Botmeh & Ors, R (on the application of) v Parole Board & Anor [2008] EWHC 1115 (Admin)

Case No CO/11581/2007

[2008] EWHC 1115 (Admin)

IN THE HIGH COURT OF JUSTICE

QUEEN'S BENCH DIVISION

THE ADMINISTRATIVE COURT

Venue Royal Courts of Justice

Date Wednesday, 30th April 2008

Strand

London WC2A 2LL

B e f o r e:

LORD JUSTICE KEENE

Between

THE QUEEN ON THE APPLICATION OFClaimant

JAWAD BOTMEHClaimant

SAMAR ALAMIClaimant

Between

THE PAROLE BOARDDefendant

THE SECRETARY OF STATE FOR JUSTICEDefendant

Computer-Aided Transcript of the Stenograph Notes of

WordWave International Limited

A Merrill Communications Company

190 Fleet Street London EC4A 2AG

Tel No: 020 7404 1400 Fax No: 020 7831 8838

(Official Shorthand Writers to the Court)

Timothy Owen QC and Helen Law (instructed by Birnberg Peirce & Partners) appeared for Claimant

Steven Kovats (instructed by the Treasury Solicitor) appeared for First Defendant

Marina Wheeler (instructed by the Treasury Solicitor) appeared for Second Defendant

J U D G M E N T

LORD JUSTICE KEENE: Introduction

[2]These are two applications for permission to seek judicial review of decisions by the Parole Board not to recommend the release on licence of the claimants. Those decisions were both dated 1st October 2007. I grant permission to seek judicial review and I proceed, therefore, to deal with the claims for judicial review on their merits.

[3]The two claimants were convicted on 11th December 1996 at the Central Criminal Court of conspiracy to cause explosions, and were sentenced 5 days later by the trial judge, Garland J, to 20 years' imprisonment, and were recommended for deportation. Two co-accused were acquitted. The claimants' appeals against conviction were dismissed by the Court of Appeal (Criminal Division), presided over by the then Vice President, Rose LJ, on 1st November 2001. I should add that the claimant, Mr Botmeh, was granted discretionary leave to remain in the United Kingdom in October 2006. Ms Alami remains liable to deportation on release. The Offences

[4]The offences principally concerned events in July 1994, when two car bombs exploded in London. The first explosion occurred shortly after midday on 26th July 1994, outside the Israeli Embassy in Kensington Palace Gardens; the second took place in the early hours of the following morning outside Balfour House, Finchley, which was occupied by a Jewish organisation. The first explosion caused extensive damage to the Embassy itself and to the neighbouring property, damage running into many millions of pounds. Providentially, as the trial judge accurately put it, no one was killed or very seriously injured, but a number of people could very well have been. The second explosion shattered a large number of shop fronts. Again, no one was killed or suffered major injury, but again the bomb could well have killed passing pedestrians or motorists. The judge described these as "grave acts of terrorism".

[5]It was common ground at trial that the explosions had been carefully planned. The claimants denied participation in the conspiracy, though they admitted having had possession of about 5 pounds of an explosive, which had been made up into two bombs subsequently found in a lock-up rented by Alami under a false name. Alami also admitted possession of three handguns.

[6]The claimants' defence at trial was that they had not intended the explosives found in the lock-up to be used in this country. They said that they were using them for experiments so as to develop technical know-how which could be used in the Middle East to further the Palestinian cause. Botmeh is a Palestinian national; Alami a Lebanese national born in the Lebanon of Palestinian parents. Both of them, at trial, condemned the two bombings, describing them as shortsighted. According to Alami, the explosives found in the lock-up had been given to her about 2 weeks before the explosions by a man called Reeda. Botmeh also referred to Reeda, having, he said, gone with him to a car auction when Reeda bought the Audi car which was used in the Embassy bombing. The trial judge made it clear to the jury that if this defence case were true or might be true then these two should be acquitted. In the event, the jury rejected their version of events.

[7]In his sentencing remarks, the judge noted that a lot of evidence had been received at trial about the history of Palestine and the Middle East conflict but that it was not his function to take sides:

"... whatever the motives or beliefs of those responsible may have been, whether anti-Israeli, anti-PLO or anti-British, because of perceived support on the part of this country for Zionism."

The judge went on to accept that these defendants were not members of any Islamic extremist organisation, and then he added this:

"What you did was contrary to the declared policy of the PLO, Fatta and the PFLP. Why you did it we shall, perhaps, never know, but on the evidence given to this Court it certainly did not advance the Palestinian cause in this country or Western Europe..."

As I have said, each was sentenced to 20 years' imprisonment. The Legal Framework

[8]As these offences took place after 30th September 1992 and before 4th April 2005, the issue of early release is governed by the provisions of the Criminal Justice Act 1991, Part II. In effect, once a long-term prisoner, such as these claimants, has served half his sentence, he is to be released on licence if the Parole Board so recommends: see sections 35(1) and 50(2). Although those liable to removal from the United Kingdom are treated somewhat differently by the statutory provisions, the decision of the House of Lords in R (Clift) v Secretary of State for the Home Department

[2007] 1 AC 484

has effectively put them in the same position as other long-term prisoners. There is automatic release on licence after serving two-thirds of the sentence. In Botmeh's case, that point will be reached on 20th August 2008, and in Alami's case, on 22nd April 2009. I add in passing that at no stage has there been any suggestion that these claims for judicial review are academic because of Botmeh's anticipated release date.

[9]Section 32(6) of the 1991 Act empowers the Secretary of State to give directions to the Parole Board as to the matters to be taken into account by it. In so doing, he:

"... shall in particular have regard to—— (a) the need to protect the public from serious harm from offenders; and (b) the desirability of preventing the commission by them of further offences and of securing their rehabilitation."

Such directions have indeed been given. A number of matters are referred to in those directions, which the Parole Board is required to consider, but the directions begin as follows:

"In deciding whether or not to recommend release on licence, the Parole Board shall consider primarily the risk to the public of a further offence being committed at a time when the prisoner would otherwise be in prison and whether any such risk is acceptable. This must be balanced against the benefit, both to the public and the offender, of early release back into the community under a degree of supervision and which might help rehabilitation and so lessen the risk of re-offending in the future. The Board shall take into account that safeguarding the public may often outweigh the benefits to the offender of early release."

The Evidence before the Parole Board

[10]In the present cases, the Parole Board panel had a very substantial amount of written material available to it, including a number of reports by psychologists in respect of each claimant. Oral hearings took place in September 2007. In Botmeh's case, oral evidence was heard both from him and from a Mr Green, who would be his supervisor in the community on release. In Alami's case, she too gave evidence before the panel, as did Ms Turner, the prison offender supervisor.

[11]The reports by psychologists included ones on each of these offenders by Dr Susan Young, instructed by the Home Office. She observed that there was no actuarial risk assessment available specifically for those involved in terrorist offences, and in those circumstances she sought to adapt a methodology known as HCR-20, developed for non-specific violent offences, to which she added two further factors. She also used several other methodologies. These led to her to conclude that there was "only" a moderate risk of Botmeh committing further terrorist acts if released, because of the high level of supervision to which he would be subject. She described him as adept at duplicity. With Alami, Dr Young concluded, there would be a moderate to high risk of further acts of terrorism, describing her as reticent and secretive, which made it unsafe to rely on her "self-report".

[12]Dr Young's work was trenchantly criticised in reports by other psychologists. Professor Silke, who had originally, in 2005, been instructed by the Home Office, but who was later retained on behalf of the claimants, said in terms that no risk assessment tools had been explicitly designed for use with politically-motivated offenders. None of the methods used by Dr Young, including HCR-20, had been validated for use with such offenders. He applied a number of other tests, but very frankly stated that those also had not been properly validated for such offenders. Those tests led him to conclude that Botmeh presented a low risk, as did Alami, though Professor Silke commented that her continued denial of guilt of the offences "introduces additional complications". He made a similar comment in respect of Botmeh.

[13]Dr Alison Beck also criticised Dr Young's work, and added that:

"... I do not think that a clinical psychologist possesses any particular skills in relation to risk assessment of people who do not have a mental disorder."

[14]The Parole Board panel also had before it a report obtained on behalf of the claimant from Professor Jacqueline Bates-Gaston, the Chief Psychologist for the Northern Ireland Prison Service. She too regarded the HCR-20 methodology as inappropriate for assessing the risks presented by terrorists/politically-motivated offenders, and she described Professor Young's results as not valid. But she went further and said that "there are no known valid and reliable assessment procedures/tests for politically motivated offenders."

[15]She also recorded that "I advised the Northern Ireland Life Sentence Review Commissioners that psychological risk assessments could not be provided in such circumstances", that is to say with politically-motivated offenders. Consistently with that, Professor Bates-Gaston did not offer a risk assessment in respect of either of these claimants.

[16]It is evident from the psychologists' reports, especially those of Dr Young and Professor Silke, that the claimants, when interviewed by them, put forward the same basic version of the 1994 events that had been rejected by the jury. The same appears to have happened at the Parole Board hearings. Both claimants maintain, and still maintain, their innocence of the charges on which they were convicted. The Decisions Under Challenge

[17]The Parole Board decisions are structured along similar lines in the case of both claimants. It is noted that it had been agreed:

"... in pre-hearing discussion between the parties and the panel chairman, that the panel should hear no oral evidence of the conflict of views and opinions between psychologists; the parties accepted that the panel, as an expert tribunal, should draw their own conclusions about that issue, taking account of the many views expressed in the several available reports."

The decision letters set out a list of the material before the panel and then refer to the passage from the Secretary of State's direction which I have set out earlier in this judgment. In the case of Alami, the panel added the comment that her deportation would mean that there would be no formal supervision of her.

[18]In both cases the decision letters refer to the offence which led to custody. I quote from the decision on Botmeh, where they refer at paragraph 7 to certain matters which guided them. It is only necessary for present purposes to cite subparagraphs b, c and d from that paragraph, which I do:

"b. that they start from acceptance of the position that the prisoner was convicted of being part of a conspiracy to cause explosions. He therefore had to be regarded as a man who, at that time, was prepared to involve himself in actions which could have resulted in the random killing and maiming of persons who happened to be in the vicinity of the planned explosions and (as occurred) in massive damage to property, c. that they recognise the prisoner's denial of complicity in the terms of his conviction; they have noted his limited acceptance of wrongdoing, and d. that they are not concerned with either the past or present political situation in Israel/Palestine (except insofar as there may be a perceived change — by the prisoner — between his conviction for the index offence and now, which might therefore affect his risk upon release)."

In Alami's case, the panel added the need to consider compassionate concerns.

[19]The decision letters then move on to deal with the psychological assessments. Because of the issues in these proceedings, it is necessary to quote substantial parts of the decision letters. Again, I can do so from that relating to the claimant Botmeh:

"a. There have been attempts by two psychologists, Dr Young and Prof Silke, to conduct psychological risk assessments. The former concludes that the prisoner represents a moderate risk of engaging in acts of terrorism in future, the latter a low risk of reoffending. However, the panel have also been provided with a number of reports from other psychologists, all of which seek to criticise the methods which Dr Young used and therefore the validity of her conclusions. Those critics, other than Prof Silke, criticise from an academic standpoint and have not themselves conducted interviews with the prisoner; they also accepted that the prisoner had been politically motivated in committing the index offence, b. while it is clear that the sentencing judge sentenced the prisoner on the basis that he was politically motivated, he also referred to the fact that there were no identified political affiliations. Thus the question of the prisoner's real motivation for what he did — when one comes to deal with future risk assessment — should be regarded as unanswered, since he, of course, denies that he was complicit in the conspiracy and cannot therefore give insight into his motivation... e. among those reports which are critical of Dr Young's approach is one from Prof Bates-Gaston; she has had extensive involvement with the Northern Ireland Prison Service and thus practical experience of the particular difficulty of making risk assessment with terrorist prisoners. Her report includes the following statement: 'Because of the professional concerns and limitations in assessing the future risk of reoffending of convicted politically motivated offenders, I advised the Northern Ireland Life Sentence Review Commissioners that psychological risk assessments could not be provided in such circumstances'... g. the panel were thus 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. Further, none of the experts considered risk assessment in the context of a man who had not been politically motivated to commit the offence, h. thus in summary it was the panel's conclusion, assisted by their own expertise and experience, that the available advice and opinion from the psychology practitioners did not materially assist them in their task. This occurred principally because all assessment and comment (even that of Dr Young) had either started from, or progressed to, a position of acceptance of political motivation (without definite knowledge that that was so) and because other possibilities had not been considered. However, they were assisted by impressions which those who had conducted personal interviews with the prisoner had gained; they took account of those impressions and balanced them with their own, from their admittedly short period with the prisoner. i. it was also the panel's conclusion that they did not need to resolve the dispute which had developed between the expert witnesses. For reasons which they trust will be clear from the contents of this recommendation, they had ample evidence from their own assessment of the relevant evidence, both written and oral, to enable them to reach a conclusion."

In the decision on Botmeh, the panel noted the concerns of Mr Green about his ability to manage the prisoner effectively upon release, and then referred to the prisoner's own evidence before them. In Alami's case, Ms Turner expressed concern at the prisoner's ability to resist pressures to offend. The decision letter notes that Alami had difficulty in explaining why she had acted in 1994 as she did over the firearms.

[20]Finally, the panel came to the matters which principally led to their decisions in each case. The letters refer to the positive aspects of the prisoners' progress in prison, but observe that in both cases they had been convicted of a serious violent offence despite the absence of any indication of risky behaviour in the community before conviction.

[21]I can go, in the Botmeh decision, to paragraph 13g and the following passages:

"g. that the panel noted the abstract and, in some senses, the defensive and self-protective way in which the prisoner dealt with their questions. He was personable, articulate and obviously intelligent but his answers failed to satisfy them, in particular, that he had either given thought to, or had developed robust strategies to deal with, pressures which may be placed upon him on release (because of his high profile) either to become involved in or to give real support to the continuing struggle, which he claims to have espoused in the past, h. that, as a result of the prisoner's explanations of the forensic evidence which, in particular, linked him to the explosive materials found in the Nationwide lockup and with the cars, the panel were not faced with a case of denial, pure and simple. The offering of what were barely credible explanations for the presence of that evidence, the reliance upon the major responsibility of a shadowy person, whose existence has never been demonstrated and the maintenance of that evidence before the panel — combined with the panel's own assessment of him as he gave evidence to them — led them to conclude that he was not to be trusted as a witness of truth and that he was persisting in efforts at deception, which had been a feature of his index offence behaviour, i. that the prisoner decided to commit the index offence at a time when he was in a personal relationship, as he suggests he would be on release and at a time, as the prisoner accepted, when hopes for a peaceful settlement of the Palestine/Israel conflict were better than they are now. If a domestic relationship provided no protective factor then, the panel concluded that it would be questionable whether, if resentment and hostility should be kindled again and if he was politically motivated, it could do so in the future in a man who has in the past shown himself to be capable of involvement in such calculated and horrific violence, and j. that the panel were not persuaded that a clear understanding (if that is possible) of the Israel/Palestine conflict is required of anyone who is to give opinions or to make decisions in this case. To take that position misses the vital issue: that it is the prisoner's perception of that conflict which matters, because — if he was politically motivated — it is that perception, whatever it may truthfully have been at the time, which caused him to be complicit in the conspiracy and it will be that perception which will be responsible for his future involvement, if he chooses that path from the same motivation. From their consideration of the available evidence the panel, if they accept (as all the experts have done) that he was politically motivated, were not convinced (particularly bearing in mind their assessment of him as a witness and the fact that the relevant political situation was perceived by him — as he indicated during the hearing — to be worse now than it was when he committed the offence) that a man who was moved to lend his active support to such calculated and horrific offending had changed his views significantly. 14. In summary therefore, the panel reached the conclusion that they could make no recommendation to the Secretary of State for the prisoner's release because, although they recognised the considerable personal benefit to the prisoner of early release, their examination of the relevant evidence left them with no confidence either that there had been significant change in the prisoner's beliefs (the evidence for which can only come from self-report) or that, in the period between early release and NPD, the prisoner would not become involved in illegal activity, including that similar to his proved involvement in the index offence. It was the panel's conclusion, conducting the required balancing assessment, that the risk of offending presented by the prisoner was not one which, in the public interest, they could regard as acceptable."

[22]In the case of Alami, the panel said this:

"e. that the panel noted the difficulty which the prisoner had in dealing with their questions about her understanding and appreciation at the time of the index offence; they found her answers evasive and lacking in credibility, noting that at the time her way of life indicated her to be an educated and self-possessed young woman. The panel were also not persuaded by her answers that she had a full appreciation of the pressures which may be placed upon her on release (because of her high profile) either to become involved in or to give real support to the continuing struggle, which she accepts she espoused in the past. The panel record that it was their view that the prisoner's answers to them were neither honest nor straightforward. f. that, as a result of the prisoner's explanations of the forensic evidence which, in particular, linked her to the explosive materials found in the Nationwide lockup, the panel were not faced with a case of denial, pure and simple. The offering of what were barely credible explanations for the presence of that evidence, the reliance upon the major responsibility of a shadowy person, whose existence has never been demonstrated and the maintenance of that evidence before the panel — combined with the panel's own assessment of her as he gave evidence to them — led them to conclude that she was not to be trusted as a witness of truth and that she was persisting in efforts at deception, which had been a feature of her index offence behaviour, g. that the panel were not persuaded that a clear understanding (if that is possible) of the Israel/Palestine conflict is required of anyone who is to give opinions or to make decisions in this case. To take that position misses the vital issue: that it is the prisoner's perception of that conflict which matters, because — if she was politically motivated — it is that perception, whatever it may truthfully have been at the time, which caused her to be complicit in the conspiracy and it will be that perception which will be responsible for her future involvement, if she chooses that path from the same motivation. From their consideration of the available evidence the panel, if they accept (as all the experts have done) that she was politically motivated, were not convinced (particularly bearing in mind their assessment of her as a witness and the fact that the relevant political situation was perceived by her — as she indicated during the hearing — to be worse now than it was when she committed the offence) that a woman who was moved to lend her active support to such calculated and horrific offending had changed her views significantly. 14. In summary therefore, the panel reached the conclusion that they could make no recommendation to the Secretary of State for the prisoner's release because, although they recognised the considerable personal benefit to the prisoner of early release, their examination of the relevant evidence left them with no confidence either that there had been significant change in the prisoner's beliefs (the evidence for which can only come from self-report) or that, in the period between early release and NPD, the prisoner would not become involved in illegal activity, including that similar to her proved involvement in the index offence. It was the panel's conclusion, conducting the required balancing assessment, that the risk of offending presented by the prisoner was not one which, in the public interest, they could regard as acceptable."

[23]The panel then took on board the compassionate circumstances in her case, but did not regard those as justifying early release. Submissions

[24]Those decisions are now challenged by the claimants on a number of grounds. Mr Owen, QC, who appears for the claimants, as he did before the Parole Board panel, submits first and foremost that it was irrational and unfair of the panel to proceed on the basis that the offences had not been politically motivated. That was irrational because all the background evidence indicated that there must have been some form of political motivation. The trial judge summed up to the jury on that basis, suggesting to them at one point that the question for them was whether the defendants formed their own group, rejecting non-violence and deciding "to paint the name of Palestine on the mountain", or was it an Islamic fundamentalist group which had been responsible, unconnected with the defendants. Mr Owen relies also on those passages from the sentencing remarks which I have set out earlier. Moreover, even on the claimants' own evidence at trial, they had had a political motivation for what they said they were doing, namely a desire to assist the Palestinian cause. It may be, says Mr Owen, that the precise objective of the bombings remains uncertain, but there can be no doubt that it was politically motivated.

[25]As for the panel's decision being unfair, Mr Owen contends that if the panel was minded to take the view that the bombings were not politically motivated, it should have raised this issue at the hearing. The Secretary of State's representative had not argued before the panel that the offences were not politically motivated, nor had any such indication been given in the directions made in advance of the hearing. Consequently the claimants and their representatives never had the opportunity to deal with this as an issue, and that was procedurally unfair. Reliance is placed on the decision in R v Number 8 Area Committee of the Legal Aid Board, ex parte Megarry and others [1994] PIQR, 476, where Popplewell J quashed a decision of a Legal Aid Committee because it had failed to alert the applicant's advocate that they wanted a particular issue to be dealt with because they were troubled by it. Mr Owen submits that a similar situation exists in the present case. To reject a political motivation as the basis of these bombings without raising that issue at the hearing was not a fair procedure.

[26]Mr Owen recognises that in paragraph 13i and j quoted earlier the panel uses phrases such as "if he was politically motivated", but he does not accept that those show that the panel approached the issue of risk on an alternative basis of a political motivation. At the very least, he submits, those subparagraphs are unclear. Furthermore, the panel's unwillingness to accept a political motivation, it is submitted, led it to reject the psychological evidence when it should not have done so. That too was irrational and procedurally unfair.

[27]Mr Owen has two final subsidiary points. First he criticises paragraph 7d of the decision on Botmeh, quoted earlier, where the panel indicated that it was not concerned with the past or present political situation in Israel/Palestine, save insofar as the prisoner might perceive a change between the mid-1990s and today. There is a similar statement in paragraph 13j. It is submitted that it was wrong for the panel to reject the need to look at the objective facts of the political situation in 1994 and now. Moreover, the panel attached weight to both the claimants' view that the present situation in the Middle East was worse than it had been in 1994. That, it is said, was inconsistent with rejecting a political motivation for the offences and the claimants should have got credit for their honesty about the present situation.

[28]Secondly, Mr Owen points out that the panel, in its decision on Alami, is factually inaccurate in saying at paragraph 8a that only Professor Silke amongst the critics of Dr Young had actually interviewed Alami. Dr Beck had also done so.

[29]For the Parole Board, Mr Kovats argues that the panel did not reject a political motivation for the offences. They were merely not satisfied that such a motivation had been established. That was rational because it was not an open and shut question. In any event, the panel did consider such a motivation as an alternative, and on that basis rationally concluded that the level of risk on release had not been reduced to an acceptable level. Mr Kovats relies especially on paragraph 13i and j, and he emphasises that part of the reasoning was that neither claimant could be regarded as credible and honest. That, it is submitted, is an important consideration when the panel saw and heard the claimants and this court has not.

[30]As for the psychologists' evidence, it is contended that the panel was entitled not to rely on the conclusions, given the criticisms of the methodology used. Mr Kovats also submits that there was no duty on the panel to raise the issue of a possible non-political motivation at the hearing. He does concede that there was an error of fact about the interview of Alami by Dr Beck, but he argues that that can have made no difference to the outcome.

[31]A similar point is made by Miss Wheeler on behalf of the Secretary of State. On the main issue about motivation, she argues that the motivation for the bombings was not clear, and certainly not with any precision. There was always a question mark as to why these two claimants had been involved in the bombings. But it is submitted that the panel did not discount the possibility of a political motivation, and in fact dealt with it in their decisions. Miss Wheeler accepts that the existence of the political motivation in the broad sense was not in issue at the hearing, but she contends that that ultimately is not significant because of the way the panel dealt with both possibilities. Finally, it is argued that the panel did not arrive at their view about the psychological evidence solely on the basis that that evidence assumed a political motivation. Discussion

[32]I deal first with the issue of motivation. I accept that there were uncertainties about precisely why the claimants participated in the conspiracy to bomb the Israeli Embassy and Balfour House. The bombings occurred at a time when the prospects for some degree of progress in the long-running Israeli/Palestinian conflict looked somewhat better than they had done before or indeed have done since. That made it difficult, as Garland J noted, to decern whether the bombings were anti-Israeli, anti the Palestinian authorities or anti-British. The panel members had no explanation of motive from either claimant for involvement in the bombings, since both denied guilt. This did put the panel in some difficulty in ascertaining why they had participated in the bombings.

[33]Having said that, however, I do find it surprising that the panel was prepared to assume that there may have been a non-political motive. The immediate targets of the bombings, the background of the claimants and their acknowledged support for the Palestinian cause all pointed, as Garland J again had assumed, towards a political motivation of some kind, as the Secretary of State appears to have assumed at the panel hearing. If the panel had, as Mr Owen submits, rejected a political motivation and assessed risk solely on the basis of a non-political motive, I would have considerable sympathy for these applications for judicial review.

[34]However, that is not how I read the decision letters. It is to my mind quite clear from the decisions read as a whole, and in particular from paragraphs 13i and j (or in Alami's case paragraph 13g) that the panel were approaching their task on the basis of considering the alternatives of a political or a non-political motive, because they felt some uncertainty on that issue. Whether they should have felt that uncertainty is neither here nor there, because they did consider the issue of risk on the footing that the bombings may have been politically motivated. One finds in those subparagraphs to which I have referred a number of phrases such as "if he was politically motivated". So whether they should have also considered the alternative scenario of no political motivation does not matter. They did an assessment as well on the very basis which Mr Owen is advocating, and their conclusion was that the risk was unacceptable.

[35]It is right that, in deciding that the opinions of the psychologists did not materially assist them in their task, the panel placed emphasis on the fact that those experts had all accepted a political motivation to the offences. But that was not the sole reason for that decision, as paragraph 8g in the Botmeh decision indicates. They refer there to the impression they had gained that the psychology profession is still seeking an answer to the problem of risk assessment in the case of politically motivated offenders. They had just before that referred to Professor Bates-Gaston's advice to the Northern Ireland Life Sentence Review Commissioners to that effect. Having read the various experts' reports, it is clear to me that the overwhelming body of expert opinion put before the panel was stressing that there is no psychological methodology in existence for making risk assessments of politically-motivated offenders, and certainly none which has been validated. The panel were certainly entitled to come to that view, and that by itself would have sufficed to justify their conclusion that they were not materially assisted by the opinions of the psychologists. So although the panel may also have based that part of their decision on their view that the psychologists should also have considered a non-political motivation, that aspect of their decision was in any event soundly based. In effect, there were two reasons for taking the view that the psychologists' opinions did not materially assist, and either of those reasons sufficed.

[36]It is to be noted that the panel did not ignore the psychologists' reports. They say in terms that they were assisted by the impressions which the psychologists had gained of the prisoners.

[37]It seems to me also that the fact that the panel did do an assessment of risk on the alternative assumption of a political motive behind the bombings is fatal to Mr Owen QC's submission of procedural unfairness. I do accept that the panel should have raised at the hearing the possibility of a non-political motivation so that it could have been addressed by the claimants and those acting for them. That was a flaw in the procedure, and if the panel had approached risk in their decisions solely on the basis of a non-political motive for the bombings, I would have regarded that as justifying a quashing of the decisions. But they did not do that, and the mere fact that that was one of the alternative footings on which they proceeded does not justify a quashing order. It made no difference to the outcome, and the procedural failure to raise it made no difference either. In other words, the flaw was not a fatal one because the panel did not reject a political motivation.

[38]As to the two subsidiary points made on behalf of the claimants, I cannot see that the inaccuracy about Dr Beck could have had any effect on the outcome of the panel's consideration of Alami's case. Dr Beck said in terms in her report dated 25th June 2007 that she did not conduct a risk assessment and that she did not think that a clinical psychologist had any particular skills in respect of risk assessment of people not mentally disordered: see the passage quoted earlier in this judgment. Otherwise, her report was a critique of Dr Young's assessment, which the panel did not in fact accept. By that I mean the panel did not accept Dr Young's assessment.

[39]The criticism of the panel's comments about it being the prisoner's perception of the political situation in the Middle East which mattered more than the situation itself is quite unjustified. Insofar as the panel were concerned with the risk of either claimant reoffending for political reasons connected with the Israeli/Palestinian conflict, it must be the claimant's perception of the political situation which is important, whether that perception is soundly based or not. There is nothing in that point. Conclusion

[40]It follows that I can find no basis for holding the Parole Board's decision in the case of either claimant to be unlawful or ultra vires. Some of the criticisms advanced of those decisions have some force, but the Board did rationally consider the level of risk if the offences had been politically motivated. Their finding as to risk in that situation, the only one suggested on behalf of the claimants as proper, was not affected by any procedural failing. The Board's treatment of the psychological evidence was proper, given the absence of any valid psychological tool available in the case of politically motivated offenders. In those circumstances, these applications for judicial review must be dismissed.

[41]Are there any consequential applications?

[42]MISS LAW: My Lord, just one in relation to permission to appeal.

LORD JUSTICE KEENE: Yes.

[44]MISS LAW: My Lord, I do seek that. Whilst of course we take on board the points that have been raised, we also note the concerns you have raised in terms of the criticisms which we made, in terms of the procedural rules in particular. For those reasons we would seek permission.

LORD JUSTICE KEENE: Yes, Miss Law. Yes, Mr Kovats?

[46]MR KOVATS: My Lord, first, no reasonable prospects of success. If I may respectfully say so, your Lordship's judgment is exceptionally clear and cogent. Secondly, no other compelling reason. As your Lordship has already made mention, Mr Botmeh is due out in August anyway. It would be academic if there were to be an appeal in his case. It does not apply quite to the same extent to Ms Alami, but it does apply to this extent, that her next review is already well under way, and that is going to come on, probably before the Court of Appeal will hear this case. In any event, its timing is highly unlikely to be affected at all by any appeal. So in her case as well it would be an academic appeal.

LORD JUSTICE KEENE: Miss Wheeler, do you want to add anything?

[48]MISS WHEELER: I do not have anything, my Lord, to add. I endorse Mr Kovats' opposition to the application for permission to appeal. But I do have an application in relation to costs.

LORD JUSTICE KEENE: Shall we deal with permission to appeal first?

[50]MISS WHEELER: (Nodded).

LORD JUSTICE KEENE: Do you want to respond on those matters, Miss Law?

[52]MISS LAW: My Lord, just briefly, in terms of the reasonable prospects, obviously my Lord hears what I say on that, in terms of the criticisms which your Lordship has expressed concern about. In terms of another compelling reason and the pragmatism of Mr Botmeh's position, that may be true in relation to Mr Botmeh, although we would submit that it certainly does not answer that point. However, in relation to Ms Alami the situation is quite different. She faces a further year in custody at present and we would hope that an appeal would be dealt with sufficiently quickly such as it would make a material difference.

LORD JUSTICE KEENE: When is her review due to come on?

[54]MR KOVATS: The position is her dossier is being prepared and, although no date has been fixed, the process is effectively well under way and there is very little that can be done now to affect that timetable. The dossier started being prepared back in October, so that gives you some indication of how much progress has been made.

LORD JUSTICE KEENE: Yes, thank you. I am not prepared to grant permission to appeal. First of all, there is no, so far as I can see, real point of law which would arise. As to the other aspects of it, the merits, I cannot myself see that there is any reasonable prospect of success. I am also influenced by the fact that Mr Botmeh is in fact due for release in August and that Ms Alami does have another review under way. In the normal way of things, the appeal process is unlikely to achieve very much, even in her case. But even were that not the situation, I would still refuse permission for the reasons I set out a moment ago.

[56]Yes?

[57]MR KOVATS: My Lord, in relation to costs, according to claimants' bundles they are publicly funded. If that is indeed the position, I do not make any application. If they are not publicly funded then I would ask for costs in the usual way.

[58]MISS LAW: My Lord, I can confirm they are both publicly funded.

LORD JUSTICE KEENE: Miss Wheeler?

[60]MISS WHEELER: My Lord, I make an application nonetheless, in spite of the fact that they are publicly funded, but on the usual terms.

LORD JUSTICE KEENE: Is there a great deal of point?

[62]MISS WHEELER: I am instructed that the rationale is in view of possible set-off in case of future litigation, but I think that is as far as I can take it, your Lordship.

[63]MISS LAW: My Lord, I think there is little I can add. They are publicly funded. They are impecunious. In my submission, there is very little point in making a costs order in this case.

LORD JUSTICE KEENE: I can understand that one public body may wish to ensure that its budget is not affected, and that another public body will meet the costs, but it does not seem to me that that is sufficient justification here. I cannot see any useful purpose being served by an order for costs in this case and I make no order.

[65]Anything further?

[66]MR KOVATS: My Lord, only to say that I thank the court for hearing this case through to a finish very quickly, and in particular for making your Lordship available to hear it.

LORD JUSTICE KEENE: Not at all. It is obviously a matter where it was urgent and the brevity of counsel in the course of argument enabled me at least to have the time to get the decision written very quickly. Thank you all very much indeed.