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||Neutral Citation Number:  EWHC 1895 (Admin)
||Case No: CO/0628/2012
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
||Royal Courts of Justice
Strand, London, WC2A 2LL
||10 July 2013
B e f o r e :
Mr Justice Collins
|| Samar Alami & Jawad Botmeh
||- and -
||Health and Care Professions Council
||- and -
||Dr Susan Young
Mr Raj Desai (instructed by Birnberg Pierce & Partners, Solicitors) for the Claimants
Ms Jenni Richards Q.C. (instructed by Birchem Dyson Bell LLP, Solicitors) for the Defendant
Hearing dates: 18 & 19 June 2013
HTML VERSION OF JUDGMENT
Crown Copyright ©
Mr Justice Collins :
- This claim seeks to quash a decision by the relevant committee of the defendant which decided that Dr Young had no case to answer in respect of complaints made that she had been guilty of misconduct or lack of competence which invited the imposition of a disciplinary sanction. Since 1 July 2009 the defendant has been the body which, pursuant to Orders in Council to which it is not necessary to refer in detail, is responsible for inter alia the disciplining of practising psychologists. Prior to 1 July 2009, that function was carried out by the British Psychological Society (BPS). The claim concerns reports made by Dr Young on both claimants when they were seeking release from prison sentences on parole.
- On 26 July 1994 a device exploded outside the Israeli Embassy and on the following day a second device exploded outside the Jewish Philanthropic Organisation for Israel and the Middle East in London. Extensive damage was caused but fortunately, albeit some injury was caused to persons in the vicinity, no-one was killed. The claimants were arrested and on 16 December 1996 each was convicted of conspiracy to cause explosions and sentenced to 20 years imprisonment. The trial judge, Garland J, in his sentencing remarks made it clear that the offences arose from the claimants' political beliefs and that the explosions were terrorist attacks.
- When each had served one half of their sentence, they were entitled to apply to the Parole Board to enable them to be released on licence. The Parole Board would have to consider the level of the risk that there would be to the public were they to be released. It was considered by the Home Office that a report by a psychologist who had expertise in assessing the continuing risk of violent offenders would be valuable. Initially, Professor Silke, an internationally recognised leading expert on terrorism and terrorist psychology, was instructed. He produced reports on Mr Botmeh dated 5 August 2005 and 26 September 2005 respectively in which he assessed him to be at a low risk of reoffending. This conclusion was based essentially on his excellent behaviour in custody and his expressed change of mind that violence could properly be used in furtherance of his political views. There was in his view no psychological ingredient in his offending and so no risk which could be based on such considerations.
- The Home Office was not satisfied with this report and so decided to seek another. Professor Gudjonsson, who had experience of dealing with terrorist cases, was approached. He was unable to take the cases on due to his existing commitments and he recommended Dr Young, the Interested Party. He appreciated that she had limited experience of dealing with terrorist cases (in fact she had only dealt with two) but he was satisfied that she was a thoroughly competent clinical, forensic and neuropsychologist. She had dealt with risk assessments of violent offenders. Professor Gudjonsson agreed to supervise her assessments and to give guidance. Dr Young commenced dealing with Ms Alami on 22 September 2005 and produced a report on 5 December 2005. She was subsequently asked to report on Mr Botmeh and produced her report on 30 May 2006. Her conclusion was that there was a moderate to high risk that Ms Alami would engage in acts of terrorism in the future. The risk from Mr Botmeh she assessed as moderate only 'because of the high level of supervision and stringent conditions of licence [he] will receive if he remains in the UK'.
- The claimants were most unhappy at Dr Young's conclusions and their solicitors obtained a number of reports from other psychologists, all of which disapproved of the way in which Dr Young had structured her reports and made her assessments. It was said that she had misused a particular protocol which had been devised to identify a number of risk factors which were relevant to an assessment of the risk of violent offenders. Further, she had no experience or knowledge of the particular problems between Palestinians and their supporters and the state of Israel.
- In due course the Parole Board considered the applications of the claimants in September and October 2007. In each case, the panel concluded that 'the available advice and opinion from the psychology practitioners did not materially assist them in their task'. The panel noted that they were:-
left with the impression from a range of distinguished experts with varied expertise and experience that the psychology profession accepts that risk assessment of politically motivated offenders presents a unique problem, for the resolution of which they still seek an answer."
The panel also considered that the experts should have considered the possibility that the offences were not politically motivated. That was perhaps a surprising view to have taken since it was apparent from Garland J's remarks and the evidence given in the trial that this was regarded as a politically motivated offence. Further, as Dr Young's reports made clear, there was no history of violent behaviour by either claimant either before or since the offending behaviour. The panel concluded that it would not recommend early release for either claimant.
- Judicial review of the panel's decisions was sought by each claimant. Their claim was refused by Keene LJ on 30 April 2008. Keene LJ had before him the various reports which have been placed before me and noted that Dr Young's work had been 'trenchantly criticised in reports by other psychologists'. I shall have to deal with the criticisms in more detail when coming to the essence of this claim. Keene LJ recognised that the panel decided against the claimants because they were not persuaded that there had been any real change of heart, particularly as both continued to maintain their innocence of the offence of which they had been convicted in the teeth of very strong evidence against them. The panel was in addition unimpressed with the evidence they gave before them and did not regard them as witnesses of truth.
- Formal complaints were made by Ms Alami in September and November 2007 and by Mr Botmeh in April 2008 to the British Psychological Society which was then the professional body which regulated and took any necessary action against practising psychologists. Both claimants said that Dr Young's reports were unfair and biased. Much of the language used by both claimants is exaggerated and unwarranted. Indeed, I should record that I am satisfied that Dr Young was doing her honest best to produce assessments which were reliable. The contrary has not been argued by Mr Desai. What, as will become apparent, is in issue is her lack of any experience in dealing with terrorist violence generally and the Palestinian situation in particular coupled with, as I have said, her misuse of a protocol which had no bearing on such violence. Her good faith will, if she produced reports which wrongly assessed risk as higher than appropriate so that there was a real risk that either claimant would be detained in custody for longer than he or she should have been detained, not necessarily avail her.
- The BPS's practice was to refer complaints to an Investigatory Panel which would consider whether to recommend that they be referred to a conduct committee. The recommendation would be made to an Investigatory Committee who would make the decision whether or not to refer them on to a Conduct Committee. On 28 November 2008 an Investigatory panel consisting of two registrant members, was divided in their views. Both considered that Dr Young should have qualified her views and explained her reasons for applying the psychological tools she did, when no psychological tools had been developed for the terrorist populations and that she should have advised of the limitations of the tools applied. Both also agreed that she should have been more reflective in her response to the complaints. But one member considered that the need to take extra care to ensure accuracy given the sensitive nature of the issues coupled with her omission and failures constituted prima facie evidence of misconduct which should be referred to a Conduct Committee. The other member considered that there was prima facie evidence of misconduct but that it should be dealt with by a letter advising her of her errors.
- Dr Young's solicitors apparently threatened legal action over this recommendation and it was withdrawn. A further Investigatory Panel was convened consisting of three members of the BPS. On 15 May 2009 the Panel unanimously recommended that the complaints should be referred to a Conduct Committee. It concluded that Dr Young acted outside her competence in agreeing to accept instructions and to prepare reports and that her actions had brought the profession into disrepute. Again, legal action was threatened by Dr Young's solicitors and so the BPS decided that, since its role was to come to an end on 30 June 2009, the matter should be passed on to the defendant.
- Orders in Council set out transitional arrangements to deal with transfer to the defendant's register from the BPS register. The relevant provision in the Health Care and Associated Professions (Miscellaneous Amendments and Practitioner Psychologists) Order 2009 (2009 No 1162) is Article 5(5) and (6) which provides:-
"(5) If on the day before the appointed day for practitioner psychologists a person's name is included in the BPS register
(b) the person is the subject of proceedings which could lead to the person's removal or suspension from the BPS register
Paragraph (6) applies.
(6) In the circumstances described in Paragraph (5), the HPC
(a) may determine that the person's name is not to be entered in the part of the HPC register which relates to practitioner psychologists and
(b) shall dispose of the matter (including any proceedings) in such manner as it considers just."
- On 20 May 2009 the defendant published recommendations on how Article 5(6) should be applied. It noted that the Article itself was of limited value. It recommended that where a 'case to answer' decision had not been made by the BPS, the case was to be referred to the Investigatory Committee to determine whether there was a case to answer but that if it had been decided by the BPS that there was a case to answer, the case should be referred to and heard by the appropriate Conduct Committee. The claimants argued that there ought to have been a reference to the Conduct Committee. However, it was recognised that, since there had been no decision by the BPS investigatory committee that there was a case to answer, the decision by the defendant to refer the case to its investigatory committee could not be regarded as wrong and was not in breach of Article 5(6). However, the decision of the BPS investigatory committee was not put before the defendant's panel. The claimants contend that it should have been, both because it was clearly material and because there had been, it was said, a notification that it would be included in the documentation, but it was not and the change of mind was not notified to the claimants or their solicitors. This has led to a claim that a legitimate expectation was created that it would be before the committee. It ought, it is said, to have carried considerable weight since it reflected the views of three practising psychologists.
- At the outset of each of her lengthy and detailed reports Dr Young said this:-
"As agreed with the Home Office, I have reviewed the documents and discussed this assessment with my colleague, Professor Gisli Gudjonsson, Head of Southwark Forensic Psychology Services, South London Maudsley NHS Trust. In view of Professor Gudjonsson's extensive experience in terrorist behaviour he agreed to act as a supervisor for the work carried out. He has provided constructive feedback and has read this report."
In the light of the criticism levelled at Dr Young, the support given to her by Professor Gudjonsson is of considerable importance. In a letter of 17 October 2006 to the defendant, he stated:-
"Having carefully supervised Dr Young's work in this case I know that she approached this case with objectivity and scientific vigour."
Professor Gudjonsson made a witness statement dated 19 February 2008 in which he gives wholehearted support to the manner in which Dr Young carried out her task and to the reports she produced.
- Dr Young applied a test to try to ascertain whether either claimant showed signs of any personality disorder. In Ms Alami's case, there were signs leading Dr Young to diagnose a compulsive personality disorder. In Mr Botmeh's case, there were no abnormalities. Tests applied showed each claimant regarded violence as unacceptable.
- The real difficulty faced by Dr Young was her use of a particular risk assessment known as HCR-20. This had been devised to deal with violent offenders, particularly those suffering from mental disorders. It contains 20 items, 10 historical (H), 5 clinical (C) and 5 risk management (R). The historical items cover relevant factors such as past violence, any mental disorders, past reaction to problems arising and such like. The clinical items refer to current mental, emotional and psychiatric status and the risk items look to the future to assess risk. There is evidence from Professor Stephen Hart, who was a co-author of the manual explaining how HCR-20 should be used. It is not exhaustive and any additional risk factors must be considered by a practitioner. Professor Hart advised that, since it was not designed with terrorist acts in mind, HCR-20 has limitations with respect to risk assessment in such cases. The manual states that its use:-
should be restricted mainly to settings in which there is a high proportion of persons with a history of violence and a strong suggestion of mental illness or personality disorder
Although the principles and methods have limited applicability to their settings, the authors urge caution in the use of this manual."
He does not suggest that it can have no relevance in terrorist cases, but it should only be used (if at all) as a general framework for structuring evaluations of risk for terrorist violence. He makes the point that HCR-20 did not discuss terrorist violence, 'a topic that is outside the expertise of most mental health professionals.'
- On 11 July 2005 Dr Young sent an e-mail to Professor Hart in which she said this:-
"I am currently doing an HCR on a convicted (female) terrorist due for parole. It's a bit political and I will have to justify every step I take. It's tricky because in cases like this it is a question of instrumental violence due to political beliefs and ideology. I was thinking of putting past political activity/beliefs etc in the 'other H factors'. I do not intend to present scores in the report or even risk categories. However I am using the HCR to structure the report in a meaningful way. The HCR will be just the component of the assessment and overall conclusion. I will, however, keep separately a note of scores as I may of course have to refer to them/justify them and my conclusions at a later stage at a review. My question is that if you were to look at scores when you use the other H factors' category, would you add the score(s) for the additional items to the total (even though it/they were additional factor(s) or just use the item(s) to descriptively describe the area of risk that you wish to draw the readers attention to
Professor Hart replied later the same day:-
"We typically would code political beliefs that support or condone the use of violence under "Negative Attitudes" (C2). The advantage of this is that the C factors are dynamic, and you can then talk about evidence concerning whether the Negative Attitudes are still present and relevant.
An additional concern is whether the person associates with others who hold attitudes that support or condone violence regardless of "his" current attitudes. It would be easy to consider 'antisocial peers' or 'negative peers' as part of a broader risk factor, "Non-intimate relationship problems" and code this under 'Other H factors'.
With respect to the remaining issues, I typically don't add up the numbers, even for research purposes (instead I focus on ratings if the presence and relevance of individual risk factors and on the summary risk rating). If you do add up numbers then I would "not" add in 'other factors' as this will make the scores non-comparable across individuals."
- It is to be noted that Professor Hart did not suggest that the proposed use of HCR-20 was wrong. In each of her reports in her introduction to HCR-20 Dr Young said this:-
"There are no actuarial risk assessment tools available that have been developed specifically for those involved in offences of terrorism. Actuarial risk assessments tools exist that have been developed for those involved in non-specific violent offences (e.g. the HCR-20), although these do not include risk factors which are likely to be relevant for individuals who are motivated to conduct violent acts for political reasons and based on political beliefs. The HCR-20
is increasingly becoming recognised to be the international 'gold-standard' risk assessment for evaluating violence and research studies have demonstrated that it has a high standard of predictive validity. The HCR-20 was developed based on the acknowledgement that it is extremely difficult to accurately assess the potential for future violent acts and items in the HCR-20 were selected that bear some relationship to violence. For the purposes of assessing risk in [the claimant], the HCR-20 protocol was therefore adopted. However, in order to include additional aspects of risk that are likely to be important and relevant for those involved in terrorist offences, in addition to the ten classic historical factors, two additional factors were added relating to political ideology and activity that condones violence, and non-intimate relationship problems."
- In Ms Alami's case, Dr Young had questioned her about her attitude to whether violence was a legitimate means of trying to achieve the political aims which she espoused. Her response was that it was. It is difficult to see in those circumstances why her ignorance of the precise circumstances and history of the Palestinian Israeli problem should have precluded her from reaching any material conclusions. In her case, her answers to the various questions posed which were regarded as relevant for the purposes of HCR-20 resulted in the following conclusion by Dr Young:-
"The HCR-20 highlighted several areas of concerns from historical, current and future perspectives which suggest that there is a moderate to high risk that Ms Alami will engage in acts of terrorism in the future. The current assessment suggest that the risk has not decreased since the time of her conviction. "
- Mr Botmeh in interview admitted to researching and developing the manufacture of explosives and their transport using model aircraft. He said his attitude had changed in that he no longer believed that changes should be achieved by violent means. Dr Young considered that he was highly skilled in social behaviour and self-presentation but she did not believe him when he said he was no longer interested in violence as a means of achieving his political aims. Her view was that the HCR-20 had highlighted several areas of concern and noted many inconsistencies in what he said in interview, between interviews with other professionals and his writings.
- The claimants were dissatisfied with Dr Young's reports. Accordingly, other psychologists were asked to produce reports, some as comments on Dr Young, others including their risk assessments. The first in time was from Dr Alison Beck which is dated 31 May 2006. She was instructed on behalf of Ms Alami. She was asked to consider Dr Young's report and to comment on it. While she was critical of the conclusions reached by Dr Young on the basis of tests other than HCR-20 that does not show any misconduct by Dr Young. In considering Dr Young's use of HCR-20, she said this:-
"Dr Young has used this protocol to structure her thinking and that does not seem inappropriate to me. She has not used the associated scoring mechanism, and she has added her own items. This clearly indicates that she does not intend the tool to be used for actuarial purposes. This is appropriate as there is insufficient data to conclude that the items, which bear some statistical relationship to violence and which Dr Young has therefore included in the HCR-20, will necessarily be relevant to assessing risk of terrorist violence, nor is the statistical evidence linking her additional items to terrorist recidivism. Appropriately Dr Young does not seek to score the HCR-20, however the reader must be cautious not to assume that a link necessarily exists between the items she has chosen to explore and recidivistic terrorist behaviour."
Her view was that while the approach adopted by Dr Young had a number of strengths, it was highly structured and carefully mapped, she believed undue emphasis had been placed on tests relying on statistical data which was not available in a relevant population. There was a need for greater understanding of Ms Alami's views in the context of the political landscape in the Middle East. However, Dr Beck's report did not suggest that Dr Young had acted in a way which was inappropriate in the production of her reports.
- A further report was obtained by Ms Alami's solicitors from another psychologist, Dr Dernervk. This is dated 6 June 2006. He recognised that Dr Young's report was carried out in a professional fashion. He was particularly critical of Dr Young's lack of awareness of cultural differences which would impact on the psychological tests and in clinical interviews. He recognised that Dr Young was meticulous in her procedure and in the evidencing of the 20 items of the HCR-20 and that she appropriately did not score the list in the numerical way suggested by the manual but rather used the items as qualitative guides and that she appropriately commented on risk factors, type of future violence, who might be at risk and what might constitute protective factors. Nonetheless in his view the use of HCR-20 was inappropriate. He gives persuasive reasons for that view.
- Dr Young responded to those criticisms in a letter of 11 July 2006. She made the point that she had consulted and her report had been approved by Professor Gudjonsson. She defended her use of HCR-20 making the point that it had been used in various studies of prison inmates most of whom had a history of mental illness, personality disturbance or substance misuse. But she considered that the absence of such elements did not preclude use of HCR-20; it meant that risk would be reduced. She also defended its use in respect of female offenders since it had, she said, been found to be gender fair.
- Dr Beck produced two subsequent reports. In the first, which was expressed as a comment on Dr Young's letter of 11 July 2006, she said that in her view Dr Young had failed to address the fundamental criticism, namely her insufficient understanding of Ms Alami's behaviour in the context of her ethnic background, cultural heritage and social/political context to be able to classify whether Ms Alami was abnormal in any important respects which might increase her risk of future offending. She said Dr Young's methodology was not valid and a wholly different methodology, which Dr Young was not qualified to deliver, should be applied by someone conversant with Ms Alami's ethnic background, cultural heritage and social/political conduct.
- In a further report of 25 June 2007 Dr Beck, having had a meeting with Ms Alami, proceeded to make further criticisms of Dr Young. These were to a degree based on acceptance of Ms Alami's assertions that the interview style was antagonistic. Those assertions were not accepted by the investigatory committee since they were denied not only by Dr Young but by a witness who had attended the interviews. In the circumstances, the criticisms of Dr Young's interview style carry no weight. Equally, Dr Beck's conclusions which are largely based on an attack on Dr Young's perceived antagonistic approach are in my view entirely unsatisfactory. I am equally unimpressed with Dr Beck's comments dated 17 September 2007 on Dr Young's response to her report. She has descended to an in personam attack.
- Dr Dernevik produced a report commenting on Dr Young's report on Ms Alami. His report is dated 17 September 2007. He was particularly critical of the apparent lack of awareness of cultural differences. Certainly Dr Young had failed to identify those differences in her assessment of Ms Alami. He recognised that Dr Young had been meticulous in her procedure and in evidencing the 20 items of HCR-20 and had appropriately not scored the list in a numerical way but had used the items as a qualitative guide. Equally she had commented appropriately on risk factors, type of future violence, who might be at risk and what might constitute protective factors. But he believed the use of HCR-20 was inappropriate. This was, putting it briefly, because it was designed for future risk of violence in mentally disordered offenders, there was little to suggest that Ms Alami suffered from any mental disorder, particularly politically motivated acts of terrorism should qualify as a particular class of case and there was some doubt about the validity of HCR-20 concerning mentally disordered female offenders.
- A report dated 5 September 2007 was obtained on behalf of the claimants from Professor Bates-Gaston. She had what she described as unique experience of para-military/politically motivated/terrorist offenders with a considerable range of ideologies and allegiances in the Irish/British contexts from her work in prisons in Northern Ireland. She agreed with Professor Hart (whose reports I will deal with) that there was no theoretical basis and no scientific evidence supporting the utility of HCR-20 to assess risk for terrorist violence. She also agreed with Professor Hart's analysis that Dr Young had over-stated the relevance of HCR-20, had failed to address deficits in her professional competence by getting information critical to an understanding of the socio-political context of Mr Botmeh's offences, added spurious risk factors, failed to consider the relevance of risk factors that were present, failed to consider the nature of the risks posed by Mr Botmeh and failed to consider effective risk management strategies. Her view was that the approaches and tests used by Dr Young did not adhere to the basic psychometric principles that underpin all assessments. Accordingly, Dr Young's opinions on the risks posed by the claimants were not valid. In her view, there were no known valid and reliable assessment procedures/tests for politically motivated offenders.
- In a report of 20 March 2007 Professor Hart considered Dr Young's report on Mr Botmeh. He said that his general opinion was that although Dr Young's use of the HCR-20 to assess Mr Botmeh's risk for violence was appropriate in principle, it was inappropriate in practice and consequently Dr Young's opinions were fundamentally flawed. The use of HCR-20 was, as he put it, potentially justifiable to assess Mr Botmeh's risk 'to the extent he was perceived to pose a risk for something other then terrorist violence' and to assess his risk for terroristic violence 'in the event he was diagnosed as suffering from mental abnormality'. Dr Young's major errors lay in her failure to discuss the limitation of HCR-20 and her limited experience in dealing with terroristic violence. He said that her addition of the two risk factors was inappropriate. He seems to have overlooked his response to the e-mail sent by Dr Young on 7 July 2005. He said that she made inappropriate assumptions regarding the relevance of risk factors, and inappropriate generalisations regarding the nature of the risks posed by Mr Botmeh and failed adequately to consider the effectiveness of risk management strategies.
- Professor Silke maintained his view that Mr Botmeh was at a low risk for re-offending. This view was based on his good behaviour in prison, which had led him to be reduced to the lowest possible category for an offender such as him (the same applied to Ms Alami) and his assurances that he had changed his mind about use of violence to achieve his political aims. This was in a report of 26 September 2005. In a further report dated 6 February 2007 following interviews with Mr Botmeh, Professor Silke continued to maintain his opinion so that he supported Mr Botmeh's bid for parole. He considered Dr Young's report. He made the point that the psychological assessment of terrorists was an area with a long history of problems. There was a trend in the literature for psychologists who had no prior direct experience with politically motivated offenders to have an increased tendency to interpret ambiguities or neutral evidence in a pathological or simply negative light. Mental illness, psychological disorders and evidence of psychological pathology was very rare among politically motivated offenders.
- His main criticism of Dr Young is to be found in the following:-
"Dr Young's report does not make any reference to this literature, or to the wider literature on the psychology of politically motivated offenders. The report does not highlight his potential problems in applying the selected tests to politically motivated offenders. On p 25 of the report, Dr Young acknowledges that there are no assessment tools available specifically for offenders involved in terrorism. There are no caveats however in the report to warn about the potential problems in applying the measures which were solicited for use with Mr Botmeh."
- He also agreed with Professor Hart's critiques of the appropriateness of using the tools used by Dr Young. On 10 September 2007 Professor Silke produced a report on Ms Alami. He used some tests which were appropriate to terrorist related offenders, but not HCR-20 because such offenders "very rarely possess the traits and disorders which would make the use of psychopathological tests such as HCR-20 suitable and justifiable."
- On 5 September 2007 Professor Silke joined with Dr Young in producing a joint report on Mr Botmeh. This set out the history gleaned from Mr Botmeh's interviews and the human material relating to his offending. The two disagreed about Mr Botmeh's potential for deceit and dishonesty and whether he would be open with his probation officer. The crucial difference related to Mr Botmeh's capacity to deceive. This was important because it affected what reliance could be placed on his expressed future intentions. Professor Silke's view was that his past deceptions some of which he had admitted in the course of his trial were isolated events and only minor. This view was reflected by the panel of the Parole Board which considered Mr Botmeh's application in due course.
- A joint report from Dr Beck and Dr Dernevik was produced. They comment that Dr Young 'employed a methodology wholly unsuitable to answering the question of recidivist terrorist violence'. Her conclusions were "no more valid or reliable than that of the man in the street". While no doubt the use of HCR-20 in particular was erroneous, Dr Young's conclusions based on her views of the reliability of the assertions made by each claimant that they no longer thought in terms of a violent solution were certainly entitled to respect and were reflected in the Parole Board's decisions. Dr Young is said to have used too many tests all of which had standard errors to be taken into account. The greater the number of tests the more likely it is that errors will multiply that at least is the view of the authors of the report. Overall they attack Dr Young's methodology emphasising points made by her critics. They comment on Dr Young's lack of understanding of the individual subject and their social, political, ethnic and religious context. These comments continue:-
"Dr Young did not understand what led the subject to commit the original crime and she could not sensibly comment on what would need to change in order for the risk of repetition to be ameliorated or indeed whether such change had occurred. Furthermore there is a good chance that someone familiar with the wider systems within which the subject operated might have reached another, very different, conclusion. "
- I am far from persuaded of the validity of those criticisms which seem to accord no practical sense to Dr Young. Furthermore, those criticisms could no doubt be levelled at the Parole Board panel. However, it is possible for sensible interviewers to assess whether a person is being honest and to listen to explanations of why he or she behaved as he or she did. The claimants did not help themselves by their persistent denial of commission of the offences of which they were found guilty. The report descends into a personal attack which is unwarranted and unhelpful.
- A further report dated 30 September 2006 was obtained from Dr Quayle and Professor Taylor. This commented on Dr Young's report on Ms Alami. They start somewhat unhelpfully saying that the seriousness of the bombings themselves should not have been laid on Ms Alami since she was convicted of conspiracy, not of the bombing itself (there were in fact two bombings) and "there was little evidence presented to link the explosions in the case of Ms Alami to the explosions in London". That is a bad start since to be guilty of conspiracy to cause explosions she must have known of and been a party to the bombings themselves. They suggest Dr Young's approach to Ms Alami's behaviour in prison was biased. There is little evidence to support that. They conclude, however, as follows:-
"It is our opinion that Dr Young approached her assessment in a thorough and appropriate manner for a general forensic assessment of risk, but that the lack of empirical studies regarding risk and terrorist activity will have compromised the conclusions drawn. There are no risk assessment tools for people convicted of terrorist activities and it is unacceptable to assume that when this is the case, then tools which have not been validated against this population are an appropriate form of assessment. The current climate of concern about terrorism and acts of violence may bias judgments made about dangerousness and result in an overestimation of risk. The decontextualisation of the assessment from knowledge about terrorist behaviour may be problematic and ultimately lead to confusion between ideology and behaviour. Such errors are evident in Dr Young's report. It is acknowledged that the present report is not the result of interviews with, or an assessment of, Ms Alami and it may appear that the information presented remains academic. We believe, however, that the issues raised are important and worthy of further consideration in the light of the consequences of the risk assessment process for Ms Alami."
Thus they do not really add anything of significance to the other reports obtained by the claimants' solicitors.
- A similar report commenting on Dr Young's report on Mr Botmeh was obtained from Dr Quayle and Professor Taylor. This largely reflects their views in the report in relation to Ms Alami.
- A final report comes from Dr George. He is not a psychologist but has considerable experience of Palestinian/Israel politics. He identifies some errors of fact in Dr Young's report (in fact, the errors flow from Professor Silke's report). I do not think his report really assists on the matter I have to determine in this case.
- Many of the criticisms are indeed, as Keene LJ observed, trenchant. There can in my view be little doubt that Dr Young did err in her use of HCR-20 in particular and her lack of experience of terrorist cases and lack of knowledge of all nuances of the Palestinian/Israel situation may well have meant that her assessments of risk lacked a proper basis. But such errors and misuse of psychological tools do not necessarily establish such misconduct as justifies a hearing before the conduct committee because they might lead to a sanction against her fitness to practise as dealt with in Part V of the Health and Social Work Professions Order 2001 (2002 No 254). Article 22 covers complaints made that a registrant's fitness to practise is impaired by reason of inter alia misconduct or lack of competence. Guidance has been given by the defendant on Case to Answer determinations. The test is correctly identified that the panel must decide whether "based upon the evidence before it
there is a realistic prospect that the HPC will be able to establish at a hearing that the registrant's fairness to practise is impaired. This does not call for substantial inquiry and the panel has only to be satisfied that there is a realistic or genuine as opposed to a remote or fanciful that the HPC will be able to establish its case. Public confidence in the profession and its regulatory powers must be taken into account".
- There is a discussion as to what amounts to impairment of fitness to practise. Mistakes made would not necessarily pass the test and it is recognised that some cases will be difficult. Examples given of misconduct which would justify a finding of impairment are all serious, but that is not surprising since it is, I think, obvious that misconduct must be such as might justify a sanction. The guidance concludes that where there is an element of doubt the panel should resolve it by deciding that there is a case to answer. The guidance does not state that it is not for the panel deciding whether there is a case to answer to seek to resolve issues of fact. However, that is clearly the law. Unless evidence is clearly unreliable, it must be considered on its face value. This is relied on by the claimants who submit that there is clear evidence from a significant number of experts that Dr Young made serious errors in the way in which she carried out her assessments. This submission will be further considered when the reasons given by the Committee for saying there was no case to answer are examined.
- I have already referred to the view of the investigatory panel report from the BPS. It is clearly important, and Article 26(2)(c) of the Health Professions Order 2001 specifically provides, that an investigating committee must 'take such other steps as are reasonably practicable to obtain as much information as possible about the case'. Thus the report of the BPS panel, which recommended that the complaints should go to the conduct committee, may seem to be disclosable. However, it had been challenged by Dr Young's solicitors and proceedings were threatened. It contains an important error in that it observed that 'despite Dr Young being made aware of the criticisms by other professionals of her use of HCR-20, including one of the authors of the HCR-20 after having produced the report [on Ms Alami], she continued to use the inappropriate test when assessing Mr Botmeh.' This left the panel with concerns that Dr Young was unwilling to reflect on her practice and seek other sources of information. This was entirely unfair since none of the critical reports had come into existence until she had reported on both claimants. Thus the recommendation was seriously flawed and injunctive relief (or judicial review once the defendant took over) might well have succeeded. In the circumstances, there can in my view be no criticism of the decision not to include the recommendation in the papers before the panel.
- Mr Guedalla, the claimants' solicitor, has suggested that the BPS recommendations should be included only to deal with the alleged failure by Dr Young to reflect on or accept any of what had been said during the period since the complaints were submitted. That was not an allegation made against Dr Young and in any event was a bad point since it is hardly surprising that she sought to defend her position. Further, she did accept that it would have been better not to have referred specifically to HCR-20 since what she was doing was to use historical and current conduct specifics to guide her in making her assessments. The claimants are now seeking to rely on the BPS recommendation to show how the defendant had erred. I do not, for the reasons given, attach great weight to those recommendations.
- The claimants argue that the original inclusion of the recommendations and the unfortunate failure to notify the claimants' solicitor that they had been removed meant that there was a breach of legitimate expectation. I do not need to do more than say that that does not begin to establish a legitimate expectation. In any event, since I am satisfied that the defendant was correct not to put the BPS recommendations before the panel, the point is academic.
- A case investigation report was prepared for the investigatory committee. It set out the allegations. While there are a number of separate allegations, they are all derived from the reports on the claimants. In essence, they allege that Dr Young acted outside the scope of her practice in the lack of expertise or knowledge of terrorist offenders, that she used inappropriate tools and her methodology was flawed which meant her evidence gathering was incomplete. A number of specific failings in the reports are then identified. There were further allegations which were not substantiated and should never have been made that she was affected by racial prejudice and acted unprofessionally in interviewing the claimants. There were 1143 pages of documents identified and the salient parts of them are pointed out. The committee were given ample time (a matter of days) to read the material.
- Mr Desai submitted that the case investigation report was inaccurate and misleading in important respects and so gave a false picture of the material which the investigating committee had to consider. It briefly sets out the history and identifies the nature and purpose of the various reports. It states:-
"The debate seems to centre on the appropriate use and usefulness of applying existing risk assessment tools (HCR-20 and MCM1-11) to politically motivated violent offenders."
This is an inaccurate indication of the issue and the committee was notified of Dr Young's acknowledgement that there were no actuarial risk assessment tools available that had been developed specifically for those involved in terrorist offences. MCM1-11 I have not dealt with separately since the real concentration has been on HCR-20. MCM1-11 was used to see whether there was any mental illness or personality disorder. It was said by Dr Young to show a personality disorder in Ms Alami but no abnormalities in Mr Botmeh. Her use of it has been criticised but not to the same extent as her use of HCR-20 coupled with her lack of knowledge or experience of terrorists generally and those concerned with the Palestinian/Israeli situation in particular.
- It is true that the summary, the material part of which covers only one page, may be said to be somewhat favourable to Dr Young in that it identifies what are said to be reservations in some of the criticisms. I have, I think, summarised the relevant matters in the course of this judgment. Thus the summary says that Professor Hart acknowledged that Dr Young had appropriately justified the use of her assessment techniques, their limitations and that she possessed appropriate expertise to carry out the assessments. That is said by Mr Desai to be an entirely inaccurate suggestion that Professor Hart has retracted his criticisms. It does not say that there was a retraction and the letter in question is directly referred to by the page numbers in the bundle. I do not doubt that it can properly be said to be over favourable to Dr Young, but the committee members were referred to and would have read what Professor Hart actually said in full.
- The summary states that Professor Silke assessed Mr Botmeh and 'used the same methods and assessments as Dr Young in conducting the risk assessment'. That is certainly inaccurate as a reading of Professor Silke's reports as a whole would make clear. But a joint report was produced in which the tools said to have been misused by Dr Young were not used. Each used in that report the same material and reached, as we have seen, different conclusions on risk.
- Further, Mr Desai says that the summary fails to draw specific attention to the strong criticisms made by Drs Beck and Dernevik. That is so, but all the reports were before the committee. I have no doubt that a case investigation report, which is designed to assist the committee, should so far as possible present a balanced summary of the matters for and against the registrant but, unlike an officer's report in planning applications, no recommendations are made. The committee members must make up their minds on the whole of the material, which in this case was voluminous. I am not prepared to assume that the committee would have been influenced by the summary and would have failed to carry out its task in a proper way. In any event, the assertion that the report was wholly misleading is not substantiated.
- Mr Desai submitted that some contentious representations made by Dr Young should not have gone before the committee. He relied on judicial observations that fairness required that material not seen by complainants should not go before a committee. The complainants should be able to comment on any exculpatory material. This related to the statement from Professor Gudjonsson and a letter from her solicitors of 19 October 2011. The letter did no more than make points which had already been put forward. The statement from Professor Gudjonsson expanded on what he had already said in the letter seen by the claimants' advisers but contained nothing which needed specific comment from them. I do not accept that there was any proper basis for this submission and I refuse to allow the amendment sought to raise the ground. Furthermore, if the claimants could not succeed on the material of which they have been aware, a submission based on this ground could not tip the balance. It is necessary to look at the whole picture and isolating out a particular matter is not in the least helpful.
- It is said that the committee reached a perverse decision and in particular exceeded its proper role by deciding between the conflicting evidence. In essence, it is submitted that the criticisms by very experienced psychologists, in particular those who had some experience of dealing with terrorist offenders, were such as must have led to a decision that there was a case to answer. It is necessary first to look at the reasons given by the committee for reaching its decision. There is an obligation to give reasons and the guidance issued by the defendant states that the reasons given must be clear and detailed in relation to the findings on each element of the allegations.
- The committee gave its decision that there was no case to answer in relation to either complainant on 21 October 2011. The reasons deal with each particular separately as the guidance requires. Particular 2 alleged that in conducting the assessments she acted outside the scope of her practice in that:-
"(i) You have no expertise in, or experience of assessing risk in politically motivated offenders and/or terrorist offenders
(ii) You have limited understanding of the political, social, cultural and historical factors, which were relevant
(iii) You failed to acknowledge the limitations in your knowledge of dealing with politically motivated offenders in that you failed to consult with appropriate experts when performing your assessments
The committee, having noted Dr Young's limited experience, was satisfied that she had fully acknowledged the limitations of her knowledge and had sought appropriate supervision from Professor Gudjonsson and Professor Hart. She had not sought nor had she received supervision from Professor Hart albeit she had sought his advice in the e-mail of 11 July 2005. However, the committee was entitled in my view to rely heavily on Dr Young's involvement of Professor Gudjonsson who did have relevant expertise and who approved the reports which she produced. Further, she, as the committee said, had significant experience in assessing risk of violence. But the committee said that that experience was relevant. That can properly be criticised since the whole point was that she did not have experience in dealing with terrorist offenders.
- Particular 3 alleged that she used inappropriate risk and psychological assessment tools in that she applied tests designed to assess risk in relation to violent, non-political/terrorist offenders. The committee in dealing with this observed that there was "no accepted evidence to show that the tests used lack validity on" politically motivated violent offenders. Consideration of all the various statements does indeed suggest that this observation is erroneous. Certainly, she was entitled to use the tools to rule out or in violent behaviour apart from that which was purely politically motivated and to assess whether there were any mental abnormalities which could be relevant to risk. While the reasoning may have defects, it does not show that there has been a rejection of the expert evidence. It may be said to have been a misunderstanding of the totality of the evidence. However, the committee was entitled to find, as it did, that Dr Young recognised the limitations of the tools she used and acknowledged this in her reports and properly explained why she had used them.
- Particular 4 alleged flawed methodology in applying the tools. This was said to duplicate Particular 3 and was covered by the reasons for the findings on it. The same applied to Particular 5 which alleged that the consequence of Particulars 3 and 4 was that the evidence gathering was flawed and incomplete.
- Particular 6 alleges failures in the reports under eleven headings, one of which is itself subdivided into three. No arguments are put forward to challenge the findings on five of these headings. The first, which is the one subdivided, alleges a failure to highlight the potential problems and failure in applying her chosen assessment to politically motivated offenders in that she failed to declare that the tools had not been validated for such offenders, there was no scientific research to support their use and their relevance might be limited. The committee stated:-
"Dr Young states in her reports
that "there are no actuarial risk assessment tools
Dr Young declared the limitations of her approach and findings in her reports. Therefore there is no case to answer."
Since this Particular was directed at an alleged failure to declare the specified matters, the recognition by Dr Young expressed in the reports that there were no actuarial risk assessment tools designed to deal with terrorist offenders was an answer. In effect, the committee did not regard it as misconduct for her not explicitly to have stated what was implicit in her acknowledgment of the absence of any tools, including those she used, to make an actuarial assessment of risk.
- Particular 6 b) alleged that she overstated the relevance of the results of the HCR-20 risk assessment test. The committee said that she had not used it as a risk assessment test but she had used it 'in the manner for which it was designed as a test to provide a structural clinical judgment regarding the risk of violent recidivism not as an actuarial risk assessment'. Overall, she sought guidance and recognised in her reports the limitations of the tool. While it may be said that some of the experts went further than this in criticising her, the committee was in my view entitled to reach this conclusion taking an overall view of the reports. It was not wrongly deciding between the experts but taking a view, which it was entitled to do, of the evidence as a whole.
- Particular 6 c) alleged that she identified incorrect risk factors thereby overstating the risk each claimant posed. The committee's view was that since there were no actuarial tools to measure risk, there was no evidence to support this Particular. This is questionable in the light of, for example, Professor Hart's evidence that the addition of the two risk factors to the HCR-20 was redundant and the result was an overestimation of risk in the case of Mr Botmeh. However, Professor Hart had not in July 2005 specifically rejected the propriety of adding these factors. Particular 6 e) alleges the making of findings based on selective use of data and evidence and 6 f) that she had distorted facts. The committee's view, which is not flawed, was that she had carried out thorough assessments and there was nothing to support 6 f) which was not specific. In reality, these Particulars added little if anything to what was otherwise alleged. There is nothing in 6 g) which alleged omissions in failing to fully report the claimants' explanations and responses.
- Particular 7 relied on Dr Young's limited understanding of the political, social, cultural and historical context of the claimants' actions. This was seen to have led to factual and analytical errors and to her expert opinion of their risk being "biased, prejudiced, impartial (sic) and subjective". The word should of course be 'partial'. This allegation went too far and was properly rejected by the committee.
- Particular 8, which alleged that in consequence of the matters set out in Particulars 5 & 6 Dr Young's assumptions and conclusion were flawed, was properly regarded as adding nothing. The committee did not find it necessary to deal explicitly with Particulars 11 and 12. Those respectively alleged that the matters set out in the preceding Particulars amounted to misconduct and/or lack of competence and that by reason of that her fitness to practice was impaired. In his skeleton argument, Mr Desai relied on the failure to give any reasons for rejecting Particulars 11 and 12 in arguing that the reasons challenge must succeed. That is a thoroughly bad argument since the conclusions reached by the committee inevitably meant that there was no need to deal specifically with those two particulars.
- As will, I think, be apparent, there is in my view some force in the submission that the reasons do not adequately reflect the adverse criticisms set out by the various experts. However, I am entirely satisfied that the committee was entitled to consider that the case should go no further. It must be borne in mind that Dr Young was preparing reports for the Parole Board and so must have anticipated that there might be a challenge to them and that she might be cross-examined and required to support her views. Albeit not intended for a court, she was producing them as an expert witness. There was no question about her good faith and she had sought advice, initially from Professor Hart, and from Professor Gudjonsson. The latter had supervised her and had read and approved the reports and her use of the tools, in particular HCR-20. In Meadow v GMC  QB 462, the Court of Appeal had considered the case of Professor Meadow who had misapplied statistical material in giving evidence in a murder case. The majority of the court approved my observation at first instance that, absent bad faith or recklessness, it would only be in a very rare case that a finding of serious professional misconduct should be made. (See Auld LJ at paragraphs 194 and 211 and Thorpe LJ at paragraph 278). While it is true that in that case the court was concerned with the giving of evidence in court and the expectation that cross-examination would deal with errors, nonetheless I see no reason to doubt the general applicability of the observations in relation to reports which could be challenged in a legal process. Equally the GMC considered serious professional misconduct. But misconduct which might merit a sanction must necessarily be regarded as serious. It is to be noted that the court was satisfied that Professor Meadow was guilty of misconduct but not of misconduct serious enough to merit the imposition of any sanction.
- Whatever may have been the possible flaws in the committee's reasoning and the trenchant criticisms of Dr Young by other experts, I have to consider whether it would be right to require reconsideration. The reports which are said to show misconduct were produced over 7 years ago. Dr Young was and remains a respected professional in dealing with violent offenders generally. She acted in good faith and took advice from an apparent expert. In all the circumstances, I do not believe that it is necessary or that justice will be done by quashing the decision and requiring a reconsideration particularly as I do not believe that a different conclusion need be reached. I do not believe that any misconduct reached a sufficient level to justify any sanction.
- Accordingly, I dismiss this claim.
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