“The panel considers that alcohol significantly impacted on the events in the index offence, in disinhibiting all present, but also impacting on Mr McPhee’s decision making and ability to regulate his emotions.”
“The panel considers that Mr McPhee’s troubled relationship history has been a key area of risk, which became apparent from the point of his first recall but which has been reinforced over what is now three recalls on licence.”
“The panel assesses that Mr McPhee has sought to minimise the level of instability and problems within his significant relationships. … [The panel] does however note the pattern of reports of concerning behaviour, repeated in three relationships over many years, including following the apparently successful completion of specific risk reduction work aimed at behaviour within relationships.”
“1.25. The panel also notes the assessment by Police of Ms J [the person with whom the claimant has had his most recent ‘significant relationship’] as a high-risk victim of domestic abuse from Mr McPhee. 1.26. Perhaps most pertinent is Mr McPhee’s decision making within his relationship with Ms J having been released for the third time on IPP licence, and having completed the BBR programme. His continuation of the relationship, despite reports to Police of alleged violent behaviour, and where he says he was in fact the victim of assault by Ms J, indicate poor consequential thinking, a lack of understanding of the concerns of those managing him, and a lack of emotional regulation on his part. 1.27. The panel notes that Mr McPhee says he has now ended the relationship with Ms J, and she has also confirmed this to Mr Sproates-Davies. They say they remain close friends, and the panel notes that Mr McPhee continues to speak to Ms J almost daily, sometimes for lengthy periods. Mr McPhee told the panel this was primarily to discuss problems with L, his daughter with Ms G [a person with whom he was formerly in a relationship] who has regular contact with Ms J, and that he continues contact also because he has no other contact outside of the prison. The panel is sceptical of that account, and considers it likely that Mr McPhee and Ms J still have strong feelings for each other (Mr McPhee told the panel at the July 2021 hearing how he had loved Ms J) and that there must be, on the balance of probabilities, a likelihood of them resuming their relationship after he is released. … 1.30. The panel notes with some concern that after recall [in 2020], Mr McPhee was unlawfully at large for a period of three weeks, and was eventually located staying in a Holiday Inn with Ms J, where he was arrested and returned to prison. The panel is concerned that he sought to evade detection and chose to be with Ms J when he was aware of the professionals’ concerns about their relationship. 1.31. On his last release, Mr McPhee told the panel he would engage with MBT [Mentalisation-based Therapy] in the community, but once released, declined to do so. He told this panel that the timing was not right for him to do that work, and he wanted to establish himself before beginning the work. The panel understands the importance of feeling able to engage with the work, otherwise it is unlikely to be effective, but is concerned that Mr McPhee changed his mind relatively quickly after release, and remained disengaged until the point of his recall, which suggests a lack of motivation. The panel have concerns that he was again seeking to manage impressions when he offered the same promises to this panel in the oral hearing in November 2021. 1.32. Mr McPhee disputes that his recall was fair. The panel has considered the circumstances which led to the recall and is satisfied that it was fair and appropriate. Other measures had been taken prior to the recall to attempt to manage the increasing risk, which had not been successful, and therefore recall was required in order to maintain public protection.”
“2.10. Mr McPhee has been unable to complete risk reduction programme work since his recall, but has engaged well with the progressive regime at HMP Erlestoke and all reports of his behaviour in custody are very positive 2.11. It is Mr Sproates-Davies’ assessment that Mr McPhee has been unable to reflect on his learning, based on his record of behaviour when last in the community and when thinking particularly about the learning from the BBR programme he completed after his last recall and before his third release. 2.12. Mr Vincent disagreed with Mr Sproates-Davies in that assessment, and in Mr Vincent’s opinion he was able to reflect on what he learned during the Self Change Programme, and particularly about how he manages himself. He had evidenced those skills when he learned that Ms Smart was no longer his Community Offender Manager, and when he learned his new Community Offender Manager was not supporting his release. Mr Vincent told the panel that after the last hearing, Ms Smart had indicated to Mr McPhee that, despite the concerns around his phone call with Ms J and the non-disclosure material, she would continue to recommend his release. In those circumstances Mr Vincent found it understandable that initially Mr McPhee did not want to engage with Mr Sproates-Davies when he told him he had a different view to Ms Smart, and would not be supporting his release, but that Mr McPhee had been able to see that everyone was entitled to their opinion, even if he did not agree with it. 2.13. The panel on balance agreed with Mr Sproates-Davies’ assessment, and found that Mr McPhee has been able to a degree to use the skills to manage his emotions within the custodial environment, but there was little if any evidence (other than self-report) to confirm he was consistently applying his learning within the context of relationships in the community.”
“2.16. Mr McPhee told the panel he is a different man now to when he committed the index offence, and that he no longer has a temper, and has done a lot of work to recognise his triggers. He also reflected that his decision not to engage in MBT was wrong. He told the panel that drugs are no longer an issue for him, and that he knows alcohol will always be a risk, but he does not intend to drink heavily in future. 2.17. When discussing his relationship with Ms J, Mr McPhee did not consider that she was or could be frightened of him, and told the panel that instead it is she who gets angry, often very quickly once an argument starts. He said that whilst he understood their relationship was a threat to his continuing liberty on licence, he continued the relationship because he loves and cares about her. 2.18. Mr McPhee, in his evidence to the panel, continued to deny much of the domestic abuse alleged by his three significant partners … The panel assessed that Mr McPhee continues to minimise his behaviour within relationships, and to minimise the patterns that are evident, including partners repeatedly feeling the need to call Police. Whilst Mr McPhee is able to speak clearly about his learning from BBR, he aligns that to his verbally abusive behaviour in the past with partners. Having completed that work, he was unable to use the skills learned in order to have a healthy relationship with Ms J, even on his own account. The panel also noted with concern that Mr McPhee has consistently declined to discuss the allegations of domestic abuse (other than flat denials) with Mr Sproates-Davies.”
“3.1. The panel has concluded that the risk factors currently present are situations where Mr McPhee feels provoked or attacked, either by a partner or an unknown member of the public, or if he suffers a perceived slight from a partner; arguments and conflict within relationships; financial difficulties; feelings of grievance, and situations where he struggled to reflect on his offending behaviour work. Alcohol and drug misuse would also be significant risk factors, impacting as they would on his ability to think clearly and regulate his emotions. 3.3. The risk management plan identified by Mr Sproates-Davies includes him initially residing in Approved Premises, with no current bedspace specifically identified, but it is hoped he could be accommodated within the Bristol area. He would be subject to alcohol testing within the Approved Premises, and close monitoring with a curfew, check-in times during the day, and regular appointments with a keyworker and other staff members. 3.4 He has been screened into the OPD Pathway Project, and so psychologists would be involved in supporting his supervising officer, as well as assessing him for and implementing the MBT work. Any other appropriate one-to-one work would also be identified. … 3.7 However, the panel noted and agrees with Mr Sproates- Davies’ concerns about the ability of the risk management plan to manage Mr McPhee’s risk. His last period on licence, after completing specific risk reduction work around relationships, presented a number of occasions where he disregarded advice from his supervising officer about his relationship with Ms J, which led to additional conditions having to be imposed, which were again broken when he stayed in the Holiday Inn with her whilst unlawfully at large. There were a number of Police call outs, which underlined the importance of complying with those conditions. He was convicted of a further offence of violence, and there were allegations of violence made, although not prosecuted. Notably, having indicated strongly at the last hearing that he would engage with MBT work on release, he then refused to do so. 3.8 The panel agrees that the MBT work is likely to be a very important part of enabling [Mr McPhee] to apply learning in a better and more consistent way, particularly within relationships. His relationship with Ms J, albeit said at this time not to be as a partner but as a friend, is very likely (in the panel’s assessment) to continue at least in that form if not resuming as an intimate relationship, and the risk management plan as it stands will only manage that risk if Mr McPhee complies. Therefore compliance is key part of the assessment of risk in this case, and the panel has concerns that he will not comply. Evidence and history has shown, in Mr McPhee’s individual case, that his good compliance and engagement in custody is not a guide to his compliance and engagement in the community.”
“4.11. The panel then moved on to consider whether he is suitable for progression to open conditions. 4.12. Looking at the progress he has made, it is agreed that there is no further core risk reduction work for him to complete, he has had a successful period of time in the progressive regime at HMP Erlestoke, and he is reported to have been better at managing his emotions, stress and feelings of depression, albeit not to the level the panel would need to see in the community for risk to be manageable on release. 4.13. The benefits of a move to open conditions would be the ability for Mr McPhee to access ROTLs, for professionals to monitor his relationship with Ms J in less secure and restricted conditions so that the recent changes which are reported to the relationship can be looked at over a more prolonged period, and the way in which he manages the relationship during periods of temporary release can be monitored and discussed with him and Ms J (if she is prepared to do so). If Mr Sproates-Davies is correctly informed, he will be able to access MBT whilst on ROTLs, which would be very beneficial. He can also look to gain work experience and potential work placements, and to build a support network in the community outside of Ms J. His compliance can also be better tested. 4.14. The panel is satisfied that the risk he poses is manageable in those less secure conditions, given his good general compliance in custody, and the short periods he would be on temporary licence. 4.15. Finally, the panel agrees that he does not pose a significant risk of absconding, although it cannot be ignored completely given his period of being unlawfully at large after recall. 4.16. Having balanced those four factors, the panel has decided to recommend Mr McPhee’s progression to open conditions. It will now be for the Secretary of State to decide whether to accept that recommendation. 4.17. A future panel considering Mr McPhee’s case is likely to benefit from evidence of him engaging with MBT (if it is made available to him), a review of how he has managed his relationships in less secure conditions, and evidence of him applying the learning from previous risk reduction work.”
“There are concerns around compliance in the community from your COM and the Secretary of State considers that this is likely [to] apply to your compliance with ROTL, if located in open conditions.” (See also the twelfth bullet point.) The problem with this is that it does not rise above the level of assertion and is not accompanied by any reasoning. Neither the POM, Mr Vincent, nor the COM, Mr Sproates-Davies, had given evidence that the risk could not be managed in open conditions, and the panel accepted that it could be managed in open conditions, though it rejected Mr Vincent’s view that it could be managed in the community. The identified risk concerned primarily the claimant’s behaviour within intimate relationships with women; that being so, the conclusion in paragraph 4.14 of the panel’s decision letter (paragraph 18 above) makes sense and the defendant has not given any proper reason for disagreeing with it. The Decision records, as part of its supporting evidence: “The COM confirms that your most recent relationship has now ended, however they think it likely that it will be restarted once you are in the community.”