This shed some light on the process by which the Secretary of State arrived at his decision. However, Mr. Fitzgerald did not suggest that the process was in itself such as to render the decision unlawful. Accordingly, I need not set out the details of this correspondence. It is sufficient to note that the civil servants in the National Offender Management Service did not change the views expressed in paragraph 8 of the submission of 14 October 2005.
17. In paragraph 2 of his Statement of Reasons, the Secretary of State set out the question which he had to consider. It is not suggested that there was any error in his formulation of the question, which was as follows:

"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 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."

18. In paragraphs 6 and 7 of his Statement of Reasons, the Secretary of State identified the risk factors and the Panel's conclusions in relation thereto:

"6. Risk factors in your case have been identified as, violence, violent attitudes and anti-social behaviour. The Secretary of State notes that during your time in custody you have shown a willingness to address your risk. You are an enhanced prisoner under the IEP scheme, you have only received one adjudication in 2000 and all drug tests have been negative. You have undertaken offending behaviour work on your sentence plan, including CALM, ETS, and a victim awareness programme. There is no outstanding core offending behaviour work identified for you to undertake in closed conditions. Your offender supervisor and offender manager both support a progressive move to open conditions.

7. The Parole Board, in recommending open conditions, stated that your risks had significantly reduced since the commission of the index offence and that you have made significant progress in changing your attitudes and tackling your behaviour problems. The panel also considered your risk of abscond and found that the risk of you absconding, whilst it could not be excluded, was inherently unlikely in your present circumstances."

19. The Secretary of State's reasons for his decision were set out in paragraphs 9 to 13 of his Statement of Reasons, as follows:

"9. The Secretary of State notes report writers' assertions that you have changed your attitudes and made progress in reducing your risk. Nevertheless, you have appealed against your conviction on three occasions, consistently maintaining that the murder was self-defence. These assertions suggest that you have minimised your culpability which, in turn, undermined the credibility of claims that you have changed your attitude towards violence and as a result, present a reduced risk.

10. The Secretary of State is of the view that your pro-criminal attitudes have been linked to your desire to obtain wealth. Whilst you accept that you have been involved in criminal activity you deny that it has been serious or organised. Given your involvement in the Brinks-MAT robbery and the circumstances of your flight from the UK following the index offence, the Secretary of State would dispute this. You were able very quickly to arrange for your vehicle to be disposed of and to flee the country, first to France by helicopter and then to Spain by private jet. It is clear that you had influential contacts who were able to assist you.

11. The Secretary of State is of the view that your access to pro-criminal associates and finances significantly increases the possibility of you absconding and that if you were to abscond from open conditions, this would be likely to undermine confidence in the criminal justice system. You state that you have retained links with Spain where you travelled to following the index offence. Whilst your family has been identified as a protective factor they were nevertheless aware that you had travelled to Spain and the Secretary of State is not confident that they would prove to be such a protective factor if you were transferred to open conditions.

11. Your excessive use of violence has resulted in the deaths of two people, although there does not appear to have been any work undertaken to address your use of instrumental violence. The Secretary of State notes that the forensic psychologist in her report of 27^th July 2015 suggested that there are some additional treatment needs that the RESOLVE programme considers which are not included within CALM course (relating to the use of instrumental violence). The psychologist stated that "the available evidence suggests that Mr Noye has engaged in unplanned and reactive violence, although there are instrumental elements contained within the index offence. On balance, I am uncertain of the benefits the course would bring for him at this stage of his sentence but this must not be ruled out if further information comes to light that indicates he would benefit from additional consideration of instrumental violence." The Secretary of State is of the view that it would be of benefit to you to be assessed for RESOLVE in respect of the use of instrumental violence in the light of the circumstances of the index offence. This work should take place in secure conditions.

12. You are reported to like to be in control. The risk of violence is linked to your ego and emotional arousal in stressful situations and is likely to escalate when your status is challenged. The Secretary of State notes that your use of violence has been extreme and unpredictable and involved the use of weapons; both Mr Cameron and Mr Fordham were stabbed to death. There are aspects of your personality which raise concern as to how you will handle difficult situations, conflict resolution, anger management, consequential thinking and appropriate decision making.

13. Media intrusion has caused you problems and you need to give serious consideration as to how you will handle the media. The Secretary of State notes that you do not perceive this issue to be a problem for you, but is of the view that you need to be more realistic about this. This will inevitably be an issue which you need to address as there is the potential for confrontational situations. You need to have the skills and strategies in place to prevent these situations escalating and risk increasing. Scenario planning work to help you deal with the pressures of media intrusion has been recommended and only recently commenced."

20. Finally, the Secretary of State addressed the Claimant's future in paragraph 15 of his Statement of Reasons as follows:

"An 18 month review date has therefore been set for the following reasons:

You need to be assessed for the RESOLVE programme to address your use of instrumental violence.

You need to develop further the progress made to date to demonstrate a reduction in your risk, particularly with regard to minimisation of your index offence.

You must consolidate and test the skills, attitudes and strategies learned to date; to practice these skills with support and monitoring; and to test relapse prevention plans.

The timescale will also provide an opportunity for your offender manager to:

Devise a careful risk management plan to identify your specific risk areas and develop strategies for managing them.

Further develop plans to help you deal with potential difficulties, particularly media intrusion, through scenario planning relating to situations of adverse pressure or ones you feel out of control with."

21. I was told that the Claimant has now undertaken the RESOLVE course, and that his next review is expected to take place in May to July 2017.

(6) The Claimant's Challenge to the Secretary of State's Decision

22. On behalf of the Claimant, Mr. Fitzgerald advanced 6 grounds for seeking judicial review of the Secretary of State's decision. I will address each of these, although not in the order in which they were advanced by Mr. Fitzgerald. It is appropriate, however, to begin by saying something about the applicable law.
23. Jackson J. identified five principles in paragraph 28 of his judgment in The Queen on the application of Banfield v. Secretary of State for Justice [2007] EWHC 2605 Admin ("Banfield"), as follows:

"(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.

(2) The decision of the Secretary of State is not lawful if it was reached by an unfair procedure. It is for the court to determine in any given case whether the procedure was unfair.

(3) If the Secretary of State places reliance upon significant material that was not before the Parole Board, then fairness may require that the prisoner be given an opportunity to comment upon it.

(4) The mere fact that the Secretary of State takes a different view from the Parole Board of material that was before the Parole Board is not normally a matter which merits a reference back to the prisoner for his further comments.

(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."

24. To these five principles can be added a sixth, derived from the judgment of the Divisional Court in The Queen on the application of Nezar Hindawi v. Secretary of State for Justice [2011] EWHC 830 QB ("Hindawi"). That was a case in which the prisoner claimed to have renounced violence, and the Parole Board found that claim to be credible. Thomas LJ held that the Secretary of State could only depart from findings of fact made by the Parole Board for good reason. Thomas LJ said as follows in paragraphs 58 to 63 of his judgment:

"58. In approaching these issues, it is, in my view, necessary for a clear distinction to be made between findings of fact made by the Parole Board panel and its assessment of the risk. The findings of fact related to his credibility, the effect of his PTSD, and the reasons for his failure always to cooperate with the risk assessment process. These were all matters on which decisions had to be made on whether the claimant was telling the truth in the light of all the evidence.

59. The claimant's credibility was the central issue as the finding on the credibility of the claimant was, if not decisive, of significant weight in determining his future risk. …

60. In my view, the Secretary of State, when making the decision on parole, also had to distinguish between the findings of fact made by the panel and the assessment of risk. The findings of fact were the basis on which the Secretary of State was entitled to reach his own view, … , to determine risk, according appropriate respect to the views of the panel on their assessment of risk.

61. 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. …

62. There is strong authority relating to appeals from decisions from trial courts which makes clear that findings of facts or on credibility should not be overturned without good reason: …

63. In this case, the Secretary of State was the primary decision maker and not, as in the cases to which I have referred, an appellate court. Yet 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."

(6)(a) Alleged Procedural Unfairness (Ground 1)

25. In his Skeleton Argument, Mr. Fitzgerald submitted that it was unlawful for the Secretary of State to reject the Panel's recommendation without giving notice to the Claimant, by way of his submissions to the Panel, that he opposed the Claimant's transfer to open conditions. I reject this ground as unfounded both in law and in fact.
26. As a matter of law, I was shown no authority in support of the proposition that the Secretary of State is obliged to give notice to a prisoner that he might not accept the Parole Board's recommendation. The very fact that the Secretary of State is seeking the Parole Board's advice means that there is an open question. In relation to that question, the Panel considered whether or not to recommend that the Claimant be transferred to an open prison. That is apparent from the statement of their reasons for their recommendation, which I have quoted.
27. Moreover, in a number cases, the Secretary of State makes no submissions to the Parole Board. If Mr. Fitzgerald's submission were correct, then the Secretary of State would, by his failure to make submissions to the Parole Board in such a case, have obliged himself to follow the Parole Board's advice. That cannot be right.
28. Recognising, perhaps, the difficulties which his written submissions faced, Mr. Fitzgerald went further at the hearing and contended that the Secretary of State's written submissions had indicated that the Secretary of State agreed that the Claimant should be transferred to open conditions. I do not accept that this is a fair reading of the Secretary of State's submissions. In those submissions, the Secretary of State twice questioned whether there should be any "progression", i.e. any move to open conditions:

"The Secretary of State respectfully questions whether or not the interventions above and scenario work around media intrusion as stated below should be undertaken prior to any progression. …

The Secretary of State respectfully asks the panel to consider the above concerns and to ensure that the risks identified have been fully addressed before Mr Noye is considered for progression."

29. Thus, contrary to Mr. Fitzgerald's claim that he did not give notice, the Secretary of State was here indicating that he questioned whether the Claimant should be transferred to an open prison.

(6)(b) Not Following the Advice of Civil Servants (Ground 5)

30. In his written submissions, Mr. Fitzgerald complained of the fact that the Secretary of State had acted against the advice of his civil servants. I have already quoted the advice set out in paragraph 8 of the submission on 14 October 2015. At the hearing, however, Mr. Fitzgerald accepted that the decision was for the Secretary of State to make, and he was not obliged to follow the advice of his civil servants.
31. The advice which the Secretary of State has received from his civil servants in a case such as this may be relevant when assessing whether his decision was rational. In the present case, it is also relevant for this additional reason. It meant that the Secretary of State could not argue, as is sometimes argued in such cases, that his decision to reject the Parole Board's recommendations had been taken with the support of advice from civil servants with expertise in this area. (See Banfield, at [29].) But a failure to follow the advice of civil servants does not in itself make the Secretary of State's decision unlawful.

(6)(c) Alleged Failure to Conduct a Balancing Exercise (Ground 6)

32. Mr. Fitzgerald contended that the Secretary of State failed to conduct the balancing exercise required of him. He accepted that the Secretary of State had correctly identified this balancing exercise in paragraph 2 of his Statement of Reasons, which I have already quoted. However, he submitted that the Secretary of State had not in fact carried out this exercise. The basis for this submission was that the Secretary of State did not expressly refer to the benefits for the Claimant of being moved to open conditions.
33. I am not persuaded by this submission. The principal benefits for the Claimant of a move to open conditions, i.e. the possibility of temporary release and the opportunity to progress to release on licence, are obvious and were not the subject of any dispute. I see no evidence that the Secretary of State failed to take them into account. No other relevant factors were identified by Mr. Fitzgerald.

(6)(d) The Killing of PC Fordham (Ground 3)

34. Mr. Fitzgerald submitted that it was wrong in law for the Secretary of State to described the violence which the Claimant used on PC Fordham in 1994 as "excessive". That is the word which the Secretary of State used in the second paragraph 11 of his Statement of Reasons.
35. Mr. Fitzgerald did not object to the use of the word "excessive" to describe the violence which the Claimant used when he killed Mr. Cameron. Nor did Mr. Fitzgerald object to what the Secretary of State said in paragraph 12 about the killing of PC Fordham, i.e. that "your use of violence has been extreme and unpredictable and involved the use of weapons; both Mr. Cameron and PC Fordham were stabbed to death". But Mr. Fitzgerald objected to the use of the word "excessive" in relation to PC Fordham, because, he submitted, that was tantamount to treating the Claimant as guilty of murdering PC Fordham, when the jury had found him not guilty of murder. Their verdict indicated that the jury were not sure that the Claimant had not acted in self-defence.
36. I do not accept Mr. Fitzgerald's submission. One has to bear in mind the context. The second paragraph 11 was concerned with the Secretary of State's assessment of the work needed to be undertaken by the Claimant in prison in relation to his use of instrumental violence. The Secretary of State concluded that "it would be of benefit to you to be assessed for RESOLVE in respect of the use of instrumental violence in the light of the circumstances of the index offence" (i.e. the killing of Mr. Cameron). In reaching that conclusion, the Secretary of State was not misdirecting himself that the killing of PC Fordham had been a murder. But the Secretary of State was entitled to have regard to the violence used on that occasion as part of his assessment of the risks involved in this case.

(6)(e) The Risk of Absconding (Ground 4)

37. Mr. Fitzgerald submitted that the Secretary of State erred in his assessment of the risk of the Claimant absconding. He made a number of points in this regard. Of course, any assessment of the future risk of absconding had to be made, and falls to be judged, against the background of the fact that, after killing Mr. Cameron in 1996, the Claimant was able to, and did, flee the country and live for 2 years in Spain under a false identity.
38. Paragraph 10 and the first paragraph 11 of the Statement of Reasons repeat, almost word for word, passages from the Secretary of State's submissions. Mr. Fitzgerald submitted that this was improper. He relied for this purpose on the Divisional Court's judgment in Hindawi. However, the facts of the present case are very different from those of Hindawi. That was a case in which the civil servant who drafted the Secretary of State's submissions to the Parole Board also drafted a submission to the Secretary of State which advised against accepting the Parole Board's recommendation, and did so in an unbalanced way: see paragraphs 42 to 46 and 73 to 81 of Thomas LJ's judgment. That did not happen in this case.
39. The contents of paragraph 10 and the first paragraph 11 of the Statement of Reasons are all matters which were relevant to the decision which the Secretary of State had to make. The history of this case obviously made the possibility of absconding one which had to be taken seriously. The Panel addressed it in the passage from their Decision Letter which I have quoted. Their conclusion was that the risk of the Claimant's absconding, whilst it could not be excluded, was "inherently unlikely in the present circumstances".
40. That was their assessment. The Secretary of State disagreed with their assessment. He was entitled to do so. His decision to do so was not irrational (subject to what I will say about the Claimant's ground 2.)
41. Mr. Fitzgerald submitted that: (a) the Secretary of State was not merely disagreeing with an assessment made by the Panel, he was departing from a finding of fact by the Panel; (b) on the authority of Hindawi, that is not something which the Secretary of State should do without good reason; and (c) there was no such good reason. However, I do not accept that the Panel's view that the risk of absconding was "highly unlikely" was a finding of fact. It was an assessment of the extent of the future risk.
42. Mr. Fitzgerald submitted that the Secretary did not expressly address the Panel's conclusion or the reasons for it. In particular, he argued that Secretary of State focused on the question whether the Claimant would have the opportunity to abscond, whereas the Panel had reached their conclusion on the basis of a consideration of whether the Claimant would have a motive to abscond. I do not accept this submission. The Panel's conclusion that it was inherently unlikely that the Claimant would abscond was referred to in paragraph 7 of the Statement of Reasons. The final sentence of the first paragraph 11 was not concerned with whether the Claimant could abscond, but with an assessment of whether he would do so.

(6)(f) The Claimant's Attitude to Violence (Ground 2)

43. Mr. Fitzgerald's most formidable submission was that the Secretary of State had departed from a finding of fact by the Panel when he said in paragraph 9 of his Statement of Reasons that the credibility of the Claimant's claims that he had changed his attitude to violence was undermined.
44. The relevant finding of fact was the Panel's statement that they had concluded that the Claimant had made significant progress in changing his attitudes and tackling his behaviour problems. Although Mr. Weisselberg argued to the contrary, it is clear that the Panel's conclusion that the Claimant had made significant progress in changing his attitudes to violence was a finding of fact, albeit expressed in somewhat general terms. It was, moreover, a finding of fact reached despite indications to the contrary, including:

(1) the "clear evidence of minimisation" referred to in the Panel's analysis of the Claimant's' offending; and

(2) the Panel's acknowledgment that his behaviour and presentation evidenced traits such as superficial charm, lack of remorse, failure to accept responsibility and poor behaviour controls.

45. It also is important to note that the Panel's conclusion came at the end of a paragraph in which the Panel said that in the course of the hearing they had carefully and thoroughly tested the views expressed by the probation officers and the prison psychologist in their reports.
46. In accordance with the decision in Hindawi, it was not open to the Secretary of State to depart from a finding of fact made by the Panel unless he had good reason to so do. But the only reason identified in paragraph 9 of the Statement of Reasons was one which had already been considered by the Panel, i.e. the element of minimisation of his violence implicit in his appeals against his conviction. (The Secretary of State mistakenly stated that there were three appeals against conviction. In fact, there were two appeals against conviction and one against sentence. But that is not a material error. Nor is it relevant that he may have had reasonable grounds for appealing. By appealing, he was asserting his innocence.)
47. The Panel expressly recognised that there was "clear evidence of minimisation" in respect of the murder of Mr. Cameron. This was one of the factors which the Panel considered in reaching its finding that the Claimant had made significant progress in changing his attitudes to violence. In my judgment, the law as set out in Hindawi means that it was not open to the Secretary of State to disagree, as he did, with that finding for the reasons which he gave in paragraph 9 of his Statement of Reasons.
48. It follows that the Secretary of State approached the assessment of both the risk of future violence and the related risk of absconding on an inappropriate factual basis.

(6)(g) Section 31(2A) of the Senior Courts Act 1981

49. The Panel's findings in the present case in relation to the Claimant and his attitude to violence were rather more nuanced than the findings in Hindawi. In that case, the prisoner claimed, and the Parole Board found, that he had renounced violence. In the present case, the Panel found that the Claimant had made "significant progress" in changing his attitudes, but also noted that there was "clear evidence of minimisation" and that his behaviour and presentation clearly evidenced the traits identified in the PCL-R, which included "lack of remorse, manipulative behaviour, failure to accept responsibility and poor behaviour controls".
50. In those circumstances, Mr. Weisselberg submitted that, in effect, the Secretary of State had decided that, while he accepted that the Claimant had made significant progress, he had not made sufficient progress to justify a move to an open prison. The difficulty with this submission is that it describes a decision which the Secretary of State might have made, rather than the decision which he in fact made.
51. However, this submission has caused me to consider whether this is a case to which subsection 31(2A) of the Senior Courts Act 1981 applies, although Mr. Weisselberg did not invoke it. That subsection provides as follows:

"The High Court—

(a) must refuse to grant relief on an application for judicial review, …

(b) … ,

if it appears to the court to be highly likely that the outcome for the applicant would not have been substantially different if the conduct complained of had not occurred."

52. It is certainly possible that the Secretary of State, if he had not made the error of law which I have identified in paragraph 9 of his Statement of Reasons, might have reached the same conclusion for reasons along the lines suggested by Mr. Weisselberg. However, I cannot say that it is highly likely that he would have done so, especially having regard to the fact that this is a case in which the Secretary of State was departing from the advice not only of the Parole Board but also of his own civil servants.

(7) Summary

53. For the reasons which I have given, I will quash the decision made by the Secretary of State on 5 November 2015. It will be for the current Secretary of State to take a fresh decision whether or not to transfer the Claimant to an open prison.