Wilmot, R (on the application of) v Secretary of State for Justice [2012] EWHC 3139 (Admin)

Case No CO/6460/2011

[2012] EWHC 3139 (Admin)

IN THE HIGH COURT OF JUSTICE

QUEEN'S BENCH DIVISION

ADMINISTRATIVE COURT

Venue Royal Courts of Justice, Strand, London, WC2A 2LL

Date 09/11/2012

Before

THE HONOURABLE MR JUSTICE KING

Between

The Queen (on the application of ALAN WILMOT)Claimant

Secretary of State for JusticeDefendant

(Transcript of the Handed Down Judgment of

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Ms Phillippa Kaufmann QC (instructed by Scott Moncrieff and Associates LLP) for Claimant

Mr Neil Sheldon (instructed by Treasury Solicitors) for Defendant

Hearing Hearing dates: 25 November 2011

Judgment

[1]The claimant is a discretionary life prisoner who was sentenced in 1987 following his convictions for multiple offences of rape (four counts), robbery and wounding with intent. He was then some 20 years of age, his date of birth being 21 January 1966. Each offence involved the claimant enticing a woman into a stolen car, taking her to a deserted location, and then beating and raping her. The sentencing judge described the claimant as ‘an appalling danger to women’. He received four life sentences with a tariff set at 10 years. That tariff expired in 1996. He has been in prison for over 25 years and is 15 years over tariff and is currently detained in closed conditions at HMP Whatton.

Inconsistency with the evidence

[2]By this claim for judicial review, the claimant seeks to challenge the decision of the Secretary of State, set out in a letter to the claimant dated 10 May 2011, not to follow the recommendation of the Parole Board dated 15 February 2011 that the claimant be transferred to open (Category D) conditions. The letter in terms referred to the conclusion of the Secretary of State that ‘on balance’ ‘the panel’s decision is irrational’.

[3]The critical issue raised in these proceedings has been whether the Secretary of State has by a policy announcement as to the circumstances in which he will or will not follow any recommendation for transfer, given rise to a legitimate expectation in the claimant that that policy will be followed, and if he has whether his present decision can survive any review by the court of the rationality of his application of that policy. At the heart of the dispute between the parties is whether the legality of the decision under challenge is to be judged in this court by reference to whether it was a lawful application of such policy or whether as Mr Sheldon submits on behalf of the Secretary of State, there is no evidence to support the existence of such a published policy sufficient to give rise to any such legitimate expectation, and the decision should be judged simply on the ordinary public law principles of rationality. The sole question he submits is whether it was Wednesbury irrational/unreasonable for the Secretary of State to disagree with the recommendation, to which Mr Sheldon submits the answer has to be ‘No’. Indeed Miss Kaufmann QC on behalf of the claimant concedes that if that were indeed the correct approach for this court to adopt, her challenge must fail.

[4]It is common ground between the parties that the principles to be applied in determining whether a published policy gives rise to a legitimate expectation are those identified by Laws LJ in R (Nadarajah) v SSHD

[2005] EWCA Civ 1363

at paragraphs 68-69 in a passage approved by Lord Phillips in R (Lumba) v SSHD

[2011] UKSC 12

at paragraph 312, where he referred to ‘where a public authority has issued a promise or adopted a practice which represents how it proposes to act in a given case’ and the principle that ‘the law will require the promise or practice to be honoured unless there is good reason not to do so’ and that ‘a public body’s promise or practice as to future conduct may only be denied and the standard I have expressed may only be departed from where to do so is the public body’s legal duty or is otherwise … a proportionate response (of which the court is the judge) having regard to the legitimate aim pursued by the public body in the public interest.’

[5]At paragraph 25 of the Statement of Grounds in support of this legitimate expectation ground of claim, the following appears:

‘Following the decision of the Administrative Court in R (Hill) v Secretary of State for the Home Department [2007] EWHC 2164 (Admin) the Secretary of State announced that he would exercise his discretion to transfer a life sentence prisoner to the open prison estate by following the Parole Board’s recommendation for such a transfer unless he considered the Board’s recommendation to be based on a material error of fact or irrational.’

[6]The only basis for this plea as at the date of the hearing before me was the content of the decision letter under challenge itself which contained the following paragraph:

‘Whilst the Parole Board’s recommendation for an indeterminate sentence prisoner’s transfer to open conditions is not binding upon the Secretary of State, it is the practice of the Secretary of State to accept such recommendations unless it is considered that the recommendation is based on material error of fact or that the recommendation is entirely unreasonable in all the circumstances of the case.’

[7]Subsequent to the hearing with leave of the court the parties submitted further evidence on this issue to which I shall return in due course.

[8]Before considering this issue further I turn to the facts material to these proceedings. History of previous reviews

[9]The claimant had previously been transferred to open conditions in November 2004 at HMP Leyhill being transferred to HMP Prescoed in May 2005. He was however moved back to closed conditions in August 2005 owing to concerns about his behaviour, he having engaged in a variety of inappropriate behaviour, some of which had a sexual element. The Secretary of State thereafter referred his case for advice to the Parole Board who in July 2006 recommended that the Claimant be transferred back to open conditions. The Secretary of State however declined to follow that recommendation, stating that the claimant should remain in closed conditions. The claimant sought to challenge that decision but was refused permission to apply for judicial review. During 2007 and 2008 the claimant was found guilty on adjudication of a number of offences against prison discipline. In September 2007 he was found in possession of a mobile phone, 2 sim cards and a homemade charger. Later the same month he barricaded the door of his cell to prevent prison officers from entering. In November 2007 a further mobile phone and charger were found in his cell. In December 2008 he was found in possession of another homemade charger although no phone was found on this occasion. A Parole Board review was conducted in 2008. The Board expressed concern about the claimant’s relationship with a vulnerable young woman and noted the claimant had been less than frank about that relationship with probation officers and staff. It further expressed concern about the claimant’s recent behaviour and adjudications and concluded that the claimant required more time in closed conditions so as to demonstrate that he had put into practice what he had learned on the various courses he had undertaken. The claimant accordingly remained in closed conditions. The 2011 Parole Board recommendation

[10]The Parole Board recommendation material to the present challenge was made in the context of a further parole review and following a lengthy oral hearing before the Board held on the 10th of February 2011 at which the claimant appeared, represented by his solicitor. The defendant was not represented and did not file any written observations for consideration at the hearing.

[11]The Board’s written determination was lengthy although it has to be said that most was devoted to a summary of the evidence with which it had been presented with its reasoning and decision appearing in a relatively short section appearing at the end under the heading ‘Discussion, panel’s assessment of risk and decision’.

[12]As regards the panel’s understanding of its powers with regard transfer to open conditions, there was a short introduction in which the panel identified the governing criterion as being one of assessing risk. The emphasis which follows is that of this court:

‘The parole board is empowered to order your release if it is satisfied that the risk of serious harm you present to the public no longer requires your continued detention. Alternatively if it is satisfied that your risk is at manageable level and free from any significant risk of absconding it may recommend that you be transferred to the open estate.’

[13]The panel recorded that the hearing of the claimant’s case had previously been deferred for three months for further enquiries and that the results of those enquiries had included comment on the claimant’s relationship with his partner Michelle. Evidence not supporting a transfer to open conditions

[14]The Board heard evidence from amongst others the claimant’s Offender Manager (Wendy Flemming-Hodge), his Offender Supervisor (Judith Clegg), very recently appointed in place of Pam Carter, and the prison psychologist (Ann Rawlings) all of whom had provided written reports and all of whom expressed the view that the claimant was not currently suitable to transfer to open conditions.

[15]In its written decision the Board summarised the evidence of these witnesses (and no complaint is made by any party that this summary was not consistent with the witness’ reports) to the following effect: 1) it noted the views of the Offender Supervisor Judith Clegg, who having read all the relevant reports had come to the same conclusion as Pam Carter, namely that the claimant needed to spend more time in closed conditions to demonstrate his capability to ‘be more open with staff and to develop robust self management strategies’. Her view was that the concerns expressed at the 2008 review remained unaddressed (‘were still outstanding’). As an example of the claimant employing avoidance strategies and lacking constructive engagement with staff, reference was made to the claimant’s unco-operative behaviour at the recent Sentence Planning meeting; 2) the Offender Manager, Wendy Flemming-Hodge, is described as saying ‘much the same thing’. She is noted as wanting to help the claimant but considered that in effect that the claimant needed to engage more constructively with probation services and tackle problems head on. As to risk, she thought it was too early for the claimant to go back into open conditions ‘out of fear’ for the claimant: in other words her view against a transfer was that it was not in the claimant’s own interests as it was likely to damage his progress since the extra freedom provided by open conditions was likely to result in the claimant making wrong choices (‘her real fear (for you) was that whilst your behaviour in the structured environment of prison was impeccable and you did as you were told, that in less secure conditions when you met with ambiguities you had a talent for making the wrong choices thereby damaging your own progress’). Perhaps significantly given their ultimate decision, the Panel record their enquiring of this witness what support should be offered to the claimant if he were transferred to open conditions, and her answer being ‘regular professional supervision, preferably by a psychologist, but certainly someone who would recognise any danger signals with whom you could engage’, and that ‘a structure to your life such as could be provided by the Sentinel programme at HMP Leyhill would be highly desirable.’ 3) the evidence of the prison psychologist, Ann Rawlings, was noted as confirming the claimant’s failure to behave appropriately at the sentence planning meeting and that she observed that the claimant’s avoidance technique was difficult to deal with. Essentially her view mirrored those of the probation officers: through a combination of lack of openness/engagement with his supervisors and his ability to make the wrong choices, she considered that the claimant was a man whose risk was unmanageable in open conditions although it is to be noted that the Panel elicited from her that the problem lay only with ‘poor self management’. In the course of their recording of Ann Rawlings’ evidence these two passages appear. Again it might be thought of some significance to understanding why the Panel ultimately made the decision it did:

‘when questioned by the panel she agreed that various risk factors – use of alcohol, threatening behaviour, mental health attitudes towards women and sexual pre-occupation amongst them – had no longer any current relevance or were sustained only by unsatisfactory evidence, your troubles came from poor self-management’. ‘the only way it seems to show whether you have learned your lesson would be to allow you to demonstrate that in conditions of lesser security.’

Evidence supporting transfer

[16]The Board heard contrary evidence from an external psychologist, Dr Jackie Craissati. She gave evidence consistent with her written addendum report of 24 January 2011, being an addendum to her report of 24 September 2009. In the final paragraph of her addendum report she expressed her opinion in terms of a preference that the claimant move to open conditions with the necessary support: ‘I recognise that there is a difficult balance between the need to support Mr Wilmot in progressing forwards and the need to avoid a failure in open conditions. Ultimately this is a matter for the Parole Board. My own view is that it would be preferable for Mr Wilmot to progress, but ideally this should be with the support of the probation service, and with some liaison with the receiving open prison, so that psychological support can be available to Mr Wilmot’.

[17]On the question of risk, Dr Craissati in that addendum report distinguished between the risk the claimant posed of sexual violence to women and children which she assessed as low provided that the claimant did not ‘become embroiled in a highly stressful situation and he maintained open collaboration with his probation officers’, and, the risk that the claimant would fail in open conditions which she described as being ‘higher’ and she further stated that such failure would set the claimant back several years. The material passage reads as follows:

‘20. … (b) it may be helpful to try to differentiate between particular types of risk. In my view Mr Wilmot poses low risk of sexual violence to women or children. This assessment would need to be revised in the future if he were embroiled in a highly stressful and emotional situation and withdrew from open collaboration with his supervising officer. However the risk of Mr Wilmot failing in open conditions for reasons unrelated to offending are higher: that is I recognise his capacity to provoke concerns or irritate others at times, as well as the emergence of behaviours – evasiveness or rule breaking – linked to his personality traits. Failing in open conditions would again set him back several years’

[18]In their Decision Letter the Parole Board, having heard from Dr Craissati, summarised her evidence in somewhat more positive terms in that it recorded her evidence as being that any failure in open conditions would be preceded by noticeable warning signs (deterioration in behaviour) and her view in favour of transfer to open conditions is described as ‘firm’. Her evidence was described by the panel as impressive and persuasive. The material passage is in these terms: (any emphasis is the emphasis of this court ):

‘Finally there was the evidence of Dr Craissati whose evidence the panel thought impressive and persuasive. She had been involved with your case and knows you well. Dr Craissati had seen you and spoken at length twice with Michelle Gardner. She notes that in all the complex events in your custodial history there has been no violence or any evidence of coercion in your relationships nor is there any evidence that your failures have raised your risk level to unacceptable levels. The worries, which she shares, have been about compliance with rules. As to risk Dr Craissati observed that the risk for an offender like you - one engaged in a spree of rapes - of a sexual assault is relatively low in later life. The risk of failure in open conditions on the other hand is high but any such failure would be preceded by a ‘noticeable and dramatic deterioration’ in your behaviour. You were ‘workable with’ and that work should be on reducing the risk of failure and that would require your engagement. However Dr Craissati saw signs that you had become rather despondent about your future and that had made you contemplate the necessity of engagement. If you were transferred to open conditions you would need some skilled psychological support and oversight. On balance Dr Craissati was firmly of the view that you could be transferred safely to open conditions where you needed to show that you could make sensible decisions with the support of your supervisors.’

The Parole Board Decision

[19]Under the heading ‘Discussion, panel’s assessment of risk and decision’ the panel explain their reasoning for recommending the claimant’s transfer to open conditions in terms which I would accept show that 1) the panel (as it had in the opening paragraph to the Decision Letter, already quoted) considered that it was solely concerned with the question of risk of serious harm to the public and whether that risk was adequately manageable in open conditions, 2) that their view that it was, was based upon the facts thata. the claimant had not been violent during his many years in custody and

b. that any deterioration in the claimant’s behaviour in open conditions would be preceded by ‘warning signs’ which those responsible for the claimant would be able to pick up and act upon although the panel was not concerned with the day to day methods by which the claimant was managed and indeed made clear that on the evidence there was nowhere where the claimant could be realistically transferred where the necessary facilities would be available

c. the panel was satisfied – ‘having heard the evidence and applying the appropriate test’ that the claimant’s risk of causing serious harm was lower than that scored on the psychological tools, and was at a the level proposed by Dr Craissati.’

[20]What actually appeared under this heading was as follows (again any emphasis is the emphasis of this court):

‘The panel wish to make clear that the decision in this difficult case does not reflect in any way upon the professionalism competence or presentation of the probation officers or the prison psychologist all of whom concluded that you were not yet ready for transfer. It is imperative that you appreciate that they have your best interests at heart and that they were concerned principally that you did not fail in open conditions and therefore be sent back to closed conditions where probably, if not inevitably, you would remain a long time. The panel bear in mind too that what the officers had suggested as being necessary for you if transferred was probably only available at HMP Leyhill which is likely to remain an unsuitable location for you for the same reasons that led to your removal, the only other alternative was HMP North Sea Camp where no psychological services were currently available. It followed that so far as the probation services were concerned there was nowhere to which you could realistically be transferred. However the fact of the matter is that you have now been inside for many years past tariff and the Board’s concern is with risk and in particular the risk you present of inflicting serious harm on the public, particularly of serious sexual harm, if you are no longer an unacceptable or unmanageable risk of doing so then it is difficult to see how your continued detention in secure conditions can be justified. All the evidence points to this conclusion that whilst you have difficulty in complying with the rules nothing in terms of your behaviour over the last 20 years indicates that you have or have come anywhere near to a resort to violence. You have made liaisons with vulnerable women but have never sought to inflict violence upon them or to take advantage of them, as evidenced by your relationship with Natalie Lambert when you were previously in open conditions. Given you are a convicted multiple rapist, it is unlikely, as Dr Craissati points out, that you would be able to establish a relationship with a woman without difficulties in life. Your risk of resorting to bad behaviour of one sort or another would almost certainly be preceded by obvious warning signs - regression to avoidance techniques of coping with the professionals, drinking and persistent rule breaking. The Parole Board is not concerned with day to day methods by which you are managed or where you are managed. It is only concerned with risk and whether that can be managed without risk of abscond. The panel was satisfied – having heard the evidence and applying the appropriate test that your risk of causing serious harm was lower than that scored by the psychological tools and by OASys, and was at the level proposed by Dr Craissati. Given the proper facilities the panel concludes that your residual risk is manageable in open conditions and the risk of absconding is low. Accordingly, the Parole Board recommends that you be transferred to open conditions.’

The results of the psychological tools and OASys

[21]The reference in the Board’s decision to the higher scores recorded on the various psychological risk assessment tools (for the most part dependent upon both static and dynamic factors) was a reference to results recorded in the expert reports before the Panel, both that of Ann Rawlings and that of Dr Craissati, in particular:• a PPG (penile plethysmograph) assessment of 2008 completed by one Christopher Dean (Chartered Forensic psychologist) reviewing previous PPG data; (reported on by Ann Rawlings);

• the Risk Matrix 2000 applied by both Ann Rawlings and Dr Craissati (Dr Craissati herself when assessing the claimant’s sexual risk found he fell within the second highest of four bands on the Matrix and the highest of four risk bands on the Static 99 test all of which had led her to conclude that it ‘would be prudent and appropriate to assume that deviant sexual interests and sexual preoccupations remain a potential risk factor in the future when linked to negative mood’; Ann Rawlings reported similar results with the risk of sexual reconviction being assessed as ‘medium’ and that of violent reconviction being ‘high’;

• the PCL – R psychopathy assessment, administered in the past in 1999 and referred to by Ann Rawlings, and administered by Dr Craissati who found that the Claimant scored ‘relatively highly’ with a score of 26;

• SARN (Structured Assessment of Risk and Need) referred to by both psychologists;

• the HCR-20 administered by Ann Rawlings (but not by Dr Craissati, and not expressly referred to by her) directed at predicting the risk of future violent offending. This had resulted in the claimant being assessed as a posing a moderate level of future violence with a high level of imminence. Ann Rawlings had noted that a transfer to open prison would place significant pressures on the claimant and her overall conclusion had been that the risk posed by the claimant to the public was too high for transfer to open conditions.

[22]The OASys assessment (Offender Assessment System) referred to was the probation assessment as reported by Wendy Flemming-Hodge, according to which the risk of reconviction was medium (although the static risk scores assessed the risk as ‘high’) and the risk of serious harm was ‘high’. Ms Flemming-Hodge’s analysis noted the claimant’s continued propensity to form relationships with vulnerable women and the lack of evidence that he was able to manage the identified risk factors.

[23]Mr Sheldon on behalf of the Secretary of State submitted that the overall effect of this evidence was that the claimant had been consistently identified as presenting a medium or high risk to the public following the application of a variety of different assessment tools. This was in the context of an overall submission that the Panel’s conclusion that the risk posed by the claimant was less than that revealed in the results of the various psychological and risk assessment tools was inadequate and that the Panel had failed to provide any or any good reason why it rejected the large volume of consistent objective evidence that the claimant posed a significant ongoing risk of serious harm.

[24]I should record at once the response of Miss Kaufmann QC on behalf of the Claimant that although Dr Craissati did not refer to the results of the HCR-20 assessment in terms she must have had these and all other assessment results referred to in the other reports in mind when she wrote her addendum report since she wrote at the outset in that addendum that she had considered the updated parole dossier with particular reference to the reports of Ms Flemming-Hodge and that of Ann Rawlings. In any event says Miss Kaufmann, Dr Craissati in her 2009 main report had analysed the risk assessment tools in the context of a risk assessment exercise that looked more broadly at other evidence relating to risk.

(b) (see above) read as follows:

‘65.Finally, I would suggest that if Mr Wilmot were able to develop a relationship with his supervising probation officer back in open conditions, then they would be able to develop a robust risk management plan in collaboration. In anticipating possible risks I would suggest that the most likely problems might occur in terms of Mr Wilmot breaking rules and impulsively seeking to further his intimate relationship and employment without keeping his probation officer fully informed. These are problems associated with low harm to others. I would not consider Mr Wilmot to pose a high risk of harm behaviours – violence or sexual assaults - unless there were considerable concerns regarding a breakdown in supervision, sustained deterioration in mood and emerging difficulties in his intimate relationship.’

The Decision Letter of the Secretary of State

[25]I turn to the decision of the Secretary of State for not following the Parole’s Board recommendation, set out in his letter to the claimant of the 10 May 2011. The letter fell basically into two parts. The first rehearsed what the author understood to be the evidence before the Panel and a statement of principle of what the Panel had been required to do, namely to weigh level of current risk against the benefit of a move to the claimant. The second set out why the recommendation was not being accepted. Rehearsal of the evidence before the Parole Board Panel; statement of principle

[26]The letter rehearsed the risk factors identified by the Panel for assessing the claimant’s risk of harm, namely a callous lack of empathy, sexual preoccupation, sense of entitlement, sexual arousal through coercion, control over women, lack of relationship and social skills, grievance thinking, poor self management and poor cognitive skills. It referred to the various offending behaviour programmes completed by the claimant and said that:

‘The Secretary of State notes that the consensus of post programme reports from these courses was that you had participated well and taken on board an element of learning outcomes. However, at times it was felt that you had difficulty in putting them into practice.’

[27]At the opening of the next paragraph the writer referred to the requirement upon the Panel ‘to consider and weigh the level of risk you currently pose against the benefit of such a move to you’. This is self evidently a reference to the requirement in paragraph 3 of the Directions issued by the Secretary of State to the Parole Board (as to which see below). It then proceeded to summarise that which the Panel had rehearsed as regards the evidence of the Offender Manager, Offender Supervisor and the Prison Psychologist in not supporting the transfer to open conditions. The letter makes express reference to the Panel having ‘felt’ that the only way for the claimant to be tested was for him to be transferred to open conditions. It then went on expressly to highlight the concerns expressed by the prison psychologist in her report and the level of risk identified in the various assessments upon the claimant using the tools identified above, in these terms:

‘The prison psychologist had raised concerns in (her) report that the area of your sexual fantasies may remain untreated. The PPG Assessment from April 2008 had also indicated that you had a greater sexual interest in children of different sexes and various ages compared to sexual interest in adults and rape scenes. The psychologist considered this to be an ongoing risk factor. The HCR-20 assessment identified you as posing a moderate level of future violence with a high level of imminence due to your use of anti-social problem solving skills in stressful situations. The PCL-R identified a high level of psychopathic traits, increasing your risk of violent and sexual re-offending. These traits were present in your behaviour in closed conditions, particularly attempting to control others and your deceit and lack of responsibility as evidenced by your poor conduct at the sentencing planning board a week prior to the hearing. You have also been assessed as a high risk of serious harm to the public and a medium risk of re-offending using OASys.’

[28]The letter summarises the evidence given by ‘the independent psychologist’ i.e. Dr Craissati, considered ‘persuasive’ by the panel in these terms:

‘the report writer believed that there was no evidence of violence or coercion in your relationships and the risk of your failure in open conditions would be preceded by ‘a noticeable and dramatic’ deterioration in your behaviour. The independent psychologist recommended your transfer to open conditions where you would be able to access support from the professionals, including a psychologist. The panel concluded that you no longer present an unacceptable risk or unmanageable risk and therefore it is difficult to justify your detention in closed conditions. The panel felt that any risk of your ‘resorting to bad behaviour’ would be preceded by obvious warning signs, i.e. regression to avoidance techniques, use of alcohol, and persistent rule breaking. The panel was satisfied that your risk of causing serious harm was lower than that scored by prison and probation staff using psychological tools and OASys and recommended your transfer to open conditions.’

Why the recommendation was not being accepted

[29]This is of course the critical passage for the purposes of the current challenge. I set it out in full: (any emphasis is the emphasis of the court):

‘Whilst the parole Board’s recommendation for an indeterminate sentence prisoner’s transfer to open conditions is not binding on the Secretary of State, it is the practice of the Secretary of State to accept such recommendations unless it is considered the recommendation is based on a material error of fact or that the recommendation is entirely unreasonable in all the circumstances of the case. The Secretary of State notes that there is no evidence of a material error in the panel’s decision. However in line with the above criteria, he considers there is a significant body of evidence that you are not ready for transfer to open conditions. Report writers have identified a number of outstanding risk factors in your case, particularly your management of emotions, self management, your ongoing sexual interest in rape scenes and your controlling behaviour, as evidenced recently with your relationship with your partner and your unacceptable behaviour at the sentence planning meeting. It is not clear why the panel chose to disregard this evidence. This coupled with the unsupported assertion of the independent psychologist, which the panel chose to accept, that if your conduct deteriorated in open conditions, you will almost certainly exhibit obvious warning signs, leads the Secretary of State to conclude that, on balance, the panel’s decision is irrational.’

Subsequent statements from both Parole Board and on behalf of the Secretary of State Parole Board letter 19 August 2011

[30]The Parole Board by way of letter dated 19 August 2011 exhibited to a witness statement from the claimant’s solicitor, Mr Sperling, has put in a response to his question whether or not the Panel considered the matters which the Secretary of State criticised their decision for failing to take into account. Although I would accept that this response is strictly speaking immaterial to the question whether the Secretary of State was entitled to reach the decision he did on the 10 May in light of the material before him at the time, I record that in essence that response is to the effect that the panel preferred the evidence of Dr Craissati to that of the other witnesses, describing her as a very experienced and highly competent independent psychologist who was in their view ‘head and shoulders above the prison professionals in her depth of thought in pursuing an analytical appreciation of the dilemmas and risk centred considerations involved in this case’ and who proved ‘having seen and heard from her and having tested her evidence to be better placed than the others to reach an objective all round view of the case’. The panel had disagreed with the other witnesses having found Dr Craissati ‘persuasive and able to offer helpful, sensible realistic evidence which countered or resolved the concerns of the offender supervisor and prison psychologist’.

[31]The panel also confirmed that the Secretary of State had not contacted them over the case to enquire whether they had taken matters into account although it is conceded on behalf of the claimant that there was no obligation on the Secretary of State to do so. Witness Statement of Mr Ransom Response to the Parole Board letter

[32]Partly in response to that Parole Board response, the defendant has placed before the court a witness statement from the material Team Leader responsible for the decision letter, Mr Ransom, dated 7 November 2011. As regards that response, Mr Ransom confirms that it does not alter the decision of the Secretary of State and comments that although the panel provided justification for attaching greater weight to the evidence of Dr Craissati than that of NOMS professionals, largely due to her greater experience, they ‘do not focus on the risk presented by Mr Wilmot’ and in addition ‘the letter does not address the further issues identified within my letter to Mr Wilmot’. Building on that comment, Mr Sheldon submitted to me that the response of the Panel is nonetheless illuminating as to the quality of its reasoning in the case. To quote his skeleton argument:

‘The particular matters the Secretary of State ‘criticised’ the Panel for failing to take into account included: the claimant’s poor management of emotions and the use of avoidance strategies, his poor self management; his ongoing interest in rape scenes; his controlling behaviour as evidenced in his relationship with his current partner; and his unacceptable behaviour at a recent planning meeting. Reference was also made to the PPG assessment from 2008 indicating an increased sexual interest in children; the findings of the HCR-20 assessment; the findings of the PCL-R assessment; and the OASys re-offending assessment. The Panel’s answer to the claimant’s solicitor’s question amounts to nothing more than a re-statement of the obvious fact that it preferred the evidence of Dr Craissati to that of all the other witnesses and repeats the failure to engage properly with the evidence with which it was presented. … It is precisely this lack of analysis and failure to engage with the detail of the evidence that causes the Secretary of State such concern as to the validity of the Parole Board’s conclusions in this case.’

Reference to further matters not expressed in the decision letter: Panel’s failure to follow the Directions; application of wrong test

[33]In addition, Mr Ransom purports to expand upon the matters the Secretary of State took into account when rejecting the recommendation of the Parole Board by reference to the Secretary of State’s Directions. Having referred to paragraph 2.2.1 of those Directions under which these directions are to be taken into account when any decision to accept or reject the recommendation is made (see below) Mr Ransom continues:

‘Although my letter does not expressly refer to the fact that I took account of the Secretary of State’s Directions to the Parole Board, I confirm that I did so. In this instance the Panel had not followed the directions, specifically because they applied the wrong test in restricting its consideration to the question whether the risk posed by the Claimant to the public could adequately be managed in open conditions rather than conducting a balanced assessment of the risks and benefits of such a transfer’

[34]Miss Kaufmann however objects to the court reviewing the defendant’s decision on this ground of ‘application of wrong test’, it being said to be impermissible ex post facto reasoning. She points out that statement does not expressly assert that the alleged failure to follow the Directions actually afforded a reason why the defendant rejected the Parole Board’s recommendation. Mr Sheldon submits to the contrary that as the Directions provide the well established framework for decisions of this nature there can be nothing questionable about Mr Ransom having had the Directions in mind when reaching his decision and he must be entitled to provide the court with evidence as to what factors he took into account (as indeed the Parole Board had purported to do at the request of the claimant). The legal framework

[35]Before considering further the challenge to the decisionof the defendant I turn to set out the statutory framework relating to the transfer of prisoners within the prison estate.

[36]The starting point which is uncontroversial is that the discretion whether or not to transfer a prisoner to open conditions resides with the defendant. This flows from the terms of section 12 of the Prison Act 1952 providing that a sentenced prisoner shall be committed to ‘such prisons as the Secretary of State may from time to time direct’ and may, by direction of the Secretary of State, be transferred during the course of his sentence from one prison to another. Rule 7 of the Prison Rules deals with the classification of prisoners and provides that prisoners shall be classified in accordance with any directions of the Secretary of State. Account is to be taken of the age, temperament and record of the prisoner and of furthering the purpose of their training and treatment. Those prisoners who are suitable to be accommodated in Category ‘D’ open conditions are described in PSO 900 as prisoners ‘who can be reasonably trusted in open conditions’. Role of the Parole Board

[37]Pursuant to section 28 of the Crime (Sentences) Act 1977 there is an obligation on the Secretary of State to refer life sentenced prisoners to the Parole Board to consider whether they should be released and if the Parole Board so directs, the Secretary of State must follow that direction (see section 28 (6)).

[38]There is however no equivalent statutory obligation on the Secretary of State to refer to the Parole Board the question whether a prisoner should be transferred to open conditions. However given the obvious link between a transfer to open conditions and ultimate release (such a transfer is normally the only means by which the prisoner can progress to release) it is common practice in the context of a referral for consideration of release, for the Secretary of State to request advice from the Parole Board as to whether a transfer would be appropriate. This is what happened in the current case. When giving its recommendation the Parole Board is fulfilling its functions under section 239 of the Criminal Justice Act 2003 (the 2003 Act) in particular its duty under subsection (2) to advise the Secretary of State with regard to any matter referred to him which is to do with the early release or recall of prisoners. Directions of the Secretary of State to the Parole Board

[39]The Secretary of State pursuant to the power conferred on him by section 32(6) of the Criminal Justice Act 1991 (now to be found in s 239(6) of the 2003 Act) has issued Directions to the Parole Board as to how it should go about giving advice in a transfer case. These are to be found in PSO 6010. Paragraph 3 of its Introduction reads as follows:

‘3. A move to open conditions should be based on a balanced assessment of risk and benefits. However the Parole Board emphasis should be on the risk reduction aspect and, in particular, on the need for the lifer to have made significant progress in changing his/her attitudes and tackling behavioural problems in closed conditions, without which a move to open conditions will not generally be considered.’

[40]The Directions themselves include, material to the arguments which have been addressed to this court, at paragraph 5 that the Parole Board ‘must take into account’ when evaluating the risks of transfer against benefits, a number of identified ‘main factors’:a. the extent to which the lifer has made sufficient progress during sentence in addressing and reducing the risk to a level consistent with protecting the public from harm in circumstances where the lifer in open conditions would be in the community, unsupervised, under licensed temporary release;

b. the extent to which the lifer is likely to comply with conditions of any such form of temporary release;

c. the extent to which the lifer is considered trustworthy enough not to abscond;

d. the extent to which the lifer is likely to derive benefit from being able to address areas of concern and to be trusted in a more realistic environment, such as to suggest that a transfer to open conditions is worthwhile at that stage.

[41]Paragraph 7 of the Directions states that before recommending transfer to open conditions, the Parole Board ‘shall also consider the lifer’s relationship with the Probation Service (in particular the supervising probation officer) and other outside support ...’

[42]I would accept that from their terms these Directions are mandatory for the Parole Board to follow. See further R (Ian D’Cuhna) v Parole Board

[2011] EWHC 128 (Admin)

. Further, as already indicated, the Directions themselves make clear at paragraph 2.2.1 that the Secretary of State will have regard to his Directions when deciding whether or not to accept the recommendation of the Parole Board. Status of any Parole Board Recommendation

[43]There is, critically for present purposes, no statutory obligation upon the Secretary of State to accept such recommendation as the Parole Board may make. That decision remains that of the Secretary of State and he would be unlawfully fettering his own discretion if he were to consider himself bound by a recommendation of the Parole Board on transfer. The material prison service order (PSO 6010) itself sets out the procedure to be followed by the Secretary of State. It includes the following:

‘2.2 Move to open conditions 2.2.1 Indeterminate sentenced prisoners will normally only be transferred from closed to open conditions when a positive Parole Board recommendation has been accepted by the respective Team Leaders in the PPCS on behalf of the Secretary of State. The process is as follows: 1. The Parole Board having considered the prisoner’s dossier, including all relevant reports, and any oral evidence at the hearing, makes a recommendation for transfer to open conditions. 2. The respective PPCS Case manager (in practice this responsibility belongs to the Team Leader) considers the Parole Board’s recommendation and decides (on behalf of the Secretary of State) whether to accept or reject that recommendation, taking into account the Secretary of State’s Directions to the Parole Board … and will issue reasons for their decision …’

[44]I should record that although the PSO also states that ‘Where the case manager is minded to reject such a recommendation, Ministerial approval will be sought’ the evidence before me was that in July 2010 it was agreed by Ministers that such approval should be sought from the Head of Group and such approval was obtained in the current case.

[45]In principle the only fetter which the courts have recognised upon that discretion are those derived from well known public law principles imposing upon the Secretary of State the duty to exercise his discretion fairly and rationally in the Wednesbury sense.

[46]Pursuant to those principles, the courts have recognised the expertise which resides in the Parole Board itself on these matters, in particular on the assessment of risk, (see for example the observations of Thomas LJ giving the judgment of the court in Queen on the application of Nezar Hindawi v SSHD

[2011] EWHC 830 (QB)

at paragraph 50, so that the Secretary of State would be acting unlawfully if he did not take such recommendation into account.

[47]However, this said, subject to the public law constraints of fairness and rationality, the courts have long held that it is open to the Secretary of State to disagree with any Parole Board recommendation and to reject that recommendation and the only basis upon which a court on a judicial review will interfere with any such decision of the Secretary of State is on application of those public law constraints. Hence to date the guiding principle in the authorities has been that it is not for the court itself to assess the reasonableness of the Parole Board to determine whether it can be characterised as irrational in the Wednesbury sense. The court rather must direct its attention to the rationality of the Secretary of State’s decision: it will not interfere with that decision, unless his decision is to be adjudged irrational in the Wednesbury sense or reached by an unfair process. On this see the formulation of principle by Jackson J in R (Banfield) v SSJ

[2007] EWHC 2605 (Admin)

at paragraph 28.

[48]As I have indicated, again critically in the present case, Miss Kaufmann has conceded that if the decision under challenge were to be tested solely by these principles of fairness and rationality the challenge must fail. She concedes that the Secretary of State strongly disagreed with the recommendation of the Parole Board and has rational grounds for his disagreement. Her case is however that there can be no grounds for concluding that the decision of the Parole Board was other than rational and because of the announced policy of the Secretary of State to accept such a rational decision, he was bound to do so in this case. The alleged policy/practice of the Secretary of State

[49]I return then to then to the equally critical question whether as Miss Kaufmann submits the Secretary of State has by published policy in accordance with the principles enunciated by Laws LJ in Nadarajah and confirmed by the Supreme Court in Lumba given rise to a legitimate expectation in the claimant and in effect bound himself to accept a recommendation of the Parole Board unless it can be properly characterised as irrational in the Wednesbury sense or unless he gives good reason for departing from the policy. If this proposition be made out then, given in his decision letter the Secretary of State did not purport to be departing from the practice there set out, it would be, so the submission goes, for this court to test on public law grounds the rationality of the Secretary of State’s decision by asking whether it was rational for the Secretary of State to conclude that the recommendation of the Parole Board was irrational in the above sense. This is, as indicated, the fundamental basis upon which the challenge to the Secretary of State’s decision is mounted in these proceedings, the claimant’s case being that as there are no grounds upon which the Parole Board decision can be deemed Wednesbury irrational, the claim must succeed no matter that the court considers – as Miss Kaufmann concedes – the Secretary of State had rational grounds for disagreeing with the Parole Board.

[50]As indicated, initially Miss Kaufmann could rely solely on that which is set out in the decision letter which might be thought to be a poor foundation for the existence of an announced published policy or practice as contended for in paragraph 25 of the claimant’s detailed grounds sufficient to give rise to a clear public ‘promise’ to adopt a Wednesbury irrationality threshold in the above sense. Further evidence

[51]In response to the invitation of the court further evidence was lodged on this issue as follows. On behalf of the Secretary of State

[52]Ms Clare Pope, head of casework in the Public Protection Casework Section (PPCS), Offender Management and Public Protection Group, within the National Offender Management Service (NOMS), has given a witness statement in which she says (any emphasis is the emphasis of this court):• In recognition of the parole board’s experience and expertise in the risk assessment of prisoners, the general approach of the Secretary of State since 2008 has been to accept the Board’s recommendations in such cases unless it is considered to be based on material error of fact and/or is irrational in all the circumstances (paragraph 4);

• Internal guidance on the consideration of such recommendations was prepared and issued to PPCS Team Leaders (they having the material responsibility for considering the Parole Board recommendations) in July 2008. The purpose of the guidance was to ensure a consistency of approach (paragraph 5). The guidance is exhibited;

• The guidance however has not yet been included within a published Prison Service Order or Prison Service Instruction (paragraph 5);

• Irrationality’ for these purposes is defined as the Parole Board recommendation being inconsistent with the evidence by going against the recommendation of most of the main report writers and, in giving its reasons, failing to explain why they have done so or to address the risk factors identified in the reports ( paragraph 6);

• However, the Secretary of State considers every case on its facts and retains an unfettered discretion to adopt or depart from the recommendation of the Parole Board, subject to familiar public law principles of review (paragraph 6);

• No public announcement was made to the effect that the Justice Secretary would only reject Parole Board recommendations on moves to open conditions if they were irrational or based on a material error of fact;

• the former Justice Secretary did allude to the practice when delivering the Sir David Hatch Memorial Lecture in January 2008, in response it is believed to a question following the lecture;

• the process has been referred to in responses to correspondence from prisoners, their families, and the general public either directly or via their Members of Parliament and from prisoners’ legal representatives (paragraph 7). The Guidance

[53]The exhibited Internal Guidance in its material parts states as follows: ‘Revised process for considering Open Recommendations 1. Initial consideration of all Parole Board open recommendations should follow the new open pro -forma. Start with reading the Parole Board recommendation and then just the conclusions and the risk reduction sections of the main report writers as identified on the pro forma. To help you consider whether a decision has factual inaccuracies or is inconsistent with the evidence, you should use the following criteria as an initial guide Inconsistency with the evidence 2. Where most (e.g. 2 out of 3 reports or 3 out of 5 reports) of the available evidence contained in the key reports points towards open conditions then the case should be accepted. 3. Where most of the available evidence contained in the reports points towards closed conditions then these cases will require further scrutiny using the existing open recommendation pro-forma as it is likely that the case should be rejected. 4. Where there is a conflict between report writers with some recommending closed and some open, provided these conflicts have been addressed by the Parole Board then the case should be accepted. Account should be taken of any oral evidence that addresses the conflicts. Where the conflicting views have not been addressed then the case will require further scrutiny as it is likely that the case should be rejected.

Evidence on behalf of theClaimant

[54]The evidence lodged on behalf of the claimant consisting of 4 witness statements from legal representatives and others with experience of dealing with indeterminate sentenced prisoners confirm that which Ms Pope said in her statement that ‘the process has been referred to in responses to correspondence … from prisoners’ legal representatives.’ As to this, Mr Sperling, himself, in a second witness statement in these proceedings, exhibits a copy of a reply to a Freedom of Information Act Request from the PPCS sent to a colleague dated 28 July 2010. To the request in relation to ‘The Secretary of State’s current policy on considering the Parole Board’s open condition recommendation and the circumstances which would lead the Secretary of State to reject the Parole Board recommendation’ the following reply is given:

‘The Secretary of State will intervene only if the Parole Board’s recommendation is either based on errors of fact or irrational. For these purposes ‘irrational’ is interpreted as going against the recommendation of all the main report writers and in giving its reasons ,failing to address the risk factors identified in their reports.’

[55]This response is of course in one material respect different from that set out in Ms Pope’s evidence and the content of the exhibited Internal Guidance, namely the reference to ‘irrational’ being interpreted as going against ‘all’ as distinct from ‘most’ of the main report writers which in itself highlights what I would accept is the position, namely the absence of any clearpublishedstatement of policy in the sense used in the exposition of principle relating to legitimate expectation, contained in the cited authorities. This said however I do equally accept the thrust of the evidence in the other witness statements on behalf of the claimant that since 2008 and since the Hill decision in 2007 the rejection rate by the Secretary of State of Parole Board open recommendations has dramatically fallen, evidencing a change of practice on behalf of the Secretary of State. This court’s conclusions

[56]My primary conclusion given the unfettered discretion (subject only to the public law constraints of rationality and fairness) given to the Secretary of State by the statutory provisions, is that the court must be slow to find that the Secretary of State had bound himself always to follow the recommendation of the Parole Board on open transfer, unless it could be said that the decision of the Parole Board was irrational in the Wednesbury sense.

[57]It must be remembered that there has been no amendment to the Prison Service Order Directions to reflect such an approach and I agree with Mr Sheldon’s primary submission that no statement can be extracted from the Internal Guidance to case workers, and from whatever public statements have been made, to the effect that that the Secretary of State will not refuse to follow a recommendation which he believes to be clearly wrong – as he did in this case - even though the Parole Board decision might not fall to be characterised as irrational in the Wednesbury sense and arguments for its rationality in that sense can be credibly put forward, as Miss Kaufmann undoubtedly did in the present proceedings.

[58]I also agree that the term ‘irrationality’ used by the Secretary of State in making clear, as he undoubtedly has over recent years, that he will rarely depart from a Parole Board recommendation for open transfer is not to be interpreted as ‘a legal term of art’ and that what the Secretary of State has been seeking to convey is no more than that he will only interfere if he considers that the Parole Decision is clearly wrong as being inconsistent with his, the Secretary of State’s, own assessment of the evidence in the sense of being contrary to the clear weight of the evidence and being one which he considers has failed properly to address the risk factors identified in the main reports and any conflicts in the evidence.

[59]Even if a legitimate expectation had been created in the claimant that the Secretary of State would only reject a Parole Board recommendation in these limited circumstances, I do not consider that in the circumstances of this case that the Secretary of State was himself irrational in concluding that this particular decision was clearly wrong in the above sense.

[60]As I have indicated, I would accept that any fair analysis of the Panel’s decision shows that 1. the panel (as it had in the opening paragraph to the Decision Letter, already quoted) considered that it was solely concerned with the question of risk of serious harm to the public and whether that risk was adequately manageable in open conditions, 2. that their view that it was, was based upon the facts thata. the claimant had not been violent during his many years in custody and

c. the panel was satisfied – having heard the evidence and applying the appropriate test, that the claimant’s risk of causing serious harm was lower than that scored on the psychological tools, and was at the level proposed by Dr Craissati.

[61]As Mr Sheldon submitted, the Secretary of State in my judgment was entitled rationally to conclude, as his Decision letter in effect indicated, that the Panel in their express reasoning had failed properly to engage with the ‘significant’ body of evidence that the claimant was not ready for transfer to open conditions and in particular with the large number of outstanding risk factors suggesting a continuing risk of serious harm to the public (identified by the Secretary of State in his Decision letter) evidenced by the assessments made by all the experts using objective assessment tools (some of which were identified by the Secretary of State in his Decision letter) and that merely to stress that it had preferred the evidence of Dr Craissati to that of the other witnesses and had concluded on her evidence that the risk was lower than that scored on the psychological tools was not sufficient. As set out above, the overall effect of this objective evidence was, as Mr Sheldon submitted, that the claimant had been consistently identified as presenting a medium or high risk to the public following the application of a variety of different assessment tools. It may be as Miss Kaufmann submitted, that an argument can equally be made out that Dr Craissati had dealt with all these objective assessments in her reports (although not explicitly referring to them all) and had ‘firmed’ up in her oral evidence on what had been more equivocal findings reported in her written reports (see again her conclusion in the final paragraphs of her 2009 report and addendum reports set out above), and that the other witnesses had apparently ‘shifted ground’ under questioning from the panel on what was the nature of the continuing risk, but I fail to see how the Secretary of State was not rationally entitled to conclude that the contrary view of the professionals, other than Dr Craissati, as set out in their main reports, that the claimant was not ready for transfer, had not been adequately explained away by reference to any detailed evidence. I find force in Mr Sheldon’s submission in this regard set out above at paragraphs 23 and 32.

[62]Equally and perhaps more importantly, the Secretary of State must have been entitled rationally to conclude that the evidence of the ‘high risk’ of the claimant’s failure in open conditions identified by Dr Craissati herself had not been properly addressed by the panel in their assessment of the level of the ‘life and limb’ risk posed by the claimant to the public. There was an obvious link between the high risk of such failure, albeit based on anticipated behavioural problems unrelated to offending, and a consequential high risk of the stress factors arising which Dr Craissati herself indicated would give rise to an increase in the risk of serious harm to the public. In other words the high risk of failure in open conditions identified by Dr Craissati was a high risk of precisely the sort of situation arising in which the claimant would pose a high risk to the public. See again Dr Craissati’s evidence that the claimant’s risk of sexual violence was low unless ‘he were embroiled in a highly stressful emotional situation and withdrew from open collaboration with his supervising officer’. See too the conclusion in the 2009 report that ‘I would not consider Mr Wilmot to pose a high risk of harm behaviours – violent or sexual assaults – unless there was considerable concerns regarding a breakdown in supervision, sustained deterioration in mood and emerging difficulties in his intimate relationship’. I agree that there is nothing on the face of the panel’s reasoning to show that it took proper account of this analysis or rather I agree that it can not be said that it was irrational of the Secretary of State to conclude that no proper account had been taken.

[63]Moreover, crucial then to the Panel’s view that the claimant’s level of risk to the public was at manageable level would have to have been a finding that any deterioration in behaviour in open conditions would not only be preceded by the obvious warning signs identified by Dr Craissati (regression to avoidance techniques of coping with professionals, drinking and persistent rule breaking) but that these would be picked up in time by those responsible either to prevent such failure or to move the claimant back to closed conditions before any substantial increase in risk to life and limb materialised. However, I agree with Mr Sheldon that the Secretary of State must have been rationally entitled to conclude that on the evidence before the Panel it was not possible safely to conclude that the warning signs predicted by Dr Craissati (although not evidenced anywhere else), would be picked up and acted upon in time not least because the Panel expressly disavowed any consideration of what it described as ‘the methods by which you are managed or where you are managed’. I stress again that I do not consider that the issue for this court is – (or was for the Secretary of State) - whether the decision of the Parole Board in so concluding was or was not rational in the Wednesbury sense but whether the defendant was rational in concluding the evidence could not safely support such a conclusion and that the Parole Board decision had not properly addressed this matter.

[64]That all this was an obvious concern to the Secretary of State is reflected in his reference in his decision letter to the ‘unsupported assertion of the independent psychologist that if your conduct deteriorated in open conditions you will almost certainly exhibit obvious warning signs’.

[65]Thus I am satisfied that on any analysis of the Parole Board’s decision set against the evidence in the main reports, the decision of the Secretary of State not to follow the Parole Board’s recommendation in this case, and in effect to substitute his analysis of the case for that of the Parole Board, cannot be characterised as either as an irrational application of any practice or policy assuming for the moment that the claimant can lay claim to a legitimate expectation that such practice/policy would be applied, or as irrational on the straightforward Banfield approach. I reach this conclusion without the need to determine whether the defendant is entitled to invite the court to look to the legitimacy of the further explanation given by Mr Ransom post the Decision Letter that he took into account the Directions and that the Panel applied the wrong test under those Directions in focussing solely on the risk and not looking to the balance of risk and benefits of such a transfer, given the high risk of the claimant’s failure in open conditions which had the potential to put him back several years. I do so without the need to consider the detailed submissions of Mr Sheldon (strongly disputed by Miss Kaufmann) that on analysis the panel failed to have regard to these mandatory directions, in particular their alleged failure to have regard to the need for the lifer to have made significant progress in changing his attitudes and tackling behavioural problems in closed conditions, (see directions at para 3 and 5(a)), the potential detriment to the claimant of the proposed transfer (5(d)) and to the factor that the claimant had a poor relationship with the probation staff responsible for his case (para 7).

[66]I should stress however that I am far from satisfied that any legitimate expectation of the kind contended for, in fact is shown to have arisen in this case on the evidence before me, and as I have indicated there is no challenge to the rationality of the defendant’s decision applying the Banfield approach.

[67]For all these reasons this claim must fail.

Cited in 13 later judgments

and 4 more of the most senior