Mitchell, R (on the application of) v Secretary of State for the Home Department [2008] EWHC 1370 (Admin)

Case No CO/959/2006[2008] EWHC 1370 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
Venue Royal Courts of JusticeDate Tuesday, 3rd June 2008
Strand
London WC2A 2LL
B e f o r e:
MR JUSTICE MITTING
Between
THE QUEEN ON THE APPLICATION OF STEPHEN MITCHELLClaimantv
Between
SECRETARY OF STATE FOR THE HOME DEPARTMENTDefendant
Computer-Aided Transcript of the Stenograph Notes ofWordWave International LimitedA Merrill Communications Company190 Fleet Street London EC4A 2AGTel No: 020 7404 1400 Fax No: 020 7831 8838(Official Shorthand Writers to the Court)
Ms Melanie Plimmer (instructed by AS Law) appeared for ClaimantMr David Manknell (instructed by the Treasury Solicitor) appeared for Defendant
J U D G M E N T
[1]MR JUSTICE MITTING: The claimant is 51. In 1986, he murdered his wife by stabbing her in the neck, severing her windpipe and both jugular veins. He was convicted of murder and sentenced to life imprisonment. A tariff of 12 years was set, which expired in 1998. At the date of the events with which I am concerned he was eight years post tariff.[2]On 9th February 2004, the Parole Board recommended his transfer from Category C closed conditions to Category D open conditions. It did so on the basis of one or perhaps two mistakes: first, that he had in fact completed all, or almost all, necessary courses to address the risks that he posed to the public and to those with whom he was in intimate relations and, secondly, that insofar as there remained work to be done it could be done at an open prison. This mistake was encapsulated in paragraph 6 of its advice to the Secretary of State:
"The panel recognises that risk factors regarding relationships with women remain to be further addressed and in some detail. This process may well require some time to fully accomplish, but the panel finds that the risk of further serious offending is sufficiently reduced to permit this work and subsequent assessments to be accomplished in open conditions. There will be the need for close monitoring and ongoing risk assessments."
[3]The Secretary of State accepted that recommendation by a letter dated 17th January 2005. He did so on the basis of either the same or similar mistakes to those made by the Board:
"He considers a long period in open will enable you to build on your relapse prevention strategies, develop and test your release plan and enable you to build a relationship with the Probation Service, which will held you to be open about any future relationships. It will also allow time for assessment and completion of a healthy relationship programme."
[4]The Secretary of State thus, in January 2005, plainly regarded the completion of the healthy relationship programme as essential before the claimant could be considered for release. It is at least implicit in the report of the Parole Board and in the Secretary of State's letter of 17th January 2005 that both considered that that programme could be completed in open conditions. In fact, as subsequent events demonstrated, it never could have been. That course, together with all similar courses, are available in the closed estate in Category C prisons. The course available, or which may in due course become available, to the claimant is at Gartree, a Category C prison.[5]The reason for that is self evident. In open conditions prisoners are permitted unsupervised release into the community. They can form relationships and indeed this claimant has formed a relationship with a woman referred to as M. It is clearly prudent for the prison authorities, the Probation Service and the Secretary of State to require a prisoner such as this claimant to undertake the necessary courses to permit him to enjoy the qualified freedom that someone in open conditions does before he is permitted that qualified freedom. Otherwise, self evidently, those with whom he may form relationships may be put at risk.[6]Following upon that decision, the claimant was transferred to HMP Kirkham, an open prison, in April 2005. While there, enquiries by his solicitors revealed the fact that it was only in a Category C prison that he could undertake the necessary course before he could be released. By September 2005, it was apparent that the prison identified, where it was hoped that he would undertake such a course, required him to undergo a CALM assessment and, if it was thought appropriate, course. He was offered that opportunity in September 2005 but in closed conditions and declined to accept it.[7]In November 2005, the Secretary of State decided that he should be moved from open conditions to closed conditions. The precise reasons for that decision have not been fully explored but they included two significant reasons: first, to undertake the course he had to return to closed conditions and until he had undertaken the course it was not thought appropriate for him to remain in open conditions and, secondly, he had by then formed a relationship with M that was the cause of some concern to the supervising probation officers.[8]His case was therefore an unusual one in that he had been transferred to open conditions upon the recommendation of the Parole Board on the basis, at least in part, of mistakes common to the Parole Board and the Secretary of State and it is common ground he would at some stage thereafter have to return to the closed estate to undertake the necessary courses. This unusual problem was presented to the Parole Board for its consideration on 13th April 2006, by which date the claimant was in HMP Lindholme, a Category C prison. Unusually, he was then still regarded as a Category D prisoner for the purpose of categorisation insofar as it impacted upon his ultimate release date, even though he was physically in a Category C prison. The Parole Board noted in its advice of 18th April 2006 that it was intended that he should undertake a healthy relationships programme at Gartree prison but that it would take as long as two years before a place was available to him. The Parole Board noted that Gartree required him first to undertake a CALM programme. It noted the concern of the supervising probation officer, Ms Booth, that she was concerned that the claimant had not been as frank about his relationship with M with her as he should have been and noted the long standing concern that he might be violent in a situation of jealousy, especially if alcohol were involved, in relation to M or, for that matter, any other woman with whom he formed a close relationship. The Parole Board noted that further work needed to be done on relationships and the intense emotions which may arise within them but reached the following conclusion:
"The fact that the Healthy Relationships Programme is not available in open conditions should not prevent your retransfer to open conditions until such time as it does become available. As the risk is sufficiently low to be managed in open conditions, the Panel consider that it might be a retrograde step not to re-transfer you there to enable you to continue to make your progress through the prison system, to learn how to manage greater freedom, to accept responsibilities and test your motivation and resolve to put into practice all the matters that you have been taught over the years, as well as those you have learnt from life's experiences."
The Parole Board accordingly made its recommendation for transfer to open conditions in the knowledge that he would be required to return to closed conditions again to undertake the necessary courses. In effect, what it advised was that he should meanwhile remain in open conditions for the reasons which it gave.[9]That was an unusual recommendation but not one that was for that reason necessarily unacceptable but it was a recommendation only. The duty of the Parole Board arose under section 239(2) of the Criminal

Justice Act 2003:

"It is the duty of the Board to advise the Secretary of State with respect to any matter referred to it by him which is to do with the early release or recall of prisoners."
It was not the duty of the Parole Board to make the categorisation decision. That was the duty of the Secretary of State.[10]Nevertheless, the Secretary of State was not free simply to ignore the recommendation of the Parole Board. It is common ground between Ms Plimmer for the claimant and Mr Manknell for the Secretary of State that the observations of Jackson J in R (Banfield) v Secretary of State for

Justice [2007] EWHC 2605 (Admin) at paragraph 28 apply and in particular paragraphs 1 and 5:

"(1) The decision of the Secretary of State is not lawful if he fails to take into account the recommendation of the Parole Board and the fact that the Parole Board has particular expertise in assessing the risk posed by individual prisoners. Nevertheless, it is a matter for the Secretary of State what weight he assigns to those factors in any given case... (5) Even if the procedure adopted by the Secretary of State is fair, if his final decision is irrational it may still be quashed on traditional Wednesbury grounds."
[11]In a lengthy decision letter, dated 20th June 2006, the Secretary of State rejected the recommendation of the Parole Board. On the first page the letter set out conventional observations about the progress of a life prisoner through the prison estate and the need for programmes which addressed the risks posed to the public to be undertaken before transfer to open conditions and ultimate release. The heart of the letter is contained in two paragraphs on the second page:
"The Parole Board states that it accepts that further work to be done on relationships and the intense emotions which may arise within them. The Secretary of State agrees with this view and further notes that you have been assessed as suitable for the Controlling Anger and Learning to Manage it (CALM) course. You have yet to complete both this work and the high intensity version of the Healthy Relationships Programme (HRP) for which you are considered suitable. The Secretary of State considers it to be essential that you complete these two courses or other offending behaviour work to address these risk factors to his satisfaction prior to further consideration being given to possible transfer back to open conditions. This is in order for the level of risk you pose regarding violence (particularly in relationships) to be reduced to an acceptable level for management in open conditions. The Parole Board takes the view that the lack of this work should not prevent your return to open conditions. The Secretary of State disagrees. Both courses mentioned have been recommended because they are designed to address core risk factors surrounding your offending. Until these courses or similar work have been completed and your progress assessed, your risk factors cannot be considered to have been fully addressed. An open prison is a place to prepare for release and undertake resettlement activities. It is not an appropriate environment for someone to wait for such key courses to become available. With unaddressed risk factors it would be difficult for you to be addressed as suitable to take part in resettlement activities outside of the prison and therefore you would not be able to benefit from the opportunities available to those preparing for imminent release. The regimes in open prisons do not provide the resources for key offence-related work nor a sufficient level of security while those factors remain unaddressed and you would not be able to partake of the regime available in such prisons until the offence-related work had been completed. The risk of absconding may therefore be considered to be high. The Secretary of State has recently learned that you were offered the opportunity to transfer to another prison to commence the CALM course in September but you declined. The course is now filled and it will unfortunately be sometime before another place becomes available. However, prison staff will endeavour to find you a place as soon as possible as you need to complete this work prior to undertaking more specialised work on managing emotions within a relationship."
The letter went on to refer to the relationship with M and to Ms Booth's report, which formed part of the dossier before the Parole Board and the material considered by the Secretary of State in which she expressed the view that he was not suitable either for open conditions or for release because of her concerns about the relationship with M and what in her view amounted to his lack of frankness about it with her.[12]The Secretary of State agreed with her conclusions. A subsidiary issue in this claim is whether or not those conclusions were in some part based upon a mistake as to the date upon which a letter had been received by Ms Booth. That has formed the subject of a separate submission by Ms Plimmer and I will deal with it at the conclusion of this judgment. Accepting for present purposes that it did not have a material impact upon the Secretary of State's decision, the issues that seem to me to arise on this claim are as follows. Ms Plimmer submits that, although the Secretary of State's reasoning is unimpeachable in general, it is irrational on the particular facts of this case, because, she submits, without contradiction, that the claimant had demonstrated throughout his progress through the prison estate and while in open conditions between April and November 2005 commendable success. He was repeatedly described as a model prisoner with no behaviour issues. The only incident that may have contradicted that arose in relation to a prisoner whose evidence was not viewed as reliable and so has been entirely discounted. She submits that a further unusual feature of this case is the delay in affording access to the claimant to courses necessary to permit his release, a delay which in part may have arisen because of the mistakes to which I have referred made by the Parole Board and the Secretary of State in 2004 and 2005. Finally, she relies upon the fact that he had then served eight years after the expiry of his tariff. All of these factors, Ms Plimmer suggests, should have led the Secretary of State to conclude that an unusual answer should have been provided to the unusual problems posed by his circumstances and that that unusual answer should have been that provided by the Parole Board's recommendation. In effect, what this case is about is whether or not the Secretary of State rationally decided that he should await assessment for, and completion of, the necessary courses in closed conditions rather than, as the Parole Board recommended, in open conditions.[13]The Secretary of State has in support of his decision the common, perhaps indeed the universal, practice applied to life prisoners: that, before they are released into open conditions, they must, by undertaking necessary courses and by good behaviour within the prison estate, demonstrate that it is safe for them to be put in open conditions with a view ultimately to release. There is no suggestion that this claimant poses a high risk of absconding. The risk that he is believed to pose is of harm to members of the public in particular, those with whom he is in an intimate relationship, if he were to enjoy restricted or absolute liberty.[14]In my judgment, the reasoning of the Secretary of State is compelling. Whether or not Ms Booth's view about the relationship with M was partly based upon a mistake, she was plainly entitled to be concerned about the risk that he might pose to M were he to be retransferred to open conditions or released. The Secretary of State was plainly entitled to conclude in his case, as in the generality of cases, that before he could be safely transferred to open conditions he had to undertake the necessary courses. Far from ignoring the recommendation of the Parole Board, the Secretary of State addressed its view and stated the reasons why he disagreed with it. Those reasons are, as I have observed, cogent. They are certainly not irrational, either generally or in relation to the particular claimant.[15]Accordingly, and applying the test set out by Jackson J, I conclude without hesitation that the Secretary of State's decision was both rational and lawful. That is subject always to the mistake of fact upon which it was said in part to be based. The law in relation to mistakes of fact in cases of that kind is not in doubt. The test to be applied is set out in E and R v Secretary of State for the Home Department [2004] 2 WLR 1351 at paragraph 66, where Carnwath LJ stated that four requirements must be established before a mistake of fact could give rise to a mistake of law:
"First, there must have been a mistake as to an existing fact, including a mistake as to the availability of evidence on a particular matter. Secondly, the fact or evidence must have been 'established', in the sense that it was uncontentious and objectively verifiable. Thirdly, the appellant (or his advisers) must not have been responsible for the mistake. Fourthly, the mistake must have played a material (not necessarily decisive) part in the tribunal's reasoning."
[16]The mistake was as to whether or not a letter had been sent by the claimant and received by Ms Booth on 4th August 2005. She originally thought that she had not seen it until December 2005. It is now accepted that it had been sent to the Probation Service on or very soon after 4th August 2005 and received by them on that date. Nevertheless, it did not allay Ms Booth's concerns for the reasons which she has set out in a witness statement prepared for these proceedings. I need not set out her observations in any detail. Nor, on reading her report, was the believed non-receipt of that letter until December 2005 at the heart of her concerns. They were that he appeared to have unrealistically high expectations of the relationship, had not done any thinking about how he would manage inevitable problems that will face him and M, had not developed strategies to manage conflict and that he lacked the ability to use future supervision to discuss those issues and benefit from advice. She did refer to his lack of openness in discussing the development of the relationship but that was a reference not just to the letter but also to the fact that he had not told her or any other officer about the relationship when it was starting, only later, after it had already begun. Her view, bluntly stated, was that, until he had undertaken the courses and thereby demonstrated that the risk to M was acceptable, he could not safely be put in open conditions let alone released. Accordingly, although a mistake as to the date of the receipt of the letter may have been made, it was neither decisive nor really material. It was but a small part of a package of concerns which Ms Booth had which she communicated to the Parole Board and the Secretary of State and which the Secretary of State took into account in reaching his decision. He was entitled to do so. His decision was not based to any material extent upon any underlying mistake that may have been made further down the chain.[17]Accordingly, and for those reasons, I reject this challenge to the decision to refuse to retransfer the claimant to open conditions in June 2006.[18]MS PLIMMER: Your Lordship, one clarification. At the beginning of your judgment, you referred to the Parole Board's decision of 9th February 2004 and you referred to paragraph 6 therein. The actual material decision of the Parole Board in 2004 was the one of 5th July 2004.

MR JUSTICE MITTING: Well, it carried forward what the Board decided in February 2005.

[20]MS PLIMMER: Yes, my Lord, I do not for one minute say that it is a material mistake, but it is just a point of clarification.[21]MR JUSTICE MITTING: I was aware that there were two decisions, or two recommendations, but that was the one which set out the Board's view and it was simply carried forward into the recommendation in July. I do not think it adds anything to it. Thank you for that.[22]MS PLIMMER: That only leads me to say that the claimant is publicly funded.

MR JUSTICE MITTING: You want a public funding assessment of his costs?

[24]MS PLIMMER: I would be grateful.[25]MR JUSTICE MITTING: Yes. Thank you both.

Cited in 3 later judgments