Rowe, R (On the Application Of) v Parole Board for England And Wales [2013] EWHC 3838 (Admin)

[2013] EWHC 3838 (Admin)Case No CO/13919/2012
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT SITTING AT LEEDS
Venue Leeds Combined Court
1 Oxford Row
Venue Leeds, West Yorkshire, LS1 3BGDate Tuesday, 25th June 2013
B e f o r e:
MR JUSTICE KING
Between
THE QUEEN ON THE APPLICATION OF ROWEClaimantv
Between
PAROLE BOARD FOR ENGLAND AND WALESDefendant
Digital Audio Transcript ofWordWave International LimitedA Merrill Communications Company165 Fleet Street London EC4A 2AGTel No: 020 7404 1400 Fax No: 020 7831 8838(Official Shorthand Writers to the Court)
Miss Krause appeared for ClaimantMr Manknell (instructed by Treasury Solicitor) appeared for Defendant
J U D G M E N T
[1]MR JUSTICE KING: This claimant is some 46 years of age. In September 2005 he pleaded guilty in the Crown Court to one offence of making threats to kill his partner and two offences of section 47 assault, again against his partner. On that occasion he was sentenced on the threat to kill to a indeterminate sentence for public protection ("IPP") pursuant to section 225 of the Criminal Justice Act 2003. The minimum term specified to be served for the purposes of retribution and deterrence, was a short one, some 8 months which expired in May 2006.[2]As regards the other two offences he received concurrent extended sentences of 12 months.[3]The tariff having expired, the claimant being an indeterminate prisoner, his continuing detention is based in law solely on the basis of continuing future risk. It is common ground that the claimant in this position is entitled to regular and speedy reviews of the lawfulness of his continued detention.[4]The offences of assault, at least the second one, was committed against the partner while he was on bail subject to a condition that he was not to have anything to do with his victim. The circumstances of the assaults involved the claimant attempting to strangle his victim, the second in a more serious fashion than the first, with the intervention of a third party being responsible bringing it to an end. The sentencing remarks of the sentencing judge included observations as to the serious nature the two offences being within a couple of months of each other, and of the use of protracted and serious violence against his ex-partner.[5]These proceedings are a challenge to the decision of the Parole Board by a letter dated 25th September 2012, following a hearing on the 20th September 2012, refusing to recommend to the Secretary of State that the claimant be transferred to Category D open conditions, he currently being a Category C prisoner at HM Prison Stocken.[6]There in fact had been two matters before the Parole Board. First, the Parole Board were considering whether to direct the claimant's release on licence under section 28(5) of the Crime (Sentences) Act 1997 pursuant to a referral by the Secretary of State under subsection (6)(a). Referrals under the 1997 Act are solely for the purpose of reviewing the lawfulness of the lifer's detention, lifer comprehending someone under an IPP, on/or following tariff expiry, and any direction made is binding upon the Secretary of State.[7]It is common ground that as regards that issue, whether or not there should be a release direction, the Panel were solely concerned with whether the detention of the claimant was no longer necessary for the protection of the public. This is often described as the "threshold test". However, the Board were also considering in the alternative whether to recommend the transfer of the claimant to open conditions. This was pursuant to a referral by the Secretary of State under section 239(2) of the Criminal Justice Act 2003, under which it was the duty of the Board to advise the Secretary of State, with respect to any matter referred to it by him which is connected with the early release or recall of prisoners. Referrals under the 2003 Act are solely for the purpose of obtaining advice from the Board and are limited in practice to advice as to the lifer's suitability for open conditions. Any recommendation for transfer is not binding on the Secretary of State.[8]Again, it is common ground that the approach of the Parole Board and the test which they have to apply, in deciding whether to advise on the suitability for transfer to open conditions, is different from the threshold test. It is wider than the threshold test and encompasses more factors.[9]In the Decision Letter the role of the Panel in this context is put in this way:
"Alternatively the Panel has been asked to advise the Secretary of State as to your suitability for transfer to open conditions. In this context the Panel must be satisfied that your level of risk is compatible with safe management in open conditions when not only will you be subject to a minimal security regime, you are likely also to be released on temporary licence. In assessing your risk to the public and your suitably for a move to a category D establishment the Panel will have regard to the Directions of the Secretary of State to the Parole Board relating to the transfer to open conditions of life sentence prisoners."
Those Directions were made by the Secretary of State pursuant to his power under subsection (6) of section 32 of the Criminal Justice Act 1991. The Directions initially issued in 2004 were updated for present purposes to those issued in March 2011.[10]The introduction says as follows:
"(i) A period in open conditions is essential for most life sentence prisoners (lifers). It allows the testing of areas of concern that more closely resemble those that the prisoner will encounter in the community, often having spent many years in closed prisons. Lifers have the opportunity to take resettlement leave from open prisoners and more generally open conditions require them to take more responsibility for their actions. (ii) The main facilities interventions and resources for addressing and reducing core risk factors exist principally in the closed lifer estate. In this context the focus in open conditions is to test the efficacy of such core risk reduction work and to address where possible any residual aspects of risk. (iii) A move to open conditions should be based on a balanced assessment of risk and benefits. However, the Parole Board's emphasis should be on the risk reduction aspect and in particular on the need for lifer to have made significant progress in changing his or her attitudes and tackling behaviour problems in closed conditions, without which a move to open conditions will not generally be considered."
The directions under paragraph 4 are that before recommending the transfer of the lifer to open conditions the Parole Board must consider (a) all information before it, including any written or oral evidence obtained by the Board and (b) each case on its individual merits without discrimination on any grounds.[11]In paragraph 5 the Parole Board is enjoined to take:
"... the following main factors into account when valuing the risk of transfer against the benefits (a) the extent to which the lifer has made sufficient progress during sentence in addressing and reducing 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 a 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 to trustworthy enough not abscond. (d) the extent to which the lifer is likely to derive benefit from being able to address areas of concern and to be tested in a more realistic environment, such as to suggest that a transfer in open conditions is worthwhile at that stage."
There are further directions given in paragraph 6 as to information to be taken into account when assessing the risk in such matters.[12]I accept the rationale of the judgment of His Honour Judge Stephen Davies sitting as a judge of the High Court in D'Cunha [2011] EWHC 128 (Admin) at paragraph 59 in which he held that these Directions are mandatory which must be followed by the Parole Board in advising on a transfer to open conditions. This is a decision which I follow. Further, I accept that the characterisation of the then applicable Directions given by Smith J (as she then was) in paragraph 38 of her judgment in Gordon [2000] EWHC 414 (Admin) is a characterisation as applicable today as it was before her and the directions she was looking at. I agree with her that although it is not incumbent upon the Board to set out its thought processes in detail, or to mention every factor that they have taken into account, "the balancing exercise they are required to carry out is so fundamental to the decision-making process that they should make it plain that this has been done and to state broadly which factors they have taken into account."[13]The challenge to this decision falls under three heads. One and two are linked. First it is said by Miss Krause on behalf of the claimant that the decision reached by the Board was wholly against the weight of the evidence. It is said that the Parole Board put far too much weight upon the opinions of a trainee psychologist Miss Fleming, whose report and oral evidence was before the Board, in contrast to the evidence of the claimant's offender supervisor, offender manager and that of the consultant psychologist Dr Pratt, instructed by the claimant's solicitors. Miss Fleming had carried out some one-to-one work with the claimant in the summer of 2012. She had seen him on some six occasions over a probably 2 month period beginning in June 2012. She had also seen him on five occasions between April and June to discuss the prospect of his one-to-one work. I will return in due course to what she said in her "end of contact report" dated 7th August 2012 and what is recorded by the Panel in their Decision Letter.[14]The second basis of challenge is one of irrationality or Wednesbury unreasonableness. There was not the evidence before the Board to justify their conclusion on the question of transfer to open conditions.[15]The third basis is that the decision is vitiated by the failure of the Board to carry out the balancing exercise, which I have already identified, which they required to do under the Directions.[16]It is common ground that the hurdle to be overcome by the claimant if he is to succeed on grounds 1 and 2 is a high one. It is well recognised in the authorities that the Parole Board is a reservoir of expertise and knowledge and it is not for this court simply to substitute its own decision, however strong may be this court's view, for that of the Parole Board.[17]It is common ground that it is for the Parole Board and not for this court to weigh the various considerations which it must take into account. It is it is common ground that the weight to be given to relevant considerations is a matter for the Parole Board and certainly for example, the decision on the balancing exercise is one for the Board and not for the court to carry out.[18]Several authorities were cited to me. I record, first, what Smith J said in Gordon at paragraph 31, namely quote:
"I remind myself that I must not in any way interfere with the discretion or judgement of the Parole Board, who, as Turner J. observed in ex parte Hart (unreported 24th May 2000) are 'uniquely qualified' to make the decisions it is called upon to make. I must ask myself whether they have carried out their task in accordance with the law, as set out in the statutory directions. I must consider whether the decision falls within the range of decisions which a reasonable panel might make. I must ask whether the reasons for the decision are proper, sufficient and intelligible."
[19]I refer also to the observations of Irwin J in O'Sullivan [2009] EWHC 2370 (Admin) at paragraph 18:
"... Of course, it is open to any panel to disagree with all of the expert evidence which is placed before them. Any properly constituted tribunal could do that, particularly one containing a reservoir of expertise and knowledge such as the Parole Board."
[20]I observe however that in that same paragraph, in the context of his case,

the judge found:

"But they simply failed to explain in this decision any full or appropriate reasons why transfer to open conditions should not take place."
[21]I was referred also to the judgment of Stanley Burnton J (as he then was) in Alvey [2008] EWHC 311, (Admin) in particular paragraph 1.27 where he said this:
"The Panel must give reasons for its decision, but it is not required to address every matter which it considers provided it is clear that it addressed the substance of the issues required to be addressed in a particular case, and that its reasons demonstrate why early release has not been ordered, and are sufficient to demonstrate the lawfulness of the decision."
I am mindful that that case was concerned with a determinate sentence and the applicable principles were not the same as in the present case. However, this statement of principle as to to giving of reasons can be applied mutatis mutandis to the Parole Board in the present type of case in my judgment.[22]On the question of the giving of reasons, I note that in D'Cunha Judge Davies cited the decision of the Court of Appeal in Oyston [2000] PLR 45, where in his judgment at paragraph 47 Lord Bingham said:
"It seems to me generally desirable that the Board should identify in broad terms the matters judged by the Board as pointing towards and against a continuing risk of offending and the Board's reasons for striking the balance that it does. Needless to say the letter should summarise the considerations which have in fact led to the final decision. It would be wrong to prescribe any standard form of Decision Letter and it would be wrong to require elaborate or impeccable standards of draftsmanship."
[23]It can be seen therefore that in respect of the challenge under(i) referable to the weight of the evidence before the Board and under(ii) referable to irrationality, the claimant is in effect inviting this court to be driven to conclude that no reasonable Board, on the material before it, could have reached the conclusion it purported to reach.[24]The third ground of challenge, in my judgment, is more straightforward, in that it is for the court to assess whether or not in the words of Smith J that the Board has carried out here the balancing exercise they are required to carry out and, and adapting the words of both Stanley Burnton J and Lord Bingham, that they have given reasons which demonstrate that they have addressed this balancing exercise.[25]I say at once my conclusions in this case. I consider that the challenge under grounds 1 and 2 fail but having considered the submissions on both sides I consider the challenge on ground 3 succeeds.[26]I must explain. I deal first with the evidence which was before the Board. They had two psychological reports from Dr Pratt one dated 5th January 2011 (page 122 of my bundle) and one dated 27th August 2012 (page 132 of the bundle). Dr Pratt's report and opinions were based upon two consultations with the claimant in 2010 and one again in the summer of 2012 immediately before his August 2012 report.[27]There was two reports from the offender supervisor, namely one dated 15th February 2012, and an addendum report of 6th September 2012. There was a a Parole Assessment Report of the offender manager, Sian Griffiths, of 3rd February 2012 and I understand an addendum report. This Addendum is not in my bundle but is likely, on the evidence I have heard to have been a report to like effect to the addendum report of the offender supervisor, Mr Evans, which postdated the end of contact report of Miss Fleming of the 7th August 2012.[28]The report of Miss Fleming itself sets out the circumstances in which it came to be prepared. The background is the offender behaviour work carried out in prison by the claimant directed to the reduction of his risk. In particular he had undertaken what is known as a High Intensity Healthy Relationship Programme.[29]When the claimant had been originally assessed on entry at prison, the risk factors relating to his intimate partner violence included:
"Attitudes supportive of sexiest roles and/or the abuse of women, sexual jealousy, lack of assertiveness and poor communications skills, high levels of anger, high levels of depression, personality characteristics (minimisation/victim incidents) and substance abuse."
That quotation comes from paragraph 3.2 of Miss Fleming's report but is reflected in the Board decision where at paragraph 4 it says:
"The Panel has identified your primary risk factors as poor emotional management impulsivity, poor thinking skills and assertiveness coping in a relationship, use of violence in relationship, sexual jealousy and your attitudes including a victim stance and hostile attribution."
[30]Following the completion of that healthy relationships programme an assessment was carried out by Mr Auty, senior chartered forensic psychologist on the 5th November 2008 to assess, as I understand, the outcome of that programme in terms of its impact on the risk presented by the claimant. This assessment out was known as a DARNA Assessment, being "a Domestic Assault Risk/Need assessment". His conclusion, of 6th November 2008 was that there were still areas of concern to be addressed. His conclusion (at paragraph 17) reads as follows:
"I do not feel that Mr Rowe is ready for open conditions at this time. While he has made some progress there remain treatment need areas that are unaddressed and current manifestations of treatment need in areas in which he's made some progress. Further insight is required before further consolidation can be considered."
[31]Miss Fleming in paragraph 2.2 identified the remaining concerns in this context as being:
"That Mr Rowe was unable to give a fully active account of the index offence, continuing to minimise his conduct and providing full details only of his victim's behaviour on the day."
[32]Miss Fleming's report was prepared on the instructions of the Parole Board according to paragraph 2.1 of her report. What appears to have happened is that the Board in order to assist the Panel in their assessment of risk, requested by way of direction to the Secretary of State, that Psychology, by which was meant the prison psychology department, submit a report concerning:
"Mr Rowe's progress on his recent one-to-one work, the impact of the intervention on risk and recommendations regarding any further work"
. Miss Fleming's report identifies at paragraph 4.1 that her work was focused on "developing an active account of his offence and responsibility taking". There is then in her report an account of how the claimant had progressed in the one-to-one sessions as regards the way in which he gave an account of the first offence of assault occasioning actual bodily harm, and of the second ABH offence and of the threats to kill.[33]It is quite clear she reported that the claimant had made some good progress. In respect of the first account, of his account she says at 5.1.4:
"Overall Mr Rowe made some very significant progress in developing an activity account of this offence."
She refers to "excellent progress".[34]Similarly, as regards the second offence and the threat to kill, she refers to some "good progress in developing a more active account". She equally reports at 5.3.1 the claimant demonstrating "much more insight" and reports that "all of this general insight is excellent".[35]However it is equally clear that she had continuing concerns and in particular at6.1 refers to "still further progress to be made in terms of responsibility taking as significant elements appear to be distorted and censored in Mr Rowe's favour". In6.2 she speaks of how Mr Rowe's "could appear defensive and suspicious of me and others involved in his sentence management". She refers at 5.1.2 how initially the claimant "didn't include any details of strangling ... in his decision chain" and that he couldn't explain why he had omitted such a relevant detail". She spoke of his in earlier sessions appearing "frustrated and defensive". At 5.1.4 she describe the claimant "still framing his violence in the context of trying to escape. As such Mr Rowe would benefit from examining whether he has internalised the view that he was the aggressor or whether he feels he has to say this to appease others."[36]Her overall conclusions include at 6.3 that although the claimant had made some excellent progress through his one-to-one work:
"he is now only at a point where he is able to give a account of his offence. This is despite significant access to treatment... The central issue behind Mr Rowe's lack of responsibility taking remains unchallenged. Hypotheses regarding the core reasons behind Mr Rowe's difficulty taking responsibility were discussed throughout his DAR/NA report and it was concluded that victim's stance and hostile attribution were treatment interfering factors."
Further on in the same paragraph:
"In my opinion Mr Rowe is hyper vigilant against being victimised and consequently becomes extremely emotionally aroused and defensive when he is challenged or criticised. This creates a barrier to treatment because he doesn't recognise his victim's stance and is therefore unable to challenge it."
In her summary at paragraph 7.1, Miss Fleming, having regard to the extensive access to treatment by the claimant, gives opinion that:
"It is concerning that at the beginning of his one-to-one work he could not discuss his offence in detail. Whilst he has made significant progress in this respect, he continues to censor his account and distort it in his favour. The DAR/NA report thoroughly documents the report writer's concerns regarding victim stance and hostile attribution which is consistent with Mr Rowe's reluctance and inability to take full responsibility for his intimate partner violence. I have significant concerns regarding his long term response to treatment and I am of the opinion that his personality profile may be a barrier treatment."
There is then a section in her report headed "Recommendations Regarding Further Work." She said the "following recommendations for future risk management should be considered": (i) an Assessment of Personality which would help establish which features of the claimant's personality were presenting barriers to risk management and engagement in therapy. The second was scheme therapy, focussing on identifying and understanding core beliefs. The third was individual work with a Psychologist focussing on personality and victim stance and the final one was Referral to a Therapeutic Community. (I should say in parenthesis that the referral to a therapeutic community was rejected by the Parole Board as being wholly disproportionate and I understand this could only be carried in a category B establishment).[37]She then made recommendations regarding where this work could be completed. She was of the view that in closed conditions the resources were certainly available to complete assessment of personality, and depending on outcome, there would be available different treatment opportunities. Equally, if he were released, the claimant could have contact with appropriate sources of assessment and treatment.[38]As regards open conditions, her stated opinion was this:
"Open conditions Mr Rowe's risk of violence is likely to be manageable in open conditions given that his risk is limited to relationship and open conditions would typically not provide significant opportunity to engage in a relationship (though there would be some). However there is less if any access to the assessments and further work outlined above which in my opinion are unnecessary for effective risk management."
[39]In a letter which was penned by Dr Pratt after receipt of the Decision Letter in this case, Dr Pratt's recollection of what Miss Fleming had stated in oral evidence at the hearing, was that she regarded open conditions as "The 'worst possible option', on the basis that "she believed that treatment was available in the community and in the closed estate and least of all in open conditions."[40]Set against the evidence of Miss Fleming was the evidence both oral and in report form of Dr Pratt, the consultant forensic psychiatrist and the evidence of the offender supervisor and offender manager. Dr Pratt's assessment at 6.3 of his addendum report of 27th August 2012 was:
"That he remained of the view subject only to information from Miss Fleming that, his risk of further violence can be judged as minimal and that his risk can therefore be judged as manageable in Approved Premises with all the restrictions and monitoring that will then apply."
He alone of those who gave evidence to the Parole Board was of the view that it would be appropriate to release the claimant.[41]The view of the offender manager, Sian Griffiths, in her report of March 2012 was that:
"Based on the progress made, the work to be completed, and the fact that it is anticipated that some of the work will be self directed, I would recommend unless there is some significant concern from the work completed with Psychology, Mr Rowe be released into open conditions. I feel this period would significantly enhance his risk management by planning resettlement and ensuring he uses the skills learnt from the programmes and ensure Psychology to ensure his risk is reduced for release. Should he be directed for release then I feel the risk management plan is in place."
As I have indicated the addendum of Miss Griffiths is not available.[42]What is available are the two reports from the offender supervisor, Mr Evans. He had originally in his report of February 2012 not recommended a transfer into open conditions. He said in his conclusion at paragraph 6 among other matters:
"Positive regime adherence doesn't automatically equal a reduction in risk. There clearly are areas that still have to be addressed on a one-to-one basis and the work evaluated and assessed as to its impact or not on Mr Rowe's risk to life and limb. Until that work had has been completed I'm finding it very difficult to make a professional assessment as to whether he has reached a stage where move to open conditions or release is realistic. Mr Rowe is working towards a point where move forward would be viable. However, and to date all the assessments and because one-to-one work have not been carried out or a robust risk management plan formulated by the Offender Management I'm not prepared to make a recommendation at this stage. Once these are available I will update this report and provide a firm recommendation."
He having received Miss Fleming's End of Contact report of the August 2012, Mr Evans in September 2012 then made a recommendation in these terms:
"4. Miss Fleming outlines the case for closed open and release conditions in her report. I would concur with her observations. It would be my assessment that Mr Rowe is slowly gaining insight into his offending. However, he needs to be open and trusting of those who are seeking to support him and help him through the prison process. I believe he's now reached a stage where his risk to life and limb can be managed in open conditions and any further identified work undertaken either in Open Conditions or into Community. In Open Conditions Mr Rowe's attitude and motivation to work within the establishment's regime will be tested as will be his ability to build up trusting relations with his Offender Manager and Prison Staff. Mr Rowe is aware of the pressures he will face in Open Conditions and the consequences of any breach of trust."
I should add that in her report at paragraph 8.2 Miss Fleming said this:
"In my opinion chief among the above recommendations is an assessment of Mr Rowe's personality as this will clarify what course of action is appropriate. All of the above recommendations are dependent on Mr Rowe's motivation to engage... There is a question over whether Mr Rowe would be motivated to engage in the above recommendations not because he doesn't want to engage so he can progress but because he feels he has engaged fully and is frustrated by his lack of advancement through the prison system."
I refer to that passage because it is relied upon by Miss Krause as an example of a benefit to the claimant which would be derived from a transfer to open conditions, given that he would in those circumstances be more likely to be willing to engage in his work and would not suffer the frustration there identified.[43]As I have indicated the Parole Board not only had the written reports as identified but also heard oral evidence: from the claimant, which I understand lasted some 2 hours, and from Miss Fleming herself, Dr Pratt and from Miss Griffiths, the offender manager. The Offender Supervisor was unable to attend but the claimant was content for the hearing to proceed.[44]If one looks at the Decision Letter, it is set out in a logical fashion. Paragraph 3 is an analysis of the offending. It refers to the sentencing remarks of the trial judge, to which I have already referred. It refers to the history that during the sentence being served the claimant had been asked on several occasions account for his index offences. It is reports in that context on that which the claimant had told the Panel:
"Dr Pratt records that you do not dispute the finding of the trial judge that you effectively attempted to strangle your ex-partner and that you may have continued had you not been pulled away by a member of the public. You tell the Panel that you left Nadia because you were not coping well with the demands of living with her teenage children. You said that you formed another relationship but continued to see Nadia from time to time despite your bail condition precluding contact. You attributed your violence to feelings of anger, frustration and humiliation, especially after learning that she had entered into a relationship with another man, the brother of one of your friends. You felt Nadia had been lying to you. You asserted you had not wished to hurt merely to get her to listen to you. You also claimed you had put hands round Nadia's throat in order to control the situation ... You accepted in your evidence to the Panel that your relationship with Nadia had contained elements of domestic abuse in including violence ..."
The Panel then refer to the claimant having only one previous conviction for common assault which had been in 1990. However, that had been against a then ex-partner. Evidently he had grabbed her in the street, according to him, after she complained about something missing from her handbag. He was fined.[45]Then under the heading of "Risk Factors", having set out the primary risk factors to which I have already referred, the Panel say this:
"It is clear from your history that your risk factors are specially active in the context of a relationship. Any risk reduction will therefore flow particularly from your ability to cope with the vicissitudes and tensions of a relationship."
There is then an important section 5 headed "Evidence of change during sentence". It concludes:
"On this analysis the Panel drew the conclusion that you've not achieved as must change as would enable it safely and properly to contemplate a progressive move in your sentence."
This section shows that the Panel were concentrating, in my judgment in this section, on direction 5a of the Secretary of State's directions, namely that they take into account, amongst other matters, when valuing the risks of transfer against the benefit, (a) the extent to which the lifer has made sufficient progress during sentence in addressing and reducing 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.[46]The section shows how the Panel had regard in particular to Miss Fleming's conclusions following the engagement in several sessions of individual work, namely that overall the claimant had made significant progress in developing an active account of his offences but that he "still framed his violence in the context of trying to escape". The Panel refers to that section in her report where Miss Fleming had significant reservations about the claimant's level of progress, in particular as to the claimant being hyper vigilant against being victimised and being liable to become extremely emotionally aroused and defensive when criticised or challenged it. The Panel refers to Miss Fleming's report of a lack of recognition in the claimant of his victim's stance, and his consequential inability to challenge". The Panel refers to her recommendations of further work, with the four options of personality assessment, schemo therapy, further individual work with a psychologist on personality and victim stance, and referral at a therapeutic community. The Panel in this section emphasise that they had listened and observe carefully to the claimant giving his oral evidence. It acknowledged that he presented well in his evidence. It acknowledged that he had given a good account of his offences.[47]The oral evidence of Miss Fleming is important. This court was not present and has no record of her evidence other than what is in the Decision. The Decision records in this section her oral evidence that the claimant needed to take "more the generic responsibility and that his personality may still be a barrier", that she was not yet convinced he had the internal capacity for self management. The section refers how when "pressed by the Panel" Miss Fleming considered that the claimant was "on the cusp of a lot of change" but was "halfway there". It records Dr Pratt's evidence to the Panel that the claimant's presentation had shown improvement, compared to when he was saw him in the August and that he was a million times better than when interviewed in 2010. The Panel record giving the claimant considerable credit for the work the he had achieved. However, it is clear that the Panel were exercised by the outstanding issues which still needed to be addressed relevant to risk: This is is reflected in the section's final paragraph:
"The Panel accepted you had begun to make meaningful progress in readdressing your risk factors and reducing your level of risk. It was not so much exercised about your ability to provide an active account of your offences as the degree to which you have taken responsibility for them, your insight into your build up to the offences, and what still appeared to the Panel to be a residual victim stance."
It is quite clear to me that it is that conclusion, that the the claimant had made insufficient progress as regards insight, that informed the Panel's conclusion which is the key to its Decision that the claimant had not achieved as much change as would enable it the Panel safely and properly to contemplate a progressive move in sentence.[48]Miss Krause's challenge to the Panel's decision as regards Assessment of current risk and their consequential conclusions on the issue of transfer to open conditions, focuses on what is recognised to be correct, namely, the narrow nature of the risk which has been identified as being posed by the claimant . It is not a risk directed at the public at large but is a risk directed to the ex-partner, a known adult or any putative partner with whom the claimant may in the future form a relationship. In summary, it is said on behalf of the claimant that the evidence was all one way: that that was a narrow risk which was manageable in open conditions and that it was irrational for the Parole Board to extrapolate from the findings that there were still unaddressed areas of risk as regards the claimant's insight into his offences and his residual victim stance, a conclusion that it was not safe or proper to contemplate a transfer into open conditions. The factors identified by Miss Krause as being factors which were overwhelmingly in support of the conclusion that it would be safe to do so are listed in her skeleton argument as follows: First, that the claimant has served his tariff twelve times over. Secondly, he has engaged in an inordinate amount of offender behaviour work considering his relative minor history of offending. Thirdly, his risk is narrow (his relationships) and there is no evidence that he has continued contact with his ex-partner, against whom the risk is said to be potentially high. The last recorded contact was in 2009 and initiated by her. Next, that the claimant is 47 years of age and single and thus not currently presenting a risk to anyone. Finally, unless and until he is actually tested in open conditions in terms of the work he has done and his resolve to go about getting contact with his daughter through proper channels, he will be enable to reduce his risk further. The factors identified as contributing to his risk are, it is said, not directly related to his index offending.[49]With these matters in mind I turn to the Panel's reasoning after section 5. Section 6 is headed "Panel's assessment of current risk of re-offending and serious harm." It reads as follows:
"The Panel accepts the view that your risk of harm to the public is contextual in that it has manifested itself in the course of a relationship. You told the Panel that up until the index offences you had had four relationship with women including Nadia. In two of them there had been instances of verbal and/or physical abuse of your partner. The Panel was advised you pose a low risk of reoffending and it had no reason to dissent from that. On the other hand, if you were to re-offend, your risk of causing serious harm to a known adult ie Nadia or another partner is rated as high. The Panel endorses this view. Dr Pratt remained of the view that your risk of further violence is minimal. The Panel disagrees. Even before the index offences there was evidence of your using violence towards not only Nadia but also previous partner or ex-partner. From 2000 there was evidence of your volatility such that your partner referred for assessment by Mental Health Services. Subsequently there were episodes leading to other interventions. The Panel noted the circumstances of the index offences themselves which involved repeated and sustained violence, which could have had very serious consequences avoided only by intervention by a member of the public. The Panel has not been able to discount the possibility that you still harbour the wish to contact Nadia. You know where she lives. Understandably you wish to have contact with your daughter who lives with Nadia. This raises the risk of you finding it irresistible to visit and having contact with Nadia despite your assurance that your relationship has ended and you will go through the official channels to gain access to your daughter. Moreover Dr Pratt in his later report made a point of saying that one cannot exclude the possibility of Nadia contacting you. The Panel has borne in mind that you ignored a bail condition not to contact her and the contact you and Nadia had during this sentence up until 2009. For all those reasons the Panel has concluded that your level of risk remains potentially significant."
Then follows section 8 headed:
"Conclusion and decision of the Panel"
There is first the explanation of finding of the Panel that it was still necessary for the protection of the public that the claimant remain confined and hence there would be no direction in release. It is explained that the Panel had determined that the claimant posed a high risk of serious harm to a known adult, and although his risk of reoffending could be seen as low generally and was contextual "in your particular context it is unpredictable and essentially untested". There is no challenge to this conclusion of the Board declining to direct release.[50]The crucial passage on the question of transfer to open conditions then appears in these terms:
"The Panel has given very careful consideration to your suitability for transfer to open conditions. Mindful of the fact that this course had the support of your offender supervisor, your offender manager and Dr Pratt. Miss Fleming was equivocal on the point. The Panel has paid close attention to the directions of the Secretary of State. It is satisfied there is no evidence that you pose an unacceptable risk of absconding from open conditions. It has however had to consider whether you have made the degree of progress required in relation to changing your attitudes and tackling your behavioural problems. The Panel must place emphasise on the risk of reduction aspect of your case. As indicated in section 5 of this letter, the Panel has accepted that you had made some progress, not least in being able to provide an active account of your offending. You have completed some substantive interventions during this sentence. It has given credit for a positive presentation at your oral hearing. It has to weigh your risk assessment in the balance and to set Dr Pratt's more favourable views against those more cautious of Miss Fleming. The Panel has not been persuaded that your risk is more manageable in open conditions because it is contextual. In your case your risk is capable of reviving or increasing in open conditions if you contact your ex-partner or she contacts you. The Panel preferred the views of Miss Fleming and the reservation she expressed. It has concerns that your past volatility is not extinct and to make your risk reduction more secure, the issues identified by Miss Fleming in her end of contact report should be worked on. It considers this work shall be completed before a progressive move. It is not for the Panel to endorse any of the courses of action Miss Fleming proposes except to comment that to refer you to a therapeutic community could be seen as disproportionate. The Panel also had a concern that a personality assessment has not been undertaken and issues relating to your mental health are unresolved."
[51]Insofar as the Panel have found as they have, that the claimant's level of risk remains potentially significant and that that the Panel had not been able to discount the possibility that the claimant still harboured the wish to contact Nadia, I do not consider that such a finding is open to challenge on the basis of irrationality.[52]I refer again to the reservoir of knowledge and expertise of the Panel. The Panel not only had the evidence of Miss Fleming as to the outstanding areas as to insight which had yet to be addressed but it also was able to make its own assessment of the claimant from hearing his oral evidence. I do not accept the criticism of Miss Krause that the factors relied on section 6 were for the most part out of date factors, by reference to what had had occurred prior to the the claimant entering prison and prior to the offender behaviour work being undertaken.[53]I agree with Mr Manknell that in considering as the Panel had to direction 5(a), namely "the extent to which the lifer had made sufficient progress..." in circumstances where the lifer in open conditions would be in the community unsupervised under licenced temporary release, the Panel were fully entitled to form the view that the claimant in those circumstances might be in a position where contact with his ex-partner, whether initiated by him or her, might be made. Equally he could come into contact with another known adult while unsupervised in the community. I accept that there is a Prison Service Instruction of 2012, making clear that being approved for transfer to open conditions does not necessarily mean the prisoner is also suitable for temporary release, given it is the responsibility of the prison first to undertake a rigorous risk assessment of that suitability. However, that Prison Service Instruction cannot in terms dilute direction 5(a) which the Board were obliged to take into account.[54]It is also not without significance that as the Panel themselves recorded, that Dr Pratt himself had noted in his report of the 5th January 2011 that there was ongoing uncertainty regarding the ex-partner and her intentions. Although the factors Miss Krause urges upon this court as being indicative of only one outcome as regards assessment of current risk applying direction 5a, I do not accept that they were factors which inevitably meant that no reasonable Tribunal could have come to the conclusion which the Panel has come to. Again, as Mr Manknell observes in his submissions, the fact that the claimant has now served his tariff 12 times over is not something which in itself can undermine the reasoning of the Parole Board. There is no necessary correlation between time served and reduction of risk, although I accept the longer the time the more anxious the scrutiny should be as to whether or not it is necessary to continue his detention.[55]The fact that the claimant has engaged in an inordinate amount of offending behaviour work again cannot be decisive; it is the results of that work and whether there are any continuing concerns as recorded by the Panel which is of significance. The fact that there was no evidence of recent contact with the ex-partner while the claimant has been in prison, is not a factor which could be decisive in light of the 5a direction that the Board must take into account that the claimant would be in a position of being released temporarily into the community unsupervised.[56]The age of the claimant cannot be decisive. The argument that unless and until the claimant is actually tested in open conditions he will unable to reduce his risk further is not a factor in itself which can determine whether the claimant's risk has reduced sufficiently. The Parole Board, in my judgment, were entitled to form the view that the issues identified by Miss Fleming were ones which needed to be worked upon before there could be a sufficient reduction of risk for this purpose and that the work should in principle be completed before any progressive move.[57]Miss Fleming's views as to whether or not the claimant should be transferred to open conditions were undoubtedly equivocal. I can see no substance in the complaint that the Board gave too much weight to Miss Fleming's report, her being "trainee psychologist" in contrast to the little weight apparently given to the opinions of Dr Pratt and the probation offenders supervisor and the offender manager. Weight, as I have already indicated, is a matter for the Board and I can see no irrationality in their concluding as they have. It is clear that as far as is the 5a direction is concerned, that the Board were applying not so much the opinion of Miss Fleming as much as the Panel's own opinion formed albeit by reference to Miss Fleming's report, as to the continuing unaddressed areas of risk. They were entitled to form their own opinion based on their reservoir of expertise and knowledge.[58]Save for the third ground to which I shall come, I cannot see anything offensive as regards the Panel consideration of the 5a direction, that they simply referred to the competing views of Dr Pratt and of the offender supervisor and the offender manager, without detailing what those views were. They had the evidence in written form. They had heard the oral evidence. They were not obliged to set it all out in detail. The notion that they did not, as the regards 5a is concerned, have regard to the competing evidence is not sustainable in my view. I say this notwithstanding the fact, emphasised by Miss Krause that the source of the conclusion that if the claimant were to re-offend, his risk of causing serious harm to a known adult, ie Nadia or other partners, was rated as high, was an OASys assessment carried out by the offender manager who was in support of the transfer to open conditions.[59]I therefore reject the grounds based on irrationality and reasonableness (grounds 1 and 2). I reject the grounds which are to the effect that there was no evidence upon which a reasonable Panel could conclude against the claimant by reference to 5a of the directions.[60]However, I have no doubt that the the Board failed in its duty is in their failure to address direction 5(d). I repeat what 5(d) says. It is:
"The extent to which the lifer is likely to derive benefit from being able to address areas of concern and to be tested in a more realistic environment, such as to suggest that a transfer to open conditions is worthwhile at that stage."
There is no express reference to that balancing exercise in the decision. It is true that the Board refers to the need to have regard to the directions of the Secretary of State in the opening introduction of their decision. It is true that the Board refer to the support the claimant had for transfer from the offender's supervisor, the offender manager and Dr Pratt, which if analysed contains references to the benefits which could be directly derived from transfer. It is true that there is a reference to weighing the risk assessment in the balance and to setting Dr Pratt's more favourable views against those more cautious of Miss Fleming. However, nowhere do I find any passage not merely making plain that they have carried out what I have described as the fundamental balancing exercise, fundamental to the decision-making process, but in which they expressly state which factors which go towards benefit have been taken into account. I would adopt the words of Smith J in paragraph 38 of Gordon applicable to this decision:
"It does not appear to me that there has been real attempt to balance risk against benefit."
The offender manager for example expressly in the report we do have of March 2012, set out clear benefits to which transfer to open conditions would give rise. I have already set them out. I do not know what was said in the addendum but it must be reasonable to assume that her position had not changed. As I have also indicated, the offender supervisor in the recommendation in the addendum report of September 2012, expressly sets out the benefits to be gained in open conditions. The failure to balance those benefits against the Board's assessment of the extent to which the claimant had made sufficient progress during sentence in addressing and reducing risk to a level consistent with protecting the public from harm is, in my judgment, fatal to the legitimacy of this decision.[61]For all these reasons I grant this review and quash the decision, solely however on that ground.[62]MISS KRAUSE: My Lord, I am grateful. There is an application for costs as well as an application for --[63]MR JUSTICE KING: Before we do. Flowing from what I have just said, the order will be what? It should simply be quashed for them to reconsider?[64]MISS KRAUSE: Yes. Perhaps with your Lordship's judgment in hand.

MR JUSTICE KING: Of course.

[66]MISS KRAUSE: In effect the Secretary of State has to refer the matter to the Parole Board again.

MR JUSTICE KING: So it will be completely afresh.

[68]MISS KRAUSE: It will be my Lord. Two small matters if I may? I thought I heard your Lordship say "Crime Sentencing Act". I am not sure I did hear properly but it is the Crime (Sentences) Act and the other matter is that the Secretary of State is Mr Grayling in this respect.[69]MR JUSTICE KING: I probably have too many references in my head for the Secretary of State for the Home Department.[70]MISS KRAUSE: Quite. Immigration matters. An application for costs my Lord and also for legal aid assessment, should this be necessary.[71]MR MANKNELL: My Lord, I cannot resist those applications.[72]MISS KRAUSE: I am obliged.[73]MR JUSTICE KING: Thank you all for your assistance. I am sorry you have all be kept.

Cited in 5 later judgments