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Cite as: [2000] EWHC Admin 414

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QUEEN v. PAROLE BOARD [2000] EWHC Admin 414 (7th November, 2000)

Case No: CO/1640/00

IN THE HIGH COURT OF JUSTICE

QUEEN'S BENCH DIVISION
CROWN OFFICE

Royal Courts of Justice
Strand, London, WC2A 2LL
Date:
7th November 2000

B e f o r e :

MRS JUSTICE SMITH


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THE QUEEN

Appellant


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THE PAROLE BOARD

Respondent

ex parte
ROSS ELTON GORDON

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(Transcript of the Handed Down Judgment of
Smith Bernal Reporting Limited, 190 Fleet Street
London EC4A 2AG
Tel No: 020 7421 4040, Fax No: 020 7831 8838
Official Shorthand Writers to the Court)
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Ms F. Krause (instructed by
John Atkins, Independent Public Law Practice, PO Box 71, Exeter EX1 2YT, for the Appellant)
Miss E. Grey (instructed by
the Treasury Solicitor, Queen Anne's Chambers, 28 Broadway, London SW1H 9JS, for the Respondent)
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JUDGMENT
(As Approved by the Court)
Crown Copyright



MRS JUSTICE SMITH:
1. This is an application for
judicial review of a decision of the Parole Board dated 4th February 2000 in which they refused to recommend that the applicant, who is a mandatory life prisoner be transferred from Category C (closed) conditions to Category D (open) conditions. Permission to move was granted by Maurice Kay J.
History.
2. The applicant, Ross Elton Gordon, was born in December 1958 and was brought up in Salford. He left school with no formal qualifications. As a youth he was in trouble with the police for various offences, including robbery and house burglary. On one occasion he had been found guilty of conduct likely to cause a breach of the peace. It appears that he had indecently exposed himself to a woman. He was at this time a heavy drinker. In August 1977, he killed his former girlfriend by stabbing her. The background to that offence was that she had terminated their relationship and would not go back to him. He was only 18 years old. At the trial in December 1977, he admitted the killing but claimed he had not intended to cause really serious harm. He was convicted of murder. A tariff of 13 years was fixed.
3. Following sentence he was detained in Liverpool and Wakefield Prisons. He began to undertake academic work and by 1980 had obtained several GSE O level passes and an A level in Mathematics. By 1984 he had obtained a BA degree in Mathematics, Computer Science and Technology. From 1984 to 1987, he was at Grendon Underwood, where he undertook various courses designed to address his past offending behaviour. He continued his academic work through the Open University. After leaving Grendon in July 1987, he was transferred to the Verne as category C. In May 1988 he was moved on to Sudbury on category D. There he continued to progress both with his academic work and in other respects. Academically he had begun to concentrate his attention on courses which would equip him to work as a teacher. His behaviour gave no cause for concern. The authorities were aware that he had formed a `close relationship' with a woman who lived in the area. In August 1991, within a year of the expiry of his tariff sentence, he was transferred to the Pre- Release Employment Scheme (PRES) attached to Wormwood Scrubs.
4. In November or December 1991, it emerged that the woman with whom he had been associating at Sudbury was pregnant with his child. It appears that he had not disclosed to the authorities that his relationship with her had been sexual. He was withdrawn from the PRES scheme for 5 months but was allowed to return in April 1992. In July 1992, he was withdrawn from PRES again for two days following an incident in which he had returned to the hostel the worse for drink and had been abusive to staff. Two months later, there was another incident in which he behaved badly in drink. He plainly had a drink problem. He was withdrawn from PRES and returned to the main prison for 5 months, during which time he began a Self Help Addiction Recovery Programme. In February 1993, he resumed PRES but in June 1993 there occurred an incident which resulted in his return to closed conditions. The applicant was travelling on the London Underground late one evening. He had been drinking. One or more women passengers complained that he had exposed his penis. He was arrested and charged with indecent exposure. He was immediately removed from PRES. A few weeks later, he pleaded guilty to the offence, was fined £48 or sentenced to 1 day's imprisonment. Immediately thereafter he was returned to Category C closed conditions. It was recognised that he still had a drink problem. He had also been taking drugs but was not thought to be addicted. He cooperated in work to address his addiction to alcohol and his drug habit.
5. In March 1995 he was transferred to Littlehey Prison as category C. His behaviour was exemplary. He was given enhanced status. He continued his work on addiction and became secretary of the Alcoholics Anonymous group within the prison. He continued with his academic work. The work allotted to him within the Prison was largely that of classroom assistant teaching fellow prisoners. The reports prepared for the Parole Board Review spoke well of his progress in all respects and unanimously recommended a transfer to category D, as an essential step on the route to release. The view was that he was ready to be tested again in open conditions.
6. During all the discussions he had had with psychologists and psychiatrists following the offence of indecent exposure, the applicant had always given an account of the incident which did not really amount to the offence of indecent exposure. He had always claimed that he had a poor recollection of the incident, as he had been very drunk. He thought that what had happened was that, being in drink, he was desperate to urinate and had relieved himself on the train. The women must have seen his penis. This explanation had been accepted and the incident had been treated as not involving any truly sexual element. He repeated this account in interview with a member of the Parole Board prior to the review.
7. At the Review in December 1997, the Panel refused to recommend him for transfer to open conditions. They expressed their concern that insufficient work had been done to explore the reasons behind the two occasions when the applicant had exposed himself, one of which had resulted in a conviction for conduct likely to cause a breach of the peace (in 1977 at the age of 18) and the other in 1993 when he had been convicted of indecent exposure. They noted that this issue had not been explored by most of the report writers and had been dealt with only superficially. The applicant had `minimised' it in interview with the Board Member. The Panel considered that given the nature of the index offence, the lack of exploration of the sexual element and the previous problems on PRES, they did not regard the risk of transfer to open conditions to be acceptable. They expressed the hope that the sexual element be explored promptly and that there would be formal assessment for a Sex Offenders Treatment Programme (SOTP). They recommended a review in one year's time.
8. Thereafter, the applicant underwent three forms of assessment for SOTP. Two appear to have been carried out by the resident psychologists at Littlehey. The applicant repeated his recollection of the 1993 incident. This account was not challenged and both concluded that there had been no sexual element to the 1993 offence. They concluded that the applicant was not suitable for SOTP because he did not need such treatment. Finally in the autumn of 1998, he underwent a full psychometric assessment, which, as he understood matters, apparently produced a recommendation that SOTP was not required. By November 1998, the usual range of reports were being prepared for the forthcoming Parole Board review. However, either in late November or early December a psychologist in the Lifer Management Unit decided that the applicant ought to undergo SOTP. This caused some confusion at the Prison and the applicant was naturally distressed. His review was almost due and he did not understand the reason for the recommendation. He understood he had been assessed as not requiring such treatment.
9. The preparation of reports proceeded. Once again, they were unanimous in recommending a transfer to open conditions. It was said that the applicant had made good progress in many areas, particularly in respect of his drink problem and it was thought that he was ready to be tested in open conditions. His chances of obtaining employment were rather better than most; he had by this time obtained a Master's degree in Education.
10. Principal Officer Rowley, writing in December 1998, concluded that the applicant was in a better position than that which had prevailed 5 years earlier when he had been transferred onto PRES. The applicant recognised the need for abstinence from alcohol. He had made great strides in improving himself so as to maximise his potential once released. Notwithstanding the recent suggestion that the applicant should undergo SOTP, Mr Rowley still thought a transfer was appropriate. He added that as the applicant had now served 21 years in prison there were grounds for concern that further incarceration would reduce the likelihood of successful re-integration into the community. He felt that because of the length of time served and the paucity of family support the applicant could hope for on release, an extended period in open conditions would be required.
11. Mr Ward, the applicant's personal officer reported that the applicant had `matured sufficiently to utilise the coping strategies developed to help him combat his addictions'. He considered the applicant was ready to be tested in open conditions. He had made excellent progress while at Littlehey.
12. Mr Peasey, a psychologist, reported that the applicant had addressed the issues surrounding his offence and the alcohol abuse which led to his withdrawal from PRES. He thought the applicant's personal development had proceeded very well under extensive psychotherapy. He now had above average insight into offence related behavioural problems. He did not think that the applicant was suitable for SOTP. Presumably he too had been told that the 1993 offence was not truly a sexual matter. He recommended transfer to open conditions.
13. Dr Hawes, the visiting psychiatrist, did not regard him as a risk to the public but she too had been told that in 1993, he had only urinated on the train.
14. Other reports which is not necessary to mention all spoke of the applicant's maturation and progress and recommended transfer.
15. When the applicant was told about the recommendation that he should undergo SOTP, he was very upset and his solicitor wrote a somewhat intemperate letter threatening to apply for judicial review. In reply the Prison Service explained that they had recently obtained from the British Transport Police the witness statements relating to the 1993 offence. These showed that the offence was a sexual offence. The applicant was said to have deliberately drawn attention to his penis and to have made masturbatory movements. They took the view that the applicant had misled the staff at Littlehey about this incident. Also they considered that the sexual element in his offending behaviour had not been addressed and he should attend SOTP. The applicant's attitude was that because he had been assessed as unsuitable for SOTP by psychologists who had examined him in depth he was unwilling to attend the course. His solicitor wrote again complaining that the witness statements had not been shared with the psychologists at Littlehey so as to enable them to investigate the position properly with the applicant. In February 1999, the applicant's solicitor asked for the review to be delayed. He requested a further SOTP assessment in the light of the new material and sought disclosure of the full psychometric assessment which had been carried out in the previous Autumn. He also asked that a particular passage in the dossier be amended as they thought it was unfair to the applicant. No substantive reply was received to those requests until 16th June. The Prison Service then agreed that the offending passage in the dossier be amended. There was no direct response to the request for a further assessment in the light of the new material. Nor was there any direct response to the request for disclosure of the psychometric assessment. These matters were dealt with in a brief report dated 31st May 1999 from Dr Ruth Mann, the psychologist who had recommended that the applicant should go on SOTP. That was inserted into the dossier. She stated that it is Prison Service policy that any lifer with a current or previous conviction for a sexual offence should undertake SOTP in order to address the risk of re-offending. As the applicant had committed a sexual offence, he should undertake SOTP. She made the point that the previous assessments for SOTP had been made in ignorance of the true facts. As for the previous psychometric assessment, its purpose was not to determine suitability for SOTP but to assess a `baseline of attitudes and knowledge from which progress in treatment is judged'. She concluded: `It is not necessary to see someone personally to judge whether SOTP is necessary as the policy is quite clear and the decision can be made on paper evidence'. The psychometric assessment was not part of the dossier put to the Parole Board and has not been disclosed to the applicant.
16. It appears that the applicant's solicitors eventually received the witness statements in July 1999. As the Prison Service had not offered a further assessment in the light of the information in the witness statements, the applicant's solicitor resolved to instruct an independent psychologist, Mr Rhys Matthews who has worked in the Prison Psychological Service since 1971. He has a special interest and expertise in the assessment and treatment of sex offenders and it is accepted that he was an entirely appropriate expert for the purpose in hand. He interviewed the applicant and produced a report dated 29th August 1999.
17. Mr Matthews reported that when the applicant was shown the witness statements he accepted immediately that what they said must be true. He said that he could not remember much of the incident due to drink. One of the witnesses had described him as being `a little drunk'. He sought to explain to Mr Matthews that he had said to people that he must have been urinating as this was the only explanation he could offer for such behaviour. Mr Matthews also asked him about the incident in 1977. He claimed that he had been masturbating in his flat while watching a naked woman in a room across the street. Although he was behind a curtain, he was seen by a neighbour, who called the police. Mr Matthews did not comment on this account, which was, I observe, the same account he had given to others on earlier occasions. Nor did Mr Matthews express a view on whether the applicant was now being wholly frank about the circumstances in which he had repeatedly given an inaccurate and misleading account of the 1993 incident. He did not say whether he thought the applicant had deliberately minimised the gravity of that incident or whether it was a case of honest rationalisation. He expressed his surprise that the psychologists who had interviewed the applicant over the years since 1993 had not challenged his account which was not really consistent with a plea of guilty to the offence of indecent exposure. He observed that this type of account was a common excuse advanced by men accused of indecent exposure.
18. Mr Matthews accepted that because of the sexual element in the 1993 offence, it would now be appropriate for the applicant to undergo some sex offender treatment.
He considered the available options which were, first, the `core programme' which lasts for 175 hours and is intended for high risk or high deviancy cases and requires the prisoner to be in closed conditions. Alternatively, there was a new programme which he called the `rolling programme'. This had been recently introduced and was suitable for less serious, low deviancy cases. The prisoner attended while in open conditions. He said it was a flexible programme which allows for additional issues to be tackled as and when they arose. As the applicant's sexual offences were minor, non-contact and involved only adult women, he considered that the rolling programme would be suitable. In addition, this choice would not prevent his transfer to open conditions and would not delay his progress.
The Law.
19. The applicant's case was referred to the Parole Board under section 32(2) of the Criminal Justice Act 1991. By section 32(6) of that Act, the Board is required to take into account directions issued by the Secretary of State. The current directions in respect of cases in which the Board is to consider whether to recommend a transfer to open conditions are as follows:
1. A period in open conditions is essential for most life sentence prisoners (lifers). It allows the testing of areas of concern in conditions which are nearer to those in the community than can be found in closed prisons. Lifers have the opportunity to take home leave from open prisons and, more generally open conditions require them to take more responsibility for their actions.
2. In considering whether a lifer should be transferred to open conditions, the Parole Board should balance the risks against the benefits to be gained from such a move. Such consideration is, thus, somewhat different from the judgment to be made when deciding if a lifer should be released: in those cases, the Parole Board is asked only to consider risk.
3. The principal factors which the Parole Board should take into account when evaluating the risks of transfer against the benefits are:
(a) whether the lifer has made sufficient progress towards tackling offending behaviour to minimise the risk and gravity of re-offending and whether the benefits suggest that a transfer to open conditions is worthwhile at that stage: and
(b) whether the lifer is trustworthy enough not to abscond or to commit further offences (either inside or outside the prison).
4. Before recommending transfer to open conditions, the Parole Board should consider whether:
(a) the extent to which the risk that the lifer will abscond or commit further offences while in an open prison is minimal;
(b) the lifer has shown by his performance in closed conditions that he has made positive efforts to address his attitudes and behavioural problems and the extent to which significant progress has been made in doing so.
(c) The lifer is likely to derive benefit from being able to continue to address areas of concern in an open prison and to be tested in a more realistic environment.
5. Before deciding whether or not to recommend transfer to open conditions the Parole Board must take into account all of the papers submitted to it.

The Decision.
20. The case came before a panel in December 1999, a whole year later than had been intended at the time of the previous review. The panel decided not to recommend a transfer to open conditions. Their reasons were as follows:
`Aspects of this case caused the panel concern. It is accepted that the offence of indecent exposure took place some 6.5 years ago and that he has undertaken further work since then. In relation to this offence, which involved alcohol, the panel note that is said to have resisted arrest violently. Police reports from this incident were not presented to the panel. His assertion was noted that he had an alcoholic blackout and could remember nothing; if so there remains the question as to how he could previously have been sure that he had only intended to urinate, given lack of memory. The combination of aggressive behaviour, use of alcohol and sexual conduct in offending is worrying.
His index offence was in the context of a relationship; previous failures in open conditions separately or together involved a relationship, alcohol, aggression and indecent exposure. Although the independent psychology report indicates that neither the index offence nor earlier matters involved sexual offending, they did involve relationships and alcohol and the association between indecent exposure and the capacity to form relationships is recognised and should be explored further.
The panel took the view that the circumstances of his earlier failure in open conditions were such that the risk presented by another return to open conditions was unacceptable without having yet assessed the sexual component of his behaviour and that this should therefore not be undertaken in open conditions.

The panel note his achievements in other areas and his evident ability and consider that a period of 12 months will be adequate to have undertaken the necessary work. His next review should therefore take place at that point.'

The Application.
21. The applicant now seeks an order quashing the panel's decision and directing the Parole Board to reconsider the question of whether the applicant should be recommended for transfer to open conditions. The pleaded ground is that the decision was irrational. It is said that there was no evidence to support the decision. All the evidence before them recommended transfer. Alternatively it was said that the panel had relied on the opinion of Dr Mann and had applied a rigid Prison Service policy. Finally it was said that the panel had required the applicant to do offence-focussed work but had not specified what he was to do. There was no suitable course available for him in closed conditions.

22. Miss Krause, who appeared on behalf of the applicant, recognised at the outset of her submissions that, in the light of the discovery of the true background to the 1993 offence of indecent exposure, the panel had been bound to conclude that some further work or treatment would be required before the applicant could be considered for release. Also they were bound to recognise that the as yet unexplored sexual element in the applicant's offending behaviour represented an element of risk. However, she submitted, release was not under consideration. The panel's task was to balance the risk factors against the benefits which could be expected to accrue to the applicant if he were allowed to proceed to open conditions. This she submitted, they had not done. They had only considered the risk factors. They regarded those as unacceptable. They made scant reference to the work the applicant had done in addressing his offending behaviour and on his attitudes and personal skills. All the reports recommended a transfer to open conditions. She accepted that most of the reports had been compiled in ignorance of the true background to the 1993 offence and were therefore of limited value. However, she submitted that they were of some value. They had been written by people who had known the applicant over a period of time and who were aware of the work he had done and the progress he had made. She drew attention to the fact that the problems he had experienced while on PRES in 1992/3 had been largely associated with drink. He had worked hard to conquer his addiction to drink. He believed he had done so and it was time for him to be tested in open conditions. None of this was reflected in the panel's reasons. In any event, Mr Matthews, who was very experienced and who was aware of the true background when he reported also recommended transfer.
23. She accepted that the panel was not bound to follow the recommendation in the papers before them, even if it was unanimous. She accepted that it was the duty of the panel to apply their own expertise to the issues before them. However, she submitted that if the panel were to reject the unanimous recommendation found in the reports before them, it was their duty to explain their reasons for doing so in the clearest terms.
24. She submitted that the panel had been influenced by a number of factors on which they had been in error. First, she mentioned the panel's reference to the applicant's alleged violence in attempting to resist arrest in 1993. The papers were not before them; there was no reference to violence on arrest in the dossier and, submitted Miss Krause, the panel should not have taken such unreliable information into account. It is not clear to me where that information had come from. Mr Matthews, who had seen the 1993 statements did not mention it. Second, Miss Krause drew attention to the panel's observation that the applicant had `failed' in open conditions on the earlier occasion. This she submitted was an error on their part. He had failed while on PRES and not while in open conditions. During the time he had spent at Sudbury on Category D open conditions, he had been of good behaviour and had not failed in any sense. The authorities had been aware of his relationship with the woman who subsequently had his child. Even if it could be said that he had concealed the intimate nature of his relationship with her (which was not clear as it was not known exactly when that had begun) his offence was one of breach of trust. There was no suggestion of drunkeness, violence or sexual deviancy. His true failures had occurred while on PRES and had involved drink. He had since done a great deal of work on this problem and the unanimous view was that it was time that his ability to stay off drink should be tested in open conditions. Also he had done work on anger management, relationships and had undertaken a course on `Enhanced Thinking'. He was a model prisoner at Littlehey. He had achieved a great deal academically. It was irrational to refuse to transfer; the evidence all pointed to the opposite conclusion and the proper balancing exercise had not been carried out.
25. Miss Krause submitted further that the reasons were inadequate in that the applicant was unable to understand why he had been refused a transfer. In particular he did not know why the panel had rejected Mr Matthew's recommendation. The passage at the end of the second paragraph was particularly obscure. This related to the association between indecent exposure and the capacity to form relationships. In response to the application, Ms Sally Hubbard, the chairman of the panel had put in a witness statement to fill in some of the background to the panel's decision. Miss Krause submitted that this was no more than an attempt at ex post facto justification. However, it is convenient to mention at this stage that Ms Hubbard explained that the passage at the end of the second paragraph related to published work on the association between indecent exposure and an incapacity to form relationships. Dr Wood the panel's psychiatric member was familiar with this work.
26. Finally Miss Krause submitted that the panel had fettered their own discretion by following the policy of the Prison Service on the recommendation of Dr Mann. Although she accepted that the panel had not simply directed that the applicant must attend a SOTP, they had required him to undertake work on his sexual offending. She submitted that he was in a worse position than if they had directed him to attend an SOTP. They had directed that he must do something but they had not said what he must do and so far as he was aware there was nothing available for him to do. He had been assessed as unsuitable for SOTP which was all that was provided at Littlehey. He had been willing to undertake SOTP if he had been assessed as suitable. Now he was willing to do the rolling programme as Mr Matthews had recommended but he could not do that in a closed prison. The year was passing. Nothing was happening to him and he was in limbo.
27. For the Parole Board, Miss Grey first invited me to note the qualifications and expertise of the members of the panel. That they were very highly qualified was no surprise.
28. Her first substantive submission was that the panel had clearly identified the risk factors present in this case due to the unexplored sexual aspects of the applicant's offending behaviour. She submitted that the balancing exercise had been carried out. There was a reference in the first paragraph to the work carried out since 1993 and the applicant's achievements and ability were acknowledged in the fourth paragraph. It was common ground that there were risk factors present in the case and that some further work was required. Mr Matthews accepted that. The only question was whether the work should be carried out in closed or open conditions. This was a matter for the judgement of the panel and their conclusion could not be impugned.
29. Miss Grey submitted that the panel had not made any factual errors. They were entitled to take information into account about the circumstances of the 1993 arrest even if it were hearsay. They well knew that the `failures' had taken place while the applicant had been on PRES. That they had described them as taking place in `open conditions' was not inaccurate; PRES was part of open conditions. The argument was a semantic one.
30. Miss Grey submitted that it was plain from the decision that the panel had not fettered their discretion by simply following the policy of the Prison Service as enunciated by Dr Mann. They had not directed that the applicant should attend an SOTP which they would have done had they simply followed that policy. Instead they had recommended that the sexual component of the applicant's offending should be investigated and had left the manner in which they should be done to the discretion of the clinicians with responsibility for the applicant's care. In respect of the suggestion that the decision had asked the applicant to do the impossible and had left him in limbo, Miss Grey referred me to Ms Hubbard's statement which explained that the panel did not regard it as appropriate to specify how work was to be done. That was for the clinicians in charge to decide. The panel considered that the precise form of the work required would be determined by the assessment and exploration. They had in mind that group work or one to one sessions might be appropriate but it was not for them to say. They also had in mind that because the applicant had on an earlier occasion demonstrated that his engagement in a course might be conditional upon his recognition that it would be of benefit to him in his aim of securing eventual release, it might be necessary to negotiate with him the form which the work would take.

Decision.
31. 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.

32. I do not accept the submission that the panel fettered their discretion by adopting the Prison Service policy on SOTP. That they did not do so is obvious as they left open the form of investigation and treatment which the applicant was to receive. I have no doubt that they took the Prison Service into account but that would be entirely proper.
33. Nor do I think that the panel fell into factual error when they stated that the applicant had failed previously in open conditions. They must have been aware of when the failures occurred and must have used the expression `open conditions' to cover time spent in a category D prison and time spent on PRES. However, I do think there is some significance in the way they failed to distinguish between the applicant's successful period at Sudbury and his unsuccessful period on PRES in London. I shall return to that issue in due course.

34. I am concerned that the panel appear to have taken into account a description of the applicant's behaviour at the time of his 1993 arrest which was not in the dossier and which the applicant had not been able to comment on. It appears that this information had come from the police report. In a sense, the fact that the applicant did not accept the allegation and is aggrieved that he had not known about it may not amount to much. His case is that he was drunk that night and cannot remember what happened. But having said that, it was in my view unfortunate that the material was not properly introduced, as concern about the applicant's potential for violence did form a significant part of the panel's reasoning. However, in view of the conclusion I have reached on other grounds, I say no more about it.
35. I turn to the question of irrationality. It is accepted that the panel was right to recognise the existence of a risk and the need for further work to be done on the sexual component of the applicant's offending. Evaluation of the risk is entirely a matter for them. But the vital question for them was whether that work should be done in open or closed conditions. The conclusion is that the risk is unacceptable in the light of the applicant's earlier failures in open conditions. `Unacceptable' must mean unacceptable for Category D conditions. The fact that those failures occurred on PRES and the panel was not being asked to transfer him to PRES (or its present day equivalent) is not mentioned. In the early 1990s, the applicant had spent 3 years in Category D before being transferred to PRES. During that time he had been of good behaviour and had not `failed'. His failures occurred in the much freer living conditions of PRES. Principal Officer Rowley had spoken of the need for an extended period in open conditions, so that the applicant could seek to establish a network of external support. It would therefore be expected that a significant period would have to elapse before the applicant were once again living in the hostel conditions in which he had earlier failed. It seems to me that the panel may have fallen into an error when they considered that the earlier failures were directly relevant to the acceptability of the current risk.
36. Finally, did the panel consider the questions they were obliged to consider and undertake the balancing exercise as required by the statutory directions? One cannot tell from the decision whether the panel has considered, as they should under paragraph 3(a) of the directions, whether the lifer has made sufficient progress towards tackling offending behaviour to minimise the risk and gravity of re-offending. The decision contains the most fleeting reference to the work the applicant had done in the last 6 years. This was considerable, particularly in the area of the control of addiction. This work was directly related to the manner in which his earlier failures had occurred. It should have been taken into account.
37. Paragraph 3(b) requires the panel to consider whether the lifer is trustworthy enough not to abscond or to commit further offences. There has never been any suggestion that this man might abscond but the possibility of further offences is highly relevant. As the panel decided the case on the basis of an `unacceptable risk,' they plainly thought there was a risk of further offences. However, there is within the decision no apparent evaluation of the seriousness of that risk, save that it is said to be unacceptable in the light of past experience. The minor nature of his offences while on PRES is not mentioned. If the panel thought that the very process of investigating the sexual component of his 1993 offence would be disturbing and might increase the risk of more serious offences taking place during that time, they could have said so, but did not.
38. I acknowledge of course that it is not incumbent upon the Board to set out its thought processes in detail or to mention every factor they have taken into account. However, in my judgement the balancing exercise they are required to carry out is so fundamental to the decision making process that they should make it plain that this has been done and to state broadly which factors they have taken into account. It does not appear to me that there has been any real attempt to balance risk against benefit. I have said that the assessment of risk is entirely a matter for the panel. But there were at least two benefit factors which should have been taken into account. Principal Officer Rowley had spoken of his concern that further incarceration would reduce the likelihood of successful re-integration into the community. This point encapsulates an important benefit to the applicant. Other reports spoke of the need for the applicant's resolve to stay off alcohol to be tested. That too would be a substantial benefit to the applicant arising from transfer. While in Category D conditions, it will be readily apparent to those supervising him if he still has a drink problem. If he has and further work needs to be done, then the sooner that is found out the better. Neither of these benefits is mentioned in the decision. It seems to me that because the panel has focussed on the risk arising from the uninvestigated sexual component, they have ignored the other aspects of the case and have not brought the benefits into consideration.
39. Finally, there is no explanation as to why the opinion of Mr Matthews is rejected. His explanation of why the new rolling programme would be suitable for this applicant seems to me to be sufficiently compelling to require a reasoned rejection. In the event the only reason given for saying that the risk was unacceptable was on account of the earlier failures. The reasons advanced by Mr Matthews were not addressed.
40. If this application were based only on a challenge of irrationality, I would have great difficulty in reaching a decision. I am concerned that the basis on which the risk was said to be unacceptable was fallacious, in that the past failures during PRES were used to justify a conclusion that the applicant could not at present be transferred to conditions in which he had not previously failed and which are in any event more closely supervised than PRES. But I am not sure that I would quash the decision on that ground. Nor would I hold the reasons to be inadequate. However, I do consider that the decision was unlawful in that it does not appear that there has been any real balancing of risk and benefit. The panel has focussed only on the risk. That being so, I am in no doubt that the decision must be quashed and Board must reconsider the question of the applicant's transfer to open conditions.
Afterword.
41. The manner and timing of the reconsideration of this decision is of course a matter for the Board. However, I wish to add a few words about the handling of this case about which I feel some concern.
42. First, there was what I regard as an unacceptable delay before the most recent review. I have no reason to think that was the responsibility of the Board. Miss Grey took me to correspondence between the Prison Service and the applicant's solicitor which went some way to explaining how that delay had arisen. I feel bound to observe that the applicant's solicitor's hectoring letters were not helpful. But having said that, his request for a further assessment of his client once the 1993 witness statements had been obtained was wholly reasonable. No clear reply was given to that request. When it appeared that the Prison Service would not arrange a further assessment, the decision to instruct Mr Matthews was wholly reasonable. Why it should have taken a whole year to disclose the statements, obtain a report from Mr Matthews and arrange a new hearing date is not clear. Only a small element of that delay appears to be attributable to obtaining the Matthews' report.
43. Second, what is of even greater concern is that although this applicant has been under constant psychological and psychiatric supervision and has been interviewed on many occasions since 1993, it was not until late 1998 that any one thought of checking the applicant's account of that offence. I can understand why the Prison Service regards the circumstances of such an offence as important, but for that reason, should have obtained the information some years ago.
44. Of more immediate concern is that although it is more that 8 months since the panel promulgated their decision and about 10 months since they reached it, there has not yet been any exploration of the sexual element of the applicant's offending. Nor has he received treatment of any kind. It does appear to me that there was some force in his complaint that the decision left him in limbo. Miss Grey has produced a letter from the Prison Service, dated as recently as 24th October 2000 in which it is said that although such work is yet to begin, some `one-to-one' work will be undertaken before the next Parole Board Review. Why nothing has yet been done is not explained. The effect of my decision is that the applicant is entitled to have his position re-examined forthwith on the basis of the existing material. However, as so much of that material is out of date, it may be that the applicant and his advisers would wish that further reports should be prepared and even that the one-to-one work should be undertaken before the matter comes back before the Board. I hope that discussion of such issues can take place in a less highly charged atmosphere than prevailed in the early part of 1999.

- - - - - - - - - -

MRS JUSTICE SMITH: For the reasons given in the judgment which I believe counsel has already seen, this application for judicial review is granted and the consideration of the Applicant's position must be remitted for reconsideration by the Board.

MISS KRAUSE: My Lady, I am grateful. Would your Ladyship consider making an order that the Parole Board reconsider the existing reports immediately?

MRS JUSTICE SMITH: I wanted really to hear counsel on that. You will see what I have said about the present situation. The matter was due back really very shortly but I do not know what has been done, if anything, about that. Probably nothing.

MISS KRAUSE: I really wanted to know what the Applicant wanted to happen. It may be that my learned friend has some difficulty because she did not see the judgment before a second ago.

MRS JUSTICE SMITH: I am sorry to hear that.

MISS GREY: My Lady, I think the fault probably lies in my chambers' offices rather than anywhere else. I am sorry that that should have occurred. It is my fault perhaps for not checking the position yesterday but I was tied up. The fact is I do have to apologise also for not faxing through any amendments, or whatever.

MRS JUSTICE SMITH: You did look through it pretty carefully, I think, and you did locate one or two. My clerk is my main proof reader and he found a number of mistakes. I think probably it is mistake free now.

MISS GREY: I am sorry, in any event.

MRS JUSTICE SMITH: Do you want a few minutes?

MISS GREY: I have had an opportunity to skim read the judgment. I am grateful to my learned friend for providing a copy. On the question of updated reports, it is now some considerable period of time after the original decision was made. I would respectfully submit that therefore it is appropriate that there be at least a short period of time for any updated material to be placed before the Board. If your Ladyship is concerned about further delay----

MRS JUSTICE SMITH: I am.

MISS GREY: That is what I anticipated. I would invite you simply to direct that the matter be reconsidered by the Parole Board within a short space of time. I have in mind a period of something in the order of six weeks. That would effectively require the prison service, although there is no necessity for any direction, to ensure that if there was relevant updated material to be brought to the Court's attention those reports had to be prepared forthwith and given to the Applicant in reasonable time.

MRS JUSTICE SMITH: I have in mind a shorter period than six weeks because I really think you ought to have a decision before Christmas.

MISS GREY: All I can say is that there is, I think, a real necessity for updating reports and, if nothing else, to address the matter.

MRS JUSTICE SMITH: For one thing the panel will need to know what has happened in the last year and if nothing why, I would have thought, at the very least.

MISS KRAUSE: My Lady, yes. Obviously the reports upon which the decision was made in the first place were already very old.

MRS JUSTICE SMITH: They were already out of date.

MISS KRAUSE: So it makes very little difference if they are to reconsider their position on the existing reports since we know that nothing else has happened, in any event, since the last decision was made.

MRS JUSTICE SMITH: Miss Krause, if I were to direct that the Board were to reconsider this matter within 28 days it would then be a matter for the prison service as to what appropriate additional material they thought it necessary or appropriate to put before the Board, and you would have the opportunity to do likewise.

MISS KRAUSE: Would your Ladyship direct that the Board reconsiders the matter within 28 days and provides a decision within 28 days because the decision could take months?

MRS JUSTICE SMITH: I am prepared to say: provide a decision within two weeks thereafter, so that he has his decision by Christmas. I do really think it ought to be dealt with this year. Enough time has gone over. Is there any comment on that, Miss Grey?

MISS GREY: No, my Lady.

MRS JUSTICE SMITH: Are you content with that?

MISS GREY: Yes.

MRS JUSTICE SMITH: Very well. The matter is to be reconsidered by the Parole Board within 28 days of today, it being a matter for the prison service and the Applicant as to whether any new material be put before the Board before that time, and the Parole Board to provide their decision within two weeks after the hearing.

MISS KRAUSE: There is the matter of costs. I make an application for the costs and legal aid taxation.

MISS GREY: My Lady, in general terms I would not be able to resist the submission for costs. Could I make this submission? This is a case where, in the event, your Ladyship's decision turned not on a plead of grounds in the 86A but on a case and argument: the balancing exercise in consideration of the directions, which was not raised until the argument before your Ladyship. It is certainly not to be found in the 86A. I can take your Ladyship back to that but I think that was accepted.

MRS JUSTICE SMITH: That is right. You took no objection to it having been raised.

MISS GREY: Clearly not in so far as the decision made to be raised by your Ladyship and I was not in a position to require an adjournment to deal with it. It is nevertheless material on costs, I respectfully submit, because it does mean that the Board was not given an opportunity to consider their decision in the light of the grounds that were eventually successful by your Ladyship. In those circumstances can I ask you to reflect that in the order for costs either by making no order as to costs or perhaps, as might be more broadly acceptable in all the circumstances, by ordering the Respondent to pay half of the Applicant's costs?

MISS KRAUSE: My Lady, clearly it is a discretionary matter and it is in your Ladyship's hands. However the point raised by my learned friend was in fact in my skeleton argument which they got three weeks ago.

MRS JUSTICE SMITH: Did they have it three weeks earlier?

MISS KRAUSE: My Lady, yes, it was out in time.

MRS JUSTICE SMITH: Would you ask your side to check that, Miss Grey, because three weeks would have been a sufficient time to take instructions.

MISS GREY: Yes, my Lady, it was received by us on or about 5th October. It does not, if I might add, alter the fact that until that time the point had not been raised and yes we fought on and we lost. I would still respectfully submit that half would be appropriate.

MRS JUSTICE SMITH: I am going to direct that the Parole Board should pay 75 per cent of the Applicant's costs. I make that deduction because the ground upon which I determined the issue in the end was one which was raised very late in the day, having given little time for the Parole Board to consider their position.

MISS KRAUSE: Would your Ladyship order legal aid taxation?

MRS JUSTICE SMITH: Yes, legal aid taxation.


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